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IN THE HIGH COURT OF CHATTISGARH AT BILASPUR WP No 1571 of 2006 Parvatia ...Petitioner VERSUS 1 Padmini 2 Geeta devi 3 Darupadi Bai 4 Jankibai 5 Renuka 6 Hembai 7 Presiding Officer Polling Booth No 114 8 Presiding Officer Polling Booth No 115 9 Returning Officer Cum Nayab Tahsildar 10 Sub Divisional Officer 11 M D Kanvre Sub Divisional Officer ...Respondents ! Shri Rajesh Pandey Advocate with Shri Rakesh Pandey Advocate for the petitioner ^ Shri B D Guru Advocate for respondent no 1 Shri Utkarsh Verma Deputy Govt Advocate for the respondent no 10 and 11 HONBLE JUSTICE SHRI SATISH K AGNIHOTRI Dated: 17/04/2007 : Order WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS/CERTIORARY ETC. OR DIRECTION/ORDER IN THE LIKE NATURE ETC. ORDER (Passed on 17th day of April, 2007) 1. The petitioner is the elected Sarpanch of Gram Panchayat Govinvan, Tahsil Bilaigarh, District Raipur in the election held on 15.01.2005, after drawing a lot on 18.01.2005 by the Returning Officer, as the petitioner and the respondent no. 1 secured equal number of votes i.e. 365- 365. 2. The respondent no. 1 filed election petition under the provisions of section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as `the Adhiniyam, 1993) on 21.2.2005 before the Specified Officer i.e. the Sub Divisional Officer, Bilaigarh, District Raipur. The petitioner filed her written statement to the election petition and submitted specifically that the petitioner and the respondent no. 1 had secured equal votes and with the consent of respondent no. 1, the result was declared on account of draw of lots. Respondent no. 1 did not raise any objection to the procedure of draw of lots. Thereafter, the Specified officer, without framing issues and without conducting the trial of the case, directed for recounting of votes. The said order was impugned in W.P. No. 3187 of 2006 (Parvatia Vs. Padmini & Others). This Court, vide order dated 31.8.2005, set aside the order passed by the Specified Officer and directed the Specified officer to proceed with the matter and decide the same after giving opportunity of hearing to the parties to adduce their evidence and cross examine the witnesses of the other parties. The Sub Divisional Officer, thereafter, framed issues and examined the evidence adduced by both the parties and after considering, came to the conclusion that the son of the petitioner congratulated the son of the respondent no. 1 which led into victory procession on the basis that counting slips of polling station no. 114 and 115 was not given to all the agents except to the son of the petitioner. Accordingly, the Sub Divisional Officer directed recounting of votes polled in polling station no. 114 and 115 of Gram Panchayat Govinvan vide order dated 21.03.2006 (Annexure P/1) 3. Being aggrieved and dissatisfied with the impugned order, the petitioner vide this petition has, challenged the legality and validity of the impugned order. 4. Shri Rajesh Pandey, learned counsel appearing for the petitioner would submit that the Specified Officer has directed recounting of votes without any application made for the same during counting of votes before the appropriate authority. The order passed by the Specified authority is contrary to the principles of recounting of votes as laid down by the Supreme Court in various cases. The respondent no. 1 has acquiesced for re-counting of votes as respondent agreed for declaration of result by draw of lots without any demur. The petition ought to have been dismissed on the ground of lack of material facts and proper pleadings regarding irregularities and illegalities committed in the counting of votes. The verification of the election petition was also not in accordance with law. 5. Shri B.D.Guru, learned counsel appearing for the respondent no. 1 would submit that the contention of the petitioner that the verification of the election petition was not in accordance with law, could not be permitted to be raised at this stage when the petitioner has not raised the said ground in the election petition. Secondly, the ground of lack of material facts was also not raised in the election petition seeking for dismissal of the election petition. On other grounds it was contended that the sufficient opportunity of hearing was not given to the respondents to raise the issue, and even otherwise the respondent no. 1 is not debarred from raising issue of re- counting of votes after the result by draw of lots has been declared. 6. I have heard the learned counsel appearing for the parties, perused the pleadings and documents appended thereto. The question of maintainability of election petition on account of infraction of Rule 5(a) and (c) of C.G. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as "the Rules, 1995") was not raised before the Specified Officer. The verification was not in accordance with law was also not raised either before the Specified Officer or in the pleadings before this Court. 7. The respondent no. 1 in her election petition has pleaded the material facts as under: 8. The petitioner, in her written statement dated 23.3.2005 (Annexure P/3) has not objected to lack of material facts the defects in verification. The evidences were examined. On perusal of the election petition, it is evident that the respondent no. 1 has pleaded material facts and particulars with regard to relief for recounting of votes. So far as the defect in verification is concerned, that was neither raised in the written statement filed by the petitioner nor in the petition filed herein. 9. Law in regard to counting of votes is well settled. The Supreme Court, in case of P.K.K.Shamsudeen, v. K.A.M Mappillai Mohindeen, (1989) 1 SCC 526, observed as under : 10. In cas of M. Chinnasamy v. K.C. Palanisamy,(2004) 6 SCC 341, the Supreme Court held as under: "28. The law operating in the field is no longer res integra. Inspection of ballot papers can be ordered when in the facts and circumstances obtaining in the case, the Tribunal finds it necessary to so direct in the interest of justice. Discovery and inspection of documents with which the civil court is invested with power under the Code of Civil Procedure when trying a suit may be applied but such an order would not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers. Such an inspection may be ordered when two conditions are fulfilled: ( i ) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and ( ii ) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary." 11. In case of Chandrika Prasad Yadav v. State of Bihar (2004) 6 SCC, the Supreme Court has held as under: "20. It is well settled that an order of re- counting of votes can be passed when the following conditions are fulfilled: (i) a prima facie case; (ii) pleading of material facts stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and (iv) an objection to the said effect has been taken recourse to. 21. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a re-counting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for re- counting." 12. In the case of Gursewak Singh v. Avtar Singh (2006) 4 SCC 542, the Supreme Court has held as under: 13. The decision of this Court in Ramdeo Ram Vs. Vijaynath and others, 2007(1) CJLJ 215, relied on by the learned counsel appearing for the petitioner is of no help to the present case as in the present case, no objection was raised at any point of time either in the election petition or in the writ petition with regard to lack of material facts or incomplete verification as per law. 14. It is clear from the law laid down by the Supreme Court in various cases cited above that the election petitioner must prove proper pleadings in order to seek relief of recounting of votes. In the present case, on perusal of the writ petition, it appears that the petitioner has sufficiently pleaded the material facts for grant of relief of recounting of votes. 15. I am of the considered opinion that the order of recounting of votes directed by the Specified Officer on the basis of pleadings and on the evidences adduced by the parties is just and proper and needs no interference by this Court. 16. In view of the above, this petition stands dismissed. JUDGE

Parvatia vs M D Kanvre Sub Divisional Officer on 17 April, 2007

Chattisgarh High Court

IN THE HIGH COURT OF KARNATAKA CIRCU§'¥' BENCH AT DHARWAI) V V DATED THIS THE 6371 DAY 09' APR:L..é§0§'~J.:: " 8E:'?oRE',_ . I--§ON- gm: MR. .JUS."i'I(_3E A;'m' '.3 GU1smg:.1,':4_ 2 WRIT f~'E'£'I'l'I{)N No.3056":.,..fc>:a' 120673-£C§M"-- 'I' E§N} BETWEEN : M/S. SREE GAJANVANAA90vz.;ER"c:§3N'":'RQLs PVT: LTD. COMPANY Rgr31'e;'r_r«:RE:j L§N?£)ER 'I"§{'EV .C{}MPAi'~IIES ACT N01, swwc, '--4TH5;?1e}A~SE_, 1%?' Mam KHB, YELAi!~iAr§'1<A"'N:::w'*£§:>fi.t2r>z ' BANGALGMEV _ ' - BY ITS MAN.AGI--NCi*r {:;:RE:f'i*0.:2 S NAGARAJAAA .. V s/0 LATE SE~RIYAPPA A332: 54.. YEARS._ PETITIONER §§'f 3.§§'£a.._{iARSH DESAI, A§3V.,) 1. H§;H':5L§""ELECTRICI'I'Y SUPPLY COMPANY {HESCGM) A WHOLLY OWNED GOVERNMENT .A _ CF KARNATAKA UNDER'TAKiNG V "--._REGIS'T'EREB UNDER' THE COMPANEES AC1' CORPORATE QFFICE, NAVANAGAR i?'.B.RGA£), HUBLJ ---- 580 025 BY ETS MANAGENG QIRECTCR V' 2. THE supskimgzmlma ENGINEER (EZLE) PURCHASE fit. TENDERING BURL,-I ELECTRECWY SUP¥'LY COMPANY F-J (HESCQM) A WHOLLY QWNEZD GOVERNMENT OF KARNATAKA UNDERTAKING REGISTEREB UNDER THE: COMPANIES « '~ ;_. CORPCZIRATE QFFICE, NAVANAGAR ' " RB. ROAD, HUBLI - 580 0:25 {BY 31%;. M B KANAVI, ADV. FOR éirg, :53; RE(3EiVEli)) TEES PETINQN FILED Lxgqjm ART~§CLL~7' S '.§£4Z6H& 22? 09' COSNTETUTION OE INfiIA_..__ 'j1>vR;A¥;NG '1*O._Qzg,AsH Tm; TERMIEQATIGN NOTECE 'QT. _«11«8«~{)_$VPA.SSED*BY THE 2% RESPONDENT AT ANNE;xU.s2h:_gv%.i.AND-- }Qi!AsH THE TENDERN€3TIF¥CA'I'IOI\E DT.28~8--2O(;'*-8"'1ISS¥}1¥:F;r,_'_'BY THE 2% RESF'ONDE§'~IT AT. ;mNE;:»:LIR;::--x.._~.__ ' 'I'§{I_S s;v,1¥='*; éfi:::;j;r_M1:s}"C._§i)AN' :r..é ),:a§ s£>Rm«:;2s THES DAY, THE COURT MADETH E7]F'GL£()'¥5JING: u §§BER _{ 'Without ixifisra the factual aspects of the matter, su fii<::*: '"it: i:»:>: "§;s;7gy, gursuamt is the interim mtier grantad by "'*ffhi4*'=7__ 26.9.2008 as an interim msasure, rcs§s<>nc3V_iér1t~3:"' Wait directeé to permit ths petifioner ta "':1fidefiakE and eemplete the remaining labour p{}I'tiGI1 of {hit %55fi:r§:..«A"with;'n_ a periafi of two menths fmm that day; faiki" ' 1% .,}¥}t1ich it was 09:33"; for the I'6Sp{3};1€§€I);'£S to initiaifi acti-mg V' against {ha petiticzner in ';€::rm3 of the ttamract, Erzdeed, even aftfir :::<:pir}:' 9? twa mutfihsg the pstitiener has 110%. $663 able /. to Camply the direetitim issued by this Ceurta We art: 2069, whée::h shmfid nscessarily mean that haé Six months time to Cempletc the work. " been dame. Another a§p11'cati0:(1 V3';-S3""II3..5,1'¢1i{'3 V iiizzzfi ta comply with the: 011161' ciatedi"-26}'_( )9.'L29;{)8, ' ' 2. Mr. Harsh Desai, 1_e_:_;§i:1_mi._V¢c:ui1se1:app%:aIi11g for the petitioaer submits V1:'»:-33'; }3§§*£»£Vti(;1: ;§:1fi'isbb in the procsss of acquirillg necessazy :iI1£;as:1c.r§1ciu1feL'_f(§'i*' the Work. }~{ez1ce§" S6§1€.:\:j;n01;é:'§V «::.:1a3'« BE%' Vyvgrantcé to complete the werly ,,,_A'I':13._.'-3 ViSv._.Vé;p1:$g:sed by the iearxzttd counsel appeaxing xfiaré rcspgnédxfiét §11f:ie::i€1, the oréer passed by this Court an 26.f}§.?{}{}8' it.§e1f is compiett: sorder, in as much as, if the Wéi51g«iS";§é*t.C§§t1}§1€teé within two months it was open fer {ha I3f3Sf~'1'}I}i§.éI.}.T(;S'.V' to initiate approyriate action against this . _ g:~:i:i*..:i_'t':ite:>::;h'<:;:3:¢§ in isssrms of E116: Cazfmract. E! is 3230 ts be naticed ' "f_1;:;3:i--A'{}f1e respenéants have not iizzitiatad any action as against -~.{EV1e gstitionezg :mtwitI:standi13g the fact that {hit time fl /./7

Author: Ajit J Gunjal

M/S Sree Gajanana Power Controls ... vs Hubli Electricity Supply Co on 6 April, 2009

Karnataka High Court

JUDGMENT Bennet, J. 1. This is an execution second appeal by a decree-holder whose application for execution has been dismissed by the lower appellate Court which sustained the objection of the judgment-debtor. The decree-holder had a simple money decree against the judgment-debtor dated 10th May 1927 which had been upheld in appeal, the appellate order of this Court in second appeal being dated 12th February 1931. An application was made under Order 21, Rule 11. for execution of the decree. The method in which execution was desired in column 10 of the form states: The decree-holders say that Rs. 1,693-11-6 may be caused to be realized by attachment and sale of the property given in the inventory attached hereto. 2. This was the ordinary application for execution of a simple money decree by attachment and sale of the property under Order 21, Rule 30. No objection was taken to this application as such but on 10th April 1933, the judgment-debtor filed an objection stating that the judgment-debtor had hypothecated a certain house which had been attached in lieu of the amount due to the decree-holder by security bond, dated 28th March 1928, and as long as the decree-holder did not file a suit in the Court on the basis of the security bond and obtain a decree for sale and for enforcement of the hypothecation lien the said house could not be sold in execution of the decree for the amount according to law. The Court of first instance held that it was the original decree which was under execution and there was no proceeding in execution for realising the security money, and the objection was dismissed. The judgment-debtor made an appeal to the lower appellate Court in which he urged that the amount payable under the decree of the original Court and costs of the appellate Court decrees had merged in the security bond and that no amount remained outside the the security bond which can be retailed by the execution Court, and therefore it was necessary for a suit to be brought on the hypothecation bond. The lower appellate Court framed an issue: Whether the house could be put to sale in execution of the decree without the decree holder obtaining a decree under Order 34, Rule 5, Civil P.C., in respect of that house by a separate suit. 3. The lower appellate Court failed to notice in its judgment that the application was an ordinary application for execution of a simple money decree by attachment and sale and it appears to have persuaded itself that the application was one for realisation of the security bond. It held that a suit must, be filed for the sale of the property mortgaged by the judgment-debtor and the application in execution was dismissed. In this Court learned Counsel for the judgment-debtor relies on the ruling of a Full Bench in Khair-un-nissa Bibi v. Oudh Commercial Bank, Fyzabad 1933 All. 269. In that case the appellant sued for a decoration that he was not bound by the first final decree for sale passed in a mortgage suit. The suit was dismissed and she filed an appeal in the High Court and applied for an order restraining the respondent from executing the decree for sale. The Court ordered an additional security of Rupees 6,000 to be deposited. The appeal was dismissed by this Court and the respondent applied for the sale of the property in execution proceedings. On p. 145 (of 1933 A.L.J.): The question to be determined is whether for the realization of security given on 14th May 1926, by Khair-un-nissa Bibi, the Oudh Commercial Bank should have recourse to a suit or whether it can execute any decree or order, and if so, what decree or order. 4. It was held that the order in question was not executable as an order and the remedy of the respondent lay in the institution of a suit for the sale of the property mortgaged by the appellant. These facts show that the proceeding in question was quite different from the present execution proceeding. In the Full Bench ruling there was no case of a decree-holder asking for attachment and sale in execution of a simple money decree. On the contrary the decree-holder asked for the enforcement of a hypothecation lien on immovable property mortgaged as security in a suit. In the present case it was open to the decree-holder to proceed on the security and if he desired to do so it would very probably have been necessary for him to proceed by a suit. That question is not before me and it is not necessary for me to determine it under the circumstances of this particular case. The question which is before me is whether the decree-holder should be allowed to proceed by way of attachment and sale in satisfaction of a simple money decree as he has applied to do in his application. The matter of the security bond was introduced merely by the judgment-debtor. The objection put forward by the theory that because there had been a hypothecation lien the rights of the decree-holder under his simple money decree had ceased to exist. No authority has been shown by learned Counsel for the judgment-debtor for that proposition, nor has he attempted to argue the case before me on those lines. I consider that there is no force in such an objection. Under these circumstances the case stands now that no other objection has been taken to the application for execution. The application therefore is one which ought to be granted. Accordingly I allow this second appeal and I restore the order of the Court of first instance dismissing the objection and directing that execution should proceed. The decree-holder is allowed costs in all Courts. 5. Learned Counsel asks for permission for Letters Patent Appeal, but it is not shown what material there is which he can lay before a Letters Patent Bench. The application is therefore refused.

Author: Bennet

Ganesh Prasad And Anr. vs Ram Karan Shukla on 30 October, 1934

Allahabad High Court

JUDGMENT N.D. Ojha, J. 1. The prayer in the writ petitions is for quashing of the proceedings in a case arising out of First Information Report No. 472 dated 3rd May, 1978 under Section 448 I.P.C. P.S. Moti Nagar pending in the Court of Shri S.P. Singh Choudhary, Additional Sessions Judge whereas the prayer in the miscellaneous petitions is for initiating contempt proceedings against (1) State through Administrator, Delhi Administration (2) Shri R.K. Sharma, Inspector General of Police, Goa and (3) Shri Ajai Chadha, Deputy Commissioner of Police (west Zone), New Delhi. On these writ petitions and criminal miscellaneous petitions notice was issued by this Court on 23rd August, 1988 confined to Respondents 1 and 2. 2. The facts giving rise to these proceedings may be stated here in a nutshell. The petitioners are being prosecuted on the basis of the allegations made in the First Information Report referred to above in the Court of an Additional Sessions Judge. Writ Petition (Criminal) Nos. 359-362 of 1987 were filed by the petitioners before this Court for quashing all the proceedings in pursuance of the aforesaid First Information Report on various grounds. These writ petitions, however, were dismissed by this Court on 13th July, 1987 by the following order:- The Writ Petition is dismissed subject to the direction that the trial of the case will go on from day-to-day after the Learned Addl. Sessions Judge fixes a date for commencement of the trial some time in the third week of August, 1987. The Prosecution Agency will take every steps to summon every witnesses and have the case disposed of. If the copies of the documents have not been supplied to the accused so far they will be supplied forth with. 3. The present writ petitions seem to have been filed on or about 23rd July, 1988 and the case of the petitioners is that in view of the order of this Court dated 13th July, 1987 the criminal case pending against them ought to have been decided near about 3rd week of August, 1987 and since not only the case had not been decided till the filing of the writ petitions even charge had not been framed, even though about 110 dates were fixed in the case, the proceedings before the Additional Sessions Judge in the case aforesaid deserve to be quashed. 4. In the criminal miscellaneous petitions for initiating proceedings for contempt the case of the petitioners is that since the prosecution agency had not taken the required steps to summon me witnesses as directed by this Court in its order dated 13th July, 1987 they are guilty of disobedience of the aforesaid order. 5. The writ petitions as well as the criminal miscellaneous petitions have been contested by the respondents. Their case is that the prosecution is not responsible for the delay in the disposal of the case alter the order of this Court dated 13th july, .1987 nor has any of t respondents done any such thing for which proceedings for contempt may be initiated against him. As seen above, the petitioners had filed Writ Petition (Criminal) Nos. 359-362 of 1987 for the quashing of the proceedings before the Additional Sessions Judge on various grounds but the writ petitions were dismissed. That order has become final and consequently none of those grounds can he considered again to constitute the basis for quashing tile proceedings.' Even.otherwise, in the present writ petitions the grievance of the petitioners is with regard to the delay after the order of this Court dated 13th July, 1987 in the earlier writ petitions. 6. The short question which, therefore, falls for our consideration is as to whether the proceedings before the Additional Sessions Judge deserve to be quashed on account of the case not being disposed of after the order dated 13th July, 1987 and before the filing of these writ petitions. A copy of the running order sheet of the case from 23rd July, 1987 up to 19th August, 1988 has been filed on behalf of the respondents and we have been taken through the said order sheet. Having gone through the same we find it difficult to agree with the submission ma4e by Diwan Naubat Rai, Petitioner No. 1 who has appeared in person and argued the case on behalf of the petitioners that the proceedings in the case deserve to be quashed on account of the non-disposal of the case after 13th July, 1987 till the filing of the writ petitions. The order sheet indicates that the Additional Sessions Judge has made an effort to proceed with the case as far as possible from day to day and in this process in the period of about one year nearly 110 dates were fixed in the case. It, however, is apparent from the said order sheet that out of these 110 dates only on about 10 dates the case was adjourned at the instance of the prosecution. 7. It is the petitioners' own case that they applied before the Additional Sessions Judge for discharging them under Section 227 of the CrPC. The said section contemplates that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf the Judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. It is only after such consideration and hearing as contemplated by Section 227 Cr.P.C. that the Judge can frame charge if he is of opinion that there is ground for presuming that the accused has committed an offence, 8. At this place it will be useful to give a resume of the order sheet. It appears that after the order of this Court dated 13th July, 1987 the case was taken up on 23rd July, 1987 on which date notices were ordered to be issued to all the accused persons to appear on 5th August, 1987, The case does not appear to have been taken on 5th August, 1987 for some reason which is not clear, there being no order sheet of that date and was taken up on 6th August, 1987. On that date Petitioner No. 1 Diwan Naubat Rai moved an application for summoning a medical record of the accused. Another application was moved on behalf of the petitioners for summoning Diwan Naubat Rai under Section 311 Cr. P.C. and for summoning certain record for that purpose. Copies of these applications were directed to be given to the Assistant Public Prosecutor for replies being filed and the case was ordered to be put up on 17th August, 1987. On that date an application was made for exemption on behalf of the petitioners along with medical certificate which was allowed and the case was ordered to be listed as prayed for further proceedings on 24th August, 1987. The case could not be taken up for some reason which is not clear on 24th August, 1987 and the Assistant Public Prosecutor was on leave on the next two dates. The case was then taken up on 2nd September, 1987. The order sheet of that date is reproduced hereunder inasmuch as on account of this order at a subsequent stage the case was transferred to the court of another Additional Sessions Judge. It reads:- 'Present: APP for State. All the accused in person. Accused Sham Lal states that he has engaged a counsel who is not available. Accused Om Parkash and Pramod Kumar have not engaged even a counsel. I direct them to engage a counsel. As the accused declined to get any amicus curiae appointed, they may think it over again in their own interest. Dewan Naubat Rai is shouting and stated that they could not engage any counsel. I asked him that in case he persists in this way, I may be forced to move against him for contempt of the court. I give him this last warning and adjourn the case. Case shall come up tomorrow. As this stage, Dewan Naubat Rai states, he would be busy before the High Court in connection with off-shoot of civil nature of this very matter and the case may not be taken up tomorrow. Case is adjourned to day after tomorrow i.e. 4.9.1987. Sd/- ASJ/2.9.1987." 9. There after the case could not be taken up on various dates up to 15th October, 1987 as either the Assistant Public Prosecutor or the presiding officer was on leave. On 15.10.87, the case could not be taken up as one of the accused was ill and on 21st October, 1987 as the lawyers were on strike and the Assistant Public Prosecutor was also not available. The case as requested was adjourned to 26th October, 1987. On that date in view of the fact that some of the accused had not engaged an advocate and were simultaneously insisting that they will not like to have an amicus curiae, Shri S.N. Kapoor, the Addl. Sessions Judge, in view of the provisions contained in Section 304(1) Cr.P.C. and the order dated 2nd September, 1987 directed the file of the case to be put up before the District Judge on 28th October, 1987 for transferring the case to some other court. 10. On 28th October, 1987 the District Judge transferred the case to the court of Shri V.S. Agarwal and as a request was made on behalf of the petitioners to fix some date after 3rd November, 1987 they were directed to appear before the transferee court on 6th November, 1987. On that date the transferee court directed the court clerk to register the case and check up the file. He also directed the Assistant Public Prosecutor to supply the copies for which applications had been made by the petitioners or to file reply to the applications by 13th November, 1987. On this date copy of an application dated 25th July, 1987 was ordered to be sent to S.H.O. Moti Nagar with a direction to appear and produce the concerned record on 20th November, 1987. Four copies of DD entry were given to the accused on 20th November, 1987 but they prayed for three more such copies to be given for which S.H.O. Moti Nagar who was present in Court prayed for some time and the case was adjourned for 30th November, 1987. On that date a fresh application was moved on behalf of the accused for supply of certain documents and a statement was also made that barring the documents mentioned in the application filed on that date no other documents were required. Copy of the said application was supplied and the Inspector was directed to verify as to which of the documents mentioned at items of the application were available. It was also ordered that copies of the same may be supplied and the case may come up on 2nd December. 11. Copies of some entries were supplied on 2nd December and an order was passed directing S.H.O. of P.S. Moti Nagar to appear on the next day, namely, 3rd December so that other copies may be supplied. The case was adjourned on 3rd December at the instance of the petitioner Diwan Naubat Rai and on 4th December copies of some more entries were supplied and a direction was given to produce the D.O. letters mentioned in the personal search memo on the accused on 5th December. On this date it was stated that the Rojnamcha B of 3rd May, 1978 had been destroyed. A direction was, however, issued on that day that the personal search articles in- so far as Diwan Naubat Rai, accused is concerned "including the mentioned 2 letters'" be produced on 7th December. On this date M.H.C.(M) from Police Station Moti Nagar was present but had not brought the 2 D.O. letters. Me. wHS directed to appear on 8th December to stale specifically about those letters, Even on this date the D.O. letters were not produced and S.H O. of P.S. Moti Nagar and S.I. Ramesh Pal Singh were called for 9th December. On that date due to strike of the doctors in THE area a request was made for adjournment and 10th December was fixed, A statement was made on 10th December that investigation was conducted by Inspector Om Dutt and that there was no mention of the 2 D.O, letters in Register No.19. Inspector Om Dutt as well as Inspector Ramesh Pal Singh were directed to appear on 11th December on which date copies of the D.O, letters were supplied and the cast; was ordered to come up on 14th December for arguments on the application under Section 311 and the other application as also for consideration of charge. The case could not be taken up on 14th December as the presiding officer was busy in recording evidence in another case and was adjourned for 16th December. On that date the original F.I.R. was summoned for 17th December. But this could not be produced on that date. Arguments on the applications were, however, commenced and the original F.I.R. was directed to be summoned on 18th December. On this date the original F.I.R. register was produced. A photostat copy of the F.I.R, was got prepared in the presence of the accused and supplied to them and the case was directed to come up on 19th December for arguments on the pending applications and on the point of charge. The matter was argued on 19th December also and was adjourned for 2nd January, 1988 to enable the Assistant Public Prosecutor to make an application under Section 311 Cr.P.C. The application was made on 2nd January, which was not opposed and was allowed and the case was ordered to come up of 4th January. On this date the case was again heard and ordered to be put up on 16th January. It appears that a cross case was also pending in the court of Shri K.P. Verma, Additional Sessions Judge and a request was made on 16th January to transfer this case also to the same court. In view of this request the file was ordered to be put up before the Sessions Judge on 18th January. The presiding officer being on leave on 18th January the case was ordered to be put up on 20th January. On this date the Sessions Judge in place of transferring the case to the court of Shri K.P. Verma withdrew the cross case from his court and transferred the same to the court of Shri V.S. Agarwal and the tile of this case also was sent back. The accused were directed to appear before Shri V.S. Agarwal on 29th January. The case was registered on that date in the court of Shri V.S. Agarwal and was ordered to be put up on 1st February for arguments. On this date one of the accused was unwell and an application was filed for exemption along with a medical certificate indicating that he had been advised rest till 10th February; The case was consequently directed to come up on 11th February for arguments. On 11th February, however, an application was again made stating that the said accused continued to be unwell. The case was, therefore, ordered to come up on 15th February. On this date on a prayer being made in this behalf the case was ordered to come up on 16th February. At the request of the accused, however, the case was ordered to come up on 17th February. On this date arguments were heard in part. Thereafter arguments continued on the next several dates the last of such dates being 2nd March. On this date it was pointed out by the accused that some documents had been filed by them and the Assistant Public Prosecutor may be required to admit them. The Assistant Public prosecutor prayed for some time to get instructions and the case was ordered to come up on 9th March. On 9th and 16th March the Assistant Public Prosecutor was unable to admit or deny the documents as he had not received instructions and the case was adjourned for 29th March. On this date also the Assistant Public Prosecutor showed his inability to admit or deny the documents in the absence of instructions. In view of the order of this Court directing the hearing of the case to be expedited the Additional Sessions Judge took the view that the case could not be adjourned any further for the said purpose and directed it to be taken up on 2nd April for further arguments. Arguments on the point of framing charge were thereafter heard on 2nd, 5th and 6th April. The Assistant Public Prosecutor prayed for some time to give his reply and the case was ordered to come up on 12th April. Arguments on behalf of the State were heard on 12th April and 15th April and the case was ordered to come up on 18th April for further arguments. On various dates between 18th April and 21st April admission and denial of documents was done on some dates for 2 hours and on others for 1-1/2 hours. Arguments were again heard on 28th April and the case was ordered to come up on 5th May for further arguments. In the meantime, however, the case was transferred to the court of Shri S.P. Sigh Choudhary, Additional Sessions Judge and the parties appeared before him on the date fixed namely 5th May. 12th May was fixed in the case on the request of the petitioners as they were reluctant to get any earlier date. On 12th May the case could not be taken up as the case diary had not been received and also because the court clerk wanted some further time for checking the papers. The case was, therefore, ordered to come up on 17th May. On this date a statement was made on behalf of the petitioners that connected case had been transferred to the court of Shri K.S. Gupta and so this case may be sent to the learned Sessions Judge so that both the cases may be transferred to one court. On that very day the Sessions Judge directed the case pending in the court of Shri K.S. Gupta to be transferred to the Court of Shri S.P. Singh Choudhary and the parties were directed to appear before him on 26th May. On that date one of the accused was ill and the case was ordered to come up on 27th May for hearing the pending applications as also with regard to framing of charge. On 27th May, however, it transpired that the case diary had not been received till that date. The Additional Sessions Judge pointed out that there appeared to be some slackness on the part of the prosecution and issued a direction that it should be ensured that the case diary was available on 30th May. The case diary was received on 30th May but it was pointed out by the Assistant Public Prosecutor that some of the entries were in Urdu and he would require the help of some other person as he did not know Urdu. On his request, therefore, the case was ordered to be put up 4 days later on 3rd June. On that date the case could not be taken up as electricity was not available for the last several hours and it was ordered to be put up on 8th June. On that date the Assistant Public Prosecutor concluded his arguments regarding the charge in about 30 minutes and thereafter arguments on behalf of the petitioners were heard for about 50 minutes. The case was thereafter adjourned for further argument son 9th June,the Additional Sessions Judge on 8th June, however, observed that on 9th June he shall give 1-1/2 hours more for finishing the arguments. On 9th June the petitioner Diwan Naubat Rai made an application purporting to be under Section 408(2) Cr.P.C and the following order was passed on that application:- Accused Naubat Rai has moved an application purporting to be Under Section 408(2) Cr.P.C. Heard. It appears that application is in the nature of Peshbandi. In view of the order of the Hon'ble Supreme Court and in the circumstances of this case expeditious hearing of this case is necessary. The case has been received presently by transfer in this Court. 1 have impressed upon the accused persons in this case that there should be no delay in the proceedings of this case. 1 have also impressed upon the accused persons that arguments regarding pending applications of accused and also regarding the question of charge be advanced and the necessary orders regarding charge and regarding the applications pending of the accused will be passed, according to law. I do not find any justification to send the file as prayed in the application for the transfer of this case. But if the accused persons are interested in the transfer of this case, they can approach the competent court according to law. This application be kept on record and is decided accordingly. 12. After the said order had been passed arguments on behalf of the petitioners were heard for 1-1/4 hours but could not conclude and the case was ordered to come up on 10th June. On this date also the petitioner Diwan Naubat Rai was heard for about 15 minutes and no more time could be given by the court as it was busy in other cases. The case was ordered to be put up for remaining arguments on 6th July. On this date further arguments were heard for about 45 minutes and since there was no further time left the case was ordered to be put up on 7th July in the after noon as prayed on behalf of the petitioners. On the 7th July arguments on behalf of the petitioners were again heard for about one hour but were yet not concluded and the following order was passed:- Heard further arguments for about one hour. Arguments continued. No time left. In this month I shall not be available from 11.7.88 to 27.7.88 as I shall be attending the course about Crime and Justice. Fixed 1.8.88 for further arguments. 13. On 1st August the petitioner Shri Diwan Naubat Rai pointed out that an application had already been made on behalf of the petitioners for transfer of the case in the court of Sessions Judge and 17th August was fixed before him and that the hearing of the case may accordingly be adjourned till 17th August. The Additional Sessions judge, however, did not consider it proper to stay the hearing of the case inasmuch as no order of stay had been passed by the Sessions Judge. Further arguments on behalf of the petitioners were accordingly heard for about 30minutes and thereafter the following order was passed:- When I had heard the arguments of the learned counsel for the accused persons for 30 minutes, I had impressed upon the learned defence counsel that he has already advanced lengthy arguments and it will be proper that he should complete his arguments at the earliest so that further proceedings may be done. I inquired from him as to how much time he will take to conclude his arguments but he is not in a position to give even the approximate time which he will take for concluding his arguments. I again impressed upon the learned defence counsel that he should be brief and he should try to finish the arguments at the earliest. Now to come up tor further arguments on 2.8.1988. Sd/- 1.8.88 A.S.J., Delhi, Atthisstage, the learned defence counsel pointed out that he will not be available tomorrow as he has to go to Supreme Court and the case be taken up on 3.8.1988. In these circumstances, now to come up for hearing further arguments on 3.8.1988. Date 2.W.88 is cancelled. Sd/- 1.8.88 A.S.J., Delhi. At this stage, Shri Naubat Rai became in an angry mood and talked in aloud voice. I have impressed upon him that he should not talk loudly and the proceedings should be conducted peacefully. Sd/- 1.8.88 A.S.J., Delhi. 14. On 3rd August the petitioner, Diwan Naubat Rai wanted the case to be adjourned for 5th August and his request was granted. When the case was taken up on 5th August three applications were moved on behalf of the petitioners and the following order was passed:- Three applications have been moved today on behalf of the accused. Heard argument. During argument Sh. Naubat Rai advocate started arguing loudly. I had impressed upon him that it will be better that the loud argument may be avoided and the argument regarding charge and pending applications may be concluded at the earliest. Now he has pointed out that he has got some heart trouble and he wants to sit. He has seated now on a chair and has said that he has concluded the arguments. Argument concluded. At this stage Sh. Naubat Rai says that he has not concluded his argument. In the interest of justice he is given further opportunity to argue. Sd/- 5.8.88 Atirikt Zila Avam Satra Nyayadish Dilli. Now Shri Naubat Rai Advocate says that he is mentally upset and he wants some other date and as he is not in the position to argue. In the interest of justice now to come up for further argument/hearing on 8.8.88. Sd/- 5.8.88 15. On 8th August an application was made on behalf of the petitioners for exempting the attendance of the petitioner Naubat Rai who was arguing the case on behalf of the petitioners and the case was fixed for 10th August for further arguments. On 10th August again a request was made for adjournment of the case on the ground that Shri Naubat Rai and Shri Sham Dass, two of the accused were ill. The case was there up on adjourned for 12th August. On this date also the accused Naubat Rai and Sham Dass were absent and a prayer was made on behalf of the remaining accused for adjournment because the petitioner Naubat Rai who was arguing the case was ill. Since the court was closed on 13th, 14th and 15th August and the presiding officer had applied for casual leave on 16th, 17th and 18th August the case was adjourned for 19th August. By that date an order from the Sessions Judge staying further proceedings had been received and the case was ordered to come up for further orders on 14th September, 1988, In the meantime as seen above, notice was issued by this Court in the present proceedings on 23rd August, 1988. 16. A perusal of the running order sheet, therefore, indicates that on account of about 10 adjournments taken on behalf of the prosecution referred to above the hearing of the case was delayed for about 30 days only from 4th to l0th December that is for about a week, from 9th to 29th March, that is for about 20 days and on 27th and 30th May. In this view of the matter it is not 'possible to agree with the submission made on behalf of the petitioners that the prosecution was responsible for the case not being decided between 13th July, 1987 and the date of filing of the writ petitions and the proceedings in the case do not, therefore, deserve to be quashed on this ground. 17. Coining to the criminal miscellaneous petitions made for initiating proceedings for contempt of the ground that "every steps to summon every witnesses" had not been taken on behalf of the prosecution as directed by this Court on 13th July, 1976, suffice it to point out that since final orders could not be passed on the applications made on behalf of the petitioners under Sections 207 and 311 of the CrPC as a result of which the charge could not be framed, the stage for summoning the witnesses really did not reach. In this connection as regards respondent No.2 it may further be pointed out that, as is apparent from his counter affidavit filed before this Court, he was transferred from Delhi Police to Government of Goa and relieved from Delhi Police on the afternoon of 26th June, 1987. He joined as Inspector General of Police, Goa on the forenoon of 9th July, 1987 that is 4 days before the order of this Court dated 13th July, 1987 was passed in Writ Petition Nos.359-362of 1987. Apparently, therefore, he was in no position to delay the disposal of the case pending in the court of Additional Sessions Judge, Delhi. Consequently, no case for initiating proceedings for contempt has been made out. 18. In the result the writ petitions as well as the criminal miscellaneous petitions are dismissed. The Additional Sessions Judge, if the order staying further proceedings passed by the Sessions Judge has been vacated, shall now proceed to decide the case as expeditiously as possible. We hope the prosecution as well as the petitioners will cooperate and give every assistance for the expeditious disposal of the case.

Author: N Ojha

Diwan Naubat Rai And Ors. vs State Through Delhi ... on 2 December, 1988

Supreme Court of India

[Section 12(1)] [Section 12] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print CR.MA/8167/2005 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8167 of 2005 In CRIMINAL REVISION APPLICATION No. 559 of 2005 ========================================================= SHRI ILIYAS GULAMBHAI SHAIKH - Applicant(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR EE SAIYED for Applicant(s) : 1,MR SIKANDER SAIYED for Applicant(s) : 1, MR.KC SHAH,ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/07/2008 ORAL ORDER Rule, returnable on 29th August, 2008. Learned A.P.P. Mr.K.C. Shah waives service of notice on behalf of Respondent No.1-State. (Bankim N. Mehta, J.) sudhir     Top

Author: Bankim.N.Mehta,&Nbsp;

Shri vs The on 16 July, 2008

Gujarat High Court

[Complete Act]

Central Government Act

JUDGMENT R.M. Lodha, J. 1. Rajasthan Khadi Sangh, Chomu has preferred this appeal dissatisfied with the order dated 22.11.1996 passed by the Single Judge dismissing the writ petition challenging the order of the Labour Court, Jaipur dated 18.10.1994. 2. The brief necessary facts for decision in this appeal are thus: (a) That an industrial dispute under Section 10(1) of the Industrial Disputes Act, 1947 was referred by the State Government for adjudication to the effect inter alia whether 14 temporary workers who have not been made permanent are entitled to medical and house rent allowances like the permanent employees; not less than Rs. 20/- towards medical allowance and the house rent allowance @ 20% of the wages. (b) That the Industrial Tribunal adjudicated the aforesaid industrial dispute vide award dated 8.6.1983 holding therein that 14 employees mentioned in the list were entitled to medical allowance as is being paid to the regular employees. The said award dated 8.6.1983 attained finality. (c) That on 21.2.1984, an application was made under Section 33C(2) of the Industrial Disputes Act on behalf of 14 employees for direction to the present appellant to pay the due amount towards medical allowance and the house rent allowance in addition to other claims. (d) The claim of 14 employees for medical allowance and the house rent allowance related to different period from the year 1975 until October, 1983. (e) That in response to the application under Section 33C(2), the present appellant-employer inter-alia raised the objection that the award dated 8.6.1983 becomes enforceable on expiry of one month from the date of its publication in the official gazette and that until September, 1983, the said award has not been published and, therefore, the application under Section 33(C)(2) was liable to be dismissed. (f) That the parties led evidence before the Labour Court in support of their rival case. (g) That the Labour Court disposed of the application under Section 33C(2) vide its order dated 18.10.1994 over-ruling the objection that the award has not become enforceable. The Labour Court on the other hand held that the benefits to which the employees are entitled are from the date it became due and not after the award had become enforceable. (h) That the Single Judge was not convinced with the submission of the employer. He held that the award dated 8.6.1983 has bestowed upon the 14 workers, the right to get medical allowance and the house-rent allowance and in this view of the matter, the consideration of the application by the Labour Court did not suffer from any illegality. 3. In the award dated 8.6.1983, the finding of the Industrial Tribunal with regard to medical allowance is thus: vr% 14 Jfedx.k ftuds uke dh lwph la- 1 esa vafdr gS fpfdRlk HkRrs dh lqfo/kk mlh izdkj ls ikus dk vf/kdkjh gS A ftl izdkj ls LFkkbZ ekfld osruHkksxh deZpkjh;ksa dks fn;k tkrk gS A ;wfu;u dh vksj ls vYykcsyh dk 'kiFki= izLrqr fd;k x;k gS A vYykcsyh us vius 'kiFk i= esa ;g vafdr fd;k gS fd LFkkbZ Jfedks dks 20 :- ekfld dh nj ls fpfdRlk HkRrk fn;k tk jgk gS A ijUrq ;wfu;u dh vksj ls dksbZ vkns'k fu;kstd dks izLrqr ugha fd;s x;s gS fd fdl nj ls fpfdRlk HkRrk fn;k tkrk gS A ;wfu;u us vius mRrj ds pj.k la- 4 esa ntZ fd;k gS fd dk;ZdrkZvks dks 10 :- ekfld HkRrk fn;k tkrk gS A vr% gekjs fopkj ls 14 Jfed fuds uke dh lwph la- 1 esa vafdr fd;s gS] fpfdRlh; HkRrk mlh nj ls ikus ds vf/kdkjh gS ftl nj ls fd fpfdRlk HkRrk LFkkbZ ekfld osruHkksxh deZpkjh;ks dks fn;k tkrk gSA fu;kstd dks ;g vf/kdkj gksxk fd fpfdRlk HkRrs dh jkf'k nSfud osru ds lkFk vnk djs ijUrq ;g jkf'k fdlh Hkh lwjr esa ml ekfld jkf'k ls de ugh gksxh] tks fd vU; LFkkbZ ekfld osruHkksxh deZpkjh;ksa dks nh tkrh gS A 4. With regard to the claim for house-rent allowance, the Industrial Tribunal in the award dated 8.6.1983 held thus: vr% gekjs fopkj ls 14 Jfed ftuds uke lwph la- 1 esa vafdr gS Hkh edku fdjk;k mlh nj ls ikus ds vf/kdkjh gS] ftl nj ls ekfld osruHkksxh deZpkjh A ;fn bu Jfedksa esa ls fdlh Hkh Jfed dk edku gksxk rks og dsoy 7 izfr'kr ewy osru ij ekfld j[kj[kko ds fy, vU; LFkkbZ ekfld osru ikus deZpkjh;ska ds leku ewy osru ij 7 izfr'kr ikus ds vf/kdkjh gksxs A vr% gekjk fu.kZ; gS fd 14 Jfedx.k ftuesa uke lwph la- 1 esa vafdr gS] edku fdjk;k mlh nj ls mlh izdkj ikus ds vf/kdkjh gS fd ftl izdkj ftl nj ls edku fdjk;k ekfld osruHkksxh LFkkbZ deZpkjh;ks dks fn;k tkrk gS] ;fn vkxs pydj fpfdRlk HkRrs ,oa edku fdjk;s dh njksa esa dksbZ ifjorZu gksxk rks og Hkh bu 14 Jfedks ij ykxw gksxk A 5. A close look at the aforesaid findings of the award dated 8.6.1993 leaves no manner of doubt that the Industrial Tribunal declared that the concerned 14 employees are entitled to the medical allowance and house rent allowance as being paid to the permanent employees. The Industrial Tribunal further directed the employer to pay the medical allowance with the daily wages and also make payment of house rent allowance @ 7%. The award does not specify any date for its operation. For want of any specific date for its operation stated in the award, obviously, the operation of such award cannot be retrospective. For a better consideration of the matter, we immediately advert to Section 17A of the Industrial Disputes Act, 1947. Section 17A reads thus: ' 17A. Commencement of the award (a) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17: Provided that- (a) if the appropriate government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or (b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be in expedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days. (2) Where any declaration has been made in relation to an award under the proviso to Sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government. (3) Where any award as rejected or modified by an order made under Sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under Sub-section (2) is made in pursuance of a declaration under the proviso to Sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in Sub-section (2). (4) Subject to the provisions of Sub-section (1) and Sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1) or Sub-section (3), as the case may be. 6. Sub-section (1) of Section 17A, thus, provides that an award becomes enforceable on expiry of thirty days from the date of its publication under Section 17. Sub-section (4), inter alia, subject to the provisions of Sub-section (1), provides that the award shall come into operation with effect from such date as may be specified therein, but where no date is specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1). That 'enforceability of the award' and 'coming into operation of the award' are different concepts bearing different connotation admit of no doubt and ambiguity. According to Sub-section (1) of Section 17A, an award becomes enforceable after expiry of thirty days from the date of publication under Section 17, but its operation may be specified in the award. If a specific date of its operation is mentioned, the operation of the award is effective from the date of the operation so mentioned. On the other hand, non-specification of the date in the award concerning its operation would mean that it comes into operation when it becomes enforceable. 7. In the case of Hindustan Times Ltd., New Delhi v. Their Workmen 1963(6) FLR 313, on examination of Section 17A of the Industrial Disputes act, the Supreme Court held thus: There remains for consideration the question of retrospective operation of the award. Under Section 17-A of the Industrial Disputes Act, 1947, an award shall come into operation with effect from such date as may be specified therein but where no date is so specified it shall come into operation on the date when the award becomes enforceable. Even without a specific reference being made on this question it is open to an industrial tribunal to fix in its discretion a date, a date from which it shall come into operation. The reference, in the present case, included as a matter in dispute the question of retrospective effect in these words: Whether all the above demands should be made applicable retrospectively with effect from April 1, 1956 and what directions are necessary in this respect? The Tribunal rejected the workmen's claim for giving effect to its award from April, 1956. Wherever however the Tribunal has given relief the Tribunal has directed that the award should come into effect from the date of reference, i.e. January 23, 1958. On behalf of the Company Mr. Pathak contends that there is no reason why the award should be given effect to from any date prior to the date of its pronouncement. We are not impressed by this argument. No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to the made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunal's award in such a case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult and not even desirable that this Court should try to lay down general principles on such matters that require careful consideration of the peculiar circumstances of each case for the exercise of discretion. 8. In other words, what the Supreme court has held with reference to Section 17A of the Industrial Disputes Act is that an award shall come into operation with effect from such date as may be specified therein but when no date is so specified it shall come into operation on the date when the award becomes enforceable. If the Tribunal chooses not to give retrospective operation to its award specifically and expressly, in our considered view, the operation of such award is the date when which the award becomes enforceable. The retrospective operation of the award is ordinarily not to be inferred in the absence of any specific statement to that effect in the award. 9. The aforesaid legal position also gets supported from the decision of the Supreme court in the case of The Management of Wenger and Co. and others vs. Their Workmen- AIR 1964 SC 864. In paragraph 28 of the report, the Supreme Court ruled thus: The last point urged by Mr. Pathak is in regard to what he characterised as retrospective operation of the award. It appears that the present demands were made by the employees on October 1, 1958 and the references were made on September 9, 1959 and December 12, 1959 respectively. The award was pronounced on March 16, 1962 and it has directed that its directions should take effect from January 1, 1961. Technically speaking, this direction cannot be said to be retrospective because it takes effect from a date subsequent to the date of the reference. Under Section 17A(4) of the Industrial Disputes act, 1947 (No. 14 of 1947), it is open to the Industrial Tribunal thinks that it is fair and just that its award should come into force from a date prior to the date of reference, it is authorised to issue such direction. When such a direction is issued, it may be said appropriately that the award takes effect retrospectively. Apart from this technical aspect of the matter, if, in the circumstances of this case, the Tribunal held that the award should take effect not from the date of reference but from a later date which was January 1, 1961, we see no reason why we should interfere with its direction. 10. In the light of the clear statement of law expounded by the Supreme Court in the aforesaid two decisions, reference to the decisions of he various High Courts on the point is unnecessary. Suffice it to say that by virtue of Section 17A(4), an award comes Into operation with effect from such date as may be specified in the award and in the absence thereof it comes into operation from the date the award becomes enforceable under sub- section (1) of Section 17-A, as the case may be. 11. Seen thus, we find that in the award 8.6.1983, there is no specific date given for the operation of the award and in the absence thereof the only conclusion that can be drawn is that the operation of the award dated 8.6.1983 is the date of expiry of thirty days from the date of publication of the award. The award dated 8.6.1983 is said to have been published in the month of September, 1983. Obviously, the operation of the award became effective on expiry of thirty days therefrom. In this view of the matter, the claim of medical allowance and house-rent allowance before that date was not admissible and could not have been computed under Section 33C(2) of the Industrial Disputes Act, 1947. 12. Before we close, we deem it necessary to clarify that in the application under Section 33C(2), the applicants employees had also claimed certain amount due to them towards privilege leave, difference of bonus etc. and the order passed by the Labour Court granting such amount was not put in issue in appeal. 13. Consequently, the appeal is allowed in part. The order of the Labour Court dated 18.10.1994 and the order of the Single Judge dated 29.11.1996 are set aside to the extent the Labour Court computed the amount towards medical allowance and house- rent allowance prior to the period of October, 1983. 14. Since the respondents have not chosen to appear, we award no costs.

Author: R Lodha

Rajasthan Khadi Sangh vs The Presiding Officer And Ors. on 18 May, 2007

Rajasthan High Court

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Writ Petition No. M-1327 of 2008 Date of Decision: December 18, 2008 Kallu & Another .....PETITIONER(S) VERSUS State of Haryana & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. R.S. Manhas, Advocate, for the petitioners. . . . AJAI LAMBA, J (Oral) The petitioners are at liberty to approach the Deputy Commissioner, Sonepat with their grievance. Disposed of. (AJAI LAMBA) December 18, 2008 JUDGE avin

Kallu & Another vs State Of Haryana & Others on 18 December, 2008

Punjab-Haryana High Court

JUDGMENT Hima Kohli, J. 1. The respondents were proceeded ex parte, vide orders dated July 14, 2006. The writ petition is listed today for final disposal. 2. The present writ petition is directed against the award dated February 10, 2005, passed by the Central Government Industrial Tribunal Cum Labour Court-II (CGIT) in L.C.A. No. 60/2000 whereunder, the petitioner was directed to make a payment of Rs. 1,00,000/- to Ms. Raj Rani, the widow of the deceased respondent workman within two months from the date of the order. 3. It is stated by counsel for the petitioner that the aforesaid award is erroneous as the parties were not granted any opportunity for adducing their evidence and in fact no date was fixed in the main case for the reason that the application filed by the respondents for substitution of their name in place of the deceased workman was still pending. 4. The Trial records were summoned. A perusal of records shows that when the impugned award came to be passed, the matter was at the stage of filing of the documents of the petitioner/management. The contention of the counsel for the petitioner that documents were not filed by the management and the matter was renotified on September 4, 2001 for filing the management's documents as also the Authority letter on behalf of the management, is borne out by perusal of the order sheet dated July 5,2001, of the Court below. 5. In the meantime, the respondent workman expired on November 11, 2001. Vide order dated January 24, 2002, the C.G.I.T recorded the fact of death of the respondent workman and also noted that his death certificate had been filed. The case was renotified for April 4, 2002 to bring on record the legal heirs of the deceased workman. On April 4, 2002 the case was adjourned to July 4, 2002 for further proceedings. On July 4, 2002, the matter was adjourned to September 5, 2002 as the Presiding Officer was stated to be on official tour. However, it was recorded that no objections had been filed by the legal heirs of the deceased workman with copies to the management, for bringing on record the widow of the deceased workman as his legal heir and time was granted to the petitioner management to file reply to the said application. Thereafter the matter was renotified from time to time right from September 5, 2002 till January 27, 2005 for disposing the said application. Vide order dated December 8, 2003, the case was transferred from the Court of C.G.I.T.-cum-Labour Court No.-I to C.G.I.T.-cum-Labour Court No.-II on the directions of the Ministry of Labour, Government of India. 6. As none was present for the workman, case was adjourned on January 27, 2005 and it was recorded that the management requested for an order. It is stated that the orders sought by the petitioner management were for disposal of the application of the respondent workman to bring on record his legal heirs. However, on February 10, 2005, the impugned award came to be passed without affording an opportunity to either of the parties to adduce evidence in the matter. A perusal of the record of the Trial Court record shows that no evidence was recorded in this matter. In fact, the matter was still at the stage of disposal of the application filed by the legal heirs of the deceased workman for substitution and even the said substitution had not taken place. Hence, there was no question of proceeding with the main case and passing the impugned award. 7. For the aforesaid reasons, it is deemed just, fit and proper to quash the impugned award dated February 10, 2005. The case is remanded back to the Industrial Adjudicator to proceed further from the stage at which the case was pending on January 27, 2005, namely, to dispose of the application filed on behalf of the legal heirs of deceased respondent workman for substitution of the legal heirs in the first instance. As none has entered appearance on behalf of the respondents in the present case, the Industrial Adjudicator shall issue fresh notice to the legal heirs of the deceased workman before proceeding further with the case. 8. List this matter on September 27, 2007 before the Industrial Adjudicator for further proceedings. A copy of this order be also forwarded to the Industrial Adjudicator for information. The Registry is directed to return the Trial Court record to the Industrial Adjudicator immediately.

Author: H Kohli

Employees State Insurance ... vs Budh Raj (Decd.) Thr' Lrs. on 20 August, 2007

Delhi High Court

Title: Need to open diesel-petrol pump and LPG outlet at Barod and Badagawn in Shahapur district of Madhya Pradesh. श्री थावरचंद ग्ैंहलोत (शाजापुर): मध्य प्रदेश के शाजापुर जिले के बडौद तहसील मुख्यालय बडौद तथा बडागांव जहां नगर पंचायतें है वह दोनों नगरों की जनसंख्या पन्द्रह-पन्द्रह हजार से अधिक है तथा दोनों नगर सडक मार्ग पर स्थित है, जहां वाहनों का अधिक संख्या में आना जाना होता रहता है, पर डीजल पेट्रोल पम्प खोलने की अति आवश्यकता है। अभी इन दोनों नगरों से पच्चीस-पच्चीस किलोमीटर दूर तक कोई डीजल पेट्रोल पम्प नहीं है। इस कारण लोगों को भारी कठिनाई हो रही है। इसी प्रकार बडागांव जिसकी आबादी पन्द्रह हजार से अधिक है, में कुकिंग गैस (LPG) एजेन्सी की भी अति आवश्यकता है। लोग अत्यधिक परेशान हैं। शासन की भी योजनानुसार इन स्थानों पर उपरोक्त एजेन्सियां दी जानी चाहिये। अत: मैं सरकार से मांग करता हूं कि बडौद व बडागांव में डीजलपेट्रोल पम्प व कुकिंग गैस एजेन्सी अतिशीघ्र स्थापित करने के आदेश देने की व्ैंृपा करें।

Need To Open Diesel-Petrol Pump And Lpg Outlet At Barod And Badagawn In ... on 9 May, 2000

Lok Sabha Debates

JUDGMENT N.R. Chatterjea, J. 1. The appeal arises oat of a suit for a declaration of the plaintiff's title to, and recovery of possession of a mango garden known as tin takia amra bagicha. 2. The garden appertains to a taluq which, it is admitted by both parties, was amicably partitioned with three hisyas, namely, one of 8 1/2 annas, another of 5 1/2 annas and a third of 2-annas share. The plaintiff's case is that the 8 1/2-annas share again was amicably divided between two brothers Nur Ali and Sher Ali and that the disputed garden fell into the share of Nur Ali who held it as his khamar. 3. The Court of first instance found that although there was no formal partition, the whole garden was in the exclusive possession of Nur Ali and his heirs. On appeal, the learned Subordinate Judge came to the conclusion that the plaintiff had failed to prove either an actual partition or that the garden had been in the exclusive possession of her vendor Nur Ali and his heirs. 4. The plaintiff has appealed to this Court, and it is contended on her behalf that the learned Subordinate Judge was wrong in excluding from his consideration the title-deeds and other documents, which show that the mango garden was exclusively in the possession of her vendors, and that the Judge was wrong in holding that there was not "a tittle of evidence" to show that the plaintiff's predecessor in title was in exclusive possession of the land. 5. There is no doubt that the learned Subordinate Judge has considered some of the documents in connection with the question of partition, and so far as the question of exclusive possession is concerned, he disbelieved the oral evidence for the plaintiff. But referring to a certain mortgage and katkobala he says: "It was not till the mortgage and katkobala were executed in favour of the plaintiff's husband that we come to the case of exclusive possession of the land by Nur Ali's son Hossain Ali and his daughter in law Noachi Bibi. But these documents are not admissible against the defendant No. 1 or his predecessors, who were strangers to these documents." The learned Subordinate Judge is in error in holding that the documents are inadmissible against the defendant No. 1 or his predecessor. The decision to which he refers has no application to the present case. 6. The documents relied upon are the title deeds under which the plaintiff claims: and in those documents title to, and possession of, the land in dispute were asserted on behalf of the plaintiff's predecessor in title. They are, therefore, evidence in favour of the plaintiff and against the defendant. 7. The learned Pleader for the respondent also says that the above observation of the learned Subordinate Judge is erroneous, but it is contended by him that that does not affect the decision because in the earlier part of the judgment he has referred to, and considered, most of the documents and rejected them on the grounds stated in the judgment. 8. The learned Subordinate Judge appears to have considered the documents in connection with the question of partition but so far as the exclusive possession is concerned, he does not seem to have considered them because in his opinion they were not admissible in evidence. 9. In the very next passage he says: "There is not a tittle of evidence on the record from which I can safely conclude that Hossain Ali and his legal representatives and Noachi Bibi were in exclusive possession of the land." Now, this conclusion must have been arrived at by him after excluding the documents which, in his opinion, were inadmissible in evidence. 10. The learned Munsif says: "I find from a series of old registered documents and also from old collection papers and chiita filed by the plaintiffs that the land in suit which has been proved by unrebutted evidence to be known as tin takia amra bagicha was dealt with as appertaining exclusively to Nur Ali's hisya by his sons and their transferees (see Exhibits 2, 2A, and 6)." 11. Then again he observes that "the plaintiff was in possession of the land in suit to the exclusion of all heirs of Nur Ali for at least the last 22 years." There is also a statement made by the defendant's vendor, (summoned as a witness in the case) that there was a separate hisya of Nur Ali and Sher Ali and that this dag was allotted to Nur Ali's hisya. 12. The learned Subordinate Judge no doubt has come to the finding that the exclusive possession on the part of the plaintiff's vendor had not been proved. This finding could not be interfered with in second appeal, were it not for the fact that the learned Subordinate Judge says that the documents katkobalas and others, upon which the Munsif came to a finding in favour of the plaintiff, were inadmissible in evidence: and as already stated, although they were considered by the learned Subordinate Judge in connection with the question of partition, they were not considered by him in connection with the question of exclusive possession: I think that they should be considered in connection with the question of possession. 13. The next contention on behalf of the appellant is that the learned Subordinate Judge was wrong in holding that the defendant being a co sharer, no question of adverse possession could arise. The learned Judge says: The defendant No. 2 is a co-sharer of the land. Such possession by the plaintiff was not adverse to the defendant No. 1 and his predecessor until a hostile claim was set up by her to their knowledge. 14. No doubt, possession by one co-sharer is not hostile to the other co-sharers unless there is ouster, or a hostile title is set up to their knowledge. But in the present case it is contended that the plaintiff purchased a certain share more than 12 years before the suit and had khas possession to the exclusion of the other co-sharers and that there was in fact an ouster of the defendant. This matter should also be gone into by the lower Appellate Court, if the question of exclusive possession is found in favour of the plaintiff on the whole evidence including those held to be inadmissible by the Court below. Lastly, it has been contended that the defendants not having claimed any title to more than 2 annas share of the garden, the plaintiff's title to the remaining fourteen annas share ought to have been declared. 15. The respondent has no objection to a declaration of the plaintiff's title to the 14 annas, but he says that there is no cause of action with regard to this 14 annas. The defendants, however, do not claim anything more than 2 annas. Under the circumstances, a declaration might be made in favour of the plaintiff in respect of the 14 annas of the garden in any case. 16. In these circumstances I think that the case should be sent back to the lower Appellate Court in order that the Court may take into consideration all the evidence on the record and then dispose of the appeal according to law. 17. Costs will abide the result.

Author: N Chatterjea

Nitya Kali Dutt vs Sarat Chandra Bose And Ors. on 23 April, 1919

Calcutta High Court

Gujarat High Court Case Information System Print CR.A/419/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 419 of 2010 ========================================================= SHAMJIBHAI NANUBHAI VEDVA VAGHARI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR TULSHI R SAVANI for Appellant(s) : 1 - 2. MS.T.K.PATEL, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 11/03/2010 ORAL ORDER Admit. (H.B.ANTANI,J.) GIRISH     Top

Author: H.B.Antani,&Nbsp;

Shamjibhai vs Unknown on 11 March, 2010

Gujarat High Court

Court No. - 22 Case :- CONTEMPT No. - 2341 of 2006 Petitioner :- Raj Kishore Yadav Respondent :- Sri Mohinder Singh,Prn.Secy.Irrigation And Another Petitioner Counsel :- V.K.Srivastava C.M. Application No.3547 of 2010 Hon'ble Satyendra Singh Chauhan,J. Heard. In view of the judgment rendered by the apex Court in the case of General Manager, Uttaranchal Jal Sanshtan vs. Laxmi Devi and others, (2009) 7 SCC 205 there is no reason to recall the order dated 16.10.2006. Application is accordingly rejected. Order Date :- 28.1.2010 Rao/-

Raj Kishore Yadav vs Sri Mohinder ... on 28 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 159 of 2008 ...                     Ashok Kumar Tiwary ... ... Petitioner ­V e r s u s­ The State of Jharkhand & Another ... ... Opposite Parties ... CORAM: ­ HON'BLE MR. JUSTICE PRASHANT KUMAR. ...    For the Petitioner : ­ M/s Kumar Vimal, Indrajit Sinha, Advocates.    For the State : ­ APP.   ...   03/08.11.2011 This application has been filed for quashing the order dated  10.12.2007, whereby the learned court below come to the conclusion  that prima facie offences under Sections 379, 385, 341, 323, 506,  166 & 34 I.P.C. are made out and directed the office clerk to issue  summons against petitioner. It is submitted by learned counsel for the petitioner that since  petitioner   has  lodged   six  cases  against   the   complainant,  therefore,  instant case was filed with malafide intention.  From   perusal   of   three   charge   sheets,   annexed   with   this  petition, I find that in all the cases, different persons were named as  informant.   Thus,   petitioner   has   not   filed   those   cases   against  complainant. So far other three cases are concerned, it is fairly stated  by learned counsel for the petitioner that those cases are also filed by  some other persons. Under the aforesaid circumstance, I find that the complainant  has   no   personal   grudge   against   the   petitioner,   thus   question   of  malicious   prosecution   does   not   arise.   From   perusal   of   complaint  petition and impugned order, I find that the learned court below had  rightly come to the conclusion that the offences under Sections 379,  385,   341,   323,   506,   166   &   34   I.P.C.   are   made   out   against   the  petitioner. Thus, I am not inclined to interfere with the impugned order.  Accordingly, this application is dismissed.    (Prashant Kumar, J.) sunil/ 

Ashok Kumar Tiwary vs State Of Jharkhand & Anr on 8 November, 2011

Jharkhand High Court

2. The assessee is a public limited company owning certain estates and deriving income from tea, coffee and cardamom. Its issued and subscribed capital during the relevant periods was Rs. 57,94 880. In the balance-sheet of the company as on March 31, 1963, the following sums were shown under the heading "reserves and surplus": Rs. General reserve 19,00,000 Reserve for retirement gratuity 11,50,000 Development reserve 1,68,711 Profit and loss account balance 58,308 JUDGMENT Subramonian Poti, J. 1. These are three references under Section 256(1) of the Income-tax Act, 1961, as applied to the Companies (Profits) Surtax Act, 1964, by Section 18 of the said Act. The references concern assessment years 1964-65, 1965-66 and 1966-67. The question in all the three cases is common and a consolidated statement of the case has been drawn up by the Income-tax Appellate Tribunal, Cochin Bench, which has referred the case to us. The question referred is : "Whether, on the facts and in the circumstances of the case the Appellate Tribunal is correct in law in holding that the amount standing to the credit of the 'retirement gratuity reserve' is to be treated as 'reserve' and has to be taken into account for the purpose of calculating the capital under the provisions of the Second Schedule to the Companies (Profits) Surtax Act, 1964 ?" 3. For determining the capital for the purpose of standard deduction under the Companies (Profits) Surtax Act (hereinafter referred to as the Act), for the assessment year 1964-65, the assessee claimed that the sum of Rs. 11,50,000 shown as "reserve for retirement gratuity" must also be taken into account. For the year 1965-66, the sum standing to the credit of the reserve for retirement gratuity was Rs. 11,60,727 and for the year 1966-67, the amount was Rs. 13,98,000. The dispute before the Income-tax Officer was whether these sums which were treated by the assessee as reserve for retirement gratuity were really to be treated as reserves in computing the statutory deduction permissible under the Act. The Income-tax Officer did not agree to the inclusion of this item in the assessment for the three years in the computation of the capital as, according to the officer, this could not be termed "reserve" in view of the Explanation to Rule 1 of the Second Schedule to the Act. He, therefore, computed the capital after excluding the amount standing to the credit of the reserve for retirement gratuity. The assessments for all the three years were taken up in appeal before the Appellate Assistant Commissioner, Trichur, who, by his order, found that a provision for gratuity payments to staff is not a current liability, but all the same it does not mean that this amount is in the nature of a general reserve either. He took the view that though in the balance-sheet it is classified by the appellant as "retrenchment gratuity reserve", actually the nature of the reserve is seen from the fact that it is earmarked for a specific purpose, namely, of meeting a future liability to pay retirement gratuity to staff. He, therefore, upheld the order of the Income-tax Officer. The Appellate Tribunal in the appeals filed by the assessee accepted the assessee's contention. The relevant discussion is found in paragraph 9 of the order of the Tribunal which, we may extract here : "We consider that the amount standing to the credit of the 'retirement gratuity reserve' is to be treated as 'reserve' and to be taken into account for the purpose of calculating the capital under the rules to the 2nd Schedule to the Surtax Act. This does not represent any liability but only certain sums appropriated from and out of its profits from time to time and kept back for future use. They are certainly reserves as understood in common parlance. The contingency of paying the entire amount would arise only when the company goes into liquidation. But the capital that has to be computed is of a going concern. The amount standing to the credit of this reserve will be available to the company for any of its purposes. It is not a specific provision to meet any known liability. We consider that the Explanation to Rule 1 in the 2nd Schedule does not affect the character of this reserve. We direct the officer to recompute the capital by taking the reserve for retirement gratuity as part of the assessee's capital." 4. The reference is at the instance of the revenue and the case of the revenue is that, on the facts and in the circumstances, the retirement gratuity reserve cannot be treated as a reserve and, therefore, cannot be taken to be part of the capital. 5. Before us, it is urged by counsel for the department that the amount in dispute is not a reserve at all and even if it be a reserve in any sense of the term, since it is in the nature of one or other of the items falling under the heading "current liabilities and provisions" in the column relating to liabilities in the form of balance-sheet given in Part I of Schedule VI to the Companies Act, 1956 (hereinafter referred to as "the Companies Act"), it has to be excluded from the computation of capital. 6. We will now refer to the relevant provisions of the Act to which we may have to advert to in due course. Section 4 of the Act is the charging section. That reads: "4. Subject to the provisions contained in this Act, there shall be charged on every company for every assessment year commencing on and from the first day of April, 1964, a tax (in this Act referred to as the surtax), in respect of so much of its chargeable profits of the previous year or previous years, as the case may be, as exceed the statutory deduction, at the rate or rates specified in the Third Schedule." 7. The charge is in respect of so much of the chargeable profits of the previous year as exceeds the statutory deduction and the rate is as mentioned in the Third Schedule. "Chargeable profits" is defined in Section 2(5) of the Act to mean the total income of an assessee computed under the Income-tax Act, 1961, for any previous year or years, as the case may be, and adjusted in accordance with the provisions of the First Schedule. In determining the chargeable profits for the purpose of the Act, the total income as determined under the Income-tax Act, 1961, is varied by certain exclusions, deductions and additions mentioned in the First Schedule. The statutory deduction referred to in Section 4 is defined in Section 2(8) of the Act and that (without the provisos which are not material for the purpose of this case) reads thus: "'Statutory deduction' means an amount equal to ten per cent. of the capital of the company as computed in accordance with the provisions of the Second Schedule, or an amount of two hundred thousand rupees, whichever is greater." 8. Now we have to turn to the Second Schedule to the Act to read the rules for computing the capital of a company for the purpose of surtax, Rule 1 is relevant for the case before us. That rule is ; "Subject to the other provisions contained in this Schedule, the capital of a company shall be the aggregate of the amounts, as on the first day of the previous year relevant to the assessment year, of- (i) its paid-up share capital; (ii) its reserves, if any, created under the proviso (b) to Clause (vib) of Sub-section (2) of Section 10 of the Indian Income-tax Act, 1922, or under Sub-section (3) of Section 34 of the Income-tax Act, 1961; (iii) its other reserves as reduced, by the amounts credited to such reserves as have been allowed as a deduction in computing the income of the company for the purposes of the Indian Income-tax Act, 1922, or the Income-tax Act, 1961; (iv) its debentures, if any ; and (v) any moneys borrowed by it from Government or the Industrial Finance Corporation of India or the Industrial Credit and Investment Corporation of India or any other financial institution which the Central Government may notify in this behalf in the Official Gazette or any banking institution (not being a financial institution notified as aforesaid) or any person in a country outside India: Provided that such moneys are borrowed for the creation of a capital asset in India and the agreement under which such moneys are borrowed provides for the repayment thereof during a period of not less than seven years. Explanation.--For the removal of doubts it is hereby declared that any amount standing to the credit of any account in the books of a company as on the 1st day of the previous year relevant to the assessment year which is of the nature of item (5) or item (6) or item (7) under the heading 'Reserves and surplus' or of any item under the heading 'Current liabilities and provisions' in the column relating to 'Liabilities' in the 'Form of balance-sheet' given in Part I of Schedule VI to the Companies Act, 1956, shall not be regarded as a reserve for the purposes of computation of the capital of a company under the provisions of this Schedule." 9. The parties have no case that reserve for gratuity falls within any of the items mentioned in this rule other than item (iii), namely, "other reserve". Whether it is a reserve at all to bring it within this clause and even if it is a reserve whether it is excluded by reason of the Explanation to the rule are matters about which parties are at issue before us. 10. The scheme of the charging section is apparently to charge to surtax more than 10 per cent. by way of return on the capital and for this purpose the capital as well as the return are to be determined after making allowances for such deductions and additions as are provided in the Act. 11. The dispute in this case necessitates the consideration of two questions. The first of them is as to what exactly is "reserve" and the other whether "reserve for gratuity" shown in the balance-sheet in the present case is a reserve in the nature of any item under the heading "Current liabilities and provisions" in the form of balance-sheet given in Part I of Schedule VI to the Companies Act. 12. The term "reserve" is not defined in the Act, though a definition of this term is seen in the Companies Act, 1956. To that we will refer in due course. The term "reserve" as a verb is defined in the Random House Dictionary of the English Language as "to keep back or save for future use" and as a noun its meaning is "something reserved, as for some purpose or object". The meaning of this term as noted in the Webster's Third New International Dictionary, as a verb, is "to keep in store for future or special use : held or kept in reserve" and as a noun, "something kept back or held available (as for future use)". Apart from this dictionary definition of the term "reserve", we think it cannot be disputed that reserve can only mean anything to be kept back or kept for the purpose of use in the future and in the context of a reserve in business it must necessarily refer to the amounts kept back for future use against a contingency which will arise in the future. The contention on behalf of the revenue is that if any reserve is made, as in this case, for a specific purpose such as to meet the commitment by way of liability that may arise in future, but not already arisen, that cannot be treated as a reserve. Before examining this question further, we will refer to the decisions relied on by counsel for the revenue and also by counsel for the assessee before us to support their respective view-points. 13. There was a provision very much analogous to the provision in Section 4 of the Act in the Business Profits Tax Act, 1947. That Act was designed to assess large profits made by the companies. Section 4 of the Business Profits Tax Act permitted the levy of tax on the amount of the taxable profits equal to sixteen and two-thirds per cent. of such taxable profits. "Taxable profits" was defined as the amount by which the profits during a chargeable accounting period exceeded the abatement in respect of that period, "Abatement" was defined in Section 2(1) of that Act thus: "'Abatement' means, in respect of any chargeable accounting period ending on or before the 31st day of March, 1947, a sum which bears to a sum equal to--(a) in the case of a company, not being a company deemed for the purposes of Section 9 to be a firm, six per cent. of the capital of the company on the first day of the said period computed in accordance with Schedule II, or one lakh of rupees, whichever is greater." 14. In the case before the Supreme Court in Commissioner of Income-tax v. Century Spg. and Mfg. Co. Ltd., [1953] 24 I.T.R. 499, 504, 503; 23 Comp. Cas. 462 ; [1954] S.C.R. 203 (S.C.) the question that arose was whether an amount of Rs. 5,08,637 was a part of the "reserves" of the assessee-company as on 1st April, 1946, within the meaning of Rule 2(1) of the rules in Schedule II to the Business Profits Tax Act. That was the undistributed profits of the company, which, at the end of the year, was treated as such. Later, by a decision of the board of directors, the amount was distributed to the shareholders as dividend. All the same, the company claimed that the amount, in so far as it had not been utilised as profit or treated as profit at the end of the year, was entitled to be treated as reserve. On the facts of that case the Supreme Court was not prepared to accept the contention. The company or those who were authorised to act on behalf of the company had not earmarked that amount towards reserve and, therefore, the court took the view that there was no warrant for treating such amount as reserve. The court said thus : " . . . . nobody possessed of the requisite authority had indicated on that date the manner of its disposal or destination. On the other hand, on the 28th February, 1946, the directors clearly earmarked it for distribution as dividend and did not choose to make it a reserve." 15. The court took the view that it was not correct to say that the amount was kept back. But the scope of the term "reserve" had to be examined in that case and dealing with this, the court said : "The term 'reserve' is not defined in the Act and we must resort to the ordinary natural meaning as understood in common parlance. The dictionary meaning of the word 'reserve' is : '1. (a) To keep for future use or enjoyment; to store up for some time or occasion ; to refrain from using or enjoying at once. (b) to keep back or hold over to a later time or place or for further treatment. 6. To set apart for some purpose or with some end in view ; to keep for some use. 11. To retain or preserve for certain purposes' (Oxford Dictionary, Vol. VIII, p. 513). In Webster's New International Dictionary, second edition, page 2118, 'reserve' is defined as follows: '1. To keep in store for future or special use; to keep in reserve; to retain, to keep, as for oneself. 2. To keep back ; to retain or hold over to a future time or place. 3. To preserve.'.... Thus the profits lying unutilized and not specially set apart for any purpose on the crucial date did not constitute reserves within the meaning of Schedule II, Rule 2(1)," 16. When, in a later case, before the Supreme Court, First National City Bank v. Commissioner of Income-tax, [1961] 42 I.T.R. 17, 23, 24; [1961] 3 S.C.R. 371 (S.C.) a similar question arose, the court referred to what it had said about the scope of reserve in the earlier decision and said thus : "As to what the word 'reserves' as used in the Business Profits Tax Act connotes, was considered by this court in Commissioner of Income-tax v. Century Spinning and Manufacturing Co. Ltd. It was held that the true nature and character of a sum disputed as reserve was to be determined with reference to the substance of the matter. The amount in dispute in that case was the profits after the deduction of depreciation and tax which amount was carried to the balance-sheet and was later recommended by the directors to be appropriated mainly to dividends and balance to be carried forward to the next year's account. Thus, on the crucial date, i.e., April 1, 1946, from which the chargeable accounting period began the sum in dispute had not been declared as reserve; on the other hand the directors had earmarked it for distribution as dividend and it remained as a mass of undistributed profits available for distribution. At page 504, Ghulam Hassan J. said: 'The reserve may be a general reserve or a specific reserve, but there must be a clear indication to show whether it was a reserve either of the one or the other kind. The fact that it constituted a mass of undistributed profits on the 1st January, 1946, cannot automatically make it a reserve ... A reserve in the sense in which it is used in Rule 2 can only mean profit earned by a company and not distributed as dividend to the shareholders but kept back by the directors for any purpose to which it may be put in future'." 17. The decision of the Supreme Court in Commissioner of Income-tax v. Century Spg. and Mfg. Co. Ltd., [1953] 241.T.R. 499; 23 Comp. Cas. 462; [1954] S.C.R. 203 (S.C.) was considered and applied by the Calcutta High Court in the decision in Indian Steel & Wire Products Ltd. v. Commissioner of Income-tax, [1958] 33 I.T.R. 579 (Cal.). Dealing with the nature of a reserve, Chakravartti C.J. said at page 588 of that decision thus: "A reserve is created only out of the whole or a part of the surplus profits as they are found to be in the hands of the company at the end of the year and it is a reserve against a contingency which still lies in the future." 18. Reference has been made before us to the decision of the Supreme Court in Standard Mills Co. Ltd. v. Commissioner of Wealth-tax, [1967] 63 I.T.R. 470, 474; [1967] 1 S.C.R. 768 (S.C.). The question which arose in that case concerned the admissibility of a claim for deduction of amounts set apart for gratuity from the net wealth of an assessee under the Wealth-tax Act, 1957. The assessee claimed that, though the gratuity had not become payable, it was a liability which he had to meet and, therefore, any provision made for that purpose must necessarily be an item of admissible deduction in determining the net wealth. Counsel who appeared for the assessee conceded before the High Court that the liability to pay gratuity to the employees whose services were not terminated in the relevant year of account was merely contingent, since it arose on the happening of certain events such as death, physical incapacity, voluntary retirement or resignation and was on that account not a debt within the meaning of Section 2(m) of the Act. But it was contended before the High Court that the present value of the liability for payment of gratuity was a permissible deduction in valuing the assets of the business of the assessee under Section 7(2)(a) of the Wealth-tax Act. The High Court did not accept the contention. At the hearing before the Supreme Court, it was contended that no such concession was made and, therefore, the question had to be decided on the merits. That question was examined by the Supreme Court. Referring to the character of gratuity, the court said thus : "The right to obtain gratuity under the awards arises only when there is determination of employment and not before. The liability does not exist in praesenti: it is contingent upon the determination of employment." 19. Referring to the earlier decision of the court in Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealth-tax, [1966] 59 I.T.R. 767 ; [1966] 2 S.C.R. 688 (S.C.) the Supreme Court said : "'..... the following definition is unanimously accepted : " a debt is a sum of money which is now payable or will become payable in future by reason of a present obligation: debitum in praesenti, solvendum in futuro"'." 20. The Supreme Court further said that: "The said decisions also accept the legal position that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened. But, if there is a debt, the fact that the amount is to be ascertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount. In short, a debt owed within the meaning of Section 2(m) of the Wealth-tax Act can be defined as a liability to pay in praesenti or in futuro an ascertainable sum of money." 21. It is also necessary to notice here that the court referred to the decision of the Gujarat High Court in Commissioner of Wealth-tax v. Ajit Mills Ltd., [1965] 55 I.T.R. 556 (Guj.) in which that court took the view that deduction for an amount claimed on account of liability for gratuity for workers and employees based on awards of the labour courts and agreements will be admissible deductions in the computation of the net wealth. The Supreme Court noticed that this view taken by the Gujarat High Court was not correct. 22. It appears to us in the light of what has been said by the Supreme Court in the decisions to which we have adverted that a reserve is any sum of money which has been kept back for future use whether the purpose for which it is so kept back be general or specific. Naturally, therefore, there is nothing strange if some specific purpose is indicated in the reservation, since a reserve for a specific purpose is as much a reserve as for a general purpose. The reservation in regard to payments to be made on account of liabilities which have already arisen cannot be properly termed "reserves" in the above sense. Equally so, it cannot be said that reserves made for specific purposes, though not to meet liabilities which have already arisen but as a prudent provision for a future liability which may arise, are not reserves but are only provisions to meet liabilities. It is not disputed that the reservation in the present case is not for any commitment which has already arisen or payment of which has fallen due but is only a provision in regard to gratuity which may have to be paid to the employees as and when the liability may arise in future. 23. Our attention is drawn to two decisions of the Bombay High Court which apparently may, to some extent, support the case advanced on behalf of the revenue. We are referring to the decisions in Greaves Cotton & Crompton Parkinson Ltd. v. Commissioner of Income-tax, [1963] 48 I.T.R. 20 (Bom.) and Bombay Cycle & Motor Agency Ltd. v. Commissioner of Income-tax, [1964] 54 I.T.R. 358 (Bom.). The latter case purports to follow the earlier decision. In the case of Greaves Cotton & Crompton Parkinson Ltd. v. Commissioner of Income-tax the court was concerned with the application of Section 23A of the Indian Income-tax Act, 1922. The provision authorises the Income-tax Officer to assess companies to super-tax on undistributed income in certain cases. Sub-section (2) of that section provides that such order shall not be made by the Income-tax Officer in certain cases. It is in connection with this that the question arose before the Bombay High Court and what had to be decided in the reference was the admissibility of the claim by the assessee that a sum of Rs. 1,00,200 which was a provision for retirement gratuity and another provision for bonus of a sum of Rs. 1,04,000 should be excluded in determining the applicant's actual accounting profits. That was for the purpose of deciding whether, having regard to the smallness of the profits, an order under Section 23A ought to be made or not. Therefore, the question that had to be decided was whether these sums could be deducted in arriving at the net profit. The sum of Rs. 1,04,000 was a debt payable in the accounting year itself, namely, as a provision for payment of bonus. Though not paid, it was found to be a liability of the assessee. With regard to the sum of Rs. 1,00,200, it was a provision for gratuity and it was contended by the assessee that the gratuity was due on account of an award. The provision for gratuity was treated as a provision which should be taken into account in determining the profit. It is not possible to ascertain, from the facts narrated in the judgment, whether the amount of Rs. 1,00,200 was the amount due by way of payment of gratuity at that time or a provision for future liability. Whatever that be, the decision in that case apparently rested on a concession made by the counsel for the revenue as is seen from the following passage: "Mr. Joshi, appearing for the revenue, does not contend that making provisions for gratuity to meet the liability in that respect would amount to building up of reserves to meet a future liability. It is, however, his contention that the sum of Rs. 1,00,200 is in no way commensurate with nor represents the actual and factual liability of the assessee-company up to that date." 24. We find nothing in the judgment which would be of assistance to us for resolving the controversy here. In the later decision of the Bombay High Court in Bombay Cycle & Motor Agency Ltd. v. Commissioner of Income-tax, [1964] 54 I.T.R. 358, 382 (Bom.), reference was made to the earlier decision. The question there was whether a sum of Rs. 78,500, set apart as "gratuity fund", was to be treated as part of the capital and that arose in a reference relating to the application of Section 23A of the Indian Income-tax Act, 1922, to the assessee-company. The company had, in the relevant accounting year, declared a dividend which was more than 55 per cent. but less than 60 per cent. of the balance available after deduction of the tax payable thereon. The Income-tax Officer was of the view that the assessee-company was one which was required under Section 23A to distribute all the balance available by way of dividend. The assessee-company, among other contentions, took up the plea that in determining the distributable profit certain amount specified in the balance-sheet as the gratuity fund should be excluded. It was the company's case that the liability for gratuity had been imposed on the company by the awards made by the labour court earlier and it was in view of this that the amount was set apart. It was contended for the assessee that the amount was a provision for a liability which had to be provided for. Following the earlier decision of the Bombay High Court, the court took the view that the amount of Rs. 78,500 cannot be regarded as accumulated profits and reserves. Referring to the earlier case, the court said : "This court, however, was not inclined to accept the submission that the provision made for gratuity could be regarded as a reserve. What it pointed out was that a reserve was a fund set apart to meet a future expenditure or a liability which would fall at a future time. Where a liability has actually fallen though the quantum of the liability has not yet been determined, a provision made to meet the present liability is not a provision by way of a reserve." 25. According to us, the principle has been correctly stated by the Bombay High Court. Possibly, in that case, the liability for payment had already arisen by reason of the award. That again is not quite clear from the facts stated. Whatever that be, the principle stated is quite consistent with what we have said in this judgment. 26. We proceed to consider the next aspect. We have to examine now whether the reserve is of the nature of any of the items in the current liabilities and provisions in the form of the balance-sheet, given in Part I of Schedule VI to the Companies Act. Schedule VI, Part I, gives the form of balance-sheet. Any trader would like to ascertain his true financial position as at the end of each trading period, and that he could, by the preparation of a profit and loss account. When the net profit is so ascertained in the profit and loss account, he would like to see whether it is correctly ascertained and that must necessarily mean that his capital at the end of the period must necessarily increase to the extent of the profit seen in the profit and loss account. He would also like to see how the capital at the end of the year looks like, that is, its break up. He would like to know what his true financial position is at the end of each trading period. It is to obtain this information that the statement, named the balance-sheet, is prepared. That would give a correct picture of the assets and liabilities of the business. In the column "liabilities", besides share capital, reserve and surplus, and secured loans and unsecured loans, current liabilities and provisions have to be shown. It is the contention of the revenue that the term "provisions" include provisions not only for taxation, proposed dividends and provident fund scheme, but for contingencies also. Entry No. 10 in the sub-heading "provisions" in the "current liabilities and provisions" refers to "for contingencies." It is also pointed out that there is a foot-note and item 5 of the foot-note mentions thus: "(5) Other money for which the company is contingently liable." 27. Counsel, therefore, contends that in the balance-sheet under the heading "current liabilities and provisions" contingencies have to be shown and that means that amounts for which the assessee is contingently liable has also to be shown. It is the case of the revenue that, if a provision for reserve such as reserve for retirement gratuity is a provision in regard to a contingent liability, this must be considered as an item in the nature of one or other of the items under the heading "current liabilities and provisions". Of course, if this plea is to be accepted, it would necessarily follow that such provision comes within the scope of the Explanation to Rule 1 to Schedule II of the Act and the declaration for removal of doubts in the Explanation that such item shall not be reserve would, according to counsel, be sufficient to hold that the reserve for retirement gratuity cannot be treated as "other reserves" within the meaning of Rule 1 in Schedule II. In fact, this is the main argument of counsel. 28. We have already dealt with the question of liability for gratuity. In so far as no current liability has arisen in the accounting year it cannot find a place either in the items of expenditure for the year or in provisions for meeting liabilities. There is no current liability. In regard to a liability which has not arisen (in the sense no debt has become due from the assessee by reason of retirement) any amount reserved does not have the character of amount reserved by way of provision to meet a liability. The argument of counsel for revenue is that even such a reserve is in the nature of liability mentioned in the heading "current liabilities and provisions". It is easy to see that it is neither a current liability nor one in the nature of such liability. If "provision" has to be understood in relation to a balance-sheet for the current year as one for meeting the liabilities of the year, as we feel it should be, it is evident that the disputed reserve is not in the nature of a provision. Counsel for the revenue argues that the term "contingencies" referred to in the form of balance-sheet has not to be related to the year in question but to any liability that may arise at any point of time. In a balance-sheet where the financial position for the year is reflected and the liabilities as at the end of the year are shown, we see no reason to read the entries in the manner in which the counsel for the revenue wants us to read it. Apart from the fact that by its very nature a reserve such as one for retirement gratuity is not a reserve for meeting any liability that has already arisen, we see no reason to hold that the expression "other money for which the company is contingently liable" in item 5 of the foot-note or "for contingencies" as item 10 under the heading "provisions" means any liability that has not accrued and will not be, by its very nature, liability in the current year. Therefore, we must exclude the application of the Explanation to this case. If that be the case, then the amount is "other reserve" within the meaning of Rule 1 and should be taken into account in computing the capital for the purpose of "statutory deduction" as the term is defined in Section 2 of the Act. That is what has been found by the Tribunal and, therefore, we do not think that the question referred to us should be decided in favour of the revenue. 29. In the result, we answer the question referred to us in all the three cases in the affirmative, that is, against the revenue and in favour of the assessee. We direct the revenue to pay the costs of the assessee in all the three references. 30. A copy of this judgment under the signature of the Registrar and the seal of the High Court will be sent to the Income-tax Appellate Tribunal, Cochin Bench, as required under Section 260(1) of the Income-tax Act, 1961.

Author: S Poti

Commissioner Of Income-Tax vs Periakaramalai Tea & Produce Co. ... on 8 August, 1972

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 3625 of 2009(F) 1. ALI AKBER, ... Petitioner Vs 1. MANAGER, INDIA RAILWAY CATERING & ... Respondent 2. INDIAN RAILWAY CATERING & TOURISM For Petitioner :SRI.P.V.KUNHIKRISHNAN For Respondent :SRI.M.C.CHERIAN,SC,RAILWAY CATERING The Hon'ble MR. Justice ANTONY DOMINIC Dated :20/02/2009 O R D E R ANTONY DOMINIC,J. ----------------------- W.P.(C).No.3625 OF 2009 ------------------------ Dated this the 20th day of February, 2009. JUDGMENT (ANTONY DOMINIC) JUDGE vi/  WP(c).No.3625/09 /2/  The prayer sought for in this writ petition is to direct the respondents to return the cassettes seized as per Ext.P3, without in any manner tampering the same. The fact that the cassettes were seized by the Tour Manager of M/s. Travel Times (India) Pvt. Ltd is admitted by the respondent in the counter affidavit filed by them. It is also stated that the said action was necessitated on account of Ext.R1(a) complaint made by some other passengers. It is stated that cassettes were received by them only on 10.2.2009. 2. In paragraph 8 of the counter affidavit it has been stated thus. Now that the respondents have agreed to return the cassettes after verification, in the manner as stated in paragraph 8 of the counter affidavit, I direct that the petitioner shall appear before the Regional Manager of IRCTC Ernakulam on 25th February, 2009. Thereupon verification shall be done either on that date or at an earliest possible occasion and on that basis needful shall be done. Writ Petition is disposed of as above.

Ali Akber vs Manager on 20 February, 2009

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18883 of 2008 RAJU KUMAR Versus THE STATE OF BIHAR - - - - 3. 1.7.2008 Heard. The total recovery is 51 grams of brown sugar. The contention is many fold. That it is at all not certain that the recovered good really was brown sugar as the report of Forensic Science Laboratory is still to come. The second argument was that it was recovered from two different places from the house which was in joint possession of many persons. The third contention is that the chargesheet was submitted only to deny the benefit to the petitioner as approved under Section 36(a) of the Narcotic Drugs and Psychotropic Substances Act read with Section 167(2) of the Cr. P.C. The provision of bail as contained in Section 37 of the N.D.P.S.Act is so stringent as not to allow bail to an accused unless there are reasonable grounds to believe that the accused might not have committed any offence and secondly on being released he may not indulge in yet another offence. At this stage it is difficult to record either of 2 the findings, considering which the petition is dismissed. However, if it is found that the recovered good was not brown sugar, the petitioner will have liberty to come for fresh order. Let this order be communicated to the learned Special Judge, i.e., 6th Additional Sessions Judge, Patna, so as to taking steps for obtaining report of the Forensic Science Laboratory. Kanth ( Dharnidhar Jha, J.)

Raju Kumar vs The State Of Bihar on 1 July, 2008

Patna High Court - Orders

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 797 of 2011 ... Murshid Ansari ... ... Petitioner ­V e r s u s­ The State of Jharkhand  ... ... Opposite Party ... CORAM: ­ HON'BLE MR. JUSTICE PRASHANT KUMAR. ...    For the Petitioner : ­ Mr. Prabir Chatterjee, Advocate.    For the State : ­ Mr. T.N. Verma, APP.   ...   02/21.04.2011 After some argument, learned counsel for the petitioner seeks  permission to withdraw this anticipatory bail application. Permission accorded. Accordingly, this  anticipatory bail application is dismissed as  withdrawn.    (Prashant Kumar, J.) sunil/ 

Murshid Ansari vs State Of Jharkhand on 21 April, 2011

Jharkhand High Court

Sessions Judge, Belgaurn, in Criminal Revision Petition No.370/2006 and to restore the order dated 27.10.2006 passed by the JMFC II Court, Belgaum, in C.C.No.671/2965, rejecting application filed by the respondent/accusedw f .2. The brief facts of the case leading to this'.."p'etiti.oh is as under: The complaint under Section Procedure was filed by the compiaVi'na%nt ahgainstggthewlaccused for the offence punishable un.ti--en"g_v~Section' '"138 the Negotiable Instruments Act." _Dulri.ngVfthe'recourse of the said proceedings, ac_cus'ed__filed*4an«.'Va;3pi§cation under Section 293 read with Section Criminal Procedure to send the cheque _for'u'cern'parin.g admitted signatures of the I-'f_e.\k'ision'i"netitioner withwthat of signature appearing on the ch1eeue_a-'hea.ri'ng'aun.oV.'.3L67516 dated 1?.06.2004 for chemical x""'V'exarnine.tion.-~ JMFC II, Belgaum, has rejected the applicavtiiiin. Learned counsel for the accused had sought for"".refer%'ing the cheque to the Forensic Laboratory, to 'ascertain whether the signature on the cheque belongs to the :'VJ"»ac'cused and how old is the signature. The accused has " admitted the signature on the abovesaid cheque in her reply to demand notice marked at Ex.P.8, in para no.4 as under: C/' " looted all the articles worth Rs.10,0o,000/-- and valuable papers like signed blank cheques and cheque book. Out it of the said cheques the cheque bearin_§"'~" It it no.1s7s16 dated 17.06.2004 is also one. That means according to the accused '.E'x'.P~.§;_v-clheque * signed by her is one of the articles :i.oot:e<.'.. '¥'herefore, there is no dispute '4-regard-i.n§ sjigi.natLi3rev% appearing on Ex.P.1, the cheque)'-..:_The 'i'rla.|_'VfiCo1.irt has observed that there is no 'nt-;e_d to;_send_':the__cheque to the Forensic Laboratoryfor ve~rificatio--n_V~.or""c_on'ipa'rision of the signature,Zvijhe'Trivallxfioiurtblthis-isalsci opined that the finding of the Forensictexpert of the signature would not .-- .. ._ was r __h_elp the_%.case of eitheijxjthevparties. 'therefore, the Trial Court 'ti'-..asA rejecte:id:.the"-.s_aid application. Aggrieved by the same, the"'eccu_sed' pifeierred a Revision Petition. and substance of the finding of the " " --1'i."v'R__evisional' €Z_.o'urt is as under: it "me iearned Sessions Judge was of the opinion that _ asceijtainling the age of the writing in the cheque will not help "the'revision petitioner in any way to prove her case and no V' purpose will be served by sending the cheque for chemical examination. It has further observed that it is not necessary to send the cheque in question for chemical exareinaVti_oi-n.j;,:"' But, however, in the final order, the learned Ses_sio--hs' has allowed the revision petition in J order dated 27.10.2006 passed in sol as it pertains to refusal of th'é'e».:V:prayer V"i.-gorision petitioner to send the chedue for comoaring the disputed admitted signature and ordei'ed.1"that thLe:.~~'ch'ed'ue~.in___V§u:est%on'shall be sent to the ."toV"'=lf.jornoare the disputed signature oflthe admitted signature. 4. éleard sir:3es"vand'Vperused the records. »A '-counsel for the petitioner submitted that in V the iedai i¥oti'ce,'~li;the accused has clearly admitted that the U' ehequein qlu.e'sét'iod was looted alohgwith other articles and it . fiohtained the signature of the accused. Relying on this, the --.'{'riai~:V{fiourt has formed an opinion that it is not a fit case to T 'l--.r:e'fe'rl the cheque to the Forensic Laboratory. But the learned Sessions Judge has formed an opinion that the cheque was forged one and comoarision of the signature is necessary. when in the legal notice, the accused has clearly admitted 9/ that the signature on the cheque is her signature. Each being the case, the learned Sessions Judge could come to the conclusion that the cheque should__Vl§e:.sentxl'for' it chemical examination for ascertaining;the"g'enu«iner:essgfvvgthe signature, is not correct. in support of centention. 'learn,uedv.v" counsel for the petitioner relied 'oan:i:he decisioetinaclalsell of H M SATISH V/S. B is ASHi::Jri{é_re;§ei;ted:':inV:TL._8 2oo7*:<A:R 936. Therefore, in my View the revisional Court suffers from Taking into consideration also the materials placed on glecore. th'is"_'Rei}islon Petition deserves to be al|ovv'e(i.l' V l h 6. In View.of=the-vaVbt>_§re.:--'discussion, I pass the following: i g ccccc ' In _ ~v.This~.¢'riminal Revision Petition is allowed. dated 10.07.2097 passed in Criminal ', llgelllsion Petition 37o/zoos on the fiie of the 11 ihciditional Sessiens Judge, Belgaum, is hereby set aside. iii) The order dated 27.10.2006 passed by the JMFC II, Beigaum, on the application fiied under 6/ KM Section 293 read with Section 311 of Code: of Criminal ?rocedure is hereby restored.

Author: C.R.Kumaraswamy

Smt Surekha L Rao vs Smt Rajeshwari Rajashekhar ... on 17 September, 2008

Karnataka High Court

ORDER Prabha Sridevan, J. 1. These revisions arise out of an order passed under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control Act (hereinafter referred to as the Act). The landlords are the petitioners in both the revisions. One Adaikala Mary was the landlady who filed the application and the petitioners were brought on record as her legal representatives pending C.R.P. Since the 1st petitioner died, the 2nd petitioner his son was recognised as the 1st petitioner's legal representative for the purpose of prosecuting the revisions. 2. Adaikala Mary, the landlady filed R.C.O.P. No. 603 of 1993 for fixing the fair rent. According to her, the fair rent per month was Rs. 2,954. The Rent Controller fixed the fair rent at Rs. 1,774. Against this, the tenant filed R.C.A. No. 274 of 1995 and the landlords filed R.C.A. No. 311 of 1995. The appellate Authority allowed the tenant's appeal and dismissed the landlords appeal by fixing the fair rent at Rs. 1,374 per month. Against this, the two revisions have been filed by the landlord. The tenant has not filed any revision. 3. Mr. Rathnadurai, learned Counsel for the petitioners submitted that his document Ex.P-1 was not at all considered by the Appellate Authority and if that had been taken into account, the rent would not have been fixed at such a low level. Ex.P-1 would show that the property would fetch a higher rent. He also submitted that the vacant land had not been taken into account though it was admitted by the parties that there was vacant land. He pointed out to the appellate Judge's order where after referring to the guideline value, which gives the value per ground at Rs. 7.50 lakhs, the Appellate Authority had for no reason fixed the ground value at Rs. 7.00 lakhs per ground. He submitted that the Appellate Authority had erred in not looking at Ex.P-11 which was a document which would show the correct value per ground. The reason for the Appellate Authority not adverting to this document was because of the Supreme Court ruling that if a document is not marked through a party to the document, it cannot be received in evidence. In Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah (2001) 2 C.T.C. 424, the Supreme Court had reversed the two Judge Bench decisions in Inder Singh v. Union of India and P. Ram Reddy v. Land Acquisition Officer, Hyderabad and held that certified copies of sale deeds could be considered and parties who support or oppose the said document are not prevented to adduce their evidence to substantiate their stand and the mere acceptance of evidence does not mean that the Court is compelled to accept such transaction, it might treat it as evidence. In view of the change of law, the learned Counsel submitted that the Appellate Authority ought to have considered Ex.P-11. 4. Learned Counsel are relied on the following decisions: Shaw Wallance and Co. Limited v. Govindas Purushothamdas and Anr. (2001) 2 M.L.J. (S.C.) 80, Khasim Khaleali v. State of Tamil Nadu and Md. Abdulla and Sons v. Dorai Arasu . 5. Learned Counsel for the respondent on the other hand submitted that the Court below grievously erred in accepting the market value when it did not pertain to the relevant year. He also submitted that his sale deed ought to have been looked into and the rejection of those documents on the ground that they were not marked through the concerned parties was not correct in view of the latest Supreme Court decision and he also submitted in these circumstances, the C.R.Ps. ought to be remanded. For this purpose, he relied on the following decisions: (i) Dovo Tax Co. v. T.R. Ramanath 1999 L.W. 269; (ii) Maya Appliances and Centred Equipments, etc. v. A. Sulochana Reddy (1996) 1 L W. 497; (iii) Srirangaraja v. Ponniah Thevar (2000) 2 M.L.J. 204; (iv) Sakthi & Co. v. Desigachary ; (v) South India Corporation Agencies Ltd. v. Chandrakanth C. Bandani ;(vi) N. Sulaiman v. R. Ravichandran 1995 T.L.N.J. 226; (vii) Land Acquisition Officer v. V. Narasaiah 2001 T.L.N.J. (S.C.) 33; (viii) K.M. Abdul Razzak v. Damodharan ; (ix) D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L.W. 826. 6. One of the questions that has first got to be decided before considering the submissions with regard to the quantum of fair rent made by both counsel is, whether the tenant not having filed a revision can be heard to say that the matter must be remanded. The Rent Controller fixed the ground value at Rs. 10.00 lakhs per ground. The tenant dissatisfied, filed one appeal and the landlords filed another. The Appellate Authority allowed the tenant's appeal and dismissed the landlords' appeal. The tenant was not aggrieved by the fair rent that was fixed by the Appellate Authority and he did not choose to file any revision. The question is, whether he can now urge in the revision filed by the landlord that the fair rent has to be reduced though he did not challenge the fair rent fixed by the Appellate Authority. Learned Counsel for the respondent strenuously argued that he should be allowed to attack the fair rent fixed by the Appellate Authority on the ground the fair rent is fixed only for the building and not vis-a-vis, the tenant or the landlord. 7. In the decision reported in Dovo Tax Co. v. T.R. Ramanath 1999 L. W. 269, the landlords claimed that the building would fetch a rent of Rs. 1,250. The Rent controller fixed the fair rent at a higher rate. The tenant contended that he could not. This High Court held thus: The fair rent is fixed for the building in question in accordance with the provisions of the Act. It is not fair rent for the landlord or for the tenant, but for the building and as such the Rent Controller is free to fix the fair rent as per law untrammelled by the contentions of the parties. 8. In Maya Appliances and Centred Equipments, etc. v. A. Sulochana Reddy (1996) 1 L.W. 497, this Court held that fair rent should be determined by the Court. The RW.D. rates can be looked into and when the statute provides certain guidelines, the Court is bound to take note of that and therefore set aside the orders of the Rent Control Authorities and remanded the matter. 9. The decision reported in Srirangaraja v. Ponniah Thevar (2000) 2 M.L.J. 204, arises out of an order of eviction and where the learned Judge held that if a material piece of evidence is not considered, it would affect the decision of the case. This was relied on by the learned Counsel for the respondent to show, how the failure to refer to the sale deed marked by him had materially affected the decision of the case. 10. In Sakthi & Co. v. Desigachary , this Court was called upon to consider whether an application can be filed under Section 11 of the Act while proceedings under Section 4 are pending. It was held that it cannot be done. This does not apply to the present case. 11. In K.M. Abdul Razzak v. Damodharan , the Rent Controller had found that the building was in a dilapidated condition and the landlord had not established bona fide requirement. The Supreme Court held that the High Court cannot reappraise or reassess evidence and arrived at a finding contrary to the finding recorded by the Court below and held that the High Court ought to have remanded the case to the appellate Court if there was a change in position of law. The change in position in that case was the modification of the effect of the P. Orr. & Son's case by the subsequent decision in Vijay Singh's case. 12. In D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L. W. 826, the tenant filed an appeal against the order of Rent Controller fixing the fair rent. The Appellate Authority raised it and the tenant filed a revision. This Court dismissed the revision on the ground that the Appellate Authority has got all the powers of the Rent Controller and it can reappreciate and recalculate and fix the fair rent according to the norms laid down under the act and fixing of fair rent does not mean it should be favourable or beneficial to one party. It only means, fair rent as far as the premises is concerned. 13. In South India Corporation Agencies Ltd. v. C. Chandrakanth, Bandani , this Court held that fixing of fair rent has to be done considering the pleadings and evidence available on record and cannot be made on concession of parties. Interference with the revisional Court is uncalled for unless there is perversity in the approach of the authorities below. 14. I am afraid, these decisions do not come to the aid of the respondent. It is true that fair rent is fixed only for the building. The Rent Controller fixed the fair rant at Rs. 1,774 per month in one case and Rs. 887 in the other. The tenant filed one appeal and the landlord filed another. The appellate Court fixed fair rent in both the appeals at Rs. 1,374. The tenant was satisfied and now the learned Counsel wants this Court to interfere in revision at his behest. I am afraid, that cannot be done. It is true that the fair rent under Section 4 of the Rent Control Act is fixed with reference to the premises. 15. In D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L.W. 826, in paragraphs 6 and 7, it was held thus: It is clear from the above decision that fair rent is fixed for the building whether it is applied by tenant or landlord. Fixation of fair rent does not mean fixation of low rent favourable or beneficial to the advantage of tenant, as that would result in landlord getting only an unfair rent. A fair rent is fixed as per the specified procedure provided under the Act. Fair rent is essentially just rent having regard to all the circumstances and it is not rent favourable to the tenant as such. Whoever may be the applicant, the fair rent will have to be fixed according to the norms prescribed under the Act. In Savani Transports (P) Ltd. v. N. Jamal Mohammed (1989) 1 M.L.J. 211 : (1989) 1 L. W. 172, landlord wanted to fix fair rent at a particular amount. But, when the procedure under the Act was followed, the fair rent will be far in excess of the amount claimed by the landlord. The question was whether the Court is entitled to fix fair rent than what is claimed by the landlord. 16. And again in Dovo Tax Co. v. T.R. Ramanath 1999 L.W. 269, from which already a passage had been extracted, this Court held that the Rent Controller is free to fix fair rent as per law. This freedom of discretion is also applicable to the Appellate Authority and the Appellate Authority has fixed the fair rent on an appreciation of the materials before it. This fair rent was fixed not with reference to the tenant or the landlord, but because the Appellate Authority came to the conclusion that this was the fair rent with regard to the building. It is evident that the tenant also felt satisfied that this was the fair rent as far as the building was concerned and he did not challenge the orders passed by the Appellate Authority and therefore, he cannot claim to be a person aggrieved under Section 25 of the Act and seek for reduction of the fair rent fixed by the Appellate Authority. 17. Now, we come to the quantum of rent. As far as the area is concerned, both the courts held that the built-up ares is 320 square feet. The landlord's case that the appurtenant vacant land was not taken into consideration was rejected by both the Courts. Learned Counsel for the petitioners submitted that the evidence of R.W.1 the respondent clearly shows that there is open land. He has stated as follows: But however, the Engineer's report filed on the side of the petitioners do not show the existence of vacant land. The Engineer's Report reads that he took measurement of the entire portion and compared it with the sale deed under which the vacant land pertaining to the above property was bought. In the measurements of the entire portion, he has given the measurement as 320 square feet. In fact, even the petitioner in his evidence has only referred to one area and that is 320 square feet. In view of the concurrent findings of both the Courts with regard to the area, I do not want to interfere with the same, since there does not appear to be any error in this regard. 18. With regard to the value of the site, the trial Court fixed it at Rs. 10.00 lakhs, per ground. The Appellate Court fixes it at Rs. 7.00 lakhs, per ground. The Appellate Court has also referred to Exhibits P8 and P9 which are the guideline values from which the appellate Court calculates the ground value at Rs. 7,46,160. Learned Counsel for the respondent fervently urged that his document which is Ex.R-3 was not considered and therefore, the matter has to be remanded. But for the reasons given in the aforesaid paragraphs, I am of the opinion that as far as the respondent is concerned, he has allowed the decision of the Appellate Authority of fixing the rent at Rs. 1,372 per month to be the fair rent for the premises and therefore, this submission made by the learned Counsel for the respondent is rejected. As regards Ex.P-11, it is relied on by the Rent Controller to arrive at the fair rent of Rs. 10.00 lakhs. This is rejected by the Appellate Authority. The Appellate Authority not only refers to the decision of this Court and the Supreme Court that unless the parties concerned with the document are examined, the sale deeds cannot be relied on for fixing the value of the site, but the Appellate Authority also on a consideration of the evidence of R.W.2, through whom Ex.P-11 was marked, finds that the said witness only admits the factum of sale, but not the circumstances under which this value was arrived at. It is seen from the document Ex.P-11 which is marked through R.W.2 the respondent herein that the petition premises is very close to the property, subject matter of Ex.P-11. R.W.2 admits from a perusal of the document, regarding the consideration for which the property has been sold. 19. Now, we come to the relevance of Exs.P-8 and P-9 which are the guideline values. The suit property is situated at T.S.No. 1/67. For the relevant survey number the value is Rs. 310.90 per square feet. The Appellate Authority order reads thus: There does not seem to be any justification for fixing the value of the site at Rs. 7.00 lakhs when the Appellate Authority has the document before the Court which shows the guideline value to be Rs. 7.50 lakhs. 20. Learned Counsel for the respondent relied on the decision reported in Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and Ors. , where the Supreme Court held that there is no statutory foundation for accepting the basic evaluation register maintained by registering authority for collection of stamp duty and that evidence of price fetched in comparable sale transaction is generally accepted as the best method to determine the market value. 21. Learned Counsel for the respondent relied on Rahmath Fathima T.H.S. v. T.K. Kader Mohideen (1996) 2 L.W. 637, where this Court held that the Government fixes the value only for the purpose of stamp duty and that the market value for a particular survey number is the result of a bargain between the parties. In that case, Ex.P-5 which was the disputed document was a sale deed. According to him, Ex.P-5 represents the market value and it was contended that Ex.P-5 would not have been registered if the transaction is less than the value fixed by the Government. It is in that context that the learned Judge held that the market value of a particular survey number is the result of a bargain between the parties and it is to be proved by evidence. 22. Learned Counsel for the respondent relied on Srinivasa Gounder v. K. Venkatesan (1997) 3 L.W. 193, in which the Appellate Authority had relied upon the hearsay evidence of P.W.1 on the basis of information ascertained by him from the Sub Registrar's Office. The High Court held that this procedure is wrong. 23. In the decision reported in N. Sulaiman v. R. Ravichandran 1995 T.L.N.J. 226, this Court has held that the guideline value adopted by the registering authorities may be taken as a guidance. 24. From the decisions cited by both the counsel, it is seen that the value fixed by the Government for the purposes of stamp duty has no relevance and judicial notice cannot be taken for the same. For determination of the market value, transaction between a willing purchaser and a willing seller will alone form the basis. Viewed at from this angle, we are left only with Ex.P-11. The Appellate Authority has rejected Ex.P-11, one, on the ground that this had not been marked through either of the parties and another on the ground that he has not spoken to the correctness of the consideration recorded in those sale deeds. As regards the acceptability of document without examining anybody connected with the transactions for proving market value, the Supreme Court has recently held in the decision cited above in Land Acquisition Officer and Mandal Revenue Officer v. Narasaiah (2001) 2 C.T.C. 424, that certified copy of registered documents may be accepted as evidence of transaction. Ofcourse, there is no compulsion to accept them, but in the same decision, the Supreme Court has held that Court can act on documents regarding transactions recorded in such documents and it was open to the parties to support or oppose the said document of transaction and they are not prevented from adducing their evidence to substantiate their stand. In this case, the document itself was marked only through R.W.2 who has not said anything in his evidence even in the cross-examination regarding the bona fides or the genuineness of the transaction. 25. Now, as regards relevance of this document, in May a Appliances and Centred Equipments, etc. v. A. Sulochana Reddy (1996) 1 L.W. 497, the learned Judge had held that for determination of market value according to legal principles, transaction by a willing seller to a willing purchaser in open market must be considered and not the mere opinion or suggestion by the landlord and any transaction that takes place in a nearby locality after the institution of the fair rent application within a reasonable period thereafter has been held to be of material use in fixing the market value. In this case, I am of the opinion that the Appellate Authority went wrong in rejecting Ex.P-11 and fixing the market value at Rs. 7.00 lakhs without any document to support that rate and using the guideline value for reference when all the decisions referred to both by the counsel for the petitioners and the respondent are to the effect that this cannot be taken judicial notice of. R.W.2 himself deposes in his evidence that the decision premises is only two doors away from the premises which is subject matter of Ex.P-11. In these circumstances, I think, the value reflected in Ex.P-11 can be accepted as market value. 26. The decision reported in D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L. W. 826 clearly lays down that the fair rent will have to be fixed having regard to all the circumstances and it is not the rent favourable to either the landlord or the tenant. In the decision reported in Land Acquisition Officer and Mandal Revenue Officer v. Narasaiah (2001) T.L.N.J. 33 : (2001) 2 C.T.C. 424 it was held that the transaction recorded in the exhibits marked in the case that was under consideration could be relied on though no one was examined for proving such transaction. This conclusion was arrived at because in that case, the State had not created any doubt regarding the bona fides or genuineness of the transactions mentioned therein. In this case, the appellate Court declined to accept the value of the site recorded in Ex.P-11 though the transaction was not denied by R.W.2, the respondent herein nor was anything elicited in the oral evidence that the transaction was not genuine. One of the parties to this sale deed is a public limited company namely the Coramandel Engineering Company and we have no reason to believe that the sale consideration reflected therein is inflated or that it was a distress sale. 27. In these circumstances, I have no hesitation in adopting this value for the purpose of calculating the market value of the site. The calculation made by the appellate Court is left undisturbed otherwise. The cost of construction for 320 sq.feet at the rate of Rs. 160 less depreciation was fixed at Rs. 44,083. The value of the site in Ex.P-11 is Rs. 1,86,253 for 558 sq.feet. Therefore, for one ground, the value is about Rs. 8,01,088. The value of 320 sq. feet is calculated as 320 x 801088/2400 which will give us Rs. 1,06,811. Therefore the total value will be Rs. 1,50,894. Since tenancy is non-residential, 12% of this is calculated and a sum of Rs. 1508.94 is arrived at which is rounded off to Rs. 1,509. This will be the fair rent. 28. In the result, the C.R.Ps. are allowed. The fair rent for the petition premises is Rs. 1,509. No costs. 29. Prabha Sridevan, J.: In these cases judgment was pronounced on 31.7.2001 and the fair rent was fixed on the basis of Ex.P-11. Immediately, the learned Counsel for the respondent brought to my notice that Ex.P-11 is of the year 1994 and therefore, it cannot be relied on for the purpose of fixing the fair rent in a petition filed in the year 1993 itself and therefore, the matter was listed today for further arguments. But, I find from a perusal of Ex.P-11 that the argument between the parties was entered into in 1991 itself and the Income Tax clearance certificate was also obtained in the same year. So, the objection raised by the learned Counsel for the respondent that the sale deed is one year subsequent to the Rent Control Original Petition and the consideration reflected in a subsequent sale deed cannot be relied upon, cannot be accepted. There is no reason for any alteration in the fair rent already fixed and the order passed on 31.7.2001.

Author: P Sridevan

Susainathan And Anr. vs T. Vijayan on 30 July, 2001

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23349 of 2011 1. Aarti Devi W/o Birendra Ram 2. Nitu Devi W/o Late Shankar Ram 3. Birendra Ram S/o Late Lalchan Ram. Versus The State Of Bihar ----------- Md. Ibrarul ( Anjana Prakash, J.) 2. 01.08.2011 Heard learned counsel for the petitioners and the State. The petitioners seek bail in a case instituted for the offence under Sections 364, 302, and 120B/34 of the Indian Penal Code. Considering that apart from a bad allegation, there is no cogent material against the petitioners who happened to be the parents-in-law and wife of the deceased, let the petitioners, above named, be released on bail on furnishing bail bonds of Rs. 5,000/- (five thousand) each with two sureties of the like amount each or any other sureties to be fixed by the court below to the satisfaction of the Chief Judicial Magistrate, Bhagalpur in connection with Kotwali P.S. Case No. 42 of 2004 subject to the conditions (i) That one of the bailors will be a close relative of the petitioners, who will given an affidavit giving genealogy as to how they are related with the petitioners The bailors will undertake to furnish information to the court about any change in the address of the petitioners, (ii) That the petitioners will give an undertaking that they will receive the police papers on the given date and be present on date fixed for charge and if they fail to do so on two given dates and delay the trial in any manner, their bail will be liable to be cancelled for reasons of misuse, and 2 (iii) That the petitioners will be well represented on each date and if they fail to do so on two consecutive dates, their bail will be liable to be canceled.

Aarti Devi & Ors. vs The State Of Bihar on 1 August, 2011

Patna High Court - Orders

JUDGMENT B.A. Khan, J. 1. What is the fate of a suspension order where the charge sheet is not served on a suspended employee within three months from the date of order? Is it fatal for the order? This question falls for determination in this writ petition filed by the petitioner seeking quashment of his suspension order dated August 5, 1991. 2. Petitioner is a chowkidar working in the Sheep Husbandry Department. He was appointed on ad hoc basis vide order dated May 8, 1988 but is continuing on the post ever since and his case stands recommended for regularisation also. 3. It seems that some cash was stolen from the Director's office. A committee of officers was constituted to conduct a preliminary inquiry/investigation in the matter. While doing so, four employees including the petitioner were placed under suspension vide order impugned retrospectively from the date of occurrence i.e. August 1, 1991. A report (FIR No. 176/1991) was also lodged with the police wherein petitioner was only cited as a witness and not the accused. 4. Petitioner's sole grievance is that respondents have not served any charge-sheet on him till date, not to speak of any enquiry having been initiated into his conduct. It is also submitted that suspension order cannot sustain as neither any enquiry is contemplated or pending against him nor he is involved in any criminal offence which is pending investigation or trial against him. On this basis, it is urged that suspension of the petitioner is wholly tin-warranted and un-justified, besides being arbitrary and capricious. 5. In the course of hearing, Mr. Dutta LC for petitioner, argued that impugned order of suspension was liable to be quashed as respondents had failed to serve any charge sheet on petitioner within three months from the date of order, as contemplated by Instruction No. 2 appended to Rule 31 of Classification Control and Appeal Rules, 1956 (hereinafter called the rules). The relevant Instruction reads thus:- "....Competent authority should endeavour to have chargesheet filed in the court, in case of prosecution, or served upon the Government in case of Departmental proceedings within three months from the date of suspension. Cases in which this is not possible such authorities will report to the next higher authority explaining the reasons for delay. The cases of Govt. servants under suspension should be reviewed by the Competent Authorities periodically to see that steps could be taken to expedite the progress of the mode of trial or Departmental proceedings so as to reduce the period of suspension to barest minimum. 6. Interpreting the provision it is contended that the object of the Instruction is to reduce the period of suspension to the bearest minimum, as would be indicative from the time-frame prescribed therein. On this reasoning it is argued that the word "endeavour" occurring therein be read as "shall in consonance with the spirit of the provision which be treated as mandatory and fatal for the order of suspension in case of any breach. In other words, it is submitted that where the competent authority fails to serve the charge-sheet within the prescribed time, the order of suspension should be deemed to be invalidated. 7. In reply, Mr. Lone has made two submissions. Firstly, that the Rules do not apply to temporary employees and petitioner being a temporary employee cannot claim the benefit thereunder the secondly, that Govt. Instruction No. 2 is an executive instruction having no statutory force and not liable to be enforced. He has referred to and relied upon Recruitment Rules for temporary Govt. employees in support of his first contention. He, however failed to show that the Recruitment Rules excluded application of Classification Control and Appeal Rules, 1956 in case of temporary employees. His first contention consequently fails. 8. His second contention also deserves to be rejected at the very threshold as it is already settled by this court that Govt. Instruction No. 2 added by SRO; 616 of 1987 to Rule 31 of the Rules provides statutory guide-line to the main rule to regulate the mode of exercise of discretionary power of suspension of a Govt. employee conferred by Rule 31. Therefore, it would be futile to examine whether the controversial instruction should or should not be credited with the statutory force and whether it is required to be enforced. 9. While getting rid of the contentions raised by LC for respondents, it still remains to be seen whether the relevant Govt. instruction can be read the way Mr. Dutta would want it to be read. The question that arises is whether the instruction should be held to be mandatory laying down a rigid time frame and whether failure to adhere to the prescribed schedule can invalidate the suspension order? In my view, it does not contemplate or envisage any such thing. All it provides for is to regulate the mode of exercise of power of suspension by laying down certain checks and balances. The rationale behind appears to be to avoid a situation where a suspension of an employee is allowed to drag on and to become an un-ending affair. That is why the crucial word used in Instruction is "endeavour". Though a time frame is provided for service of the charge sheet, it is only intended to place a fetter on the Competent Authority lest the suspension is unduly prolonged by resort to arbitrary exercise of power. Where it is not possible to stick to the prescribed time frame the authority has to explain reasons for the delay and conduct periodical reviews to expedite the trial in case of involvement of a criminal offence and the departmental proceedings as the case may be. 10. Viewed thus, while Rule 31 confers a power on the authority to suspend an employee from service subject of course, to the satisfaction of conditions laid down in the Rule, Government Instruction added to the Rule by SRO : 616 provides guide lines to regulate the mode of exercise of such power. All that it seeks to achieve is a quick action against the suspended employee. Resultantly, an obligation is cast on the Competent Authority to endeavour to have the charge-sheet filed in case of prosecution or served, in case of Departmental proceedings, on the suspended employee within three months from the date of suspension. If for some reasons the authority is not able to do within the prescribed time, he is required to explain reasons for the delay and at the same time to conduct the periodical reviews to expedite the disposal of the suspension case. All this, however, does not mean that the failure of the competent authority to serve the charge sheet within three months from the date of suspension vitiates the suspension order. But where the authority after expiry of three months fails to explain the reasons for delay in serving the charge sheet and conducting periodical reviews to expedite the employee's suspension case, continuation of suspension in such case must be held invalid being violative of the instructions. 11. Petitioner's case falls in the latter category. Despite repeated opportunities granted to the respondents they have failed to produce any record to explain the delay in serving the charge sheet on the petitioner. They have also not stated whether any periodical review was conducted in the case. The order of suspension naturally falls and is quashed. 12. I accordingly allow this writ petition and set aside the order of suspension.

Author: B Khan

Askar Hussain vs State Of J And K And Ors. on 6 April, 1993

Jammu & Kashmir High Court

JUDGMENT D.P. Mohapatra, J. 1. The short question that arises for determination in this case is whether in a proceeding under Section 125, Criminal Procedure Code the Magistrate has the power to permit the applicant to amend the application filed under the section seeking maintenance. 2. In this petition filed under Sections 399, 401 and 482 of the Code of Criminal Procedure, the petitioner has prayed to quash the order passed by the S.D.J.M., Bhubaneswar on 23-10-1989 in Criminal Misc. Case No. 38 of 1988 rejecting her petition to amend the application under Section 125, Cr.P.C. 3. The petitioner claiming to be the wife of the opp. party filed the application under Section 125, Cr.P.C. in the Court of the S.D.J.M., Bhubaneswar for maintenance from the opp. party which was registered as Criminal Misc. Case No. 37 of 1988. During pendency of the case she filed the petition purportedly under Order 6, Rule 17, C.P.C. praying to make certain amendment in the application filed under Section 125, Cr.P.C., the essential purpose of which was to correct the date of marriage given in the application and to elucidate certain facts stated therein. The opp. party objected to the prayer mainly on the ground that the provision in Order 6, Rule 17, C.P.C. was not applicable to the proceeding and hence the petition was not maintainable. The learned Magistrate accepted the objection and rejected the petition for amendment. 4. From the discussions in the impugned order it is evident that, the said ground for rejection of the prayer for amendment of the application under Section 125, Cr.P.C. was that Order 6, Rule 17, C.P.C. has no application to the proceeding under Section 125, Cr.P.C., since it was not a proceeding of civil nature and the Criminal Procedure Code makes no provision enabling the Magistrate to permit amendment of the application under Section 125, Cr.P.C. The learned Magistrate relied on the decision of this Court in the case of Norbet Kispatta v. Mst. Tersa Kerketa, reported in 1971 Criminal Law Journal 1496. 5. Shri G.S. Rath, learned counsel appearing for the petitioner submitted that the learned Magistrate was not right in holding that he had no power to permit the petitioner to amend her application under Section 125, Cr.P.C. Shri Alok Samantaray, learned counsel appearing for the opposite party on the other hand supported the impugned order relying on the aforementioned decision of this Court. 6. I have carefully perused the decision of this Court in the case of Norbet Kispetta (supra). In my view, the learned Magistrate did not correctly interpret the ratio in the decision to mean that in a proceeding under Section 125, Cr.P.C. (Section 488 of the Criminal Procedure Code, 1898) the Magistrate has no power to permit amendment of the application. In that case the Court was considering the correctness of the contention that the proceeding under Section 488, Cr.P.C. being of a civil nature, the petition filed is in the nature of a plaint in the civil suit and therefore the petitioner must be bound down to the averments made in the petition. This Court negatived the contention relying on the decision of the Supreme Court in the case of Nand Lal Misra v. Kanhaiya Lal Misra, reported in AIR 1960 S.C. 882 that though the relief given under Chapter XXXVI which includes Section 488, Cr.P.C. is essentially of a civil nature, all the same the proceedings under the said Chapter are not civil proceedings so as to attract the provisions of the Civil Procedure Code as the said proceedings are wholly governed by the provisions of the Criminal Procedure Code and that being so the provisions of Chapters VI, VII and VIII, Civil Procedure Code relating to pleadings in a civil suit do not apply to a petition under Section 488, Cr.P.C. In essence, what was held by this Court was that the rigour of the rule of pleading does not apply to a proceeding under Section 488, Cr.P.C. and the applicant is not to be bound down to the statements contained in the application. This Court did not deal with the question of the Court's power to permit amendment of the application under Section 488, Cr.P.C. Therefore the learned Magistrate was not right in concluding from the aforementioned decision that he had no power to consider the petitioner's prayer to amend her application under Section 125, Cr.P.C. 7. Section 125, Cr.P.C. vests power in a Magistrate of the first class, inter alia, to order any person to make a monthly allowance for the maintenance of his wife if he is satisfied that the said person having sufficient means has neglected or refused to maintain his wife unable to maintain herself. Keeping in view the intent and purpose in enacting the provision and the purpose sought to be achieved it would be reasonable to assume that the Magistrate is vested with all ancillary powers necessary for the purpose of effectual and proper exercise of jurisdiction vested in him under Section 125, Cr.P.C. The power to permit the petitioner to amend the application under Section 125, Cr.P.C. is, in my view, an ancillary power of a purely procedural nature. Therefore, in the absence of any provision in the Criminal Procedure Code prohibiting exercise of such power the learned Magistrate could permit amendment of the application in exercise of the ancillary power. Further, the purpose of the amendment, as noticed earlier, was to correct the date of marriage stated in the application and to elucidate certain facts stated therein. The amendment was intended to put the opp. party to notice of the facts and thereby help the Magistrate in conducting the proceeding fairly and properly. Therefore though the learned Magistrate was right in holding that the provision of Order 6, Rule 17, C.P.C. in terms did not apply to the proceeding under Section 125 Cr.P.C., he was not right in holding that he had no jurisdiction to permit the petitioner to amend her application. If any authority is necessary to support this view, I may refer to the decision of the Bombay High Court in the case of Haribhau Kisan Patil v. Manorma and Anr., reported in II (1985) DMC 230. In that case the Bombay High Court relying on two earlier decisions of the Court reported in 1980 Mh. L.J. 871 (Baburao Akaram v. Kusum Baburao) and 1981 Mh. L.J. 907 (Marotrae v. Chandrakanta) held that the Magistrate had jurisdiction to allow amendment of the application under Section 125, Cr.P.C. 8. The point can also be examined from another angle. The application in this Court has been filed under Section 482, Cr.P.C. Though the subordinate criminal Courts are not vested with inherent power, there is no doubt that this Court has the inherent power (See AIR 1977 S.C. 2432 : Bindeshwari Prasad v. Kali Singh). Therefore, the petition filed by the petitioner to amend her application under Section 125 Cr.P.C. can also be considered by this Court in exercise of its inherent power. In the facts and circumstances discussed in the fore going paragraphs I would not hesitate to exercise such power since, as I have already held, the proposed amendment would help the learned Magistrate in fair and proper adjudication of the matter and will serve the ends of justice. 9. Thus viewed from any angle, I do not find any difficulty in holding that the petition filed by the petitioner to amend her application under Section 125, Cr.P.C. should be allowed. Accordingly the revision petition is allowed, the impugned order is set aside and the petition filed by the petitioner to amend her application under Section 125, Cr.P.C. is allowed. The learned Magistrate is directed to proceed to dispose of the proceeding in accordance with law.

Author: D Mohapatra

Sabita Sahoo vs Capt. Khirod Kumar Sahoo on 20 March, 1990

Orissa High Court

JUDGMENT J.D. Kapoor, J. 1. This is a suit for recovery filed by the plaintiff Bank on account of the dues which the plaintiff Bank had to pay to defendant No. 4, since the defendant No. 4 had obtained a decree for non-invokation of the Bank Guarantee. 2. The defendant No. 4 filed a civil suit in the Court of Civil Judge at Udupi, D.K. The suit was decreed and in pursuance of the decree the plaintiff paid the decretal amount including the interest to the tune of Rs. 6,56,078/- and called up to the defendants 1 to 3 to pay back the said amount to the plaintiff in terms of their Counter Guarantee. Despite service of legal notices defendants 1 to 3 failed to pay the said dues. Hence this suit. 3. The averments of the plaintiff in support of its claim in brief are as under:- 4. The defendant No. 2 being the sole proprietor of defendant No. 1 placed an order on defendant No. 4 of printing and supply of lottery tickets and requested the plaintiff Bank to furnish Bank Guarantee for a sum of Rs. 2,14,000/- with defendant No. 4 as beneficiary. Defendant No. 2 as the proprietor and defendant No. 3 as the guarantor furnished counter guarantees in favor of the plaintiff clearly undertaking to indemnify the Bank and to pay all amounts in case the plaintiff was compelled to pay any amount to defendant No. 4 pursuant to the Bank Guarantee. As a consequence of certain dispute arising between defendant No. 2 and defendant No. 4, the defendant No. 4 invoked the Bank Guarantee. The plaintiff Bank refused to encash the same on the ground that the defendant No. 4 had supplied lottery tickets to defendant No. 1 before issuing of Bank Guarantee whereas the said bank Guarantee did not relate to any past transaction. 5. The defendant were proceeded ex parte as they did not put in appearance to contest the claim of the plaintiff despite service of summons of the suit. The plaintiff was called upon to file affidavit by way of evidence. In support of its claim the plaintiff has proved the following documents:- 1. Exhibit PW-1/1 is the photocopy of the power of attorney authorizing to file the suit. 2. Exhibit PW-1/2 is the letter of sanction for issuing the Bank Guarantee. 3. Exhibit PW-1/3 is the certified copy of the Bank Guarantee. 4. Exhibit PW-1/4 is the counter guarantee by defendant No. 2 as proprietor of defendant No. 1. 5. Exhibit PW-1.5 is the certified copy of the judgment and decree taken by the plaintiff against defendants 1 & 2. 6. Exhibit PW-1/6 is the certified copy of the judgment passed by the Civil Judge, Udupi. 7. Exhibit PW-1/7 & PW-1/8 are the letters written by the Mangalore Branch of the plaintiff to the plaintiff. 8. Exhibit PW-1/9 is the letter by the counsel for the plaintiff informing full satisfaction of the decree passed by Udupi Court, 9. Exhibit PW-1/10 is the reply sent by Mangalore Branch of the plaintiff to the counsel. 10. Exhibit PW-1/11 are the certified copies of the proceedings pertaining to the Court of Civil Judge, Udupi. 11. Exhibit PW-1/12 & PW-1/13 are the carbon copies of the legal notice and postal receipts. 6. As is apparent from the aforesaid documents defendant No. 2 had given a counter guarantee in favor of the plaintiff bank that in case the plaintiff has to pay any amount to defendant No. 4 in pursuance of the invocation of the bank Guarantee they will re-imburse the said amount to the plaintiff Bank. Since the defendants have failed to pay, the plaintiff is entitled to the decree as prayed for. 7. The suit of the plaintiff is decreed for Rs. 6,78,788.65 with costs and pendente lite and future interest @ 24.75% per annum from the date of the filing of the suit till its realization. Decree sheet be drawn up accordingly.

Author: J Kapoor

Punjab National Bank vs Maya Enterprises And Ors. on 15 March, 2002

Delhi High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.242 of 2009 Ravi Atal & Anr Versus Smt.Ganga Devi ---------------------------------- 12 2-9-2011 It has been submitted on behalf of the petitioners that the learned senior counsel has gone out of Patna. As such, the case is passed over with the consent of other side by way of last chance. ( V. Nath, J.) roy

Ravi Atal & Anr vs Smt.Ganga Devi on 2 September, 2011

Patna High Court - Orders

Central Information Commission CIC/AD/C/2009/000582 Dated November 19, 2009 Name of the Applicant : Shri Sameer Hasan Name of the Public Authority : Dept. of Post, Sasaram Background1. The Applicant filed an RTI application dt.9.3.09 with the PIO, DoP, Sasaram. He wanted to know who is the CPIO in the Head Post Office and the action taken on his letter dt.29.12.08; whether the enquiry has been completed or not, the number of employees working in the HPO for the last 5 years etc. On not receiving any reply, he filed a complaint dt.5.6.09 before CIC. The Commission vide its order dt.30.9.09 directed the PIO to provide the information to the Applicant and to respond to the showcause notice issued to the PIO by the Commission for the delay in providing the information, by 5.11.09. 2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for November 19, 2009. 3. Shri Jitendra Singh, CPIO represented the Public Authority. 4. The Applicant was not present during the hearing. Decision 5. The Respondent submitted that information was provided on 30.3.09 and also that a Xerox copy of the same has been supplied on 25.5.09 again as per the instruction of CPMG, Bihar Circle, Patna. 6. The Commission holds that there is no delay on the part of the PIO in furnishing the information and drops the penalty proceedings against the PIO. Since the Appellant has not responded after receiving the information , it seems that he is satisfied with it. 7. The complaint is accordingly disposed of. (Annapurna Dixit) Information Commissioner Authenticated true copy: (G.Subramanian) Asst. Registrar Cc: 1. Shri Sameer Hasan Ward No.15, Bhabua (Kaimur) Bihar 821 101 2. The CPIO Department of Post O/o Supdt. of Post Offices Rohtas Division Sasaram 3. Officer incharge, NIC 4. Press E Group, CIC

Shri Sameer Hasan vs Dept. Of Post, Sasaram on 19 November, 2009

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 3318 of 2010(L) 1. MOHAMMED, PARUVINGAL HOUSE, ... Petitioner Vs 1. THE SECRETARY, ... Respondent For Petitioner :SRI.I.DINESH MENON For Respondent : No Appearance The Hon'ble MR. Justice K.SURENDRA MOHAN Dated :02/02/2010 O R D E R K.SURENDRA MOHAN, J ........................................... WP(C).NO.3318 OF 2010 ............................................ DATED THIS THE 2nd DAY OF FEBRUARY, 2010 JUDGMENT The petitioner is an existing operator conducting service on the route Pattambi-Pallippuram as an ordinary service. He applied for variation of the conditions of his permit so as to deviate from the route at Mangalam to Kodikunnu via Mudappakkadu, Kulamukku, Kodanthoor and Palathara. Considering the benefit of the variation to the travelling public, the same has been granted. However, the grant has been made subject to settlement of timings. The complaint of the petitioner is that no timing conference has been held thereafter. He therefore seeks appropriate directions for convening of a timing conference on an early date. The Government Pleader has no objection to such a direction being issued. 2. In view of the above, this writ petition is disposed of directing the respondent to convene a timing conference and to settle the timings  Wpc 3318/10 2 of the petitioner, in accordance with law, as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of this judgment. The varied permit shall also be issued to the petitioner thereafter. K.SURENDRA MOHAN, JUDGE lgk 

Mohammed vs The Secretary on 2 February, 2010

Kerala High Court

Court No. - 55 Case :- CRIMINAL APPEAL No. - 187 of 2010 Petitioner :- Kale Respondent :- State Of U.P. Petitioner Counsel :- V.K. Birla Respondent Counsel :- Govt. Advocate Hon'ble Vineet Saran,J. Hon'ble Ashok Kumar Roopanwal,J. Connect this appeal with Criminal Appeal No. 188 of 2010. Admit. Learned AGA has accepted notice for the State. He prays for the time for filing objection u/s 389 Cr.P.C. Sri B. P. Verma has put in appearance on behalf of the complainant. His name may be shown in the cause list. List on 15.2.2010. By this time the objection may be filed. The lower court record be summoned in the meanwhile. Order Date :- 19.1.2010 Pcl

Kale vs State Of U.P. on 19 January, 2010

Allahabad High Court

CENTRAL INFORMATION COMMISSION ..... Date Event Delay 10.07.2007 Complainant filed his RTI-request 24.07.2007 CPIO, Central Region returned the F.No.CIC/AT/C/2008/00589 Dated, the 28th November, 2008. Complainant : Shri Shrinivas Govindrao Nitalikar Respondents : Geological Survey of India Pursuant to the Commission's notice dated 22.10.2008, this matter came up for hearing on the 27.11/2008. Respondent, Shri Gautam Dhar, Deputy Director General (P) was present. Complainant was absent. 2. Shri Dhar (respondent-CPIO) stated that it was true that delays did occur in this matter, but he attributed this to inadequate understanding of RTI Act in the organization he represented, viz. the Geological Survey of India, the officers there being scientific and technical officers, who were not sufficiently trained in the legal nuances of the RTI Act and, therefore, did not appreciate the urgency of timely dissemination of information and so on. 3. Delays in this case were recorded as follows:- application to the complainant to approach the CPIO, Kolkata Region 27.07.2007 Complainant again filed his RTI-application requesting that the same may be forwarded to CPIO, Kolkata Region 27.09.2007 Complainant filed his first-appeal before the 30 days AA, Shri B.K. Bandhopadhyay, DDG, CHQ, Kolkata 22.11.2007 RTI-applications were forwarded to DDG(P), Shri G. Dhar (holder-of-the-information) 21.07.2008 Information supplied to the complainant 230 days 4. It is not possible to concede the respondent's plea against penalty based on the ground that in the early years of the implementation of the RTI Act, there was inadequate understanding of the provisions of the RTI Act, especially in Scientific and Technical Organisations such as the Geological Survey of India (respondents). In fact, this is not the first case about delay which has come up Page 1 of 2 before the Commission from this organization It cannot, therefore, be said that the officers of the organization did not have sufficient warning about the consequences of delayed disposal of RTI-applications. 5. The submissions of the respondent, Shri Gautam Dhar are, therefore, rejected and it is directed that a penalty of Rs.25,000/- (@Rs.250/- per day for 230 days, limited to Rs.25,000) be imposed on Shri Dhar, who was the holder-of- the-information and was responsible for the inexplicable delay (between 22.11.2007 and 21.07.2008) as spelt-out in Para 3 above. 6. The penalty amount shall be collected from the monthly salary bills of Shri Gautam Dhar at the rate of Rs.5000/- per month and shall be completed in five months starting from January, 2009. The head of the public authority, viz. Director General, GSI is directed to ensure that the deduction of the penalty amount from the salary bills of Shri Dhar is regularly made till the entire amount is recovered. The methodology of crediting the penalty amount so recovered is explained in the enclosure to this order. 7. Complaint is disposed of with these directions. 8. Copy of this decision be sent to the parties. ( A.N. TIWARI ) INFORMATION COMMISSIONER Page 2 of 2

Shri Shrinivas Govindrao ... vs Geological Survey Of India on 28 November, 2008

Central Information Commission

Court No. - 37 Case :- CENTRAL EXCISE APPEAL No. - 4 of 2007 Petitioner :- Commissioner Of Central Excise, Meerut Respondent :- M/S Bakewell Agro Ltd. Petitioner Counsel :- Ajay Bhanot Hon'ble Rajes Kumar,J. Hon'ble Subhash Chandra Nigam,J. Sri A.P. Mathur, Advocate, states that he has received instruction on behalf of the respondent. He requested that the case may be passed over today. The case is passed over. Order Date :- 28.1.2010 OP

Commissioner Of Central Excise, ... vs M/S Bakewell Agro Ltd. on 28 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 8.4.2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.9183 of 2011 M/s.Aarve Enterprises rep. By its Proprietor Mr.Arjun Singh ... petitioner Vs. 1. The Commissioner of Customs (Seaport-imports) Custom House No.60, Rajaji Salai Chennai - 600 001 2. The Additional Commissioner of Customs Gr.5A Custom House No.60, Rajaji Salai Chennai - 600 001 3. The Director General of Foreign Trade & Ex-officio Additional Secretary to the Government of India Ministry of Commerce and Industry Department of Commerce New Delhi ... Respondents Prayer: This petition has been filed seeking for a writ of Mandamus directing the 1st and 2nd respondents herein to release the goods viz., 154, units of old and used digintal multifuction print and copying machines imported vide Bill of Entry No.3083063 dated 30.3.2011 under free as second hand capital goods in terms of para 2.17 read with definitions under 9.12 of foreign trade policy 2009-2014 without imposing any restriction in the absence of specific restriction in para 2.17 of foreign trade policy and in para 2.33 of hand book of procedure 2009-2014 and any notification by 3rd respondent. For Petitioner : Mr.A.K.Jayaraj For Respondents : Mr.T.R.Senthilkumar for R1, R2 Mr.P.Mahadevan C.G.S.C. For R3 O R D E R Heard the learned counsels appearing for the petitioner, as well as the respondents. 2. The learned counsels appearing on behalf of the respondents had submitted that investigations are being carried on, in respect of the import of the Second Hand Digital Multifunction Print and Copying Machines. Thereafter, adjudication proceedings would be held to find out if any irregularities had been committed in the import of such goods. While so, this Court may be pleased to release the goods, if it deems it fit to do so, on the petitioner depositing 40% of the enhanced value, apart from paying the applicable rate of duty on the enhanced value. They had also submitted that the adjudication proceedings could be completed by the respondents, within a period of 15 days from the time of its commencement. 3. In view of the several orders passed by this Court, directing the respondents to release the goods in question, on certain conditions, and as the submissions made by the learned counsels appearing on behalf of the respondents have not shown any new grounds, for the modification of the earlier orders passed, in similar matters, this Court finds it fit to direct the respondents to release the goods in question, with similar conditions. 4. It is also seen that the conditions imposed by this Court, in its earlier orders, had been confirmed by a Division Bench, in its order, dated 21.10.2009, made in W.A.No.1508 of 2009 (THE COMMISSIONER OF CUSTOMS (IMPORTS), SEAPORT, CHENNAI AND ANOTHER Vs. M/S.POLYCRAFT EXPORTS (P) LTD., AND ANOTHER). Thereafter, orders have been passed in several writ petitions, including the order, dated 2.12.2010, in W.P.Nos.26964 and 27146 of 2010, directing the release of the detained goods, without any modification of the conditions impugned in the earlier orders. 5. In such circumstances, this writ petition is disposed of, directing the petitioner to deposit 25% of the enhanced value, apart from paying the applicable rate of duty on the enhanced value. On complying with the above said conditions, the respondents are directed to release the goods, in question, forthwith, with liberty to the respondents to proceed further, with the adjudication proceedings, in accordance with law. The petitioner shall co-operate, fully, in the adjudication proceedings to be conducted by the respondents. No costs. Connected M.P.No.1 of 2011 is closed. lan To: 1. The Commissioner of Customs (Seaport-imports) Custom House No.60, Rajaji Salai Chennai - 600 001 2. The Additional Commissioner of Customs Gr.5A Custom House No.60, Rajaji Salai Chennai - 600 001 3. The Director General of Foreign Trade & Ex-officio Additional Secretary to the Government of India Ministry of Commerce and Industry Department of Commerce New Delhi

M/S.Aarve Enterprises vs The Commissioner Of Customs ... on 8 April, 2011

Madras High Court

ORDER Moheb Ali M., Member (T) 1. The applicant is a Custom House Agent, a licence holder issued under Custom House Agents Licensing Regulations, 1984 (hereinafter referred to as "CHALR, 1984"). The licence was revoked by an order dated 1.8.2003 against which the present application has been filed. 2. It appears that certain investigations were conducted by Customs authorities at Kandla into an export of a consignment declared to be fancy dupattas which were attempted to be exported by one M/s. Siddhnath Shipping, Kandla, whose proprietor Shri Shailesh B. Bhagat was also the power of attorney holder of the present applicant M/s. Shakti Enterprise CHA is a sole proprietary concern of Shri Kishore Bhagat residing at Mumbai. Consequent to the investigations made that the goods declared were not correct in description and quantities, the same were seized and investigation conducted under the Customs Act. Action under CHALR, 1984 was initiated against the present applicants. Their licence was suspended under Regulation 21(2) vide the Commissioner of Custom's order dated 5.2.2002 on the ground that CHA's power of attorney holder while acting as CHA misdeclaring the quantity and quality of the export for M/s. Siddhnath Shipping, violated the provisions of CHALR, 1984. In an appeal preferred against the order of suspension, this Tribunal vide their order dated 22.7.2002 set aside the suspension order, making it clear that the enquiry instituted in the case of alleged misdeclaration could be concluded and the revocation of suspension order will in no manner affect those proceedings. Proceedings under CHALR, 1984 were concluded by the impugned order dated 1.8.2003 wherein the Commissioner, after considering the material on record and hearing the appellants before him, concluded and ordered that in view of the findings arrived by him, revoked the applicants' CHA licence under the powers vested with him in Regulation 21 of CHALR, 1984. 3. The applicants are seeking stay of this order of revocation on the grounds that violation of principles of natural justice has been made inasmuch as the order has been passed in an extremely cavalier manner exposing gross bias and prejudice depriving the applicants and their employees of their legitimate business. 4. After hearing both sides and considering the material on record and the reliance placed by the learned advocate on the case of Express Kargo Forwarders Pvt. Ltd v. CC, Bangalore 2002 (143) KLT 128 (Tribunal) and other decisions relied upon, it is found that no case has been made out by the applicants to invoke the inherent powers of this Tribunal to grant a stay of the operation of the revocation order. The facts and circumstances in the present case are different from the ones occurring in the various cases cited before us. In the present case, the power of attorney holder Shri Shailesh Bhagat acted in a manner prejudicial to the continuation of CHA licence granted to the CHA firm. Before revocation of the licence of the applicants, due procedure established by law under the CHALR, 1984 is followed. The issues raised as regards the knowledge and complicity of the CHA licensee in the alleged misdemeanour and the role played in the misdeclaration made on the Customs documents are the very issue which will have to be decided in the final hearing. At this prima facie stage, after perusal of the detailed findings arrived at by the learned Commissioner of Customs, Kandla, in the impugned order, we are of the opinion that no case is made out for invoking the inherent jurisdiction to stay the revocation order under CHALR, 1984. Therefore, we refrain from passing a stay of the operation of the said order pending final hearing of this appeal. 5. While rejecting the stay application, applicants' request for early hearing has been granted and the matter is fixed for hearing on 19th January, 2004. The stay application is dismissed. 6. Ordered accordingly.

Shakti Enterprise vs Commissioner Of Customs on 17 October, 2003

Customs, Excise and Gold Tribunal - Mumbai

Gujarat High Court Case Information System Print CA/4839/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 4839 of 2010 ========================================================= MAHIPATSINH GHELUBHA - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR SUBHASH G BAROT for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 04/05/2010 ORAL ORDER Issue Notice returnable on 20.07.2010. In addition to the normal mode of service, Direct Service is also permitted. (Smt.Abhilasha Kumari, J.) (sunil)     Top

Author: Abhilasha Kumari,&Nbsp;

Mahipatsinh vs State on 4 May, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION INTERIM APPLICATION STAMP NO. 5067 OF 2021 In FAMILY COURT APPEAL 171 OF 2019 Mr. Shilpika Kalra ....PETITIONER V/S Mr. Manish Kalra ....RESPONDENT WITH INTERIM APPLICATION STAMP NO. 1326 OF 2021 In Family Court Appeal STAMP NO. 1324 OF 2021 Shilpika Kalra ....PETITIONER V/S Manish Kalra ....RESPONDENT WITH CIVIL APPLICATION IN FCA NO. 268 OF 2019 In Family Court Appeal 171 OF 2019 Mr. Manish Kalra ....APPLICANT V/S Mr. Shilpika Kalra ....RESPONDENT CORAM : HON'BLE SHRI JUSTICE A.A. SAYED & HON'BLE SHRI JUSTICE ABHAY AHUJA, JJ DATE : 7th March, 2022 Page 1/2 ::: Uploaded on - 07/03/2022 ::: Downloaded on - 08/03/2022 07:04:46 ::: P.C. : Due to paucity of time, stand over to 29/03/2022. Interim order, if any, to continue till then. ( FOR REGISTRAR JUDICIAL - I ) Page 2/2 ::: Uploaded on - 07/03/2022 ::: Downloaded on - 08/03/2022 07:04:46 :::

Shilpika Kalra vs Manish Kalra on 7 March, 2022

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 1117 of 2008() 1. SHAMSU AND OTHERS ... Petitioner Vs 1. STATION HOUSE OFFICER & ANOTHER ... Respondent For Petitioner :SRI.T.G.RAJENDRAN For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :25/02/2008 O R D E R R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 1117 OF 2008 D ```````````````````````````````````````````````````` Dated this the 25th day of February, 2008 O R D E R The learned counsel for the petitioners prays and accordingly this petition is dismissed as withdrawn. (R.BASANT, JUDGE) aks 

Shamsu And Others vs Station House Officer & Another on 25 February, 2008

Kerala High Court

JUDGMENT Nirmal Singh, J. 1. One of the important questions of law has been mooted in this appeal as to whether the non-proprietors who have been given the grazing rights in the shamlat deh are entitled to share in the compensation for the land which has been acquired under the Land Acquisition Act, 1894 (hereinafter referred to as the "Act"). 2. The facts are not disputed. The Chandigarh Administration vide Notification Nos. P-1/83/80 dated 7.4.1980 and P-1/80-87 dated 22.9.1980 issued under Sections 4 & 6 of the Act had acquired 16.66 acres of land in village Dhanas, U.T. Chandigarh. The Collector assessed the value of the land and the same was deposited in favour of respondent Nos. 2 to 38. The appellants i.e. non-proprietors filed the objections before the Additional District Judge, Chandigarh that by virtue of the decree passed on 20.10.1952, the grazing rights have been reserved in their favour, therefore, they were entitled to the apportionment of the compensation i.e. 50-50 share which was received by the respondents No. 2 to 38. The learned Addl. District Judge, Chandigarh after giving an opportunity of hearing to the respondents, dismissed the objections. Aggrieved by which, the present appeal has been preferred. 3. Ms. Aarti Thakur, learned counsel for the appellants submitted that the appellants were the interested persons in the property which has been acquired under the Act. She further pointed out that the appellants were grazing cattle on the land which had been acquired prior to coming into force of the Punjab Village Common Lands (Regulation) Act, 1961. She further pointed out that there was dispute with regard to the grazing rights between the parties and the appellants had filed a suit. A decree was passed in their favour on 20.10.1952 and as per this decree, the grazing rights were reserved in favour of the appellants. She submitted that grazing right is an easement rights as defined under Section 4 of the Indian Easement Act, 1882. She further submitted that under Section 3(b) of the Act, a person shall be deemed to be interested in land if he is interested in an easement affecting the land. She contended that grazing rights were valuable rights as livelihood of the appellants depend on it and by acquisition of the land, the appellants have lost their source of livelihood. Therefore, they are entitled to 50% apportionment of the compensation. 4. On the other hand, Mr. H.N. Mehtani, learned counsel for the respondents very fairly and candidly made a statement that though there was a decree of grazing right in favour of the appellants, but that does not give right to the appellants to claim compensation. He submitted that the appellants were using the land temporarily for grazing the cattle and they have no permanent right or interest in the land in dispute. 5. In order to appreciate the rival contentions of learned counsel for the parties, a few provisions of the Indian Easement Act, 1882. The Land Acquisition Act, 1894 and The Punjab Village Common Lands (Regulation) Act, 1961 are to be seen. 6. Easement has been defined under Section 4 of the Indian Easement Act, 1882, which reads as under: "4. Easement defined- An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own." Explanation.- The first and second clauses of this section, the expression "land" includes also things permanently attached to the earth' the expression "beneficial enjoyment includes also possible convenience, remote advantage and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, if any part of the soil of the servant heritage, or anything growing or subsisting thereon." Illustration (d)- A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E's land. These are easements." 7. As per illustration appended to Section 4, a person in whose favour the grazing right has been reserved in the land of others has an easementary right. 8. An interested person has been defined in Section 3(b) of The Land Acquisition Act, 1894, which is as under: - "3(b) The expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land." 9. From the perusal of Section 3(b) of the Act, it is crystal clear that a person shall be deemed to be interested in the land if he is interested in easement affecting the land. 10. Under the Punjab Village Common Lands (Regulation) Act, 1961, when the land is used for the benefit of the village community or any part thereof for the common purpose of the village that land would come under the definition of "Shamlat Deh". The Shamlat Deh includes:- (1) Land described in the revenue records as Shamlat Deh excluding abadi deh: (2) Shamlat Tikkas (3) Land described in the revenue records as shamlat,. Taraf, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purpose of village. (4) Lands used or reserved for the benefit of the village community including streets, lanes, play-grounds, schools, drinking wells, for ponds within abadi deh or gora deh and (5) Lands in any village described as Banjar quadim and used to common purposes of the village, according to revenue records. 11. In Sub-clause (3) above, the Legislature has intentionally used the word "village community" and not "village proprietor". When the land is reserved for the benefit of village community or part thereof for the common purpose of the village, then every inhabitant of that village is an interested person in that land. 12. A Full Bench of this Court in Kangra Velly State Company Ltd. v. Kidar Nath and Ors., (1961) 63 Punjab Law Reporter 553 has held as under:- "I would, therefore, answer the question referred to the Full Bench in this way that Section 3(a) of Punjab Act, No. 1 of 1954 is not limited to the rights, title and interests of proprietors as such, but extends to all persons having the same in the land included in the shamilat deh and further that Section 3(a) extends to rights, title and interests in such land even when the same have been acquired from proprietors as such prior to the coming into force of the Act in relation to the land irrespective of the persons having rights, title or interests in it so long as it is shamilat land." 13. Admittedly, in this case, there was a decree of grazing rights in favour of the appellants. Therefore, they being the interested persons, are entitled to claim compensation. 14. The next question which remains to be determined in this appeal is what should be the basis of apportionment? 15. Learned counsel for the appellants failed to show me any rule, regulation or judicial precedent that what should be the basis of apportionment. Therefore, for apportionment, I take into consideration the provisions of The Punjab Village Common Lands (Regulations) Rules, 1964. 16. Under The Punjab Village Common Lands (Regulation) Rules, 1964, the shamlat deh is to be auctioned in the manner prescribed as under:- "6. Leases to be by auction. [Sections 5 and 15(2)(f)].- (1) Subject to the provisions of Sub-rule (1) of Rule 4, all lease of land in shamlat deh shall be by auction after making publicity in the manner laid down in Sub-rule (10). All document executed in this connection shall be signed by a Sarpanch or in his absence by panch performing the duties of sarpanch and (two other panches authorised for the purposes of the Gram Panchayat). Provided that- (a) One-third of the cultivated land provided to be leased, shall be reserved for giving on lease by auction to the members of the Scheduled Caste only, and if on two different dates fixed for auction no such person is forthcoming or the Panchayat Samiti refused to confirm the auction under Clause 2(a)(i) the reservation shall cease to have effect, and (b) xx xx xx" 17. In view of the Rule 6 quoted above, one third land which is to be leased out is to be auctioned in favour of the members of the scheduled caste and this income is to be spent for the welfare of this community. In other words, in the shamlat land, the members of scheduled caste have right to the extent of 1/3rd share. 18. Section 18(iii) of The Punjab Security of Land Tenures Act, 1953, reads as under:- "18. Rights of certain tenants to purchase land. (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner - (1) (ii) (iii) xx xx xx (2) xx xx xx xx (3) The purchase price shall be three-fourth of the value of the land as so determined." 19. A Division Bench of this Court in Piare Lal v. Co. His Highness Raja Sir Harinder Singh Brar Bans Bahadur, 1979 P.L.J. 474 has held that tenant at will is entitled to compensation for his tenancy right in the acquired land and their Lordships made the apportionment to the extent of 3/4th in the favour of landowner and 1/4th in favour of the tenant. 20. So taking into consideration all the facts and circumstances of the case, I am of the view that it would be just and reasonable apportionment between the parties that the landowners are entitled to 3/4th share and the appellants, who have grazing rights, are entitled to 1/4th share in the compensation. However, the appellants have only claimed 1/8th share, so I order accordingly. For the reasons recorded above, this appeal is accepted and order passed by the learned Additional District Judge, Chandigarh is set aside.

Author: N Singh

Dayalo And Ors. vs Smt. Dhano And Ors. on 21 February, 2005

Punjab-Haryana High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No.1367 of 1992 Date of Decision:15.12.2008 Smt. Devki and others --Appellants vs. State of Haryana and others --Respondents. December 15,2008 (Rakesh Kumar Jain) RR Judge CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr.R.S.Chahar,Advocate,for the appellants Mr. H. S. Hooda, A.G. Haryana with Mr. Rajiv Kawatra, Sr. D.A.G., Haryana for the respondents-State. RAKESH KUMAR JAIN J. (Oral) This judgment shall dispose of three Regular First Appeals bearing RFA Nos.1367, 2038,2039 and 1846 of 1992 as common questions of law and facts are involved therein. The parties are ad-idem that the present appeals are covered by a decision of this Court rendered in RFA No.1525 of 1992 (O&M) (Chiranji Lal v. The State of Haryana and another) decided on 19.11.2008 by Hon'ble Mr.Justice Rajesh Bindal. In view of the above, the present appeals are also disposed of in terms of the orders passed in RFA No.1525 of 1992 (O&M) (Chiranji Lal v. The State of Haryana and another) decided on 19.11.2008 by Hon'ble Mr.Justice Rajesh Bindal.

Smt. Devki And Others vs State Of Haryana And Others on 12 December, 2008

Punjab-Haryana High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-29975 of 2008 Date of decision: November 21, 2008 Bajrang ... Petitioner Versus State of Haryana and others ... Respondents CORAM: HON'BLE MR. JUSTICE S.D. ANAND. Present : Mrs. Sarla Chaudhary, Advocate, for the petitioner. S.D. Anand, J. November 21, 2008 (S.D. Anand) vkd Judge Crl. Misc. Nos. 52601 & 52602 of 2008 Allowed, as prayed for. Crl .Misc. No. M-29975 of 2008 The only grievance of the petitioner is that his pending agricultural parole plea - Annexure P/1 is pending consideration with the Competent Authority for the past quite some time. Notice of motion. On the asking of the Court, Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, accepts notice on behalf of the State. The petition shall stand disposed of with a direction to the Competent Authority to take a decision on the pending parole plea of the petitioner - prisoner (Annexure P/1) within a period of fifteen days from today. It will be for the State counsel to communicate the order to the Competent Authority. Copy of the order be given to the learned State counsel under the signatures of the Court Secretary.

Bajrang vs State Of Haryana And Others on 21 November, 2008

Punjab-Haryana High Court

Central Information Commission, New Delhi File No.CIC/WB/A/2010/000585­SM Right to Information Act­2005­Under Section  (19) Date of hearing : 8 February 2011 Date of decision : 8 February 2011 Name of the Appellant  : Shri S. D Bind Type V/I, New Rajendra Nagar Telephone  Exchange, BSNL, Raipur, Chattisgarh. Name of the Public Authority   : CPIO, Union Public Service Commission, (Sangh Lok Seva Ayog), Dholpur House, Shahjahan Road, New Delhi - 110 069. The Appellant was present in person. On behalf of the Respondent, Shri Rajesh Gupta, US & CPIO was  present. Chief Information Commissioner : Shri Satyananda Mishra    2. In spite of notice, the Appellant was not present in the Raipur studio of  the   NIC.   The   Respondent   was   present   in   our   chamber   and   made   his  submissions. 3. The Appellant had been considered for promotion in the particular DPC  and had wanted certain information regarding his assessment by that DPC as  CIC/WB/A/2010/000585­SM well as the copies of the record showing why he was not found fit. The CPIO  declined to disclose the information by claiming that it would not be possible to  provide the assessment of the ACRs as per the CIC decision in appeal number  CIC/WB/A/2008/00615 dated 19 December 2008. 4. The Respondent reiterated the same arguments. We, however, find it  difficult to accept these arguments. If the information is available, it must be  disclosed   unless   exempted   under   any   of   the   provisions   of   the   Right   to  Information (RTI) Act. We have repeatedly held that an officer has the right to  know about his own ACRs. Merely because the assessment sheet is kept in a  sealed cover, the information cannot be denied. Therefore, we now direct the  CPIO to provide to the Appellant within 10 working days from the receipt of this  order the following two items of information: 5. The appeal is disposed off accordingly.  6. Copies of this order be given free of cost to the parties. (Satyananda Mishra) Chief Information Commissioner CIC/WB/A/2010/000585­SM Authenticated true copy.  Additional copies of orders shall be supplied against  application and payment of the charges prescribed under the Act to the CPIO of this  Commission. (Vijay Bhalla) Deputy Registrar CIC/WB/A/2010/000585­SM

Mr. S D Bind vs Union Public Service Commission on 8 February, 2011

Central Information Commission

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH T.A.No.65 of 2009 Date of Decision : 4.5.2009 Naseem and others ....Petitioners Versus Mustaq and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.P.R.Yadav, Advocate for the petitioners. Ms.Vandana Malhotra, Advocate for respondent No.3. ... MAHESH GROVER, J. 4.5.2009 (MAHESH GROVER) JUDGE dss This is a petition under Section 24 of the Code of Civil Procedure for transfer of claim petition titled as "Naseem & others v. Mustaq and others', pending before the Motor Accident Claims Tribunal, Faridabad, to Mewat at Nuh. It is the case of the petitioners that the accident in question took place in the year 2007 and with the creation of Mewat District the jurisdiction to try such cases has vested in the Courts at Mewat and, therefore, the proceedings which are pending at Faridabad are causing great difficulty to the petitioners. The learned counsel appearing on behalf of respondent No.3 has stated that he has no objections if the proceedings in T.A.No.65 of 2009 -2- question are transferred to Mewat at Nuh. Having regard to the aforesaid and also the fact that the Supreme Court has also held that the convenience of the parties is a good ground to transfer the proceedings, the present application is allowed and the proceedings in the claim petition titled as "Naseem & others v. Mustaq and others', pending at Faridabad are directed to be transferred to Motor Accident Claims Tribunal, Mewat at Nuh, which shall issue notice to the parties on receipt of the case.

Naseem And Others vs Mustaq And Others on 4 May, 2009

Punjab-Haryana High Court

ORDER A. Lekshmikutty, J. 1. Challenging the order in E. P. No. 31 of 2001 in O. S. No. 170 of 1998 on the file of the Sub Court. Thrissur, this revision petition is filed by the petitioner. 2. The petitioner is the judgment debtor in E. P. No. 31 of 2001 in O. S. No. 170 of 1998 and the respondent is the decree holder therein. A decree charged on the decree schedule property was passed for realisation of money. The extent of the property is 10 cents with a residential building. Petitioner filed objection to the Execution Petition and the proclamation schedule. The contention in the objection was that the property With the building would fetch more than Rs.7 lakhs and the market value of the land is Rs.50,000/- per cent. The property excluding the building alone need be sold to satisfy the decree. The Execution Petition was filed for an amount of Rs.1,00,903/-. Further contention was that. In view of the bar contained in Section 10 of the Kerala Scheduled Tribe (Restoration on Transfer of Lands and Restoration of Alienated Lands) Act 1975, the property is not liable to be sold in execution. The petitioner is a member of Scheduled Tribe. The Execution Court without considering the valid objections raised by the revision petitioner passed the impugned order. 3. The question to be considered is whether the impugned order is liable to be set aside. The decree holder filed the Execution Petition for realisation of an amount of Rs. 1,00.903/-. The fact that the decree schedule property is having an extent of 10 cents with a residential building is not disputed. The specific contention of the revision petitioner is that for realisation of the decree amount, the entire property need not be sold. As per the petitioner, the property would fetch more than Rs. 7 lakhs. The market value of the property is Rs. 50,000/- per cent. So, a portion of the property will be sufficient to satisfy the decree. The Impugned order would not show that the objection raised by the petitioner was considered by the Execution Court. Nothing has been stated in the impugned order regarding the objection raised by the petitioner. 4. There is a duty cast upon the Execution Court under Order XXI Rule 64 of the C.P.C. to sell such property or portion thereof as may seem necessary to satisfy the decree. It is mandatory that the Execution Court should consider whether the entire property is to be sold for satisfying the decree. In the present case, the Court below has not considered the objections raised by the judgment debtor before passing the impugned order. The Execution Court ought to have considered whether a portion of the decree schedule property would be sufficient to satisfy the decree. The grievance of the petitioner is that no opportunity was given to her to substantiate her objection regarding the market value of the property. It seems that the Execution Court has not considered whether the property excluding the residential building would be sufficient to satisfy the decree. Under Order XXI. Rule 64 of the C.P.C., the Execution Court is bound to consider whether the entire decree schedule property is to be sold or a portion thereof need be sold to satisfy the decree, in the instant case, the Execution Court failed to consider the same. In such circumstances I am constrained to hold that the order passed by the Execution Court is illegal. Irregular and improper. Since. Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act 1975 is repealed the question whether the property of the petitioner could be sold in execution of the decree does not arise-The impugned order is set aside and the case is remanded to the Execution Court for fresh disposal. The Execution Court is directed to consider the objection filed by the revision petitioner on the basis of the above observation and in accordance with law. The Execution Court shall afford an opportunity to the revision petitioner to substantiate her objection. The Civil Revision Petition is allowed. There is no order as to costs.

Author: A Lekshmikutty

Thanka vs Francis on 28 May, 2002

Kerala High Court

1 IN THE HIGH COURT OF KARNATAKA AT BAN DATED THIS THE 30"' DAY OF JULY 2092 7"; % A BEFORE: THE HON'BLE MR. JUSTICE Aaigmn awn" SECOND APPEAL Nomso % BETWEEN: A k Moodalagiriyappa, 62 S/or Hakki Ranganna H ' ; Residing atY<:IIambalasc ' Viilage,Yagati KadurTaluk . cnixxamagaiux xmg-i:§x:%g:s*7*7% 'as. APPELLANT (By sh;s%M. R. 'R§1jag(}pAI',- Aavmaze (Abscn1)) Vida Order dated S/o"Chikka.iimi 04.062008, Cause Résidurgi bf *' Tide: amended 7 Yallambalasc Village Yagati Vflobli, Kadur '_ Taluiz, Chikkamagalur °.{)ist"rict M 577 191 T " Sml. Sharadamma W/0. Putmppa 1(1)) Kum. Bhagya Die Late Puttappa 1(c) Sri. Chandrappa Sfo Late Puttappa l(d) Sri. Jaggappa S/0 Late Puttappa All are Resident of 'V Yallambalase Village ' Yagati Hoh§i,--Kaglur V ' Taluk, Chi3gka;i:1'agaIu*r V V " 2. Thimxneihrna;if,70 _ W/o ., ' ' Resident of Ya11amAba1aseA ~ . e x Village, Hohii, " , Kmmr Tanuiz, Chi.kEcan§agéiur e D£sE;ie1¢~ 577 I61. MMMMM & e RESPONDENTS "~Va;g:e&:sh, Advocate for Respondent Nu. 1 and Respenéeni -Served) ##5##!!! I Regular Second Appeal is filed under Secliun ' _ " v .1{}0.o__f the"Code of Civil Procedure, 1908, against the judgement V' dated 4.4.2005 passed in R. A. No. 59/2002 cm the file u ._j_.of-the" Civil Judge (Senior Division) and JMFC, allowing the appeal and setting aside the judgemeni and decree dated "~,3V0.O82002 passed in O.S.No.588/1997 on the file of the « ~ Additional Civil Judge, (Jr.Dn.) Kedur. f> This Appeal coming on for Admission this day, lhVcw-Court delivered the fo1lowing:~ JUDGMENT The Counsel for the appellant b third occasion in a mw and on both ihé"r;arIicr>'V(;s;o&s£ons,'"lhi:'r.L matter was called oul, both in 'ii;:.'iI1o posl--lunch V sessions and the Counsel today, when {ha matter is calledoul, jvailisenl both in the _ morning sad Since: the Counsel has consistently is dismissed for non- pm_scoulion._§ N Sd/". Iudgé

Author: Anand Byrareddy

Moodalagiriyappa S/O Hakki ... vs Puttappa S/O Chikkanna on 30 July, 2008

Karnataka High Court

[Section 3(1)] [Section 3] [Complete Act]

Central Government Act

JUDGMENT Parker, J. 1. Their Lordships do not consider it necessary to call upon counsel for the respondents in this appeal. 2. The question is a very short one. It appears that the High Court from which the appeal has been brought has made a certain declaration. There is absolutely no ground for saying that that declaration is in any way erroneous, nor has counsel for the appellant suggested any error. The point is simply whether, under the practice prevalent in India, such a declaration ought to have been made. In order to show that no declaration ought to have been made, reference has been made to various cases, and in particular to the case of Janaki Ammal v. Narayanaswami Aiyar (1916) L.R. 43 I.A. 307 : 18 Bom. L.R. 856 The point of that case is this : There was a Hindu widow entitled to an estate, and a suit was brought by a person, presumptively entitled as heir after her death, to prevent waste. It was held that there was no waste at all, and the question arose whether, under those circumstances, it was proper to give the person presumptively entitled a declaration of their title as presumptive, or as sometimes called reversionary, heirs, and it was held by this Board that no such declaration ought to be made. It is said that this case is analogous to that, and that no declaration ought to have been made. On the other hand, if Section 42 of the Specific Relief Act, 1877, is referred to, it will be seen that one of the illustrations given is this : " The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her, may, in a suit against the alienee obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow's lifetime. 3. It appears to their Lordships to be clear on this section that where any deed is executed, the result of which may be to prejudice the interests of the reversionary heirs, those heirs, though still reversionary and though they may never get any title because events may preclude them from doing so, may have a declaration as to the effect of the deed. The declaration here is simply confined to that. It is a declaration that a certain deed which was executed by the Hindu widow in possession, and purporting to confer the absolute estate in the property on one of the reversionary heirs, is not binding on the other reversionary heirs. It was intended that this deed should operate to confer the whole interest on the grantee, on the footing that the other reversionary heirs, being of the half blood only, could not come in in competition with the grantee, and the real question in the suit, as far as their Lordships can make out, was simply whether the claimants were claimants of the half blood or of the whole blood, and it was decided by both Courts that they were not of the half blood, bui of the whole blood. 4. Under these circumstances, it appears to their Lordships that this is an exact illustration of that which Section 42 of the Specific Relief Act was meant to provide for. It is quite true that it involves a finding that the plaintiffs in this case are reversionary heirs, but that must always be the case where a declaration is made following the illustration (e) of the section, beccause it is only in virtue of the person claiming the declaration being reversionary heirs, and therefore presumptively entitled, that the declaration is made. 5. Under these circumstances, their Lordships can see no possible ground for interfering with the decree of the High Court, and the appeal therefore should be dismissed with costs. Their Lordships will tender their humble advice to his Majesty accordingly.

Author: Parker

Saudagar Singh vs Pardip Narayan Singh on 19 October, 1917

Bombay High Court

1 27/08/2014 (554) (Ct. no. 11) ARDR CRM 10235 of 2014 In Re: An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 14th August, 2014 in connection with Katwa P.S. Case no. 252 of 2014 dated 07/07/2014 under Sections 135(i)(a)(b) of the Electricity Act, 2003 and Amendment Act, 2007. And In the matter of: Sahidul Islam @ Manik Sk. ...Petitioner. Mr. Sarba Nanda Sanyal, ...for the Petitioner. Mr. Rananjay Chatterjee, ...for the State. Mr. Aniket Mitra, ...for the WBSEDCL. ALLOWED Heard the learned Advocates of both the parties. Having considered the materials in the case diary produced before us, we are of the opinion that custodial interrogation of the petitioner is not necessary. There is no chance of abscondence of the petitioner. We are, therefore, inclined to allow the prayer of the petitioner for granting anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. Accordingly, we direct that in the event of arrest, the petitioner shall be released on bail upon furnishing a bond of Rs.3,000/- (Rupees Three Thousand only) with one surety of like amount to the satisfaction of the arresting officer and subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure, 1973. The application for anticipatory bail is, thus disposed of. (Pranab Kumar Chattopadhyay, J.) < (Sudip Ahluwalia, J.)

Author: Pranab Kumar Chattopadhyay

Sahidul Islam @ Manik Sk vs Unknown on 27 August, 2014

Calcutta High Court (Appellete Side)

Gujarat High Court Case Information System Print SCA/11063/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11063 of 2010 ========================================================= JAGDISHCHANDRA KIRODIMAL AGRAWAL - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR ZUBIN F BHARDA for Petitioner(s) : 1, MR SHIVANG SHUKLA, AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 16/09/2010 ORAL ORDER Rule returnable on 30th September 2010. Learned AGP Mr. Shivang Shukla waives service of Rule for respondent No. 1. Direct service qua Respondent Nos.2 and 4. Respondent No.3 is permitted to be served through speed post. (RAJESH H. SHUKLA, J.) jani     Top

Author: Rajesh H.Shukla,&Nbsp;

Jagdishchandra vs State on 16 September, 2010

Gujarat High Court

JUDGMENT M.M. Kumar, J. 1. This petition challenges order dated 8.4.2004 passed by the Rent Controller, Union Territory, Chandigarh. The Kent Controller has assessed the provisional rate of rent which is required to be deposited by the tenant-petitioner. It has been found that rent at the rate of Rs. 1000/- p.m. is payable and the arrears are to be paid w.e.f. March, 2001 till date alongwith interest and costs of Rs. 500/-. 2. Shri Y.M. Bhagirath, learned counsel for the tenant-petitioner has argued that the provisional rent assessed by the Rent Controller is neither based on any evidence nor it is reasonable because the land lord-respondent himself has been issuing receipts accepting the rate of rent as Rs. 125/- p.m. Me has placed reliance on the receipts Ex.P1 to P4. Learned counsel has also submitted that the rent has already been paid till 1.2.2004. Therefore, the order of the Rent Controller suffers from inherent legal defect and is liable to be set aside. 3. After hearing the learned counsel and persuing the impugned order, I am of the considered view that such a petition would not be maintainable under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (as applicable to U.T. Chandigarh) because the proceedings for assessment of the rate of rent as arrears of rent are summary in nature. No detailed orders are required to be recorded before passing the order of assessment of rent. Such an order is for the benefit of the tenant because by paying the rent in accordance with the provisional assessment made by the Rent Controller he would avoid the risk of ejectment if eventually the rent paid by him on his own assessment is found to be insufficient. Such a tender would not be accepted as payment of rent. Once the Rent Controller has taken up the task of assessment of provisional rent as has been directed by the Supreme Court in the case of Rakesh Wadhawan v. Jagdamba Industrial Corporation, (2002-2)131 P.L.R. 370, then the tenant must comply with that order of assessment unless it is shown that such an order would result into manifest injustice to the tenant. It is only in exceptional cases of manifest" injustice that this Court may like to interfere in the order of provisional assessment of rent. Otherwise, no such petition is maintainable against the order making provisional assessment of rent. 4. The argument of the learned counsel that receipts Ex.P1 to P4 have been produced would not require any detailed consideration because the order does not reveal reliance of the tenant-petitioner on such like documents. At the stage of making provisional assessment of rent by way of summary proceedings it would be improper to call for the record and go into these facts. Therefore, I have no hesitation in rejecting this submission of the learned counsel. 5. For the reasons recorded above this petition fails and the same is dismissed in limine.

Author: M Kumar

Vijay (Khandani Vaid) vs Dharampal And Ors. on 13 May, 2004

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31044 of 2011 1. Md. Kalim, son of late Md. Basruddin 2. Maimun Khatoon, wife of Md. Kalim Versus The State Of Bihar ---------------------------------- 2. 18.10.2011 Heard learned counsel for the petitioners and the State. The petitioners seek anticipatory bail in a case instituted for the offence under Section 498 A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. Considering that the petitioners are the parents-in-law of the Complainant, let the petitioners in the event of surrender, named above, within four weeks from the date of receipt of this order, in connection with Complaint Case No. 837 of 2010, shall be released on anticipatory bail on furnishing bail bond of Rs. 5,000/- (Five thousand) each with two sureties of the like amount each to the satisfaction of Sub Divisional Judicial Magistrate, Jehanabad, subject to the conditions as laid down under Section 438(2) Cr. P.C. and (i) That one of the bailors will be a close relative of the petitioners who will give an affidavit giving genealogy as to how he is related with the petitioners. The bailors will undertake to furnish information to the court about any change in the address of the petitioners. (ii) That the petitioners will be well represented on each date and if they fail to do so on two consecutive dates, their bail will be liable to be cancelled. ( Anjana Prakash, J.) S.Ali

Md. Kalim & Anr. vs The State Of Bihar on 18 October, 2011

Patna High Court - Orders

JUDGMENT 1. Miscellaneous Appeal No. 14 of 1956 is presented on behalf of defendants against the order of the Addl. Subordinate Judge of Arrah, dated 3-12-1955, in Title Suit No. 35 of 1950, superseding a reference to arbitration made by the parties -in the suit. Miscellaneous Appeal No. 15 of 1956 is made on behalf of the same persons against the same order made in Title Suit No. 12 of 1949. Civil Revision No. 1200 of 1955 and No. 38 of 1956 are made on behalf of the same defendants against the order of the learned Addl. Subordinate Judge, dated 12-12-1955, refusing to enquire into the existence of an alleged award or pronouncement of the alleged award by the arbitrators concerned. 2. It appears that on 2-12-1955, an application was made on behalf of the appellants in both the title suits, stating that the award had been prepared, signed and announced by the arbitrators in the presence of the parties. It was alleged that the award was prepared on 27-11-1955. This application was made by the appellants under Section 14 of the Arbitration Act. On the same elate a rejoinder was filed on behalf of the respondents stating that the award was not announced nor \vas it prepared and the allegation of the appellants to that effect was wrong. On 3-12-1955, the learned Subordinate Judge made the following order, which is the subject matter of the two Misc. appeals: "3-12-55. Parties present. The plaintiff No. 1 and Babuli Thakur and Ram Kawal Rai file two separate rejoinders to the petition of the defendant filed yesterday regarding delivery and announcement of the award. Lawyers heard. Call for the record from the Sarpunch with or without award, as the case may be. Defendant to deposit Rs. 10/-as cost of special peon for bringing the record which is to reach the Court by 7-12-1955. The reference is recalled if the award has not already been delivered," On the 7th December, 1955, the appellants made an application to the Court, stating that they were prepared to prove by unimpeachable evidence not only the existence of the award but also the teems of the award. There was a rejoinder filed on behalf of the respondents. The case was taken up on 12-12-1955, on which date the Court rejected the application of the applicant for an inquiry into the matter of the existence or pronouncement of the award. The reason given by the learned Addl. Subordinate Judge was that ''there was no provision in the Arbitration Act for inquiry of the kind sought for by the defendants". 3. Having heard learned counsel for both the parties we are satisfied that the order of the learned Addl. Subordinate Judge, dated 12-12-1955, and also his order dated 3-12-1955, arc erroneous in law and must be set aside and the case must go back to the learned Addl. Judge to make an inquiry into the allegation made by the appellants and after giving an opportunity to the parties to adduce evidence come to a rinding whether the award was in existence and pronounced by the arbitrators and then dispose of the application of the appellants under Section 14 of the Arbitration Act in accordance with law. We consider that the learned Addl. Subordinate Judge was erroneous in law in holding that he had no jurisdiction to make an inquiry on the application made under Section 14 of the Arbitration Act. It is true that Section 14 relates in terms to an award made without the intervention of the Court, but Section 14 has got to be read along with Section 25 of the Arbitration Act which provides as follows : "25. Provisions Applicable To Arbitrations Under This Chapter.-- The provisions of the other chapters shall, so far as they can be made applicable, apply to arbitration under this chapter : Provided that the Court may, in any of the circumstances mentioned in Sections 8, 10, 11 and 12, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit, and where the Court makes an order superseding the arbitration under Section 19, it shall proceed with the suit." Section 31 of the Arbitration Act is also important and is reproduced below : > "31. Jurisdiction. -- (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. (2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court. (3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court. (4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court." It is obvious that this section confers jurisdiction upon the Court to make an enquiry and decide the question raised by the parties with regard to the validity, effect or existence of an award or an arbitration agreement between the parties. Section 32 bars any suit contesting an arbitration agreement or award and is in the following terms "32. Rar To Suit Contesting Arbitration Agreement Or Award.-- Notwithstanding any law for the time being in force, no suit shall' lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act." Section 33 is in the following terms: ''33. Arbitration Agreement Or Award To Be Contested By Application.-- Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit." Reading, therefore, Section 14 in the context of Sections 25, 31, 32 and 33 of the Arbitration Act, it is manifest that the learned Addl. Subordinate Judge in the present case has jurisdiction to inquire into the existence of the alleged award and to ask the parties to produce evidence, oral or documentary, in the matter, and then decide the question. Accordingly we hold that the order of the learned Addl. Subordinate Judge, dated 12-12-1955, in the Title suits, and also his earlier, order dated 3-12-1955, are vitiated by a serious error of law and must be set aside. We accordingly allow both the Misc. Appeals Nos. 14 and 15 of 1956 and also the Civil Revision Applications Nos. 1200 of 1955 and 38 of 1956, set aside the orders of the learned Addl. Subordinate Judge dated 3-12-1955, and 12-12-1955, and order that the case should go back to the learned Addl. Subordinate Judge for making an inquiry into the existence of the alleged award, after giving an opportunity to the parties to produce such evidence as they choose, and then dispose of the application of the appellants under Section 14 of the Arbitration Act in accordance with law. 4. We accordingly allow Misc. Appeals Nos. 14 and 15 of 1956 and Civil Revision applications Nos. 1200 of 1955 and 38 of 1956. There will be no order as to costs.

Ambika Prasad Thakur And Ors. vs Siva Parsan Singh And Ors. on 12 July, 1960

Patna High Court

Court No. - 6 Case :- SERVICE SINGLE No. - 4640 of 2010 Petitioner :- Ravindra Singh Respondent :- State Of U.P. Through Principal Secy.Rural Eng.Lucknow Petitioner Counsel :- B.K.Yadav Respondent Counsel :- C.S.C. Hon'ble Shabihul Hasnain,J. Heard Sri B.K.Yadav, learned counsel for the petitioner and learned Standing counsel for the opposite parties. Petitioner was placed under suspension on November 19, 2008 vide order annexed as annexure No.1 to the writ petition. Petitioner challenged that order before this Court in writ petition NO.5257 (S/S) of 2008. This Court directed the opposite parties to complete the inquiry within stipulated period and allowed the petitioner to approach this Court in case despite cooperation the inquiry has not completed. Today the petitioner has come before this Court with an argument that despite cooperation the inquiry has not been completed and the petitioner is still continuing under suspension. Apart from aforesaid situation, the petitioner has argued that there is no justification to keep a person under suspension for years together. The petitioner is under suspension for nearly one and half years. He further submits that even if there is no cooperation from an employee under suspension it is incumbent upon the department to carry on the inquiry and proceed in accordance with law. Opposite parties have neither completed the inquiry nor revoked the suspension. Suspension can not be resorted as a matter of punishment or as a tool to harass an employee without proceeding further in the direction. Petitioner has remained under suspension for one and half years. There can not be any good ground to continue a person under suspension for such a long period and not to complete the inquiry on one ground or the other. Under the circumstances, the order dated 19.11.2008 deserves to be interfered with. Learned Standing counsel prays for and is granted four weeks for filing counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter. List immediately thereafter. Meanwhile, the operation and implementation of the order dated 19.11.2008 suspending the petitioner shall remain stayed. The inquiry, however, can proceed in accordance with law. Order Date :- 13.7.2010 RKM.

Ravindra Singh vs State Of U.P. Through Principal ... on 13 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM RSA.No. 284 of 2008() 1. JOSEPHINE MANUEL D/O LATE JOSEPH MANUEL, ... Petitioner Vs 1. PADMINI, W/O RAJESH, LAKHS VILASAM, ... Respondent 2. RAMESH, LAKSHMI VILASAM, PAYYAPPILLY 3. C.P.. NARAYANAN, AUTO DRIVER, CHATHIKKAD 4. P.J.JOHN, S/O P.C.JOSEPH @ KOCHUPAPPU, For Petitioner :SRI.P.V.JAYACHANDRAN For Respondent : No Appearance The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :27/03/2008 O R D E R M.SASIDHARAN NAMBIAR,J. =========================== R.S.A NO. 284 OF 2008 =========================== Dated this the 27th day of March, 2008 JUDGMENT Plaintiff in O.S.No.2024/2001 on the file of Munsiff Court, Ernakulam is the appellant. Defendants are the respondents. The suit was filed for a permanent prohibitory injunction restraining respondents from trespassing into the plaint A schedule property or destroying the western boundary of the property and also bringing or parking any vehicle into the plaint A schedule property and also to allow appellant to construct the boundary wall separating plaint A schedule property from plaint B and C schedule properties after fixing the boundary. The case of the appellant was that under Ext.A1 sale deed, plaint A schedule property was purchased by the appellant on 24.1.1980 and under the sale deed she obtained 23 cents in survey No.938/2 and 939/2 inclusive of the excess land in the possession of assignors Radha  R.S.A.284/2008 2 Bai and Gopala Krishna Mallan and plaint B schedule property belongs to respondents 1 and 2 and plaint C schedule property to third respondent and plaint D schedule property to fourth respondent and respondents have no right to trespass into the plaint A schedule property or to encroach upon any portion of the property and they are to be restrained by a permanent prohibitory injunction. It was also contended that as there is dispute with regard to the boundaries separating plaint A schedule property from the remaining plaint B C and D schedule properties of respondents, boundaries are to be fixed. Respondents resisted the suit contending that appellant does not have right over 23 cents of the property and she obtained only 20 cents of the property and appellant is not entitled to a decree in respect of the additional 3 cents of the property and is also not entitled to fix the boundary inclusive of the additional 3 cents. 2. Learned Munsiff on the evidence of Pw1, Dws.1 to 6, Exts.A1 to A6, B1, C1 and C1(a) dismissed the suit holding that though under  R.S.A.284/2008 3 Ext.A1 appellant obtained 23 cents of the property under Ext.A2, the assignors of appellant obtained only 20 cents and Ext.A2 does not show that any excess land that what was covered under Ext.A2 was obtained by the assignors of appellant and appellant is not entitled to claim 23 cents as shown in plaint A schedule property and she is also not entitled to get the boundary fixed in respect of 23 cents. The suit was dismissed. Appellant challenged the judgment before District Court in A.S.362/2005. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the suit. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of learned counsel is that as the suit is one for fixation of the boundary when it is found that Commissioner has not properly fixed the boundaries in Ext.C1 plan, after proper measurement, the suit should not have been dismissed and instead Commissioner should have been directed to identify the property correctly  R.S.A.284/2008 4 and demarcate the same and therefore judgment of the courts below is not sustainable. 5. on hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. The right and possession of the appellant to the property covered under Ext.A1, to the extent of the property covered under Ext.A2, is not disputed. What is contended by appellant was that though under Ext.A2, her assignors Radha Bai and Gopala Krishna Mallan obtained only 20 cents they were in possession of 3 cents of excess land which was transferred in favour of the appellant under Ext.A1 and appellant is entitled to get a decree in respect of the additional 3 cents. As rightly found by courts below appellant is only entitled to get the boundary fixed in respect of the property belonging to her. If appellant has no title to the additional extent of the property, she is not entitled to get the boundaries fixed including the excess land and to include that portion of the property within her property. Though Ext.A1 shows that property transferred thereunder is 23 cents  R.S.A.284/2008 5 inclusive of 20 cents covered under Ext.A2 and excess land, Ext.A2 the assignment deed whereunder the assignors obtained title to the property transferred under Ext.A1 shows that they obtained title to only 20 cents. There is no evidence to prove the assignors of the appellant obtained title to any additional extent than the property covered under Ext.A2, Therefore eventhough Ext.A1 shows a larger extent than what is covered under Ext.A2 appellant cannot claim title to the excess land. As rightly found by courts below appellant cannot get the boundary fixed in respect of the additional 3 cents of the property or a decree for injunction. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006 

Josephine Manuel vs Padmini on 27 March, 2008

Kerala High Court

PETITIONER: SMT. GIAN KAUR Vs. RESPONDENT: THE STATE OF PUNJAB DATE OF JUDGMENT: 21/03/1996 BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) RAY, G.N. (J) SINGH N.P. (J) FAIZAN UDDIN (J) NANAVATI G.T. (J) CITATION: 1996 AIR 946 1996 SCC (2) 648 JT 1996 (3) 339 1996 SCALE (2)881 ACT: HEADNOTE: JUDGMENT: With CRIMINAL APPEAL NO. 167 OF 1984 Surat Lal V. Raj Kumar & Ors. With CRIMINAL APPEAL NO. 279 OF 1984 Smt. Harbans Singh & Anr. V. The State Of Punjab With CRIMINAL APPEAL NO 363 OF 1996 (arising out of SLP(Crl.) No.2944 of 1994) Chandrabhushan V. The State of Maharashtra With CRIMINAL APPEAL NO. 364 OF 1996 (arising out of SLP(Crl.) No.2943 Of 1995) Dilbagh Singh & Ors. V. The State of Himachal Pradesh And CRIMINAL APPEAL No. 365 OF 1996 (arising out of SLP(Crl.) No.4193 of 1995) Lokendra Singh V. The State of Madhya Pradesh J U D G M E N T J.S. VERMA,J. Leave granted in special leave petitions. The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 306, Indian Penal Code, 1860 (for short "IPC") and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in default, further R.I. for nine months, for abetting the commission of suicide by Kulwant Kaur. On appeal to the High Court, the conviction of both has been maintained but the sentence of Gian Kaur alone has been reduced to R.I. for three years. These appeals by special leave are against their conviction and sentence under Section 306, IPC. The conviction of the appellants has been assailed, inter alia, on the ground that Section 306, IPC is unconstitutional. The first argument advanced to challenge the constitutional validity of Section 306, IPC rests on the decision in P. Rathinam vs. Union of India and Anr., 1994) SCC 394, by a Bench of two learned Judges of this Court wherein Section 309, IPC has been held to be unconstitutional as violative of Article 21 of' the Constitution. It is urged that right to die' being included in Article 21 of the Constitution as held in P. Rathinam declaring Section 309, IPC to be unconstitutional, any person alletting the commission of suicide by another is merely assisting in the enforcement of the fundamental right under Article 21; and, therefore, Section 306. IPC penalising assisted suicide is equally violative of Article 21. This argument, it is urged, is alone sufficient to declare that Section 306, IPC also is unconstitutional being violative of Article 21 of the Constitution. One of the points directly raised is the inclusion of the `right to die' within the ambit of Article 21 of the Constitution, to contend that any person assisting the enforcement of the `right to die' is merely assisting in the enforcement of the fundamental right under Article 21 which cannot be penal; and Section 306, IPC making that act punishable, therefore, violates Article 21. In view of this argument based on the decision in P. Rathinam, a reconsideration of that decision is inescapable. In view of the significance of this contention involving a substantial question of law as to the interpretation of Article 21 relating to the constitutional validity of Section 306, I.P.C. which requires reconsideration of their decision in P.Rathinam, the Division Bench before which these appeals came up for hearing has referred the matter to a Constitution Bench for deciding the same. This is how the matter comes before the Constitution Bench. In addition to the learned counsel for the parties the learned Attorney General of India who appeared in response to the notice, we also requested Shri Fali S. Nariman and Shri Soli J. Sorabjee, Senior Advocates to appear as amicus curiae in this matter. All the learned counsel appearing before us have rendered great assistance to enable us to decide this ticklish and sensitive issue. We may now refer to the submissions of the several learned counsel who ably projected the different points of view. Shri Ujagar Singh and Shri B.S. Malik appeared in these matters for the appellants to support the challenge to the constitutional validity of Sections 306 and 309, IPC. Both the learned counsel counsel contended that Section 306 as well as Section 309 are unconstitutional. Both of them relied on the decision in P. Rathinam. However, Shri Ujagar Singh supported the conclusion in P. Rathinam of the constitutional invalidity of Section 309, IPC only on the ground of violation of Article 14 and not Article 21. Shri B.S. Malik contended euthanasia is not relevant for deciding the question of constitutional validity of Section 309. He submitted that Article 21 cannot be construed to include within it the so called 'right to die' since Article 21 guarantees protection of life and liberty and not its extinction. He submitted that Section 309 does not violate even Article 14 since the provision of sentence therein gives ample discretion to apply that provision with compassion to an unfortunate victim of circumstances attempting to commit suicide. Shri Nariman referred to the reported decisions to indicate that the enforcement of this provision by the courts has been with compassion to ensure that it is not harsh in operation. Shri Nariman submitted that the decision in P. Rathinam requires reconsideration as it is incorrect. Shri Soli J. Sorabjee submitted that Section 306 can survive independently of Section 309, IPC as it does not violate either Article 14 or Article 21. Shri Sorabjee did not support the construction made of Article 21 in P. Rathinam to include therein the 'right to die' but he supported the conclusion that Section 309 is unconstitutional on the ground that it violates Article 14 of the Constitution. Shri Sorabjee submitted that it has been universally acknowledged that a provision to punish attempted suicide is monstrous and barbaric and, therefore, it must be held to be violative of Article 14 of the Constitution. Shri Sorabjee's argument, therefore, is that Section 306, IPC must be upheld as constitutional but Section 309 should be held as unconstitutional, not as violative of Article 21 as held in P. Rathinam but being violative of Article 14 of the Constitution. He also sought assistance from Article 21 to support the argument base Article 14. At this stage, it would be appropriate to refer to the decisions wherein the question of constitutional validity of Section 309, IPC was considered. Maruti Shri Pati Dubal, Vs. State of Maharashtra, 1987 Crl.L.J.743, is the decision by a Division Bench of the Bombay High Court. In that decision, P.B.Sawant, J., as he then was, speaking for the Division Bench held that Section 309 IPC is violative of Article 14 as well as Article 21 of the Constitution. The provision was held to be discriminatory in nature and also arbitrary so as to violate the equality guaranteed by Article 14. Article 21 was construed to include the right to die', or to terminate one's own life. For this reason it was held to violate Article 21 also. State Vs. Sanjay Kumar Bhatia, 1985 Crl.L.J.931, is the decision of the Delhi High Court. Sachar, J., as he then was, speaking for the Division Bench said that the continuance of Section 309 IPC is an anachronism unworthy of human society like ours. However, the question of its constitutional validity with reference to any provision of the Constitution was not considered. Further consideration of this decision is, therefore, not necessary. Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, 1988 Crl.L.J.549, is the decision by a Division Bench of the Andhra Pradesh High Court. The challenge to the constitutional validity of Section 309 IPC was rejected therein. The argument that Article 21 includes the right to die' was rejected. It was also pointed out by Amarethwari, J. speaking for the Division Bench that the Courts have sufficient power to see that unwarranted harsh treatment or- prejudice is not meted out to those who need care and attention, This negatived the suggested violation of Article 14. The only decision of this Court is P.Rathinam by a Bench of two learned Judges. Hansaria, J. speaking for the Division Bench rejected the challenge to the constitutional validity of Section 309 based on Article 14 but upheld the challenge on the basis of Article 21 of the Constitution. The earlier decisions of the Bombay High Court and the Andhra Pradesh High Court were considered and agreement was expressed with the view taken by the Andhra Pradesh High Court as regards Section 309 qua Article 14. The decision then proceeds to consider the challenge with reference to Article 21 of the Constitution. It was held that Article 21 has enough positive content in it so that it also includes the 'right to die' which inevitably leads to the right to commit suicide. Expressing agreement with the view of the Bombay High Court in respect of the content of Article 21, it was held as under : <SLS> 'Keeping in view all-the above, we state that right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life." ( Page 410 ) <SLE> The conclusion of the discussion was summarised as under: <SLS> "On the basis of what has been held and noted above, we state that Section 309 of the Penal Code deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the persons concerned is not called for. We, therefore, hold that Section 309 violates Article 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanization, which is a need of the day, but of globalization also, as by effacing Section 309, we would be attuning this part of our criminal law to the global wavelength." ( Page 429 ) <SLE> At this stage it may be mentioned that reference has been made in P.Rathinam and the Bombay High Court decision to the debate relating to euthanasia, the sociological and psychological factors contributing to suicidal tendencies and the global debate on the desirability of not punishing 'attempt to commit suicide'. The absence of provisions to punish attempted suicide in several jurisdictions has also been noticed. The desirability of attempted suicide not being made a penal offence and the recommendation of the Law Commission to delete Section 309 from the Indian Penal Code has also been adverted to. We may refer only to the recommendation contained in the 42nd Report (1971) of the Law Commission of India which contains the gist of this logic and was made taking into account all these aspects. The relevant extract is, as under : <SLS> "16.31 Section 309 penalizes an attempt to commit suicide. It may be mentioned that suicide was regarded as permissible in some circumstances in ancient India. In the Chapter on "The hermit in the forest", Manu's Code (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204,J Shlokas 31 ad 32) says "31. Or let him walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest. 31. A Brahmana having got rid of his body by one of those modes (i.e. drowning, precipitating burning or starving) practised by the great sages, is exalted in the world of Brahamana, free from sorrow and fear". Two commentators of Manu, Govardhana and Kulluka (See Medhatithi's commentary on Manu), say that a man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune, and that, because it is taught in the Sastras, it is not opposed to the Vedic rules which forbid suicide (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204,footnote 31). To this Max Muller adds a note as follows :- (See : Ibid) "From the parallel passage of Apas tambha II, 23, 2, it is, however, evident that a voluntary death by starvation was considered the befitting conclusion of a hermit's life. The antiquity and general prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it particularly meritorious." 16.32 Looking at the offence of attempting to commit suicide, it has been observed by an English writer: (See : H.Romilly Fedden : Suicide (London, 1938), page 42). "It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation." Acting on the view that such persons deserve the active sympathy of society and not condemnation or punishment, the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence. 16.33 We included in our Questionnaire the question whether attempt to commit suicide should be punishable at all. Opinion was more or less equally divided. We are, however definitely of the view that the penal Provision is harsh and unjustifiable and it should be repealed." (emphasis supplied) <SLE> A Bill was introduced in 1972 to amend the Indian Penal Code by deleting Section 309. However, the Bill lapsed and no attempt has been made as yet to implement that recommendation of the Law Commission. The desirability of retaining Section 309 in the Statute is a different matter and non-sequitur in the context of constitutional validity of that provision which has to be tested with reference to some provision in the Constitution of India. Assuming for this purpose that it may be desirable to delete Section 309 from the Indian Penal Code for the reasons which led to the recommendation of the Law Commission and the formation of that opinion by persons opposed to the continuance of such a provision, that cannot be a reason by itself to declare Section 309 unconstitutional unless it is held to be violative of any specific provision in the Constitution. For this reason, challenge to the constitutional validity of Section 309 has been made and is also required to be considered only with reference to Articles 14 and 21 of the Constitution. We, therefore, proceed now to consider the question of constitutional validity with reference to Articles 14 and 21 of the Constitution. Any further reference to the global debate on the desirability of retaining a penal provision to punish attempted suicide is unnecessary for the purpose of this decision. Undue emphasis on that aspect and particularly the reference to euthanasia cases tends to befog the real issue of the constitutionality of the provision and the crux of the matter which is determinative of the issue. In P. Rathinam it was held that the scope of Article 21 includes the 'right to die'. P. Rathinam held that Article 21 has also a positive content and is not merely negative in its reach. Reliance was placed on certain decisions to indicate the wide ambit of Article 21 wherein the term life' does not mean 'mere animal existence' but right to live with human dignity' embracing quality of life. Drawing analogy from the interpretation of freedom of speech and expression' to include freedom not to speak, freedom of association and movement' to include the freedom not to join any association or to move anywhere, freedom of business' to include freedom not to do business, it was held in P. Rathinam that logically it must follow that right to live would include right not to live, i.e., right to die or to terminate one's life. Having concluded that Article 21 includes also the right to die, it was held that Section 309. IPC was violative of Article 21. This is the only basis in P. Rathinam to hold that Section 309, IPC is unconstitutional. 'Right to die' - Is it included in Article 21? The first question is : Whether, the scope of Article 21 also includes the 'right to die' ? Article 21 is as under: Article 21 <SLS> "21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law." <SLE> A significant part of the judgment in P. Rathinam on this aspect, is as under: <SLS> "If a person has a right to live, question is whether he has right not to live. The Bombay High Court stated in paragraph 10 of its judgment that as all the fundamental rights are to be read together, as held in R.C. Cooper v. Union of India what is true of one fundamental right is also true Of another fundamental right. It was then stated that is not, and cannot be, seriously disputed that fundamental rights have their positive as well as negative aspects. For example, freedom of speech and expression includes freedom not to speak. Similarly, the freedom of association and movement includes freedom not to join any association or move anywhere. So too, freedom Of business includes freedom not to do business. It was, therefore, stated that logically it must follow that the right to live will include right not to live, i.e.,* right to die or to terminate one's life. Two of the abovenamed and critics of the Bombay judgment have stated that the aforesaid analogy is "misplaced", which could have arisen on account of superficial comparison between the freedoms, ignoring the inherent difference between one fundamental right and ,the other. It has been argued that the negative aspect of the right to live would mean the end or extinction of the positive aspect, and so, it is not the suspension as such of the right as is in the case of 'silence' or 'non- association' and 'no movement'. It has also been stated that the right to life stands on different footing from other rights as all other rights are derivable from the right to live. The aforesaid criticism is only partially correct inasmuch as though the negative aspect may not be inferable on the analogy of the rights conferred by different clauses of Article 19, one may refuse to live, if his life be not according to the person concerned worth living or if the richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasures or happiness, he has; some- thing to achieve beyond this life. This desire for communion with God may very rightly lead even a very healthy mind to think that he would forego his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking. xxx xxx xxx Keeping in view all the above, we state that right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life. In this context, reference may be made to what Alan A.Stone, while serving as Professor of Law and Psychiatry in Harvard University stated in his 1987 Jonas Robitscher Memorial Lecture in Law and Psychiatry, under the caption "The Right to Die: New Problems for Lawa and Medicine and Psychiatry. (This lecture has been printed at pp.627 to 643 of Emory Law Journal, Vol.37, 1988). One of the basic theories of the lecture of Professor Stone was that right to die inevitably leads to the right to commit suicide." (emphasis supplied) (Pages 409-410) <SLE> From the above extract, it is clear that in substance the reason for that view is, that if a person has a right to live, he also has a right not to live. The decisions relied on for taking that view relate to other fundamental rights which deal with different situations and different kind of rights. In those cases the fundamental right is of a positive kind, for example, freedom of speech, freedom of association, freedom of movement, freedom of business etc. which were held to include the negative aspect of there being no compulsion to exercise that right by doing the guaranteed positive act. Those decisions merely held that the right to do an act includes also the right not to do an act in that manner. It does not flow from those decisions that if the right is for protection from any intrusion thereof by others or in other words the right has the negative aspect of not being deprived by others of its continued exercise e.g. the right to life or personal liberty, then the converse positive act also flows therefrom to permit expressly its discontinuance or extinction by the holder of such right. In those decisions it is the negative aspect of the right that was invoked for which no positive or overt act was required to be done by implication. This difference in the nature of rights has to be borne in mind when making the comparison for the application of this principle. When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the 'right to life' under Article 21. The significant aspect of 'sanctity of life' is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life' be read to be included in protection of life'. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to die' as a part of the fundamental right guaranteed therein. 'Right to life' is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life'. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to freedom of speech' etc. to provide a comparable basis to hold that the 'right to life' also includes the 'right to die'. With respect, the comparison is inapposite, for the reason indicated in the context of Article 21. The decisions relating to other fundamental rights wherein the absence of compulsion to exercise a right was held to be included within the exercise of that right, are not available to support the view taken in P. Rathinam qua Article 21. To give meaning and content to the word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The right to die', if any, is inherently inconsistent with the right to life' as is death' with life'. Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of 'sanctity of life' or the right to live with dignity' is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life' therein includes the right to die'. The right to life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die' an unnatural death curtailing the natural span of life. A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life. We are, therefore, unable to concur with the interpretation of Article 21 made in P. Rathinam. The only reason for which Section 309 is held to be violative of Article 21 in P. Rathinam does not withstand legal scrutiny. We are unable to hold that Section 309 I.P.C. is violative of Article 21. The only surviving question for consideration now is whether Section 309 IPC is violative of Article 14, to support the conclusion reached in P.Rathinam. The basis of the decision in P. Rathinam, discussed above, was not supported by any of the learned counsel except Shri B.S. Malik. On the basis of the decision in P.Rathinam it was urged that Section 306 also is violative of Article 21, as mentioned earlier. On the view we have taken that Article 21 does not include the right to die' as held in P. Rathinam, the first argument to challenge the constitutional validity of Section 306, IPC also on that basis fails, and is rejected. Article 14 - Is it violated by Section 309, I.P.C. ? We would now consider the constitutional validity of Section 309 with reference to Article 14 of the Constitution. In substance, the argument of Shri Ujagar Singh, Shri B.S. Malik and Shri Soli J. Sobrajee on this point is that it is a monstrous and barbaric provision which violates the equality clause being discriminatory and arbitrary. It was contended that attempted suicide is not punishable in any other civilized society and there is a strong opinion against the retention of such a penal provision which led the Law Commission of India also to recommend its deletion. Shri Sorabjee contended that the wide amplitude of Article 14 together with the right to live with dignity included in Article 21, renders Section 309 unconstitutional. It is in this manner, invoking Article 21 limited to life with dignity (not including therein the right to die') that Shri Sorabjee refers to Article 21 along with Article 14 to assail the validity of Section 309, IPC. The conclusion reached in P. Rathinam is supported on this ground. We have formed the opinion that there is no merit in the challenge based even on Article 14 of the Constitution. The contention based on Article 14 was rejected in P. Rathinam also. It was held therein as under: <SLS> "The Bombay High Court held Section 309 as violation of Article 14 also mainly because of two reasons. First, which act or acts in series of acts will constitute attempt to suicide, where to draw the line, is not known - some attempts may be serious while others non-serious. It was stated that in fact philosophers, moralists and sociologists were not agreed upon what constituted suicide. The want of plausible definition or even guidelines, made Section 309 arbitrary as per the learned Judges. Another reason given was that Section 309 treats all attempts to commit suicide by the same measure without referring to the circumstances in which attempts are made. The first of the aforesaid reasons is not sound, according to us, because whatever differences there may be as to what constitutes suicide, there is no doubt that suicide is intentional taking of one's life, as stated at p.1521 of Encyclopaedia of Crime and Justice, Vol. IV, 1983 Edn. Of course, there still exists difference among suicide researchers as to what constitutes suicidal behavior, for example, whether narcotic addiction, chronic alcoholism, heavy cigarette smoking, reckless driving, other risk-taking behaviors are suicidal or not. It may also be that different methods are adopted for committing suicide, for example, use of fire-arm, poisoning especially by drugs, overdoses, hanging, inhalation of gas. Even so, suicide is capable of a broad definition, as has been given in the aforesaid Webster's Dictionary. Further, on a prosecution being launched it is always open to an accused to take the plea that his act did not constitute suicide where-upon the court would decide this aspect also. Insofar as treating of different attempts to commit suicide by the same measure is concerned, the same also cannot be regarded as violative of Article 14, inasmuch as the nature, gravity and extent of attempt may be taken care of by tailoring the sentence appropriately. It is worth pointing out that Section 309 has only provided the maximum sentence which is up to one year. It provides for imposition of fine only as a punishment. It is this aspect which weighed with the Division Bench of Andhra Pradesh High Court in its aforesaid decision to disagree with the Bombay view by stating that in certain cases even Probation of Offenders Act can be pressed into service, whose Section 12 enables the court to ensure that no stigma or disqualification is attached to such a person. We agree with the view taken by the Andhra Pradesh High Court as regards Section 309 qua Article 14." ( Page 405 ) (emphasis supplied) <SLE> With respect, we are in agreement with the view so taken qua Article 14, in P. Rathinam. We have already stated that the debate on the desirability of retaining such a penal provision of punishing attempted suicide, including the recommendation for its deletion by the Law Commission are not sufficient to indicate that the provision is unconstitutional being violative of Article 14. Even if those facts are to weigh, the severity of the provision is mitigated by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory. There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under Section 309, IPC. This aspect is noticed in P. Rathinam for holding that Article 14 is not violated. The reported decisions show that even on conviction under Section 309, IPC, in practice the accused has been dealt with compassion by giving benefit under the Probation of Offenders Act, 1958 or Section 562 of the Code of Criminal Procedure, 1908 corresponding to Section 360 of the Criminal Procedure Code, 1973 : Mt. Barkat Vs. Emperor, AIR 1934 Lah. 514; Emperor Vs. Dwarka Pooja, 14 Bom.L.R. 146; Emperor Vs. Mt. Dhirajia, AIR 1940 All. 486; Ram Sunder Vs. State of Uttar Pradesh, AIR 1962 All. 262; Valentino Vs. State, AIR 1967 Goa 138; Phulbhai Vs. State of Maharashtra, 1976 Crl. L.J. 1519; Radharani Vs.State of M.P., AIR 1981 SC 1776; Rukhmina Devi Vs. State of U.P., 1988 Crl.L.J. 548. The above quoted discussion in P. Rathinam qua Article 14 is sufficient to reject the challenge based on Article 14. We may briefly refer to the aid of Article 21 sought by Shri Sorabjee to buttress the challenge based on Article 14. We have earlier held that right to die' is not included in the `right to life' under Article 21. For the same reason, right to live with human dignity' cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death. We do not see how Article 21 can be pressed into service to support the challenge based on Article 14. It cannot, therefore, be accepted that Section 309 is violative either of Article 14 or Article 21 of the Constitution. It follows that there is no ground to hold that Section 309, IPC is constitutionally invalid. The contrary view taken in P. Rathinam on the basis of the construction made of Article 21 to include therein the right to die' cannot be accepted by us to be correct. That decision cannot be supported even on the basis of Article 14. It follows that Section 309, IPC is not to be treated as unconstitutional for any reason. Validity of Section 306 I.P.C. The question now is whether Section 306, IPC is unconstitutional for any other reason. In our opinion, the challenge to the constitutional validity of Section 309, IPC having been rejected, no serious challenge to the constitutional validity of Section 306 survives. We have already rejected the main challenge based on P. Rathinam on the ground that `right to die' is included in Article 21. It is significant that Section 306 enacts a distinct offence which is capable of existence independent of Section 309, IPC. Sections 306 and 309 read as under: <SLS> Section 306: "306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years. and shall also be liable to fine." Section 309: "309. Attempt to commit suicide- Whoever attempts to commit suicide and does any act towards the commission of such offence. shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both." <SLE> Section 306 prescribes punishment for abetment of suicide' while Section 309 punishes attempt to commit suicide'. Abetment of attempt to commit suicide is outside the purview of Section 306 and it is punishable only under Section 309 read with Section 107, IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there, provides for the punishment Of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision. The arguments which are advanced to support the plea for not punishing the person who attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt. This plea was strongly advanced by the learned Attorney General as well as the amicus curiae Shri Nariman and Shri Sorabjee. We find great force in the submission. The abettor is viewed differently, inasmuch as he abets the extinguishment of life of another persons and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision. The Suicide Act, 1961 in the English Law contains the relevant provisions as under : <SLS> "1. Suicide to cease to be a crime The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. ---------------------------- NOTE Suicide. "Felo de se or suicide is, where a man of the age of discretion, and compos mentis, voluntarily kills himself by stabbing, poison or any other way" and was a felony at common law: see 1 Hale PC 411-419, This section abrogates that rule of law. but, by virtue of s 2(1) Post, a person who aids abets, counsels or Procures the suicide or attempted suicide of another is guilty of a statutory offence. The requirement that satisfactory evidence of suicidal intent is always necessary to establish suicide as a cause of death is not altered by the passing of this Act : see R v Cardiff Coroner, ex p Thomas [1970] 3 All ER 469, [1970] 1 WLR 1475. --------------------------- 2. Criminal liability for complicity in another's suicide (1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years." (emphasis supplied) <SLE> This distinction is well recognized and is brought out in certain decisions of other countries. The Supreme Court of Canada in Rodriguez v. B.C. (A.G.), 107 D.L.R. (4th Series) 342, states as under :- <SLS> "Sanctity of life, as we will see, has been understood historically as excluding freedom of choice in the self- infliction of death and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the state to regulate the involvement Of others in exercising power over individuals ending their lives." (at page 389) <SLE> Airedale N.H.A. Trust v. Bland, 1993 (2) W.L.R. 316 (H.L.), was a case relating to withdrawal of artificial measures for continuance of life by a physician. Even though it is not necessary to deal with physician assisted suicide or euthanasia cases, a brief reference to this decision cited at the Bar may be made. In the context of existence in the persistent vegetative state of no benefit to the patient, the principle of sanctity of life, which it is the concern of the State, was stated to be not an absolute one. In such cases also, the existing crucial distinction between cases in which a physician decides not to provide, or to continue to provide, for his patient, treatment or care which could or might prolong his life, and those in which he decides, for example, by administering a lethal drug, actively to bring his patient's life to an end, was indicated and it was then stated as under :- <SLS> "..........But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be : see Reg. v. Cox (unreported), 18 September, 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law. and can, if enacted, ensure that such legalized killing can only be carried out subject to appropriate supervision and control. ........" (emphasis supplied) (at page 368) <SLE> The desirability of bringing about such a change was considered to be the function of the legislature by enacting a suitable law providing therein adequate safeguards to prevent any possible abuse. The decision of the United States Court of Appeals for the Ninth Circuit in Compassion in Dying vs. State of Washington, 49 F.3d 586, which reversed the decision of United States District Court. W.D. Washington reported in 850 Federal Supplement 1454, has also relevance. The constitutional validity of the State statute that banned physician assisted suicide by mentally competent. terminally ill adults was in question. The District Court held unconstitutional the provision punishing for promoting a suicide attempt. On appeal. that judgment was reversed and the constitutional validity of the provision was upheld. This caution even in cases of physician assisted suicide is sufficient to indicate that assisted suicides outside that category have no rational basis to claim exclusion of the fundamental of sanctity of life. The reasons assigned for attacking a provision which penalizes attempted suicide are not available to the abettor of suicide or attempted suicide. Abetment of suicide or attempted suicide is a distinct offence which is found enacted even in the law of the countries where attempted suicide is not made punishable. Section 306 I.P.C.enacts a distinct offence which can survive independent of Section 309 in the I.P.C. The learned Attorney General as well as both the learned amicus curiae rightly supported the constitutional validity of Section 306 I.P.C. The Bombay High Court in Naresh Marotrao Sakbre and Another vs. Union of India and others, 1895 Crl.L.J. 96, considered the question of validity of Section 306 I.P.C. and upheld the same. No decision holding Section 306 I.P.C. to be unconstitutional has been cited before us. We find no reason to hold either Section 309 or Section 306 I.P.C. to be unconstitutional. For the reasons we have given, the decisions of the Bombay High Court in Maruti Shri Pati Dubal vs. State of Maharashtra, 1987 Crl. L.J. 743, and of a Division Bench of this Court in P. Rathinam vs. Union of India and Anr., 1994 (3) SCC 394, wherein Section 309 I.P.C. has been held to be unconstitutional, are not correct. The conclusion of the Andhra Pradesh High Court in Chenna agadeeswar and another vs. State of Andhra Pradesh, 1988 Crl.L.J. 549, that Section 309 I.P.C. is not violative of either Article 14 or Article 21 of the Constitution is approved for the reasons given herein. The questions of constitutional validity of Sections 306 and 309 I.P.C. are decided accordingly, by holding that neither of the two provisions is constitutionally invalid. These appeals would now be listed before the appropriate Division Bench for their decision on merits in accordance with law treating Sections 306 and 309 I.P.C. to be constitutionally valid.

Author: J S Verma

Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996

Supreme Court of India

Gujarat High Court Case Information System Print CR.MA/8788/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8788 of 2011 In CRIMINAL APPEAL No. 100 of 2009 ====================================== ASHOK NANJIBHAI Versus STATE OF GUJARAT AND ANOTHER ====================================== Appearance : THROUGH JAIL for Applicant. MS CHETNA SHAH, APP for Respondent No.1. None for Respondent No.2. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 07/07/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) Present application for modification of condition for grant of temporary bail is stated to be not surviving as the petitioner is already released on temporary bail, after fulfilling condition. Hence, rejected. (D.H.Waghela, J.) (J.C.Upadhyaya, J.) *malek     Top

Author: D.H.Waghela, Honourable J.C.Upadhyaya,

State vs Ms Chetna Shah on 7 July, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 28.2.2011 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.No.23166 of 2010 and M.P.Nos.1 to 3 of 2010, W.P.No.22392 of 2010 and M.P.Nos.1 to 3 of 2010, W.P.No.22561 of 2010 and M.P.No.1 of 2010, W.P.No.22600 of 2010 and M.P.Nos.1 to 3 of 2010, W.P.No.22646 of 2010 and M.P.No.1 of 2010, W.P.No.22967 of 2010 and M.P.No.1 of 2010, W.P.No.22968 of 2010 and M.P.No.1 of 2010, W.P.No.22969 of 2010 and M.P.No.1 of 2010, W.P.No.22970 of 2010 and M.P.Nos.1 and 2 of 2010 W.P.Nos.23078 and 23079 of 2010 and M.P.No.1 of 2010, W.P.No.23099 of 2010 and M.P.No.1 of 2010, W.P.No.23104 of 2010 and M.P.No.1 and 2 of 2010, W.P.No.23166 of 2010 and M.P.Nos.1 to 3 of 2010, W.P.No.23307 of 2010 and M.P.No.1 of 2010, W.P.No.23468 of 2010 and M.P.Nos.1 and 2 of 2010, W.P.Nos.23593 and 23594 of 2010 and M.P.No.1 of 2010, W.P.No.23997 of 2010 and M.P.No.1 of 2010, W.P.No.24121 of 2010 and M.P.No.1 of 2010, W.P.No.24321 of 2010 and M.P.Nos.1 and 2 of 2010, W.P.No.24535 of 2010 and M.P.Nos.1 to 5, W.P.No.24685 of 2010 and M.P.Nos.1 to 5 of 2010, W.P.No.25637 of 2010 and M.P.Nos.1 and 2 of 2010, W.P.No.25962 of 2010 and M.P.No.1 of 2010, W.P.Nos.26068 and 26069 of 2010 and M.P.Nos.1 and 2 of 2010, W.P.No.26168 of 2010 and M.P.No.1 of 2010, W.P.No.26169 of 2010 and M.P.Nos.1 and 2 of 2010, W.P.No.26657 of 2010 and M.P.No.1 of 2010, W.P.No.26658 of 2010 and M.P.No.1 of 2010, W.P.No.27059 of 2010 and M.P.No.1 of 2010, W.P.No.27857 of 2010 and M.P.Nos.1 to 5 of 2010, W.P.No.27885 of 2010 and M.P.Nos.1 to 5 of 2010, W.P.No.27998 of 2010 and M.P.Nos.1 to 5 of 2010, W.P.No.28003 of 2010 and M.P.Nos.1 to 5 of 2010, W.P.No.28004 of 2010 and M.P.Nos.1 to 5 of 2010, W.P.No.28495 of 2010 and M.P.Nos.3 to 5 of 2010 and W.P.No.29343 of 2010 and M.P.Nos.1 and 2 of 2010 and W.P.No.15 of 2011 and M.P.Nos.1 and 2 of 2011, W.P.No.17 of 2011 and M.P.No.1 of 2011, W.P.Nos.475 and 476 of 2011 and M.P.No.1 of 2011, W.P.No.691 of 2011 and M.P.Nos.1 and 2 of 2011, W.P.No.2484 of 2011 and M.P.Nos.1 and 2 of 2011, W.P.No.2911 of 2011 and M.P.Nos.1 and 2 of 2011, W.P.No.3006 of 2011 and M.P.No.1 of 2011, W.P.No.3007 of 2011 and M.P.Nos.1 and 2 of 2011, W.P.No.3378 of 2011 and M.P.No.1 of 2011 and W.P.No.3787 of 2011 and M.P.Nos.1 to 3 of 2011 W.P.No.23166 of 2010:- Sri Gomathy Mills Private Limited, Main Road, Veeravanallur-627 426, Tirunelveli District. ... Petitioner -Vs.- 1.Tamil Nadu Electricity Regulatory Commission, represented by its Secretary, 19-A, Rukmini Lakshmipathy Salai (Marshall's Road), Egmore, Chennai-600 008. 2.The Chairman, Tamil Nadu Electricity Board(TNEB), 144, Anna Salai, Chennai-600 002. 3.The Superintending Engineer, Tirunelveli Electricity Distribution Circle, Tamil Nadu Electricity Board(TNEB), Tirunelveli. ... Respondents Writ Petition No.23166 of 2010 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminating in his impugned Memo.N.CE/Comml/EE/DSM/AEE1/F. Power cut/D.358/10 dated 17.9.2010, quash the same and direct the respondents 2 and 3 to treat the energy purchased by the petitioner for their HTSC No.4 through Captive Power Plant, Wind and Third Party Sources over and above the quota fixed by the second respondent upto the sanctioned demand in consonance with the Order dated 07.09.2010 passed by the first respondent in M.P.No.6 of 2010, 9 of 2010 and 17 of 2010 and D.R.P.No.9 of 2010 and pass such other orders as this Court may deem fit and proper in the circumstances of the case. W.P.No.23166 of 2010:- For petitioner : Mr.N.L.Rajah For respondents : Mr.P.Srinivas ----- COMMON ORDER Writ Petition No.23166 of 2010 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminating in his impugned Memo.N.CE/Comml/EE/DSM /AEE1/F. Power cut/D.358/10 dated 17.9.2010, quash the same and direct the respondents 2 and 3 to treat the energy purchased by the petitioner for their HTSC No.4 through Captive Power Plant, Wind and Third Party Sources over and above the quota fixed by the second respondent upto the sanctioned demand in consonance with the Order dated 07.09.2010 passed by the first respondent in M.P.No.6 of 2010, 9 of 2010 and 17 of 2010 and D.R.P.No.9 of 2010 and pass such other orders as this Court may deem fit and proper in the circumstances of the case. 2. Sri AR.L.Sundaresan, learned Senior Counsel, Sri R.S.Pandiyaraj, Sri P.Saravana Sowmiyan, Sri Krishna Srinivas, Sri Rahul Balaji, Sri K.Seshadri, Sri N.L.Rajah, Sri A.R.Ramanathan and Sri N.Srinivasan, learned advocates appears for the petitioners. Sri J.Ravindran, Sri P.Srinivas and Sri A.Selvendran, learned counsel appears for the respondents electricity board. 3. The relief sought for in all the 50 Writ Petitions are one and the same. Hence, by consent of both parties, all the writ petitions are taken up together for final disposal. 4. The HT Consumers have filed a batch of writ petitions challenging the Memo.N.CE/Comml/EE/DSM/AEE1/F.Power cut/D.358/ 10 dated 17.9.2010 issued by the Tamil Nadu Electricity Board signed by the Chairman of the Board. According to the petitioners, they purchase energy from the third party sources. The Electricity Board, therefore, should not impose restrictions contrary to the order passed by the Tamil Nadu Electricity Regulatory Commission in its order passed in M.P.Nos.6 of 2010, 9 of 2010 and 17 of 2010 dated 7.9.2010. According to the petitioners, the Memo dated 17.9.2010, which is impugned in these writ petitions, is contrary to the direction of the first respondent. In the meanwhile, a meeting was arranged between the HT Consumers Association, represented by its members with the Hon'ble Deputy Chief Minister of the State to resolve the issue with regard to the implementation of the Regulatory Commission's order and for modification of the impugned proceedings. A copy of the Minutes of the Meeting of the HT Consumers Association and the Hon'ble Deputy Chief Minister dated 27.1.2011 is produced before this Court and it reads as follows:- "Minutes of the Meeting convened by Hon'ble Deputy Chief Minister of Tamil Nadu with the Confederation of Indian Industries (CII)/SIMA etc. ----- With regard to the representations submitted by CII, SIMA etc., in connection with the Power Scenario in Tamil Nadu and also in connection with certain operational issues, Hon'ble Deputy Chief Minister took up a meeting on 27.01.2011 at 11.00 AM in his Conference Hall at New Secretariat, Chennai. 2.0. A list of participants is enclosed. 3.0. At the outset, Tmt.Nandhini Rangaswamy, Chair-person, CII, Tamil Nadu welcomed the Hon'ble Deputy Chief Minister, Officials and all the participants and initiated the discussion. Upon a review of the current power position as also after a detailed discussion on the issues raised by CII and SIMA, following decisions were taken:- (i) Consumption based demand: While appreciating the issues raised by CII, TANGEDCO agreed to consider the quantum of 'inter-state' and 'intra-state' purchases of power received at the consumer's end, taking into consideration for demand calculation on par with the reliability power and make necessary arrangements for giving effect to this from the billing cycle starting 1st Feb. 2011. (Action:CMD/TANGEDCO) (ii) Fixation of Demand and Energy quota: It was explained that under the present circumstances, allowing 1/12th of the average wind energy consumption every month is not possible to accede to. CII also agreed to this. However, with regard to the present instructions for calculation for the fixation of energy by taking average consumption of 3 consecutive months during the base period and subtracting the wind energy/CPP power consumed during that period, it was agreed that base energy consumption of HT services will be based on the average quantum of any 3 (three) months of consecutive metered energy between the billing period from 10/2007 to 10/2008 as per the choice of the consumer and to the advantage to the HT consumers. Fixation of base demand therefore will be made from the demand recorded in any month for the period from 10/2007 to 10/2008. As mentioned earlier, consequently HT consumers may opt for any consecutive 3 (three) month's period for calculation of base energy. (Action:CMD/TANGEDCO)" The HT Consumers were, therefore, given the choice to determine the base energy and base demand. 5. Based on the meeting held on 11.2.2011 as above, the Tamil Nadu Generation and Distribution Corporation Ltd., Technical Branch, represented by the Chief Engineer/Commercial, for and on behalf of the Chairman-cum-Managing Director issued Memo.No.CE/Comml/EE/ DSM/AEE/F.R&C/D.56/11 dated 11.2.2011. A typed copy of Memo dated 11.2.2011 is filed along with the typedset of papers. The relevant portion of the memo reads as follows:- At the time of implementation of power cut, the base demand and base energy were fixed based on the instructions dated 01.11.2008 as follows: (i) The base energy consumption for HT service will be the average of any three consecutive months advantageous to the consumer between the billing period from October, 2007 to September, 2008. (ii) The base demand will be the highest maximum demand registered in any month during the period from October, 2007 to September 2008. 2. Based on the decision taken, in the meeting convened by the Hon'ble Deputy Chief Minister of Tamilnadu with CII/SIMA on 27.01.2011 and the minutes communicated in reference (4), the instructions for fixing the base demand and base energy may be revised as follows: (i) The base energy will be the average of any three consecutive months during the base period, as per the choice of the consumer and to the advantage to the HT consumers. (ii) The base demand will be the demand recorded in any month during the base period, as opted by the consumer, limited to the sanctioned demand. 3. The base demand and base energy may be modified only based on the written request of the consumer. However, the instructions issued for fixing of quota in this Office Memo No.CE/Comml/EE/DSM/AEE/ Power cut/D.358/10 dated 17.9.2010 remain unaltered. 4. The revised instruction comes into effect from the date of issue of order. 5. An illustration on the revised working instruction citing an example of a CPP/wind consumer is enclosed herewith." (emphasis supplied) The Memo while giving effect to the Minutes of the Meeting, incorporated a clause which appears to be inconsistent with the Minutes of the Meeting. 6. In para 3 of the above stated Memo, it is stated that the Office Memo dated 17.9.2010 and the instructions contained therein for fixing the quota will remain unaltered. This according to the petitioners, is contrary to decision taken in the Meeting with the Hon'ble Deputy Chief Minister which is recorded in the Minutes dated 27.1.2011. In the Memo dated 11.2.2011, the HT Consumers have been given the choice to fix the base energy and the base demand and that is sought to be nullified by inclusion of the office memo dated 17.9.2010. The remedy sought to be removed has come to stay indirectly. 7. In view of the above plea, Sri A.Selvendran, learned counsel appearing for the respondents board was directed to get instruction from the Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Ltd., Technical Branch, as to how the Minutes of the Meeting and the Memo dated 11.2.2011 can be implemented in view of para 3 as above. 8. The authority of the Board at request is present in Court and stated that the Memo dated 11.2.2011, more particularly, para 2 gives choice to the consumer to fix the base energy and the base demand and this is as per the terms of the Minutes of Meeting dated 27.1.2011 referred to above. 9. It was stated by the respondents that the reason for inclusion of the memo dated 17.9.2010 is only for the purpose of deriving the base energy and base demand at the choice of the HT Consumer and not for any other purpose. 10. The parties have consequent to the meeting with the Deputy Chief Minister arrived at a consensus and that is because of the difficulty expressed in implementing the Memo dated 17.9.2010. Hence, the inclusion of the Memo dated 17.9.2010 in para 3 of the subsequent Memo dated 11.2.2010 will not only confuse the field formation, it will lead to arbitrary and whimsical billing. 11. The Minutes of the Meeting with the Deputy Chief Minister is to clarify and resolve the dispute that arose out of Memo dated 17.9.2010 and therefore, the department cannot rely upon the said Memo for any purpose differently. It has to be read in consonance with the subsequent proceedings dated 11.2.2011. The scope of memo dated 11.2.2011 is to extend the benefit to HT Consumers and not to deny them the benefit of the third party purchase. 12. In view of the above, following orders are passed:- (1) Respondents are directed to issue suitable amended memo/circular to the field formation to amend the Memo dated 17.9.2010 to read as follows:- Para I(ii) contained in Memo dated 17.9.2010 shall be deleted. In that place the following shall be inserted (i.e.) para 2(i) of the Memo dated 11.2.2011:- "(i) The base energy will be the average of any three consecutive months during the base period, as per the choice of the consumer and to the advantage to the HT consumers." Further Para I(v)(ii) of Memo dated 17.9.2010 shall be deleted and in that place the following shall be inserted (i.e.) para 2(ii) of the Memo dated 11.2.2011:- "(ii) The base demand will be the demand recorded in any month during the base period, as opted by the consumer, limited to the sanctioned demand." The revised memo/circular should be issued forthwith on receipt of a copy of this order. (2) The Electricity Board shall also keep in mind the direction issued by the first respondent in Suo-moto Proceedings No.1 of 2009, more particularly para 16(13) and (16), which reads as follows:- "16. After taking into account the submissions made by both the parties, the Commission directs as follows:- (1) to (12) xxx (13) From 1.11.2008, all captive users, whether thermal or wind, shall declare on the first day of every month, the energy proposed for captive use for the following month, which shall be considered as B and F for the purpose of energy quota and demand quota respectively in terms of the memo of TNEB dated 17.11.2008; the energy so declared shall roughly be the monthly average generation;" (14) and (15) xxx (16) If a consumer opts out of wheeling agreement and becomes an ordinary consumer, A and E referred in the memo dated 17.11.2008 shall be deemed to be the base energy and base demand." and it will be implemented as may be applicable to the individual HT consumers as amended in para 4.4 of the order dated 7.9.2010 issued by Tamil Nadu Electricity Regulatory Commission. (3) Insofar as the implementation of the memo/circular dated 17.9.2010 is concerned, each one of the petitioners have filed individual petitions challenging the same. In W.P.No.23166 of 2010 the Memo dated 17.9.2010 was stayed on 8.10.2010. In another W.P.No.22392 of 2010 the consequential fixation of base energy and base demand was challenged and it was stayed by this court on 30.9.2010. In effect the respondent authorities were restrained from proceedings in terms of Memo dated 17.9.2010 and that was clarified after the Minutes of the Meeting consequent to the meeting with the Hon'ble Deputy Chief Minister of State and the revised Memo/Circular has been issued on 11.2.2011. This clarification will enure to the benefit of the petitioners. In view of the above, the respondent authorities are not entitled to demand the penalty insofar as the base energy and base demand is concerned on the basis of the memo/circular dated 17.9.2010 as the same is modified and clarified by the subsequent memo dated 11.2.2011. The meeting of the two consumer association with the Hon'ble Deputy Chief Minister of the State was to settle all issues relating to fixation of base energy and base demand which has been bothering both the department and HT Consumers for quite sometime. Hence, the effect of the revised memo dated 17.9.2010 (i.e.) to say the amended version, the levy of penalty based on old memo dated 17.9.2010 will have to be set aside. (4) The Tamil Nadu Generation & Distribution Corporation Ltd., Technical Branch, represented by the Chief Engineer/Commercial or the third respondent as the case may be are directed to issue the revised memo/circular in accordance with the order passed by this Court to the field formation for the implementation as ordered by this Court. (5) In view of the direction issued by this Court with regard to clarification to be issued, all demands raised with regard to base demand and base energy which is challenged in the individual writ petitions on and after 17.9.2010 are set aside. The penalty for exceeding base energy and base demand which is demanded in the bills are set aside and the respondents are directed to work out the claim, if any, in accordance with the revised circular to be issued. (6) All the 50 writ petitions stands ordered as above. No costs. Consequently, connected miscellaneous petitions are closed. ts To 1.The Secretary, Tamil Nadu Electricity Regulatory Commission, 19-A, Rukmini Lakshmipathy Salai (Marshall's Road), Egmore, Chennai-600 008. 2.The Chairman, Tamil Nadu Electricity Board(TNEB), 144, Anna Salai, Chennai-600 002. 3.The Superintending Engineer, Tirunelveli Electricity Distribution Circle, Tamil Nadu Electricity Board(TNEB), Tirunelveli

Sri Gomathy Mills Private Limited vs Tamil Nadu Electricity ... on 28 February, 2011

Madras High Court

Court No. - 19 Case :- CRIMINAL REVISION No. - 566 of 2008 Petitioner :- Ravi Shankar Respondent :- State Of U.P. Petitioner Counsel :- Sabih Ahmad Respondent Counsel :- G.A. Hon'ble S.C. Chaurasia,J. Learned A.G.A. was granted three weeks time to file Counter Affidavit vide this court's order dated 23rd October, 2008, but, it appears that no Counter Affidavit has been filed as yet. Learned A.G.A. prays for and is granted two weeks further time to file Counter Affidavit. Rejoinder Affidavit, if any, may be filed within one week thereafter. List after expiry of the said period. Order Date :- 13.1.2010 AKS

Ravi Shankar vs State Of U.P. on 13 January, 2010

Allahabad High Court

mm mwwm war wmmamnm mum cgum 05* MKNATAM 1-mm amuxr Q!' l(ARNATA%fiz mma cuum' Q5 MRNATAM MG!-+1 CCWRT OF KARNAJAKA REG?! cu Accordingly, the ¢rde.r dated 30.9.2068 stands quashed. However, it is made clear that if the parties have: any other right, it is always-"jV "-. "'~. ' open ta agitate the same befare an apprQpri#':EeVA.« VV: rerun: and the mere retention cf r&'%-?'fi'h'.3.£ a'_z':t1::;i§éan'é:" V' or this crater will not come in their :$e{a3é~.} '* In terms of tha above. tha""'L«§§t.iti¢r;. _5't2§'2:d§ H dispased 51:'. No order as t<:"'c=x<;f:st;s§W V Eta"

Author: A.S.Bopanna

Smt Ratnamma vs Smt Lakshmamma on 7 August, 2009

Karnataka High Court

C. No. V/15A/3/7/67-T. 2 dated 16-12-1967 The General Manager, Messrs Reichhold Chemicals India Ltd., Kannabiran Koil St., Post Bag No. 3, Madhavaram, Madras-60. Gentlemen Central Excise - Artificial or Synthetic Resins - Messrs Reichhold Chemicals Ltd., Sembium MOR - Assessment of Beckamine 3530 - 50 and Super Beckamine 27 - 566 - regarding. Please refer to your letter GM VR. 605 : 67 dt., 15-12-67 on the above subject. 2. It has now been decided by the Assistant Collector that - a. Beckamine 3530 - 50 and b. Super Beckamine 27 - 566 - are to be classified as Alkyed resin. Hence these two items may be cleared free of duty as per notification No. 156/65, dt. 23-9-1965. Sd/- P.N. Menon       Sr. Superintendent (Tech). ....." 11. However, on 5-4-1968 he proposed to raise a demand under Rule 9(2) of the Central Excise Rules in the following terms : "...... C. No. V/15A/3/7/67-TS dated 5th April, 1968 Sub : Central Excise - Resins - assessment of Beckamine 3530 - 50 and Super Beckamine 27 - 566 Messrs Reichhold Chemicals Ltd., Semptian MOR - Orders passed. ORDER 1. The petitioner is a Company manufacturing various chemical products such as Super Beckamine, Beckamine etc. This is done after taking out a licence from the Central Excise department. During the earlier part of 1967, the petitioner was removing these products declaring them as 'Alkyed resins' and claiming exemption from duty in terms of Notification No. 156 of 1965, dated 23-9-1965. After consideration of the facts and circumstances of the case, including the chemical composition of the products, the third respondent (Assistant Collector of Central Excise) passed an order dated 16-8-1968, holding that the products manufactured by the petitioner are only 'modified alkyed resins' and as such the exemption under the said notification was not available. Accordingly, a demand for a sum of Rs. 62,627.97 being the excise duty payable for the goods cleared during the period from 14-11-1967 to 5-4-1978 was raised. 2. The petitioner filed an appeal before the Appellate Collector of Central Excise, Madras, the second respondent herein. The Appellate Collector by his order dated 10-9-1975 allowed the appeal on the ground that 'alkyed resins' included modified alkyed resins. In exercise of the powers conferred in them under Section 36(2) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the 'Act') the Government of India issued a show cause notice dt. 31-8-1976, to the petitioner proposing to review the decision of the Appellate Collector. The petitioner sent a reply dated 29-9-1976. As desired by them, personal hearing was granted on 29-1-1977 at Madras. Having regard to all the submissions made by the petitioner the Government of India passed an order on 31-8-1978 setting aside the order in appeal passed by the Appellate Collector of Central Excise, Madras, on appeal and holding that the products of the petitioner were not eligible for the benefit of exemption envisaged by the Notification No. 156 of 1965, and that they are correctly assessable under Item No. 15-A(i) of the Central Excise Tariff. 3. In seeking to quash this order, the following points are urged before me. - The jurisdiction under review does not mean that there can be a reconsideration of the entire matter afresh. The whole question before the assessing authority and the Appellate Authority was whether the Notification granting exemption was available to the petitioner or not. Instead of considering that, the order of the Government of India does to the extent of saying that the goods manufactured by the petitioner would fall within the scope of 'synthetic resins'. That was not the subject-matter of issue at all. Where, therefore, it proposed to do so, the petitioner should have been put on notice. That Section 36(2) confers only a revisional jurisdiction and not an appellate power is the purport of the ruling in Government of India and others v. A.S. Bava, 1980 E.L.T. 625. When Section 36(2) says that the Government of India on review could pass any orders thereon, it should be limited only to the scope of the orders and a new ground cannot be raised at the time of exemption. Therefore, the re-classification without notice is bad in law. 4. The second argument, is that originally be order dated 16-12-1967, the petitioner was unable to clear the goods free of duty when it was held that the notification No. 156 of 1965 would apply. However, on 5-4-1968, the very authority, namely, the Assistant Collector proposes to revise the same and raises a demand disregarding the exemption. The Government of India when it says that the order of the Assistant Collector is restored, should have specifically stated as to from what date the liability of the petitioner to excise duty would arise. Therefore, in any event, between 16-12-1967 and 5-4-1968, there cannot be a demand of excise duty at all. 5. One other ground that is urged by the learned counsel for the petitioner is that if it is a case of fresh assessment, S. 11A would come into play and the period of limitation prescribed under the said section must be put against the department. 6. The learned counsel appearing for the department would contend that the scope of the review power has not been enlarged at all. It is a matter of classification. Even as per the order of the Government of India which is under challenge, the assessability of the petitioner arises in view of item 15-A(1) of the Central Excise Tariff. Therefore, it is a mere matter of proper classification. The liability in relation to excise duty of the petitioner is not increased in any manner. As and when a demand is raised pursuant to the order under challenge, if the petitioner is well founded in their contention that it is not liable to pay any excise duty prior to 5-4-1968, it is open to them to urge it after the assessment and not now. 7. Regarding the contention of the petitioner that the scope of the review jurisdiction cannot mane that it is as wide as appellate jurisdiction, there cannot be any demur since that is the ratio of the decision in 1980 E.L.T. 625. As a matter of fact, there is no widening of jurisdiction under review because paragraph 4 of the show cause notice dated 31-8-1976 states as follows - "...... On examination of the case records the Central Government tentatively hold the view that the order of the Appellate Collector of Central Excise, Madras, mentioned above is not proper, legal and correct inasmuch as the two products viz., Beckamines and Super Beckamines mentioned above were other than alkyed resins maleic resins and phenolic resins and exemption notification is not attracted in respect of those products. It is seen from the printed pamphlet of the party of October 1963, that 'Beckamine' and 'Super Beckamine' are synthetic resins of the type of urea formaldehyde resins and melamine formaldehyde resins respectively. The above facts are supported in the Point, Oil and Colour year Book 1970 published by Fuel and Metalurgical Journal Ltd., London, which states that (page 159) Beckamine Urea Resins - Synthetic resins and (page 178) Super Beckamine Melamine Resins - Synthetic resins. In view of the above Beckamine and Super Beckamine synthetic resins are different from alkyed resin, meleic resin and phenolic resin mentioned in Central Excise notification No. 156/65, dated 23-9-1965 as subsequently amended." 8. By the ultimate impugned order the Government of India states as follows - "Regarding the technical arguments advanced by the party based on the process of manufacture of the products Government of India note that in the first stage, the increase in weight is by a chemical process. In the second stage, butylation which is an etherfication process occurs and it is also a condensation reaction. The resultant product is a polycondensation material in view of the acid catalyst already present in it in small quantity. At the second stage, the increase in weight is due to polycondensation process which takes place in the presence of an acid catalyst. The products as produced and marketed are 'resin' inasmuch as item 15-A1(i) of Central Excise Tariff, includes in its scope condensation, polycondensation and polyaddition products whether or not modified or polymerised. As the party has not stated that they are using a separate catalyst at the time of application nor is a catalyst market along with its products, by implication it is understood that this product contains an acid catalyst already. Butylated urea or melamine formaladyhyde as manufactured by the party is understood in trade and technology as resin and is therefore covered by the Tariff Item 15-A'(i) Central Excise Tariff. Further, the Paint and Colour Book year 1970 records both Beckamine and Super Beckamine, categorised as Urea resin and meleik resin respectively as 'Synthetic resin'. In the booklet brought out by the party themselves in October 1963, titled 'an index of synthetic resins for the surface coating industries. Beckamine and Super Beckamine have been categorised as 'synthetic resins'. The party therefore cannot now take a stand that the impugned products are not 'resins'." In view of the above, it was concluded that the impugned products were assessable under item 15-A(1) of the Central Excise Tariff. Therefore, the petitioner was fully put on notice. Regarding the manufacture of products by the petitioner, what formed the subject-matter of issue before the assessing authority and the appellate authority was the eligibility of the petitioner to have the benefit of Notification No. 156/65. This is a narrow view which cannot be accepted. Should the petitioner be not entitled to the benefit of exemption under the said Notification, the question would arise as to how the products of the petitioner are to be categorised. It is that precisely what has been done by the Government of India. I am happy to note that in this case, the Government of India did interfere because the order passed by the Appellate Authority leaves very much to be desired. As to what I mean can be made evident after extracting the order of the appellate authority dated 10-9-1975. That order reads as follows : "Sub : Central Excise - Assessment of the Super Beckamine and Beckamine - Messrs. Reichhold Chemicals India Ltd., Madhavaram, Madras. Ref : Appeal dated 5-11-1968 by Messrs. Reichhold Chemicals India Ltd., Madhavaram, Madras, against the order D.B. Dis V/15A/3/7/67 - 67(T), dt. 16-8-68 passed by the Assistant Collector of Central Excise, Madras I Division, Madras. * * * * I have gone through the appeal. The issue relates to the classification of two products as exempted under Notification No. 156/65, dated 23-9-1965. After going through all the records and connected notification, I am convincted that the exemption notification applies to modified Alkyd Resins also. As such the appeal is admitted with consequential relief. Sd/- H.N. Raina         Appellate Collector 19-9-75......" 9. It is regrettable that an order in this cavalier fashion should have been passed by the Appellate Collector. It is a matter concerning the revenue of the State. There must be an application of mind as to how the appellate authority came to the conclusion that the benefit of the notification granting exemption could be accorded to the petitioner. It is no use saying 'is convinced' as is stated in the order. He should give clear and cogent reasons. All that is missing in the order. No one is worried about the convictions or faiths. It is a matter of reasoning because he is exercising quasi-judicial powers. There must be an analytical approach. That is wholly lacking in the order. Rightly, therefore, the Government of India did exercise the power of review. 10. Turning to the other argument that in the restoration of the order of the Assistant Collector, there is a lacuna, a few facts may be mentioned. By order dated 16-12-1967 the Assistant Collector of Central Excise, Madras stated as follows : "........ On a clear appreciation of the facts regarding the assessment of (i) Beckamine 3530 - 50 and Super Beckamine 27 - 566 it has been decided that these two items manufactured by Messrs Reichhold Chemicals Ltd., are assessable to excise duty as Resins other than Alkyed Maleic and Phenolic Resins. You are therefore requested to subject these items to Central Excise duty at 30% ad valorem and the Special excise duty under Item 15-A of the Tariff. 2. As regards past clearance, please raise necessary demands for the immediate recovery of duty and appropriate rates on the goods cleared free of duty. The demand may be raised under Rule 9(2) of the Central Excise Rules, while raising the demand the amount of duty refunded it any on these products, should also be taken into account. 3. A compliance report should be sent within seven days. Sd/- P.N. Menon        Superintendent (Tech. II) To The Section Officer, Madhavaram Sector, Sembiam. Copy to the Range Officer, Sembium MOR. He will please ensure that immediate necessary action is taken. The worksheet may be verified by him with reference to the Factory's production one clearance records. Copy of Messrs Reichhold Chemicals India Ltd., Madhavaram, Post Bag No. 3 Madras-60. 2. If you feel aggrieved against this order, you may represent the case to the Assistant Collector of Central Excise, IDO, Madras." 12. One thing that is claimed is that no authority has the power to review his own order. Therefore from 16-12-1967 to 5-4-1968, unless and until the power is exercised under Rule 10-A, the demand cannot be raised at all. There is not even a suggestion in the order dated 5-4-1968, that he proposed to do the same. On the contrary, he proceeds to assess, oblivious of his earlier order dated 16-12-1967. It is this which has given rise to the petitioner's contention that it is not in any event liable for excise duty between 16-12-1967 and 5-4-1968. Here again I should attach the blame only to the Assistant Collector. Had he familiarised himself with the provisions of law, he would not have committed this serious blunder. Today the power is sought to be exercised under S. 11A. Under the present S. 11A it is obviously time-barred. Who is to compensate for the loss of revenue ? In matters of revenue jurisdiction, it is the bounden duty of the authorities to exercise every care to avoid escape. What has given room for the petitioner to put forth the argument which I consider should merit acceptance is, only the negligence or the ignorance of the Assistant Collector. 13. I am unable to accept the argument of the petitioner that since the Government of India proposes to deal with a new ground, the petitioner would be entitled to canvass under S. 11A. As stated above, the Government of India was merely classifying the product of the petitioner under proper category. I hereby make it clear that the petitioner will not be liable for any excise duty for the goods cleared between the period 16-12-1967 and 5-4-1968. The writ petition will stand allowed only to that extent. In other respects, it will stand dismissed. No costs.

Reichhold Chemicals Ltd. vs Government Of India And Ors. on 16 August, 1983

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 75314 of 2019 Arising Out of Complaint Case No.-63 (C)Year-2018 Thana- PATNA COMPLAINT CASE District- Patna ====================================================== 1. Vimal Prasad, aged about 36 Years (Male), Son of Late Rameshwar Prasad Resident of Village - Siradhiper, P.S.- Dhanarua, District- Patna. 2. Bali Prasad, aged about 41 Years (Male), Son of Bhagwat Prasad, Resident of Village - Kashipur, P.S.- Dhanarua, District- Patna. 3. Hardev Prasad, aged about 46 Years, (Male), Son of Devendra Prasad, Resident of Village - Kashipur, P.S.- Dhanarua, District- Patna. ... ... Petitioner/s Versus 1. The State of Bihar 2. Mostt. Dharamshela Devi @ Premshela Devi Wife of Late Baleshwar Prasad Resident of Village - Siradhiper, P.S.- Dhanarua, District- Patna. ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Fakhruddin Ali Ahmad, Advocate For the State : Mr. Renu Kumari, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Ahsanuddin Amanullah, J.) P. Kumar U T 2 26-11-2019 Learned counsel for the petitioners and learned APP for the State have assisted the Court. 2. The petitioners have moved the Court seeking pre- arrest bail in connection with Complaint Case No. 63(C) of 2018 dated 08.02.2018 instituted under Sections 420, 467, 468, 379 and 323 of the Indian Penal Code. 3. The allegation against the petitioners is that they had got a sale deed fraudulently executed showing the complainant to be the vendor but getting another lady to impersonate as the complainant. Patna High Court CR. MISC. No.75314 of 2019(2) dt.26-11-2019 2/2 4. In view of the nature of the complaint which can be easily verified from the comparison of the photograph on the sale deed with that of the complainant-opposite party no. 2, the Court deems it necessary to direct the petitioners to bring on record the said sale deed. 5. Issue notice to the opposite party no. 2, both under registered cover with A/D as well as ordinary process for which requisites etc. must be filed within one week from today. 6. The matter be listed upon service of notice or appearance of the opposite party no. 2, whichever is earlier, among the top five cases. 7. The Court would require the original sale deed to be with learned counsel for the petitioners on the next date and further would require the opposite party no. 2 to be present in Court. Thus, while issuing notice office shall forward a copy of the order to the opposite party no. 2 for compliance. 8. In the meantime, no coercive steps shall be taken against the petitioners in connection with Complaint Case No. 63(C) of 2018, pending before the Court below at Patna.

Vimal Prasad vs The State Of Bihar on 26 November, 2019

Patna High Court - Orders

ORDER Jeet Ram Kait, Member (T) 1. This appeal is directed against the Order-in-Appeal No. C. Cus. 1508/97, dt. 18-12-97, by which the ld. Commissioner (Appeals), has rejected their appeal on the ground that there is wilful negligence on their part inasmuch as, while getting the goods bonded in a public bonded warehouse in normal conditions they, could have opted for a warehouse where the control temperature ambiance was available and could have saved the goods from deterioration. It was in this background, the ld. Commissioner (Appeals) had not extended the benefit keeping in view the provisions as contained in Section 22(1)(c) of the Customs Act. 2. Ld. Consultant, Shri. M.S. Kumaraswamy submits that they had cleared 20 drums of Styrene Monomer from the warehouse and found that the goods have deteriorated within a period of hardly a month from the date of warehousing of the goods, which was on 1-6-95. The first consignment was cleared on 11-7-95. On 7-3-96, the appellants informed the department that the goods have deteriorated and they would like to abandon the remaining 60 drums of Styrene Monomer, as it was not possible to use. They wrote another letter on 1-8-96 that they would like to surrender the goods to the department. This was also not permitted by the department. He further submitted that they are entitled to get the benefit under Section 22(2) of the Customs Act, 1962 and according to this Section, the value and duty has to be re-determined keeping in view the damage and value of the deteriorated goods because of damage or deterioration. He also invited our attention to the Board's Circular No. 52/98-Cus., dt. 27-7-98. By this circular, the Dept. of Revenue has accepted the fact that the deterioration can happen when the goods are stored in the Govt. warehouses and the department has given instructions to the authorities that where goods continue to lie in the warehouse after the expiry of warehousing period should be specially taken up for scrutiny by the audit parties and other checks in order to guard against deterioration, substitution or any other unlawful removal. 3. Heard Ld. DR, Shri. P. Devaludu, who submits that it was in the knowledge of the importer that the imported goods required storage in a controlled temperature atmosphere. There was no provision to store the goods in any of the warehouses and they should have cleared the goods by making the payment of the duty on the value, which was shown at the time of importation. Not only they knew at the warehousing of the goods that the imported goods require particular temperature even after they came to know about the damaged goods after the removal of 20 drums of first consignment on 11-7-95. They kept mum for more than 8 months and it was only on 7-3-96, they wrote to the department and blamed the department for deterioration of the imported goods that the goods have not been stored at a particular temperature by the Customs authorities. Their letter dt. 1-8-96, asking the customs authorities to shift the goods from the bonded warehouse to the customs godown for which they were ready to bear the transportation charges is also of no consequence as the customs department had asked for the duty on the goods, where the bonding period was expired and goods deteriorated because of wilful negligence on the part of the appellant/assessee. It clearly shows that the appellants were aware that the condition under which the goods were required to be stored. Therefore, the ld. Commissioner held that they had not informed the department that such a damage was possible and they were aware of the fact that quality of Styrene Monomer would get damaged during storage in normal condition. The findings of the ld. Commissioner that getting the goods bonded in a public bonded warehouse in normal conditions shows wilful negligence of the appellant/assessee. He has rightly held that no benefit can be extended to them in view of the provisions of Section 22(1)(c) of the Customs Act. 4. We have considered the rival submissions and from the order of the ld. Commissioner, we find that at the time of bonding, the appellants were aware that the imported goods required storage in a controlled temperature atmosphere. It was, therefore, incumbent, upon them to take precaution of selecting a bonded warehouse where the control, temperature ambiance was available. Under the law, they even had the opportunity to get their own storage area bonded for this purpose if it had facility of a cold storage. We are also in agreement with the finding of the ld. Commissioner that at the time of bonding, they did not take these precautions. Nor did they inform the Department that such a damage was possible. Further, they were aware of quality of Styrene Monomer getting damaged during storage in normal conditions, getting the goods bonded in a public bonded warehouse in normal conditions shows wilful negligence on the part of the appellant/assessee. In view of the above position, no benefit can, therefore, be extended to them in view of the provisions of Section 22(2) of the Customs Act. As regards the plea that under Section 22(1)(c), the value should be re-determined keeping in view the damage on the goods, we do not agree with the argument made by the ld. Counsel inasmuch as, Section 22(2) would be applicable after they cross the threshold under Section 22(1)(c) of the Customs Act, ibid. We, therefore, do not find any infirmity in the order of the Commissioner (Appeals) and the same is affirmed. The appeal is, therefore, rejected. Ordered accordingly.

Super Chemical Corporation vs Commissioner Of Customs on 30 May, 2003

Customs, Excise and Gold Tribunal - Tamil Nadu

. 4D_"{7§fIDE-V_F 'L£;OWING: EN THE HIGH COURT 0?' KAVR-i'{ATAKfi§';' B__A?~j.§51A.LC):~§'{'E" DATED THIS THE 8335 DAY QE"'T-ToT.sEMEER«2o1Q5 THE HON"BLE MR.3usTz¥:ETH,NiLE,N,.AGAM:OTe+mN ms cA:uo.780g2s10 _&T;.V; BETWEEN: : ' s:=?:.§:':.:m. £a£é}i££f:;jEvTE:éTT@§;E¥<§%: " M/S I M 5 ENTER»pR;sEs_-;'.TTfT:v;{;__«_ ";--..;..:MTT.T--,r2 {EN LTQN) ATTACHED To HIGH COUFET»OF1.'KARN..<faT/3¢v.%<£S "CORPORATEHBHAV/5Xi\I52,;_I\{Q,.2€e_2'}fi," 1.2.?" FLOOR RAHEJA TG'WER':'S--,.. T421 6 R;'f{3}3'-.D BANGALORE ~__550'G'o:T.._V ' " . ' . APPLICANT (By SRI:K s M;¢TAQvE£}A_N';T}§xT>\fj_;~ D: E " ...RESPONDENT ' _ FILED UNDER SECTION 455(1) OF THE CC}.MVPANIES_"=._ACT;«_ _',£.95E:, READ WITH RULE 9 OF THE COMPANVIESV(CQURT) RULES, 1959 PRAYING TO CONDONE THE DELAY.__OF 4. YEARS 5 MONTHS 26 DAYS IN FILING THE PRELIMYNARY REPORT AS REQUIRED UNDER SECTION 455(1) .D_j;.,_,QT:__THE C@Mi::..ANTEs ACT, 1955. 'T513 CA ES CQMING ON FQR CRDERS, THE COURT MADE ORDER " This appiication is fiked under Sectien 455(1) ef the Técxmpanies Act, 1956 read with Rufe 9 of the Cempanéeg é K) (Court) Rufes, :95? to cendone the deiey of 4 years, 5 menths and 26 days in filing the preliminary repert. 2. The expfanation in the report for " appears to be genuine and reasonaibie.'---.Acesr¢i4i"rfig§v!yg.x'tvhe application is hereby aiiowed. The deiay of 4 years, 5 and filing the preliminary report is The p reiimi.ne:fyf- re Sjfiza :V*e'<:«c»vv'Vrd . meg

Author: H N Das

Official Liquidator Of M/S I M S ... vs Nil on 3 November, 2010

Karnataka High Court

JUDGMENT P.C. Phukan, J. 1. This is an appeal directed against the judgment and order dated 2.8.2000 passed by the learned Additional Sessions Judge, Dibrugarh convicting the accused-appellant under Section 376 IPC and sentencing him thereunder to 7 years' rigorous imprisonment and also to pay a fine of Rs. 2,000, in default, to further 6 months' rigorous imprisonment in Session Case No. 9 of 2000. 2. I have heard Mr. B. Baruah, learned counsel appearing for the accused-appellant and Mr. P. Bora, learned public Prosecutor, Assam. I have also considered the records of the case. 3. On 20.5.1998 the Prosecutrix Smt. Kalpana Das, PW 2, lodged an FIR to the effect that on 1.2.1998 at about 7 P.M. on the day of Saraswati Puja the accused Jintu Das asked her to accompany him to the embankment of the river Brahmputra telling that he had some urgent talk with her and had sexual intercourse with her promising to marry her. When she became pregnant, she disclosed the matter to her mother and lodged the FIR Ext. 2. On completion of investigation, the police charge-sheeted the accused-appellant Under Section 376 IPC. The learned Magistrate committed the case to the Court of Session under the said Section of law. In the Court of Session, a charge Under Section 376 IPC was framed, read over and explained to the accused-appellant to which he pleaded not guilty and claimed to be tried. 4. In the trial prosecution examined 5 witnesses. In his examination under Section 313, the accused-appellant pleaded innocence and declined to adduce any evidence. The learned Sessions Judge on consideration of the evidence on record and after hearing the prosecution and the defence convicted and sentenced the accused-appellant as stated above hence this appeal. 5. Mr. Baruah, learned counsel for the accused-appellant has led me through the evidence which I have also scrutinised. PW 1, is Dr. M.N. Gogol, Prof. & Head of the Department of Forensic Medicine of Assam Medical College, Dibrugarh. He examined the prosecutrix, PW 2 on 20.5.1998 more than three months after the alleged occurrence. He found no evidence of sexual intercourse, no marks of injuries in her private parts. From physical, dental and rediological examination he opined that the age of the prosecutrix, PW 2 was between 16 and 18 years. 6. PW 2 is the allegedly victim girl. She knew the accused-appellant, a co-villager, since her childhood. According to her evidence, on the Saraswati Puja day, she came to the house of her maternal uncle (not examined) situated near the embankment of the river Brahmaputra after attending Saraswati Puja in the School. It was dark when she came out from her maternal uncle's house and met the accused who took her to the side of the river telling her that he had some urgent talk with her. While they were sitting on the duke, the accused started taking in an obscene manner and forcibly committed sexual intercourse with her giving the assurance to marry her. But he did not many her. She became pregnant and gave birth to a male child. In cross-examination, she admitted that she had been in love with the accused-appellant and she exchanged love letters with him. She, however, denied the defence suggestion that the accused-appellant had sexual intercourse with her, with her consent. She also admitted to have made a statement Ext-Ka before a Magistrate, Ext Ka (1) and Ka (2) being her signatures. 7. PW 3 Smt. Sarbeswari Das, mother of the prosecutrix, PW 2. She deposed that presently her daughter was aged about 18 years. That her daughter did not have her monthly periods for last 3 months. On being asked she told that the accused had forcibly sexual intercourse with her about 3 months back. She then went to the house of the accused to discuss the matter with his mother, but she insulted her and drove her out. PW 3 thus asked her daughter PW 2 to lodge an FIR. 8. PW 4 Shri Arun Das is brother-in-law to the prosecutrix PW 2. He came to know about her pregnancy from his mother-in-law, PW 3 and wrote the First Information Report, Ext. 2. 9. PW 5 the Investigating Police Officer deposed that the accused surrendered in the Court. His very brief evidence is formed in nature. 10. Mr. Baruah, learned counsel for the appellant submits that the learned Court below convicted the accused-appellant solely on the uncorroborated testimony of the alleged victim girl, in spite of her long silence after the alleged occurrence. That the FIR, Ext. 2 lodged by the alleged victim girl belies her own case of rape as made out in her deposition. Ext. 2 shows that she was a consenting party. That the learned trial court committed grave error of law and fact in holding that the victim girl, PW 2 was 16 years of age at the time of alleged occurrence relying solely on the statement of PW 2 without any documentary evidence. But according to the medical report her age was between 16 to 18 years. In her deposition the prosecutrix stated that she gave birth to the child on the day of Chat Puja, but the medical report is silent about the pregnancy of prosecutrix. 11. The point for determination is whether the accused-appellant had sexual intercourse with the prosecutrix, PW2. If so, whether the accused had such intercourse with or without her consent. If the accused had sexual intercourse with her consent, whether she had attained the age of consent, i.e., above 16 years of age at the relevant time. 12. The prosecution relies solely on the evidence of the prosecutrix as regards the commission of sexual intercourse on her. She did not inform anybody about any rape committed on her by the accused-appellant. Only when her monthly course stopped for 3 months and the sign of pregnancy became apparent, she disclosed it to her mother and the FIR was lodged after 3 months of the alleged occurrence. In her evidence she deposed that the accused impregnated her. On this point also there is no evidence save and except her own uncorroborated testimony. The doctor, PW 4 examined her after 3 months. His evidence is silent about her pregnancy. Her statement that she became pregnant does not find corroboration from medical evidence. It cannot be said that the prosecution has succeeded in proving that the accused had sexual intercourse with her as a result of which she became pregnant. Even assuming that the accused had sexual intercourse with her, it has not been proved that he did so without her consent. In cross-examination, she categorically stated that she had been in love with the accused-appellant. They exchanged love letters. In view of the evidence as discussed above and in the facts and circumstances, the irresistible conclusion is that if the accused had sexual intercourse with her, it was with her consent. This has been corroborated by circumstances that she did not tell anybody about the sexual intercourse with the accused-appellant till she became pregnant. If a full grown woman consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. In this regard Mr. Baruah, learned counsel for the appellant has referred to a decision in Jayanti Rani Panda v. State of West Bengal, 1984 Cri. L.J. 1535 wherein it has been stated. "The failure to keep the promise at a future uncertain date due to, reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability..." Mr. Baruah, learned counsel submits that the learned Sessions Judge convicted the accused-appellant Under Section 376 IPC on the basis of the defence suggestion put to the prosecutrix, PW 2 that the accused had sexual intercourse with her consent. Mr. Baruah has strenuously argued that the learned trial Court was not justified in taking the aid of such suggestion in course of cross-examination. In support of his contention, he referred to a decision in Sakariya v. State of M.P., 1991, Cri. L.J. 1925 wherein it has been held - "Where in case of a charge of rape under Section 376 Penal Code, the statement of accused contained plain denial and a plea of false implication, subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not amount to admission of guilt on behalf of the accused. A suggestion thrown by the defence counsel to a prosecution witness does not amount to an admission on the part of the accused. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put are no evidence at all against the accused and on the basis of such suggestion no inference can be drawn against the accused that he admitted the fact suggested in the cross-examination. The proof of guilty required of the prosecution does not depend on the suggestion thrown to a witness." 13. This brings me to the point as to whether at the relevant time the prosecutrix, PW 2 attained the age of consent, i.e., 16 years within the meaning of Clause (6) of Section 375. On 30th May, 2000 the prosecutrix, PW 2 gave her age as 18 years. Her mother, PW 3 also deposed that she was aged about 18 years and the doctor also says that from physical, dental and radiological examination, her age was between 16 to 18 years. Mr. Baruah, learned counsel for the appellant submits that from the evidence on record, it cannot be held that at the time of occurrence she was 16 years of age or below 16 years of age. Mr. Baruah, learned counsel for the appellant has felled upon a decision in Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir, AIR 1982 SC 1297, wherein it had been held - 'in the opinion of doctor as to age of a person - Radiological test - Margin of error in age ascertained by radiological examination is two years on either side.' He has also referred to another decision in Sudhamay Nath alias Bachhu v. State of West Bengal, 1999 Cril. L.J. 4482. In this case the accused alleged to have allured prosecutrix that he would marry her and had sexual intercourse with her. Medical evidence showed that prosecutrix was above 16 years of age at time of incident. In such a case Prosecutrix consenting to act of sexual intercourse fully knowing nature and implication of such act, conviction of accused for offence of rape is not proper. 14. In view of what has been stated above, it cannot be said that the prosecution has succeeded in proving that the accused-appellant raped the prosecutrix, PW 2 beyond reasonable doubt. I have found that the accused is not guilty Under Section 376 IPC or any other sections of law. He is acquitted of such offence. 15. The appeal is allowed. The impugned judgment and order dated 2.8.2000 passed by the Addl. Sessions Judge, Dibrugarh in Sessions Case No. 9/2000 convicting the accused-appellant Under Section 376 IPC and sentencing him thereunder, 7 years rigorous imprisonment and to pay a fine of Rs. 2000 in default, 6 months further rigorous imprisonment are set-aside. The accused is in Jail. He shall be set at liberty forthwith if not required in any other case. Send down immediately the lower court records.

Author: P Phukan

Jintu Das vs State Of Assam on 4 September, 2002

Gauhati High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 18743 of 2010(P) 1. RINIMOL VARGHESE, KURUTTUKULATHIL HOUSE, ... Petitioner Vs 1. MAHATMA GANDHI UNIVERSITY, KOTTAYAM ... Respondent 2. THE CONTROLLER OF EXAMINATIONS, For Petitioner :SRI.K.JAJU BABU For Respondent :SRI. T.A. SHAJI, SC, M.G.UNIVERSITY The Hon'ble MR. Justice S.SIRI JAGAN Dated :19/07/2010 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 18743 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th day of July, 2010. J U D G M E N T The petitioner was declared to have passed the Final Semester B. Tech. Examination in Computer Science and Engineering by the 1st respondent-University. She has also passed all previous semester examinations as per the results declared by the University. When she applied for the consolidated mark list and degree certificate by Ext. P2 application, the same were not issued to her. It is under the above circumstances, she has approached this Court seeking the following reliefs: 2. A counter affidavit has been filed by the respondents, wherein it is stated that the petitioner was declared to have been passed only on account of a mistake in adjusting moderation marks. According to them by that mistake the petitioner was given one additional mark in moderation, which the petitioner was not entitled to. The University therefore submits that the petitioner had not actually passed the examination and the only solution now possible is for granting permission to the petitioner to write a special examination to be conducted by the University without any fee. 3. Learned counsel for the petitioner submits that the examination was conducted in December 2007 and the results were published in 25-3-2008 and it would be totally unjust to direct the  W.P.C. No. 18743/2010. -: 2 :- petitioner to go through the process of studying again and undergoing another examination after almost 3 years, that too, for no fault of hers. If at all there is any mistake that is on the part of the respondents and, therefore, the petitioner should not be allowed to suffer because of the mistake, is her contention. The petitioner further relies on the decision of a learned Judge of this Court in Sajaikumar v. State of Kerala, 2003(3) KLT S.N. 62 (Case No. 84) in support of her case that on account of a mistake committed by he University, the candidate should not be allowed to suffer. 4. I have considered the rival contentions in detail. 5. The decision relied upon by the petitioner (Sajaikumar's case) as reported in the Short Notes, reads thus: A reading of the said decision shows that the facts of this case are squarely covered by that decision. I am in respectful agreement with the law laid down in that decision. Therefore, the petitioner is  W.P.C. No. 18743/2010. -: 3 :- entitled to succeed in this writ petition applying that decision to the facts of this case. Accordingly, there would be a direction to the respondents to issue the consolidated mark list and degree certificate as per the original marks awarded to the petitioner notwithstanding the mistake. This shall be done as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.

Rinimol Varghese vs Mahatma Gandhi University on 19 July, 2010

Kerala High Court

Court No. - 43 Case :- APPLICATION U/S 482 No. - 15838 of 2009 Petitioner :- Ram Raj Singh S/O Dal Chand Respondent :- State Of U.P. 8: Another Petitioner Counsel :- Tripathi B.G. Bhai Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. As prayed by Sri G.S. Hajela put up on 27.7.2010. Till then the stay order is extended. Order Date :- 14.7.2010 RPD

Ram Raj Singh S/O Dal Chand vs State Of U.P. & Another on 14 July, 2010

Allahabad High Court

[Section 12] [Complete Act]

Central Government Act

Court No. - 41 Case :- CRIMINAL MISC. WRIT PETITION No. - 1709 of 2010 Petitioner :- Tufani Verma Respondent :- State Of U.P. & Others Petitioner Counsel :- B.R. Sharma Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J. Hon'ble Naheed Ara Moonis.J. The relief sought is for transferring the investigation to any other agency. List this matter after three weeks. In the meanwhile, learned A.G.A may seek instructions. Order Date :- 3.2.2010 MH

Tufani Verma vs State Of U.P. & Others on 3 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CA/2823/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 2823 of 2008 in FIRST APPEAL No. 1038 of 2008 ========================================================= MILTON PLASTICS JOINT STOCK COMPANY - Applicant(s) Versus JANKIBEN PESUMAL CHANDWANI & 1 - Opponent(s) ========================================================= Appearance : MR PRABHAKAR UPADYAY for MR RAJESHWAR J DAVE for Applicant(s) : 1, None for Opponent(s) : 1, 1.2.1,1.2.2 - 2. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 7th March 2008 ORAL ORDER (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) The applicant-plaintiff may approach the trial Court for extension of interim relief. {Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash*     Top

Author: R.M.Doshit,&Nbsp;Honourable Mr.Justice K.M.Thaker,&Nbsp;

Milton vs Unknown on 3 September, 2010

Gujarat High Court

JUDGMENT BEAUMONT, C.J. - This is a reference made by the Commissioner of In come tax raising the following question :- "Whether there was any evidence before the Income tax officer and/or the Appellate Assistant Commissioner so as to warrant the views each of them has taken, namely, that the said sum of Rs. 1,600 being the share of the minors in the profits of the said firm of Rameshchandra & Co., for the Samvat year 1994 could be the income of the petitioner so as to include in his total income for the said year". The facts are that there is a firm of Lallubhai Amichand in which the present assessee and his minor son Jagmohandas are partners, and there are four other partners, namely the brother of the assessee and three outside parties. So far as regards that, it is clear that under Section 16(3) of the income tax act the income of the minor son can be included in the income of the assessee, because the assessee is a partner in that firm. Then there is a second firm which was started either in the year 1938 or 1939. It is suggested that it was in May 1938, but the partnership deed was only registered in 1939; the exact date at which it was started is irrelevant. In that firm the assessee is not a partner, but his minor son Jagmohandas is a partner, and so is his second minor son Rameshchandra. His brother, who is a partner in the first firm is a partner in the second firm; and one on the outside parties, who is a partner in the first firm is a partner also in the second firm; and a brother of each of the other two outside parties. Who are partners of the first firm, is a partner in the second firm. So that obviously the personality of the two firms is very closely associated. On the finding of the Commissioner their business are also closely associated. But the question is whether the income derived but he two minor sons of the assessee, their father. It is not suggested that Section 16(3) of the Income-tax Act applies, because the assessee is not a partner in the second firm, as he must be in order to bring that Section into operation. But the Income-tax officer found as a fact that the income of the two minor sons derived from the second firm is really the income of the assessee, and the question is whether there is any evidence to support that finding. CXC I may mention that the second firm was registered under Section 26A of the Income-tax Act showing the minor sons as partners, and, therefore, they fall to be assessed under Section 23(5). But I will assume that, so far as registration is concerned, it would be open to the Income-tax Officer to treat the income of the minors as part of the income of the assessee. The facts relied on as justifying the finding of the Income-tax Officer, which was confirmed, as is usual, by the Assistant commissioner, and subsequently adopted by the commissioner, are : first, the large interests which the minors had in the second firm; they had II annas share in the rupee; secondly, the age of the minors, which is nine years and three years respectively; thirdly, the younger minor brought in no capital, though the elder minor brought in about Rs. 24,000 capital which was transferred from moneys standing to his credit in the first firm; fourthly, the uncle, who is a common partner in the two firms, gets a substantial salary form the first firm, but is not shown to receive any salary from the second firm; fifthly, the second firm was financed, at any rate to very great extent, by the first firm, sixthly, the businesses of the two firms are closely connected, and the personality of the two firms is, as is have maintained, also closely connected. Now, all those facts undoubtedly give rise to a suspicion that the two minor sons are really nothing but nominees of the assessee. The question really is whether those facts not only give rise to a suspicion, but justify the inference of fact drawn by the Income tax Officer that the minors were mere nominees of the assessee. I do not think that they do justify such an inference, though they certainly give rise to suspicion. The evidence consisting of two affidavits by the assessee and the other partners in the second firm shows that the assessee had no interest in the second firm. Not unnaturally, the books of the second firm do not show that the shares of the minors have been carried to the credit of the assessee. That may be natural enough, but still the facts that the evidence produced is beside and that the other evidence is easily accounted for does not provide evidence, and there is no evidence whatever that the assessee took any part in the business of the second firm. No doubt, the two firms are closely connected, but that cannot justify us in holding that the assessee, having a share in the first firm, must necessarily have had a share in the second firm. In my opinion, all the facts relied on by the Commissioner do not afford any evidence on which he could properly come to the conclusion either that the assessee is a partner in the second firm, or that the minor sons of the assessee are mere nominees of their father, and that their income derived in the second firm is really his income. Therefore, we must answer the question in the negative. The Commissioner to pay costs. KANIA, J. - I agree. Reference answered in the negative.

Commissioner Of Income-Tax, ... vs Gokaldas Hukumchand. on 6 April, 1943

Bombay High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI  W.P.(S) No. 4331 of 2008 Gulam Sarwar ... ... ... Petitioner Versus 1. The State of Jharkhand 2. The Deputy Commissioner, Ramgarh 3. The District Superintendent of Education, Ramgarh 4. The District Provident Fund Officer, Ramgarh 5. Gulam Saveri 6. Jamila Begam  ...  ... ...        Respondents CORAM:  HON'BLE MRS. JUSTICE POONAM SRIVASTAV For the Petitioner  : Mr. Sardhu Mahto, Advocate For the Respondents : J.C. to G.P. III 06/14.09.2011 Heard counsel for the petitioner and also counsel appearing on behalf of the  State. The  instant  writ petition is preferred for  claiming post retiral  benefits  and  compassionate appointment on the death of the father of the petitioner Late Gulam  Mustaffa. It is stated that he died in harness on 03.02.2007. Counsel appearing on behalf of the respondents has unequivocally stated that  the retiral benefits have been paid to the nominee of the petitioner and there is no  such   dispute   whatsoever.   This   fact   has   not   been   countered   on   behalf   of   the  petitioner.  Thus, evidently, the post retiral benefits have been paid and that part of the  grievance   stands   fulfilled.   So   far   the   question   of   compassionate   appointment   is  concerned, I am not inclined to pass any order. However, the petitioner may make a  representation before the concerned authorities of the respondents within a period of  three weeks, along with a copy of this order and the respondents on receiving the  same shall decide in accordance with law after taking into consideration all aspects  and facts and circumstances of the case.  With the aforesaid observation/direction, the writ petition stands disposed of.  (Poonam Srivastav, J.) Manish

Gulam Sarwar vs State Of Jharkhand & Ors. on 14 September, 2011

Jharkhand High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.284 of 2011 Shambhu Hazara, S/O-Late Ramayan Hazara Versus The State Of Bihar ----------- SHAHZAD ( Hemant Kumar Srivastava, J.) 06 25.10.2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the State. Petitioner is an accused of an offence registered under Section 376 and other minor Sections of the Indian Penal Code. It is a case of gang rape and there is specific allegation against the petitioner that he raped the informant. The contention of learned counsel for the petitioner is that, as a matter of fact, some railway officials have done a conspiracy and set up the informant who happens to be a vagabond lady and got lodged this present case against the petitioner who is a forest guard and witness in a case lodged against above stated railway officials and others. It is further contended by him that the medical report of the victim also does not support the prosecution case. Considering the aforesaid facts and circumstances as well as nature of the offence, I do not feel it proper to release the petitioner on bail. Accordingly, his prayer for bail in connection with Narkatiaganj Rail G.R.P. P.S. Case No. 34 of 2009 pending in the court of Railway Judicial Magistrate, Bettiah, West Champaran is, hereby, rejected.

Shambhu Hazara vs The State Of Bihar on 25 October, 2011

Patna High Court - Orders

JUDGMENT Aikman, J. 1. This appeal arises out of a suit which was brought by the appellant to eject the defendant from certain plots of land as being a trespasser. The Court of First Instance decreed the plaintiff's suit. The Lower Appellate Court reversed that decree and dismissed the suit upon the ground that it was not cognizable by the Civil Court. It appears that the plaintiff issued a notice to the defendant under Section 36 of the North-Western Provinces Rent Act, 1881, seeking to eject him from the land in suit. The defendant made an application to the Assistant Collector contesting his liability to be ejected. He contended in this application that he was not the plaintiff's tenant, but was himself the owner of the land. The Assistant Collector came to the conclusion that the present plaintiff, Hamid Ali Shah, had proved his ownership of the land, and upon that finding maintained the notice of ejectment. The defendant appealed to the Commissioner, who pointed out that the finding of the Assistant Collector in favour of the plaintiff's ownership of the land was not sufficient to give the Revenue Court jurisdiction. The Commissioner held that the relation of landlord and tenant did not exist between the parties, and reversed the order of the Assistant Collector, holding that the case was "essentially one for the Civil Court." The learned Subordinate Judge refers to a decision of Burkitt, J., in Baldeo Singh v. Imdad Ali (1893) I.L.R. 15 All. 189. That decision, I may mention, was followed by me in the case of Deo Narain Rai v. Sheo Charan Rai Weekly Notes, 1893, p. 166. But the circumstances of the cases dealt with in these two decisions were entirely different from those of the present case. The plaintiffs in both those cases had endeavoured to eject the defendant by taking action under Section 36 of the Rent Act, but the Revenue Court had, on the defendant's objection, held that the defendant was a tenant with right of occupancy. Under these circumstances my brother Burkitt and I held that no suit was maintainable in a Civil Court to eject the defendant as a trespasser. That this view is right is quite evident from the provisions of Section 96, Clause (b) of the Rent Act, although that was not referred to in our judgments. The present case is on all fours with an unreported case decided by my brother Banerji--Second Appeal No, 196 of 1899, decided on the 12th July 1899 (since reported. Vide supra p. 83.) In that case, as in this, the Revenue Court held that the relation of landlord and tenant did not exist between the parties. With the following passage of the judgment, I fully concur:--"The mere fact of the plaintiff having applied to the Revenue Court for the ejectment of the defendant does not estop him from asserting, as he has done in the present suit, that the defendant is unlawfully in possession, that is, as a trespasser." 2. In my judgment the suit was cognizable by the Civil Court. I therefore allow the appeal, and, reversing the decree of the Lower Appellate Court, remand the suit to that Court under the provisions of Section 562 of the Code of Civil Procedure, with directions to readmit the appeal under its original number on the register, and proceed to dispose of the remaining grounds raised in the memorandum of appeal to it. The appellant will have the costs of this appeal. Other costs in the case will abide the event.

Author: Aikman

Hamid Ali Shah vs Wilayat Ali on 2 August, 1899

Allahabad High Court

ORDER A.N. Mulla, J. 1. This is an appeal filed Under Section 417(3) Cr. P.C. against an order of acquittal passed by Sri A. C. Bansal, Additional Sessions Judge Lucknow, acquitting the opposite party who was convicted Under Section 7/16 of the Prevention of Food Adulteration Act (Act 37 of 1954), by a Magistrate. 2. Briefly stated the facts of the case are as follows: Ram Autar, opposite party, was prosecuted by the Municipal Board, Lucknow, through its Medical Officer of Health for selling adulterated Alsi oil . A. on 10-10-1955, to the Food Inspector Sri O. P, Mehrotra . The trial court found the charge proved against the opposite party and convicted him Under Section 7 of the Prevention of Food Adulteration Act of 1954 and sentenced him to pay a fine of Rs. 600/- in default to undergo simple imprisonment for a period of three months. The opposite party went up in appeal and the learned Additional Sessions Judge came to the conclusion that there was no proper prosecution within the meaning of Section 20 of the Prevention of Food Adulteration Act, 1954, and so the trial court had no jurisdiction to entertain the complaint against the opposite party. He came to this conclusion because the State Government had not issued any notification appointing Sri O. P. Mehrotra as the Food Inspector or the Public Analyst, who had examined the sample, as the Public Analyst after the repeal of the U. P. Pure Food Act, 1950. He was of the opinion that the Food Inspectors and the Public Analysts appointed under the rules framed under the U. P. Pure Food Act, 1950, could not be deemed to be Food Inspectors and Public Analyst for the purposes of the Prevention of Food Adulteration Ac, 1054. He also came to the conclusion that ,the adulterated linseed oil did not come under the definition of 'food' as defined in the Act of 1954. He, therefore, set aside .the order of conviction passed against the opposite party and acquired him. 3. The Municipal Board feeling aggrieved by this order of acquittal presented this appeal and it was placed before a Bench of this Court. 4. When the case was argued before us, the two points on the basis of which the order of conviction was set aside were not pressed before us by the counsel for the opposite party. In an earlier case decided by a Bench of this Court (Municipal Board, Lucknow v. Shyam BehariCriminal Appeal No. 321 of 1956 : it was held that in view of Section 25 of the Prevention of Food Adulteration Act, 1934, the appointments made under the old Act would be valid until fresh appointments were made. Reference was also made to the provisions of Section 6 of the General Clauses Act, 1897, which supported this in erpretation. It was perhaps in view of 'this decision that the counsel for the opposite party conceded the Sri O. P. Mehrotra was competent to func ion as a Food Inspector and '.he Public Analyst, who examined the sample, was competent to give an opinion. 5. As regards the second point whether linseed oil is food or not within the definition of food given in the Prevention of Food Adulteration Act, 1954, the relevant rules and notifications were seen and it was conceded Hi at linseed oil was food. It is, therefore, clear that both the grounds taken up by the Additional Sessions Judge for setting aside the order of conviction were not maintainable and the order of acquittal could not be upheld. 6. A fresh argument was, however advanced by the counsel for the opposite party on the basis of Section. 20 of the Prevention of Food Adulteration Act, 1954. Section. 20 runs as follows: 20(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorized in this behalf by the State Government or Local authority. The contention was that on the dale when the prosecution was launched the Municipal board, Lucknow, was no a local authority within the meaning of Section 20 cited above and, therefore, no prosecution could be instituted by the Municipal Board. The complaint was filed by the Medical Officer of Health, Lucknow Municipal Board, on the 31st October 1955 and the offence was committed on the 10th of October, 1955. It was argued that the Prevention of Food Adulteration Act, 1954, received the assent of the President on the 29th of September, 1954, and it was published as Act No. 37 of 1954 in the Gazette on the 3Oth of September, 1954. The U. P. Pure Food Act, 1950 was repealed by this Act and so it had ceased to be a law in force. The State Government did not issue the necessary notifications for demarcating local areas and appointing local authorities up till the 9th of February, 1956, and so at the time when the opposite party ft was prosecuted, 'the Municipal Board, Lucknow, was not appointed a local authority within the meaning of the Prevention of Food Adulteration Act, 1954, nor was the Lucknow Municipality declared a local area. According to this contention the Municipal Board, Lucknow could not prosecute any person under the Prevention of Food Adulteration Act, 1954, before 'be 9th of February, 1956. In support of his contention reliance was placed upon the definitions of 'local area' and 'local authority' given in Section 2l of the Prevention of Food Adulteration Act, 1954. A decision given by a Single Judge of this Court in Vishnu Shanker v. State Criminal Revn. No. 104 of 1936 was cited. 7. As against this contention, the counsel for the Municipal Board cited another decision given by a Single Judge of this Court in Hari Singh v. State Criminal Revn. No. 152 of 1957. He also relied upon certain Sections of the General Clauses Act 1897 and further contended 'that the definition of 'local authority' given in the Act of 1954 clearly indicated that the Lucknow Municipal Board was the local authority and the Lucknow Municipality as a local area at. the time when the prosecution was instituted. 8. In view of the conflict of decision on the point, we have examined the question carefully and we have come 'to the conclusion that the contention advanced by the opposite party is not maintainable and the Lucknow Municipal Board was competent to institute this prosecution at the time when it was instituted. We now proceed to give our reasons. 9. We will first mention the definition of 'local area and local authority' given in the Prevention of Food Adulteration Act, 1954. These definitions are as follows: local area' means any area, whether urban O( rural, declared by the Stale Government, by notification in the official Gazette, to be local area for the purposes of his Act; 'local authority' means in the case of(1) a local area which is (a) a municipality, the municipal board or municipal corporation; (b) a cantonment, the cantonment authority; (c) a notified area, the notified area committee; 2. any other local area, such authority as may be prescribed by the State Government under this Act. We think it would be useful to give the definitions of these two terms given in the U. P. Pure Food Act, 1,950. These definitions are as follows: 'local area' means the area within the jurisdiction of a local authority; 'Local authority' means in the case of (i) a municipality, the Municipal Board, (ii) a notified area, the notified Area Committee (iii) a railway, as define in Sub-section 4. of Section 3 of the Indian Railways Act. (IX of 1890: the person designated by the. Slate Government and (iv) any other local area, the authority as may be prescribed At this stage we would only like to point out that the definition of 'local authority' so far as 'the municipal Board was concerned was reiterated and reaffirmed in the Prevention of Food Adulteration Act. 1954. We will come to this point again after was have discussed certain other aspects which in our Opinion must be considered before interpreting the statute. 10. The dominant purpose in construing a statute is to ascertain the intent of the legislature. This intent is very clear. Before the passing of the Prevention of Food Adulteration Act, 1954, by the Central Government, some similar Acts were in force in the various States and the provisions of these Acts in the various States were not uniform. Our country is a big country and there were perhaps still areas where the offence of food adulteration could be committed without being prosecuted. It was to attain a uniformity as well as to make food adulteration an offence throughout the country that it was considered desirable that instead of the States passing that own provincial Acts, a comprehensive Act should be enacted by the Central legislature. In order to attain this uniformity, it was absolutely necessary that the- existing Acts in The various States should be repealed, for they were passed at different times without mutual consultations between the Spates. It could not possibly have been the intention of the legislature to undo all the work that was done so far and start from a clean slate again. It is obvious that when an old Act is repealed by a new Act, there is always a period of changing over and almost invariably a savings clause is added in the new statute iii order to ensure a smooth change over. It would be preposterous to believe that the legislature wanted a break in the continuity of the enforcement of procedural steps and laws against food adulteration. In a Welfare State the crime of food adulteration is a major crime and the wrongdoers cannot be given a vacation and told that for a period howsoever brief it might be they could adulterate food and they could not be prosecuted The legislature, therefore, accepted some of the units which were already functioning and made a provision for the appointment of fresh units. It never intended that the existing units should cease to function and should be thrown in the melting pot. There can, therefore, be no doubt that the legislature intended a continuity and, therefore, that interpretation which is against this continuity is repugnant to the intention of the legislature, It is in this background that we should interpret the provisions of tile statute. 11. It is a well known rule of interpretation that if a particular meaning leads to consequences which are manifestly inconvenient and unjust, this meaning should be avoided if it is possible to do sq without doing violence to the spirit of the language used in the statute. It is only where the language used is unambiguous and imperative that the court can accept such a meaning. No doubt if the words are not capable of any other meaning, they must be interpreted in that manner even if they lead to a manifest absurdity. But as observed in Salmon v. Duncombe, (1886) 11 AC 627 at p. 634 where the main object and intention of a statute are clear from the title, preamble, or otherwise, it should not be reduced to a nullity by a literal following of language, which may be due to want of skill or knowledge on the part of a draftsman, unless such language is intractable, To the same effect are the observations of Lord Esher in Re-Brockelbank, (1889) 23 QBD 461 at p. 462. Lord Esher observed : In this proviso the legislature have used language of the widest kind'in all cases' so wide that, if its full grammatical meaning be given to it, the proviso will produce injustice so enormous that the mind of any reasonable man must revolt from it. When the language of the legislature construed literally involves such consequences, the Court has over and over again acted upon the view that the legislature could not have intended to produce a result which would be palpably unjust, and would revolt the mind of any reasonable man, unless they have manifested that intention by express words. One of us while functioning as a single Judge also made observations in keeping with the extracts quoted above. It was observed in Tribeni Kurmi v. M, Ram Dulari , "Surely the way to interpret a Section is not to interpret it in such a way that inconveniences and lawlessness may be caused unless it is absolutely necessary to do so." 12. We have already observed above that the intention and purposes of the legislature cannot be doubted for a moment. This should also be remembered that the Prevention of Food Adulteration Act, 1954. was a Central Act and it was repealing the Acts passed by the Provincial States. It was impossible to reach such a synchronization that the moment the Act was repealed the necessary notifications demarcating local areas and appointing local authorities could have been passed by the provincial States. There was bound to be an interval of time howsoever short it might be and as a long list of local areas and local authorities was to be prepared, this interval could not have been very short. No doubt it was open to the Central legislature to frame the savings clause in such a manner so as to keep the old Act in force till the demarca ion of the local areas and the appointment of the local authorities, but as observed above the faults of draftsmanship cannot be permitted to reduce the provisions of an Act to an absurdity. It is quite inconceivable that there was a period alter the repeal of the old Acts and before the appointment of the local authorities in which every one could commit food adulteration with immunity. Such an interpretation can only be accepted if the words used in the statute are incapable of any other meaning. In Halsbury"s Laws of England, (Second Edition, Volume 31, Lord Hailsham), the following sentence occurs at page 481: The literal construction of a statute should not be adhered to where the context of the word or phrase to be interpreted renders it plain that such a construction is inappropriate. We have, therefore, to interpret the word "local area and 'local authority in this background keeping in mind the definitions of the two terms given in the Prevention of Food Adulteration Act, 1954, 13. We have carefully considered these two definitions and we have come to the conclusion that in order to reach a correct meaning, these two definitions should be read together and not singly. If we read only the definition of 'local area' it would appear that a notification by the State Government in the official Gazette is a condition precedent for declaring any area, whether urban or rural as local area, but if the definition of 'local authority' is also read along with the definition of 'local area', it would appear that certain existing areas were accepted as local areas by the legislature when it enacted the statute. The definitions of 'local area' and 'local authority' supplement each other and we are of the ' opinion that a Municipality, a Cantonment and a Notified Area were accepted as a local area by the legislature when it passed this statue. There are two rules of interpretation laid down in Halsburys Laws of England, (Second Edition, Volume 31, Lord Hailsham), and they are embodied in Articles 603 and 604 at pages 483 and 484. These rules are: 603. Notwithstanding that each Section of a statute is to be regarded as a substantive enactment, the statute must be read and construed as a whole, regard being had to its scheme so that the language it of the statute as a whole may be read as consistent, though one Section may bear a wider, another a more limited meaning. 604, Where two co-ordinate Sections are apparently inconsistent, an effort must be made to reconcile them. If this is impossible, the latter will generally override the earlier; but a particular enactment, wherever found must be construed strictly as against a general provision. 14. The legislature when it defined 'local area' and 'local authority' has created such a conflict. It is the duty of the Court to see whether this conflict can be resolved, keeping in mind the intention and object of the legislature. We think that this conflict can be resolved and according to the rules of interpretation, the meaning which resolve this conflict should be given to the words used in the two definitions. In our opinion he legislature made if clear that any area could be declared a 'local area' by a notification in the official Gazette, This definition did not mean that certain areas which were already existing as 'local area' were not to be considered as local areas after the passing of this Act. As the existence of a local area was a condition precedent which was necessary before the appointment of a local authority, the legislature could not have appointed the Municipal Board or the Notified Area Committee or the Cantonment Authority, without accepting the areas placed under that control as 'Local areas'. The very fact that the Municipal "Board of the Municipal Corporation is mentioned as a local authority in the definition of local authority" indicates that the legislature accepted a municipality as a local area. This also holds good for a cantonment and a notified area. In other words the legislature accepted these local areas and in order to make a provision for declaring oilier areas as 'local areas' it directed that for the purposes of this Act such areas could be declared as local areas by the State Government after a notification in the official Gazette. That a 'municipality' was declared to be a '"Local area' by the Act itself can be safely inferred by approaching the question from another angle. Was it open to the States not to notify the Municipalities, Cantonments and Notified Areas as 'Local areas'? This question must be answered in the negative and so it is apparent that so far as these units were concerned they were declared to be 'Local areas' by the Act itself. This interpretation seems to us it' be in complete harmony with the intention of the legislature. In Interpretation of Statutes by Maxwell, 9th Edition, page 55, the following paragraph occurs: the words of a statute', when there is a doubt about that meaning are to be understood in the sense in which they best harmonise with the subject to the enactment and the object which the legislature has in view. That meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. The Supreme Court in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate followed the rule of interpretation mentioned above. 15. We, therefore, feel that when the Prevention of Food Adulteration Act, 1954, was passed, it did not repeal the definition of 'local authority' as 'far as it related to the Municipalities, Cantonments and Notified Areas but accepted and confirmed the existence of 'these Gopal authorities and it also accepted the Municipalities, Cantonments and Notified Areas as local areas within the meaning of Act 37 of 1954. The Uttar Pradesh State when it mentioned the Municipalities, Cantonments and Notified Areas in that list of local areas in the Notification of the 9th of February 1956, merely followed the direction given by the Act and only confirmed what was already enacted. We are of the opinion that a Municipality, a Cantonment and a Notified Area were made a local area by the Act itself and even if the notification dated the 9th of February, 1956, had not been issued the local authorities mentioned in the Act of 1954 were competent to function as local authorities for the local areas which were accepted and mentioned along with them in the definition of "Local authority' itself. 16. It is a well settled provision of law that repeal of a statute does not repeal such portions of the statute as have been incorporated into another statute. Even if the original Act is repealed, the incorporated Section or Sections still operate in the latter Act As 'the definition of 'local authority' so far as it related to a Municipal Board which existed in the U. P, Pure Food Act, 1950, was incorporated in the Prevention of Food Adulteration Act, 1954, it was not repealed and this incorporated definition was, therefore, operative even alter the time then the 1950 U. P. Pure Food Act was repealed. We are, therefore of the opinion that by incorporating the definition of 'local authority' the legislature made it expressly clear that it wanted the Municipality, the Cantonment and the Notified Area to continue as local areas and the authorities mentioned to function as local authorities. 17. We may at this stage quote Section 7 of the General Clauses Act, 1897. It runs as follows; 7. (1) In any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, ether wholly Or partially any enactment wholly or partially repealed, expressly to state that purpose. In our view this purpose of reviving the functioning of the Municipality, the Cantonment Authority and the Notified Area Committee as local authorities was clearly expressed and, therefore, this part of the Act was not repealed. 18. For the various reasons given by us above, we find that the prosecution of the opposite party in this case cannot be challenged on the ground that the Lucknow Municipality was not a 'local area' and the Municipal Board, Lucknow, was not a 'local authority within the meaning of the Prevention of Food Adulteration Act, 1954, on the date when the prosecution was launched. 19. On merits we find that there is nothing to be said in favour of the opposite party. The case against him is fully established by means of reliable evidence. The Counsel for the opposite party did no challenge the case on merits and could offer no valid criticism against the evidence led by the prosecution, We, therefore, hold that the opposite party was rightly convinced by the Magistrate Under Section 7/16 of the Prevention of Food Adulteration Act, 1954 and the order of acquittal cannot be upheld. 20. We, therefore, set aside the order of acquittal, and convict the opposite party Under Section 7/16 of 'he Prevention of Food Adulteration Act, 1954. We restore the sentence awarded to him by the Magistrate. The opposite party is sentenced to a fine of Rs. 600/-, in default simple imprisonments for three months. The fine should be deposited within a period of one month.

Author: A Mulla

Municipal Board vs Ram Autar on 2 April, 1959

Allahabad High Court

Gujarat High Court Case Information System Print SCA/10511/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10511 of 2010 ================================================= PRASANNAKUMAR NATVARLAL DASONDI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ================================================= Appearance : MR DILIP B RANA for Petitioner(s) : 1, Ms.MANISHA NARSINGHANI, ASST GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 20/09/2010 ORAL ORDER The petitioner-Secretary of Agricultural Produce Market Committee, Valod is before this Court praying that, 6(a) Your Lordships be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or decision by quashing and setting aside the impugned order dated 18.8.2010 passed by the respondent no.1 authority in Revision Application No.243 of 2010, as well as the order dated 31.7.2010 passed by the respondent no.2 authority and further be pleased to allow the petition with all consequential benefits of service to the petitioner. The learned advocate invited attention of the Court to Annexure 'D', page 30. It is a communication dated 4th March 1995 from the Office of the Director, Agricultural Produce & Rural Finance. The document is a typed copy, duly certified by the learned advocate to be a 'true copy'. The learned advocate for the petitioner asserted that it is a true copy of the document. When his attention is drawn to the fact that line no.2 does not make a cogent reading, the learned advocate insisted that it is a true copy of the document. Later on, having realised that the line is not making a cogent reading, he submitted that there may be a typographical error. He later improved that there is a typographical mistake, but it is too late in the day to accept that. 2. The High Court has provided that learned advocate shall certify the document to be a true copy. The purpose behind that is that the learned advocate should apply his mind to the document before he produces it before the High Court. Mechanically certifying a document to be a true copy not only frustrates the object of aforesaid providing the procedure but it also results into waste of Court's time and in turn public's money. The matter is dismissed on the ground that the document which is certified to be a true copy, on the face of it, is not a true copy. 3. However, to see that the petitioner is not deprived of the legitimate right to challenge the order, liberty is reserved in his favour to file a fresh petition for the same relief. (RAVI R. TRIPATHI, J.) karim     Top

Author: Ravi R.Tripathi,&Nbsp;

Prasannakumar vs State on 20 September, 2010

Gujarat High Court

IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 29" DAY OF NOVEMBER, 2010 PRESENT THE HONBLE MR. J. S. KHEHAR, CHIEF AND THE HONBLE MR. JUSTICE A.-S, O WRIT APPEAL NO. 4754/2010 . " WRIT APPEAL NOS. 4727/2010, "4651/2..Q10,T 4757/2010 & 4694/2010 'fS--RE:S} W.A.N0.-4754/2010 BETWEEN: THE Go:.rERNi\{%:N'1it:;:QF WOMEN AND 'c:1~:.11,_p' ¥DEVE~LOPMENT DEPT, M.S. BUI.LD--ING. BAI~§GA.LG.RE M; 1, BYITS SECRETARY; APPELLANT {BY S1?.I.B VEERAPPA, AGA1} S. ..... V T_ " "SRINIVASAN, ._ * .__S/'C; !S..V;~;$/IUNIVENKATAPPA, * _ AGEDABOUT 48 YEARS, 'ZILLA PANCHAYATH MEMBER, A R/"0. RAMAKRISHNA EXTENSION, §~J _ 'SRINIVASAPURA TOWN, 'KOLAR DISTRICT. SR1. G. RAJANNA. S/ O GANGI SETTY, AGED ABOUT 45 YEARS. KOLAR ZILLA PANCHAYATH [BY SRE L VENKATARAMA REDDY, ADI/}"I«*QR.RII< &:_?.I~ M) MEMBER. R/AT M.G. ROAD. SRINIVASAPUR TOWN. KOLAR DISTRICT. THE PRESIDENT ANGANAWADI WORKERS SELECTION COMMITTEE SRIN IVASWAPUR TALUK SRIN EVASAPUR KOLAR DISTRICT. % W. A. N0. 4727/2010 BETWEEN: 1. " ' .._GULBARGA DISTRICT. 1. THE STATE OF KARNATARA--. ' DEPARTMENT OF -WOMEN , A ." " AND CHILD DEVEL()PMEi\JT,,' _ ._ REPRESENTED 13Y_JTS »SECRETARY';~.f; --. M.S.EUILD_II\'IS, ' - " 1. A ' THE . DEPARTMENT"0P_wQNIEN AND CHILD DEVELOPMENT, ;CU_LEARCA DISTRICT, ' "'«:GI;LBARGA;' « ..... V' » " I .. .T'H_E~ CHILD DEVELOPMENT PLAI\IN'IIxsC DFPIC ER»--CUM -- SECRETARY, AN.I:IANf:wAD1WoRKERS SELEC'I'ION CDMMITTEE. CHIINCHOLI. . ..- APPELLANTS . SR1 B VEERAPPA, AGA.) SMT. SULOCHANA. W/O RAJU. {BY SR1 SIDDARUDDA B FIRAJV & = SR1 AMARESHWAR s RAVOOR, ADV_s. :='QRvR'1.;1 3 AGED ABOUT 24 YEARS. OCC: UNEMPLOYED. R/O. SHWARADDY PATIL. POST KUCHAVARAM, TALUK: CHINCHOLI, DIST: GULBARGA. THARAMMA W / O PENTAPPA, AGED ABOUT 25 YEARS, R/ O SHWARADDY PATIL. POST KUCHAVARAM, TALUK: CHINCI-EOLI. DIST: GULBARGA. W. A. NO. 4651/2010 BETWEEN: 1. " ' RAICHUR. A "AND ; 1. STATE OF KARNATAKA, E' ' REP. BY 1TssEcRETA_RY,' 1. _ ' ' I3EPARfIfMEN*1"§ OF'wOMEN""" ' AND ._cH1L:1R.EN DEVELOPMENT. BUILDING, _ BANGALORE --''560 001. ;THE DIRECTOR, ' I."'~"': ~v1 " V| WOMEN AND _ CHILDREN DEVELOPMENT, ' " 'V . w1v.._s;~ELr1'L:)1NGs, BANGAIQQRE M 550 001. A THE EEEUTY DIRECTOR, DEPARTMENT OF WOMEN AND CHILDREN DEVELOPMENT, APPELLANTS -- B VEERAPPA. AGA.) SMT. VIJAYALAKSHMI. W/ O GYANAPPA. 4 AGED ABOUT 26 YEARS. R/O HADAGALI TANDA. POST: NAGALAPUR. TALUK: MNGASUGUR, DIST: RAXCHUR « 584 122. 2. SMT. LAKSHML W/O SREKANTHA. R /O HADAGALI TANDA, POST: NAGALAPUR, TQ: LINGASUGUR. DIST: RAICHUR W 584 122. V 1' '* 'V [BY SMT. N RAJARAJESHWARI, EOR.Ri3v._1 7 W. A. N0. 4757/2010 BETWEEN: GOVERNMENT OF maRNATAKA""' - REPRESENTED BY ms SECRETARY _ DEPT. OF WOMEN & CHILD WELFARE M.S.BUILDING, BANGALORE)» 1-. _ ' &';'--.v.,A'PPELLANT (BY SRiB VE1*iF§r1P'??\;NAG£T\".')v--- '. E AND: E E E V . E E SR1 T; JAGADVEAESH V. S/O' 'LATE SR1 SHAD.AKSHARAIAH AGED ABVOU'1",_38 YEARS, MEMBERV 'BELAGUM.BA PANCHAYATH, BELAGUMBA. AARASIKERE TALUK HAssAN.D1sfrR1cT ...RESPONDENT 1. '--{BY SR1v.f;f'f{A1\?THA RAJA. ADV.) ' yv. 'A. 'No. 4694/2010 * EETWEEN: " THE DIRECTOR. WOMEN AN D CHILD WELFARE DEPARTMENT, IVI.S.BUILDING. BANGALORE ~-- 560 001. 2. THE DEPUTY DIRECTOR. WOMEN AND CHILD WELFARE DEPARTMENT. VEERABHADRESHWARA NAGAR. BELGUAM. 3. THE CHILD DEVELOPMENT PLANNING OFFICER, SAUNDATTI TALUK, SAUNDATTI, BELGAUM DISTRICT. V (BY SRI B VEERM'PA, AGA.) N\ID: 1. SMTSAVITHA, 'I " AGED ABOUT 18 YEARS, W/O RAMAPPA Ar2'PAN;mAVAR;~ . R/O TALLIK 3;' Ez1s_TR1CTBAcALK0T. 2. THE«.PREs1DENT, _ ' THE ANGANWAD1 WORKERS ; SELECTION 'COMMITTEE, .3 "esAjLJNpATI'1"TALUK. _ SAUND~A'I"I'I, -..BEVLGAIJ'M.._DISTRICT. RESPONDENTS {BY SR1 s BASAREDDY, ADV. FOR R1) THESE WRIT APPEALS ARE FILED U/S 4 OF THE ~ HIGH COURT ACT PRAYING TO SET ASIDE ' ORDER PASSED IN W.P.NOS. 13660/2006, * I'1_38_0_A8'/2007, 10770/2007, 14244/2007 AND 12264/2007 -- DATED 28/02/2008. THESE APPEALS COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOVVIN G: 6 J U D G M E N T A bunch of writ appeals assailing the order passed by this Court on 28.02.2008, in respect of selections and appointment of Anganawadi workers has 'been disposed of by us, by a separate ordelo' 29.11.2010. 2. The aforesaid order out~come of writ appeals prefelrred orders passed . .w. 13808/2007, 10770/20c-7, Even though the Alélngdnawadi workers was challenged Writ petitions, the said selection process.waS»_not carried out, on account of an V. _f,11jL'§Iict:&.Aen granted "by this Court. the affidavit. filed by the appellants in this0"'t0Con1:t'j__'reveals, that the selection committee cpconstiriited by the State Government [Vide order dated A ":0. came to be modified through a subsequent order dated 03.11.2007, and since the order dated

Author: J.S.Khehar(Cj) And A.S.Bopanna

The Government Of Karnataka vs Sri M Srinivasan on 29 November, 2010

Karnataka High Court

JUDGMENT S. Mohan, J. 1. This revision is directed against the judgment of the Appellate Authority under the Payment of Wages Act (learned District Judge, Coimbatore) rendered in C.M.A. No. 125 of 1982. 2. The brief facts leading to the filing of this writ petition are: The respondent herein is the laboratory chemist under the petitioner. On 26 October 1977 there was a shortage of Endosulfan due to outflow of the material. After enquiry the petitioner herein suggested the value of the shortage of Endosulfan to be recovered from the contractor Maruthan and from the respondent herein. Accordingly a sum of Rs. 2,904.40 was deducted from the salary of the respondent. Thereupon, the respondent took up the matter before the Deputy Commissioner of Labour and the Deputy Commissioner of Labour held that the recovery was in order. On appeal before the appellate authority (District Judge, Coimbatore), the appellate authority came to the conclusion that in exhibit R3 the secretary of the petitioner himself admitted that one of the labourers working under the contractor Maruthan would have wilfully done the mischief of removing the valve from the storage tank and caused wastage of Endosulfan. In view of this specific admission, the appellate authority allowed the appeal preferred by the respondent herein. Aggrieved against the said order, the society has come up before this Court by way of this petition. 3. The learned counsel for the petitioner would urge that when the respondent was solely in-charge of the laboratory, and if due to his negligence the loss has been sustained by the society, certainly the recovery is valid in law. In support of this he relied upon Kedarnath v. State and State of Uttar Pradesh v. BabuRam . In meeting the above submission Sri. N.G.R. Prasad, learned counsel for the respondent, submits that there is no specific finding whatsoever in this case to connect the respondent with the outflow of the material and according to exhibit R3 somebody, during the short absence of the respondent from the laboratory, had done the mischief. Therefore, to say collectively that all those who had something to do with the laboratory at the relevant time are liable cannot be the law and the two decisions relied on by the learned counsel for petitioner have no application to the facts of this case. His further argument is that this is not a case in which Section 7(2)(c) of the Payment of Wages Act would come into play. Therefore, the order of the appellate authority is unassailable. 4. Undoubtedly the respondent herein is the laboratory chemist under the petitioner-society. There was a shortage of Endosulfan on 26th October 1977. According to the respondent, he was not in any manner liable for the wastage or loss. The contrary stand taken by the petitioner-management in exhibit R3 is the communication, dated 8th November, 1977, by the secretary of the society to the president of the society stating that on 26th October 1977 at 8.00 A.M. Subbain the supervisor had entrusted the key of the emulsifying room where Endosulfan was stored, to Rangaswamy, one of the labourers working under Maruthan, contractor, for starting the machine and Subbain stated that he went to the pulveriser section and on his return he was informed by the contractor that there was leakage and wastage of Endosulfan. In exhibit R3 the secretary has mentioned as follows: "From the enquiry it is considered that one of the labourers working under Sri Maruthan, contractor, would have wilfully done the mischief of removing the valve from the storage tank and caused wastage of Endosulfan". Therefore, when the report itself proceeds on the basis that the respondent herein is not responsible for leakage and wastage it cannot be held that all those who had something to do with the laboratory at the relevant point of time are responsible. Further, on a perusal of Section 7(2)(c) of the Payment of Wages Act, it is clear that there is nothing to connect the respondent with the outflow of the material and there is nothing to show that the respondent herein had been guilty of neglect or default by reason of which the damage occurred. According to the learned counsel for the petitioner, the respondent was in-charge of the laboratory during the relevant point of time, when the damage had occurred, and, therefore, he alone is responsible for the loss of the material. I am unable to agree with this argument. After all visiting the respondent with an order of penal consequence would require some nexus between his negligence or default on the one hand and the damage on the other, which is lacking in this case. Therefore, the conclusion of the appellate authority is perfectly correct and it needs no interference. In this view, the revision petition is dismissed. No costs. The amount if already recovered from the respondent would be refunded to him on or before 10th January, 1988.

Author: S Mohan

Bhudiyalur Co.-Op. Agricultural ... vs Sethuraman on 22 December, 1987

Madras High Court

Court No. - 8 Case :- BAIL No. - 386 of 2010 Petitioner :- Ajay Kumar Respondent :- State Of U.P. Petitioner Counsel :- Shadab Waheed Respondent Counsel :- Govt.Advocate Hon'ble Ashwani Kumar Singh,J. Heard learned counsel for the applicant, learned A.G.A. and perused the entire record of the case. The submission of learned counsel for the applicant is that in all the cases shown in the gang-chart, the accused-applicant is on bail, as averred in para 10 of the bail application. It is further submitted that this case under U.P. Gangsters and Antisocial Activities (Prevention) Act has been slapped on the accused- applicant by the police, in vengeance, so that the accused- applicant may languish in jail for a considerable long period. The applicant is in jail since 24.8.2009, as mentioned in para 13 of the bail application, which has not been controverted by the State. Considering the overall aspects of the matter, I hereby provide that applicant be released on bail in Case Crime No.621 of 2009, under Section 2/3 (1) U.P. Gangsters and Antisocial Activities (Prevention) Act, 1986, P.S.Ibrahimpur, District Ambedkar Nagar, on his filing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Order Date :- 22.1.2010 A

Ajay Kumar vs State Of U.P. on 22 January, 2010

Allahabad High Court

JUDGMENT Shah, J. 1. In this case the accused was charged with committing the murder of a boy named Vishwas on the 13th of August last, the murder having been caused by drowning the boy in a river. He was tried by the Sessions Judge of Ahmednagar, who, in agreement with the assessors, has found him guilty. He has been sentenced to death subject to confirmation by this Court. 2. We have heard full arguments in this case. The case for the prosecution depends mainly upon the evidence of the witnesses Daji and three boys, Babaji, Parya and Bhika, and upon certain circumstances. 3. It will be convenient at the outset to deal with the point about which we felt some difficulty and on which we invited arguments at the Bar. That relates to the admissibility of the evidence of these three boys. Two of them are seven years old and one of them is nine years old, and we find it stated in the judgment of the learned Sessions Judge that "an oath was not tendered to the boys as they appeared to be too young to understand it but they promised to speak the truth." The original record of the depositions of these boys in Marathi does not show that no oath was administered. But the notes of evidence in the Judge's own hand-writing show that the boys were not examined on oath but were examined on simple affirmation to speak the truth. In the diary of the case the boys are stated to have been examined like other witnesses on solemn affirmation. Though we had some difficulty in determining in this case as to what actually happened, I think the statement in the judgment makes it clear that the boys were examined not on oath, i.e., as I understand, no solemn affirmation in the form prescribed by the High Court was administered as required by the Indian Oaths Act. 4. This raises the question as to whether the omission to administer an oath or affirmation as required by the Indian Oaths Act to a witness of tender years renders his evidence inadmissible. The answer depends upon the meaning to be attached to the word "omission" in Section 13 of the Indian Oaths Act. Several cases have been cited to us on this point, and it is clear that there is a difference of opinion on the question. So far as I can see, however, in this Presidency the view taken by the Full Bench of the Calcutta High Court in the case of Queen v. Sewa Bhogta 14 B.L.R. (F.B.) 294 : 23 W.R. Cr. 12 is accepted, as would appear from the judgment of Mr. Justice Jardine in Queen-Empress v. Shava 16 B. 359 : 8 Ind. Dec. (N.S.) 717 and from Emperor v. Kusha Yamaji Sutar 5 Bom. L.R. 551. 5. I am conscious of the considerations in favour of the other view which have been set forth in the dissenting judgment of Jackson, J., in the Full Bench case to which I have referred, in the judgment of Mahmood, J., in Queen-Empress v. Maru 10 A. 207 : A.W.N. (1888) 86 : 6 Ind. Dec. (N.S.) 139 and in the judgment of Collins, C.J., in Queen-Empress v. Viraperumal 16 M. 105 : 1 Weir 823 : 5 Ind. Dec. (N.S.) 781. But on the whole it seems to me that the view consistently adopted by this Court should be adhered to. I, therefore," hold, following the view accepted in this Presidency, that the evidence of these boys, though taken without any solemn affirmation in the prescribed form, is admissible in virtue of the provisions of Section 13 of the Indian Oaths Act. 6. I desire, however, to add that it is necessary to follow the procedure pointed out by this Court in the cases above referred to in recording the evidence of witnesses of tender years. It is necessary that before proceeding to examine such witnesses the Court should satisfy itself that the witness was competent to testify, that is, was capable of understanding the questions put to him and of giving rational answers to those questions; and that thereafter the Court would proceed to administer an oath or affirmation as required by the Indian Oaths Act, If the witness is found to be incapable of understanding the obligations of such an oath or affirmation, he may be examined without an oath or affirmation, provided he is found to be a competent witness. These facts may be noted so that the record may show that before taking the statement of a witness, of that character, the trial Court had ascertained that the witness was a competent witness under Section 118 of the Indian Evidence Act and that the omission to administer an oath or affirmation was due to his want of understanding the obligations of an oath. 7. I wish to make it clear that, as pointed out in the case of Emperor v. Kusha Yamaji Sutar 15 Bom L.R. 551 the ignorance of a child on such a matter as the nature of a solemn affirmation is not necessarily equivalent to an inability to understand ordinary questions and give rational answers. 8. I am satisfied in this case that the evidence of the boys is admissible. The weight, however, to be attached to this evidence is quite a different matter and if is obvious that evidence of witnesses of such tender age must be received with due care and caution. 9. The case for the prosecution is that there was a dispute between Baburao, the father of the deceased boy, and the accused and his father with respect to certain land, that there was a decree in respect of the land in August 1916, that the possession of the land was to be handed over to the father of the deceased boy on the 13th of August last, and that possession was in fact handed over at about 11 o'clock that morning. The accused was not present at the time of handing over the possession to Baburao. He was seen going towards the place where the deceased boy and his other companions were playing when Baburao and other persons were going towards the field. Soon after this the accused took away the boy on the pretext of giving him big thorns to play with and at once threw nim into the river, which was very near the place where these boys were playing. He jumped into the river after throwing the boy in it. This is said to have been seen by the three boys and the witness Daji. The complainant Baburao, the father of the deceased boy, was at once informed of this fact when he returned from the field and he immediately gave information to the Patil. Both the information given to the Patil and the report made by the Patil to the Sub-Inspector refer to the accused Hari as the person who threw Vishwaa into the river. The Sub-Inspector arrived at night on that very day and he examined the boys and the witness Daji on the following day, i.e., on the 14th of August. This evidence has been subjected to critical examination by the learned Counsel for the accused, and after considering all that has been said in favour of the accused, I see no reason to disbelieve the evidence either of Daji or of the boys, I am satisfied that these boys and the deceased Vishwas were playing together on that day and that the deceased Vishwas was taken away by the accused and thrown into the river. There is really no good reason to, distrust the evidence of Daji. It appears from his evidence that Hari, that is the accused, was taken out of the water and made to stand there at the time. This evidence, coupled with the fact that the information was immediately given, leaves no doubt in my mind that the prosecution case is true. 10. There is a further circumstance about the foot-prints. So far as it goes, it is in favour of the prosecution case; but I do not attach much importance to it, because there is no means of testing whether the foot-prints tallied as deposed to by the Panch in this case. 11. There can be no doubt, in my opinion, about the correctness of the conviction. 12. The murder was undoubtedly brutal and the boy murdered Was an innocent boy who had given no offence whatever to the accused. Under these circumstances ordinarily I should think that the capital sentence would be appropriate. At the same time I notice a certain degree of reluctance on the part of Judges from the reported cases to pass a capital sentence, when the substantial part of the evidence which the prosecution rely upon is evidence recorded without an oath or affirmation as required by the Indian Oaths Act. I do not wish to be understood as laying down any general rule applicable to all such cases. But taking that into consideration along with the circumstances of this case, I am of opinion that the sentence of transportation for life would not be inappropriate. 13. I would, therefore, commute the sentence of death to one of transportation for life. 14. Marten, J.--Despite Mr. Velinkar's able arguments, the only difficulty I have felt in this case is as to the admissibility of the evidence of the three children, If I thought the conviction depended en their evidence, the proper course, in my opinion, would be to call for a report from the learned Sessions Judge as to the precise steps he took before allowing these children to give evidence: Cf. Queen-Empress v. Shara 16 B. 359 : 8 Ind. Dec. (N.S.) 717, and as to what precisely he means by "affirmed not sworn because of age" and "on affirmation to speak the truth, not on oath" with reference to their evidence. It may be too that in that event I should, speaking for myself, have thought the point to be one fit for a Full Banoh having regard-amongst other things, to the conflicting decisions in the various Indian Courts. But it is only fair to the learned Judge to add that the point in question was never taken before him, and that before us Counsel for the prisoner admitted in his reply that having regard to Emperor v. Kusha Yamaji Sutar 15 Bom L.R. 551 he could not rely on the point. 15. In my opinion, however, the conviction ought to stand even if one eliminates, as I do, the evidence of the three children. I believe the evidence of the alleged eye-witness Daji, and it is in keeping with the surrounding circumstances in evidence. The prisoner's statements I regard as a tissue of lies; and it is noteworthy that he called no evidence--not even his brother--in support of his statement that he was ploughing with his brother one and-half miles off at the time this boy was drowned. His statement must, therefore, be disregarded. This still leaves the prosecution with the obligation to succeed on the strength of its own evidence and not on the weakness or want of evidence for the defence. In my opinion the prosecution has discharged that obligation. 16. I would accordingly confirm the conviction. As regards the sentence I concur with my learned brother in thinking that having regard to the special circumstances of the case and the course which has been adopted in several of the authorities cited to us, it would be proper to reduce theft sentence of death to that of transportation for life.

Author: Shah

Hari Ramji Pavar vs Emperor on 11 January, 1918

Bombay High Court

ORDER Cyriac Joseph, J. 1. The petitioner applied for admission to the Post Graduate Course in the All India Institute of Medical Sciences for the Session January 1999. He appeared in the written examination held on 6.12.98 and got rank No. 24 in the merit list. The petitioner participated in the First Counselling on 28th December, 1998 for allocation of disciplines. Though the petitioner wanted a seat in M.D. (General Medicine), no seat was available in the said discipline at his rank. Hence the petitioner provisionally took a seat in M.D. (Psychiatry), thinking that a seat in M.D. (General Medicine) might become available in the Second Counselling or thereafter. But during the Second Counselling also no seat was available in M.D. (General Medicine) at his rank. However, he did not confirm the seat in M.D. (Psychiatry) which he had taken provisionally during the First Counselling. As per the Prospectus the last date for admission was 31st January, 1999. On 16.1.99, the respondent advertised a notice in the Indian Express announcing that some seats in certain disciplines (other than General Medicine) remained vacant after the Second Counselling and that the selection for filling up those seats would be held on 25th January, 1999. It was also stated in the said notice that all those candidates who had appeared in the Entrance Examination on 6th December, 1998 irrespective or their rank in the Entrance Examination and who were interested in those discipline should report to the Academic Section on 25th January, 1999 along with the original certificates. It was further stated that allocation of seats would be made strictly as per the rank/merit in the Entrance Examination on the terms and conditions as mentioned in the Prospectus for January 1999 Session. In the meanwhile, the petitioner came to know that two seats in M.D. (General Medicine) and one seat in M.S. (Orthopaedics) had fallen vacant and were available. One Dr. Girish who had been admitted to M.D. (General Medicine) resigned and surrendered the seat on or about 23.1.99. The other seat in M.D. (General Medicine) had fallen vacant as one Dr. Manju Singar did not join the course. Hence on 25.1.99, the petitioner submitted a representation to the respondent requesting for allotment of the seats of M.D. (General Medicine) which had fallen vacant. However, the respondent did not include the seats in M.D. (General Medicine) among the seats to be filled up on 25.1.99. No action was taken by the respondent to fill up the said seats thereafter also. The petitioner submitted a further representation dated 29.1.99 requesting the respondents to give him an opportunity to opt for the available seat in M.D. (General Medicine). Since there was no favourable response from the respondent the petitioner has filed this writ petition praying for a direction to the respondent to allot the vacant seat in M.D. (General Medicine) to the petitioner forthwith. 2. The respondent has filed a reply opposing the prayer in the writ petition. The respondent has admitted that one Dr. Girish who was at rank No.12 had opted for the seat of M.D. (General Medicine) in the First Counselling but he left the seat after the Second Counselling. According to the respondent. The said seat became vacant only after the resignation of Dr. Girish was accepted on 23.1.99. The respondent has denied the existence of any vacant seat in M.S. (Orthopaedics). According to the respondent, on the date of filing the reply there was only one vacant seat of M.D. (General Medicine) and it was vacated by Dr. Girish. The respondent has admitted the filling up of certain vacant seats in other disciplines pursuant to the notice dated 16.1.99 published in the Indian Express. However it is clarified in the reply affidavit that in the said advertisement only those seats which were available all through to all the candidates (including the petitioner but) were not opted by anybody, were sought to be filled up. According to the respondent there was no Third Counselling and a Third Counselling was also not contemplated in the Prospectus. It is further stated in the reply affidavit that when the decision to hold the selection for the left over seats was taken, the seat in M.D. (General Medicine) had not fallen vacant and hence it could not have been included in the selection which took place on 25.1.99. The representation dated 25.1.99 and 29.1.99 of the petitioner were considered by the respondent and a reply dated 2.2.99 was sent to the petitioner. A copy of the said letter dated 2.2.99 has been produced as Annexure I to the reply affidavit. Through the said letter date 2.2.99 the petitioner was informed that the above mentioned vacant seat of M.D. (General Medicine) would be advertised for the July 1999 Session. It is contended in the reply affidavit that in view of the judgment of the Hon'ble Supreme Court on the subject, the respondent is required to place the available seat in the slot for everyone and hence the said seat has to be renotified afresh and therefore it has been carried forward to the next academic session. 3. In the light of the abovementioned rival contentions of the parties the question to be considered is whether the petitioner has got a right for admission to the seat of M.D. (General Medicine) which fall vacant after the Second Counselling. The rules relating to admission and the method of selection and counselling were published in Annexure P1 Prospectus issued by the respondent. The petitioner has no case that admissions to the various courses were made in violation of the provisions contained in the Prospectus. As per the Prospectus there were only two Counsellings. Admittedly the petitioner participated both in the First Counselling and in the Second Counselling but no seat of M.D. (General Medicine) was available at his rank. The petitioner also has no grievance about the allotment of seats made during the First and the Second Counsellings. A Third Counselling was not contemplated in the Prospectus. The Prospectus also did not say anything about filling up of the seats which might fall vacant subsequent to the Second Counselling due to reasons like the resignation of candidates after taking admission. A copy of the guide-lines issued by the respondent for allotment of seats by personal appearance and counselling has been produced as Annexure P4 to the writ petition. As per the said guide-lines if any candidate who joined the MD/MS/MDS course leaves the said course before the expiry of one year of joining he shall be liable to pay a sum of Rs.50,000/- and if any candidate who joined the course leaves after one year of joining he shall be liable to pay a sum of Rs. 1 lakh by way of compensation/losses incurred by the AIIMS due to such midstream departure. However, nothing is mentioned about the filling up of seats which fall vacant due to such mid stream departure. Therefore, as per the Prospectus or the guide-lines for allotment of seats by personal appearance and counselling, the respondent was not bound to fill up a seat which fell vacant after the Second Counselling due to the resignation of a candidate who had taken admission during the First or the Second Counselling. Hence respondent was not liable to fill up the seat of MD (General Medicine) which fell vacant due to the resignation of Dr. Girish. 4. Learned counsel for the petitioner contended that the last date for admission was only 31.1.1999 and hence the seat of MD (General Medicine) which fell vacant on 23.1.1999 could have been filled up by the respondent without carrying forward the seat to the July 1999 session. However, the learned counsel for the respondent pointed out the difficulty in filling up the seat. During the first and the second counselling candidates who were placed above the petitioner in the merit list had opted for allotment of seats in different disciplines and had accepted the seats available then. As per the prospectus and the guide-lines for allotment they were bound to take a confirmed seat at least during the second counselling. Having taken a confirmed seat in a discipline they are not given any further chance to opt for a seat which may fall vacant a subsequent to the second counselling. If a seat falling vacant subsequently due to the resignation of a candidate who had joined the course has to be filled up, the said seat has to be offered to all the candidates in the merit list according to the rank in the merit list. It will imply that allotment already made will have to be disturbed and fresh allotments will have to be made. It is to avoid such continuous and unending process of exercising options and making allotment that the respondent decided to stop with the second counselling and to provide that all the seats allotted during the second counselling will be only confirmed seats. The said procedure followed by the respondent is to ensure that the seats are allotted according to merit and a fair opportunity is given to the candidates to make their options. The decision of the respondent not to have a third counselling for filling up the seats which might fall vacant due to resignation of candidates who had taken confirmed seats during the first or the second counselling cannot be said to be illegal or arbitrary or unfair. It may be observed that if seats falling vacant subsequently are to be filled up by remaining candidates in the merit list who had not taken any confirmed seat during the first or the second counselling, such candidates will get an undeserved advantage in the matter of allotment of seats. A candidate above them in the rank list might have opted for a seat in discipline A because at that time no seat was available at his rank in discipline B which was his preference. The seat in discipline B falling vacant subsequently will not be offered to him since he has already taken a confirmed seat whereas the said seat will become available to candidates below him in the rank list. For example, in this case when candidates who were placed above the petitioner in the merit list took the confirmed seats in other disciplines the present vacant seat in M.D.(General Medicine) was not available and hence even if they had preferred a seat in M.D. (General Medicine) they could not get one. At the same time they are not eligible to make any further option as they have taken confirmed seats. If the present vacant seat of M.D. (General Medicine) is offered to the petitioner only on the ground that he had not taken any confirmed seat during the first or the second counselling he is getting an undeserved advantage over such persons who were ranked above him in the merit list and had preferred a seat in M.D. (General Medicine). That will be unjust and unfair to the candidates ranked higher in the merit list. Hence in my view there is some purpose and logic behind the decision of the respondent not to fill up the seats which fall vacant subsequent to the second counselling and to carry forward such seats to the next session of July 1999. 5. It is to be noted that even if the respondent decided to fill up the seat which fell vacant due to the resignation of Dr. Girish the respondent had to offer the seat to all the candidates in the merit list according to their rank irrespective of their taking a confirmed seat in another discipline. That would have unsettled the admission already made and the admission process could not have been completed before the last date of admission. It is also to be noted that any candidate ranked below the petitioner in the merit list has not been given a seat or M.D. (Genera Medicine) and hence the petitioner cannot have any legitimate grievance. 6. Learned counsel for the petitioner pointed out that even if a third counselling was not contemplated in the prospectus the vacancies arising before the last date of admission should have been filled up by the respondent. He also pointed out that as per Annexure P5 advertisement dated 16.1.1999 the respondent sought to fill up vacancies which remained vacant after the second counselling. According to the learned counsel, if those vacancies could be filled up the vacancy caused by the resignation of Dr. Girish also could have been filled up. However, the learned counsel lost sight of a significant difference in the nature of the vacancies in question. The vacancies mentioned in Annexure P5 notice dated 16.1.1999 were the vacancies which were available for allotment during the first counselling and also the second counselling but were not taken by anyone. All the candidates had the opportunity to opt for those seats. The said seats remained vacant only because there was none to take those seats during the first and the second counselling. Hence those who were ranked above in the merit list and who had taken confirmed seats in other disciplines could not complain that they had not got an opportunity to take those seats. On the other hand, the seat which fell vacant due to the resignation of Dr. Girish was not available for allotment to other candidates above the petitioner as it had been taken by Dr. Girish. As already pointed out the seat fell vacant only on 23.1.1999. Hence it is possible for other candidates who are ranked above the petitioner in the merit list to complain that they also should get an opportunity to opt for the said seat even if they have already taken a confirmed seat in another discipline. It is clear from Annexure P5 notice as well as from the reply affidavit filed by the respondent that the seats mentioned in Annexure P5 notice dated 16.1.1999 were remaining vacant after the second counselling as nobody had opted for those seats. The filling up of the seats mentioned in Annexure P5 will not in any way violate the principle of merit followed in the matter of selection and admission. A seat subsequently falling vacant due to the resignation of a candidate who had taken a confirmed seat and had joined the course cannot be equated with seats which remained vacant as there was nobody to opt for those seats during the first and the second counselling. Hence merely because the respondent chose to fill up the seats mentioned in Annexure P5 notice, it cannot be said that the respondent was bound to fill up the seat which fell vacant due to the resignation Dr. Girish. It may also be mentioned that the seat in question is not going to be wasted and that it is being carried forward to the July 1999 session. 7. Learned counsel for the petitioner contended that Dr. Girish was rank No. 20 in the merit list and that persons ranked between the petitioner and Dr. Girish would not be interested in the seat of M.D. (General Medicine) now available. It cannot be assumed or presumed by this court that rank numbers 21 to 23 would not be interested in the seat. Whether they were interested or not, if the seat had to be filled up they also had to be given a chance to make their options according to their relative merit. The respondent had objection to such a course of action because such a course of action was not contemplated in the prospectus. Moreover it was practically difficult to carry out such an exercise before the last date of admission. 8. By deciding not to fill up the seat which fell vacant due to the resignation of Dr. Girish, the respondent has not violated any of the provisions contained in the prospectus relating to selection and admission of candidates and the respondent has not committed any illegality in the matter. The impugned action of the respondent is neither arbitrary nor unjust. There is neither violation of any fundamental right nor denial of any vested right of the petitioner. I do not find any sufficient justification for invoking the extraordinary jurisdiction of this court to direct the respondent to admit the petitioner to the M.D. (General Medicine) course. Hence the writ petition is dismissed. No order as to costs.

Author: C Joseph

G. Senthil Kumar (Dr.) vs All India Institute Of Medical ... on 9 March, 1999

Delhi High Court

ORDER S. Rajaratnam, Accountant Member 1. This is an appeal filed by Mopeds India Ltd. of Tirupathi, objecting to the order of the Commissioner (Appeals) for the assessment year 1979-80. 2. The assessee is a company engaged in manufacture of mopeds and spare parts for mopeds. The first objection relates to addition of Rs. 3,85,000 made by the IAC towards revaluation of closing stock. The assessee, admittedly, was taking into consideration the proportionate overheads for 'administrative expenses, selling expenses and interest' in stock valuation till the end of the immediately preceding year. This method is described as 'total cost' method and the opening stock has, therefore, been valued by such method. The method to which the assessee changed is known as 'works cost' method where the administrative overhead was not reckoned. It is the assessee's case that it is a bona fide change inasmuch as it is considered preferable to write off the administrative overheads incurred in the same year instead of attributing a part of it to closing stock. The first appellate authority also recognised the assessee's claim on merits. In fact, the assessee has shown that international accounting standards also recommend such a method. The first appellate authority had only remitted the question back to the ITO for verification as to whether the assessee had included direct labour, factory overheads, etc. It is the assessee's case that it had included these items as works overheads. If so, we cannot have any complaint with the direction of the first appellate authority that the assessee's claim should be accepted after verification. However, the first appellate authority went further and found that the opening stock also should be similarly revalued. It is the assessee's case that it is not necessary to do so. There has been no suggestion that the assessee has changed its method with a view to manipulate its profits. In fact, the facts clearly show that the assessee has shifted to better and approved method of closing stock valuation. It is the assessee's claim that the change is made on a permanent basis and then the assessee would continue to value the closing stock hereafter by the new method. As pointed out by the first appellate authority, there is some distortion of profits for this year because of the change in method. But, his solution to revalue the opening stock would necessitate modifying the earlier assessment so that closing stock of immediately preceding year is made to conform to such revised valuation distorting the income of that earlier year or further modifying the opening stock of that year as well and so on. This will mean more revisions indefinitely in order to ensure uniformity. The opening and closing stocks of earlier years had been valued in the same manner and, hence, disturbance of any earlier year is unnecessary. If the earlier year's closing stock is allowed to remain as it is, while disturbing the opening stock of this year alone, it would be unfair and inconsistent. Under such circumstances, it is considered permissible not to disturb the opening stock. We have the authority of the decision of the Calcutta High Court in the case of British Paints India Ltd. v. CIT [1978] 111 ITR 53, where it was observed that the Tribunal was not justified in rejecting the method of valuation of the goods-in-process and the finished products on the basis of the cost of raw material adopted by the assessee, since the method followed by the assessee was a recognised method, The assessee in this case had been following not merely the valuation of closing stock with reference to raw material consumed, but also attributing direct labour and works overheads. If the assessee's departure from the method of accounting hitherto followed was a casual one, or was not bonafide, or the shift to the new system was not for a better or more scientific one, or was made merely with a view to escaping liability to tax, or for any such other consideration, the ITO would be justified in rejecting the change in method altogether. In this case, the first appellate authority upheld the change, but has asked that the opening stock should be revalued in the same manner-Sarupchand v. CIT [1936] 4 ITR 420 (Bom.), Indo-Commercial Bank Ltd. v. CIT [1962] 44 ITR 22 (Mad.), Forest Industries Travancore Ltd. v. CIT [1964] 51 ITR 329 (Ker.), CIT v. Eastern Bengal Jute Trading Co. Ltd. [1978] 112 ITR 575 (Cal.), CIT v. Rajasthan Investment Co. (P.) Ltd. [1978] 113 ITR 294 (Cal.) and Reform Flour Mills (P.) Ltd. v. CIT [1978] 114 ITR 227 (Cal.) are all decisions rendered by different High Courts taking the uniform view that it is open to the assessee to make a change in the accounting method provided he satisfies the revenue on proper evidence that he has in fact changed the regular basis of accounting bonafide and not casually. No doubt, in Sarupchand's case (supra), it was pointed out by Beaumont, Chief Justice that too frequent a change may disentitle the assessee from changing his method. Even granting that it is open to the ITO to impose conditions before permitting such a change, the direction of the first appellate authority, which has the effect of reducing the opening stock which was accepted as closing stock of the preceding year, could hardly be taken as a reasonable condition, unless, of course, he had also directed and the revenue had accepted a consequential relief by revaluation to the same extent of the closing stock of the earlier year as well. After considering the decisions, we do not find any justification for the further direction of the first appellate authority to revalue the opening stock as well. His first direction alone for not changing the assessee's valuation of closing stock subject to verification of the assessee's claim that it has valued the closing stock in the manner claimed by it should stand. Hence, the assessee's ground in this regard will be treated as allowed. 3. to 5. [These paras are not reproduced here as they involve minor issues.] 6. The next dispute relates to the disallownce of provision for minimum wages to the extent of Rs. 97,991 out of a total provision of Rs. 2,13,000. On the basis that the assessee-company was doing business falling under the category of automobile industry, the assessee made a provision to the extent of Rs. 2,13,000. For the view that the assessee was engaged in an automobile industry, the assessee had the authority of the view of the Labour Commissioner by his memorandum dated 26-6-1978. In fact, he was the person who was one of the authorities for enforcing the payment of minimum wages fixed by the notification dated 20-5-1976. There is no doubt that this notification applied to the assessee. All the same, the assessee was subsequently able to negotiate with the workers under an agreement that the assessee's business was not an automobile industry and was able to satisfy the workers that the additional minimum wages payable were only to the extent of Rs. 97,991. The difference was also credited back to the profit and loss account for the year ending 30-6-1980. It was the assessee's case that at the time of making the provision it was anticipated that the assessee would be liable to pay Rs. 2,13,000. Subsequent events, it was claimed, cannot justify any part of the disallowance. The authorities did not accept this claim. After all, they felt that the actual subsequent payment represents a better evidence for the amount payable than the provision made on the basis of the Labour Commissioner's letter. According to the first appellate authority, the opinion of the Labour Commissioner cannot be treated as a judicial order so as to justify the treatment of this provision as a liability. 7. We have carefully considered the arguments of both sides. We are of the view that the assessee's claim that it anticipated this amount of Rs. 2,13,000 as a liability for additional minimum wages payable under the notification as interpreted by the Labour Commissioner stands uncon-tradicted. The fact that the assessee was able to salvage part of the liability does not mean that the assessee could be credited with hindsight at the time of closing of the accounts. The opinion of the Labour Department could not, in our opinion, be brushed aside in the manner done by the first appellate authority. Under the circumstances, the assessee succeeds on this claim. This amount of Rs. 97,991 will be allowed as a deduction. It is needless to point out that the amount written back to the accounts when the actual liability fell short of the provision has to be taxed in the year in which the negotiation was completed, We empower and authorise the ITO to bring it back to taxation in case he had not done so consistent with the view taken by him in the assessment. 8. The next contention relates to the disallowance of 15 per cent of Rs. 1,80,055 being part of the amount paid as overriding amount to distributors. Though the assessee seems to contest the entire disallowance under Section 37(3 A) of the Income-tax Act, 1961 ('the Act') on the grounds, it is clear that it has now confined its objection to the disallowance of 15 per cent of Rs. 1,80,055 only. The total amount paid was Rs. 10,01,382. Section 37(3A) authorises the disallowance of 15 per cent of the adjusted expenditure where such aggregate expenditure exceeds half per cent of the turnover or gross receipts of the business or profession, such adjusted expenditure being the aggregate expenditure incurred by the assessee on advertisements, publicity and sales promotion in India as reduced by any disallowance or any part thereof under Section 37(3A) vide provision introduced by the Taxation Laws (Amendment) Act, 1978. with effect from 1-4-1979. Hence, this provision is in force for this year. The assessee paid an amount of Rs. 1,80,055 as incentive bonus under 'Multi-stage Incentive Scheme' formulated by it. A minimum target is fixed depending upon the potential of the area and Rs. 10 per vehicle is given as an incentive to the dealer. If the offtake is more than the prescribed minimum, there is an enhanced rate. This incentive bonus was in addition to dealer's commission. While the ITO considered this and some other items as part of sales promotion expenses, the first appellate authority considered that this amount of Rs. 1,80,055 alone should be considered as sales promotion expenses. In this view, he reduced the disallowance made by the ITO to 15 per cent of Rs. 1,80,055. The assessee is not satisfied with this relief. 9. We have considered the question as to what constitutes expenditure on 'advertisement, publicity and sales promotion' in IT Appeal Nos. 1027 and 1029 (Hyd.) of 1982 dated 29-4-1983 to which both of us were parties. We have observed as under in that order : 'Advertisement' according to Concise Oxford Dictionary is 'public announcement; (esp. in newspapers, or posters, by television, etc.); advertising... 'Advertise' has been similarly defined to mean 'generally or publicly known; (esp.) describe (goods), publicity with a view to increasing sales; notify;...'. Meaning assigned in other dictionaries are not different. Though dictionaries need not always be the sole or a reliable guide on such matters, we find that the meaning assigned by the dictionaries is the one assigned in commercial and popular parlance. The word 'advertisement' has not been defined in the statute and, hence, we will be justified in assigning it. the same sense as is given in the commercial world. Advertisement is publicity to the world at large with a view to attract political customers. It is mainly addressed to future customers though it may also be intended to retain present customers in a general sense. There is no quid pro quo between the outlay and the result. In the assessee's case, the payment is nothing more than an additional compensation of the same nature as selling commission which has been allowed and has not been treated as sales promotion expenses. A selling agent's commission, in our opinion, can never be treated as an outlay on advertisement, publicity or sales promotion. This is part of selling cost. If it is allowed directly as a discount to the buyer, it is an abatement in the price. Even if the goods are routed through a distributor, or a selling agent, the commission (and bonus) is an expenditure in the nature of sale commission which, in our opinion, is totally distinct from expenditure on advertisement, publicity or sales promotion. The expenditure contemplated under Sec-section (3A) of Section 37 is an expenditure on appeal to the potential customers at large and not a remuneration for service rendered to the assessee. In an advertisement outlay, there is no quid pro quo. A person who sees the advertisement may or may not buy the product advertised. Our interpretation is also buttressed by the fact that the various items which are exempted under Sec-section (3B) such as advertisement in a small newspaper, expenditure for maintaining an office for the purposes of advertisement, payment of salary to advertisement staff, expenditure on participation in press conference, sales conference, trade convention, trade fair or exhibition, expenditure on publication of pamphlets, etc., indicate the type of expenditure that is contemplated. Selling expenses by way of remuneration to agents and distributors, in our opinion, could have never been in contemplation of the disallowance which was introduced in the statute with a view to curbing ostentatious and excessive advertisement outlay at the expense of the exchequer. We, therefore, find no justification for invoking Section 37(3A) in the assessee's case with reference to the item of Rs. 1,80,055 as confirmed by the first appellate authority. The assessee's appeal succeeds on this point. 10 and 11. [These paras are not reproduced here as they involve minor issues.] 12. The last ground relates to claim for provision of gratuity to the extent of Rs. 2,18,672. The assessee had made a total provision of Rs. 2,24,540 and had paid Rs. 5,868 as gratuity to two employees who had retired during the year. It appears that an amount of Rs. 1,50,000 was a transfer from Mopeds India Gratuity Fund during the year while the further amount of Rs. 68,672 was debited to profit and loss account. The entire amount was considered to be not admissible on the simple ground that Section 40A(7) of the Act barred any such allowance as the gratuity fund was approved by the Commissioner only on 24-10-1978 though the application was dated 16-10-1978. He had also given some other ground as to why the entire amount could not be allowed. The assessee had claimed that it was a provision on the basis of actuarial valuation and that for the year under consideration there was a gratuity fund in existence. The ITO noticed that the gratuity fund has not yet been accorded recognition by the Commissioner and that he would allow the expenditure under Section 155(13) of the Act, on recognition. By the time the appeal came up, recognition was available but it was found that the assessee itself had applied for recognition on 16-10-1978. The fund itself, it is claimed, was created on 30-3-1978. It was pointed out on behalf of the revenue that the assessee had not applied for recognition during the year and that the recognition clearly stated that it was with effect from 24-10-1978 which is after the end of the accounting year. The ITO seems to have gone by the impression that if the fund was in existence during the accounting year, subsequent recognition is good enough especially in view of Section 155(13) which enables the ITO to allow the provision on such recognition. We are not able to say that his view was incorrect in view of the fact that the Madras Bench of this Tribunal, in the case of Palani Andavar Mills [IT Appeal No. 479 of 1980], accepted this view and this was followed in another case in Deccan Sugar & Bakari Co. Ltd. [IT Appeal No. 1426 of 1982] by 'B' Bench at Hyderabad by order dated 17-5-1983. Even creation of the fund subsequent to the year was considered permissible for the assessment year 1976-77 by this Tribunal in IT Appeal No. 773 (Mad.) of 1981 dated 9-1-1982. Orient Pharma (P.) Ltd. v. ITO [1983] 16 TTJ (Mad.) 423. Section 40A(7) bars a provision when there is no recognised fund. If there was a provident fund in existence as at the end of the year, we do not see how a later recognition could debar the assessee's right. It necessarily takes some time for the authorities to examine the claim. Similarly, the assessee also may take some time to file a formal application after the fund has been constituted. As long as the fund as constituted has been recognised, we are of the view that both the spirit and the letter of the law under Section 40A(7) should be taken as having been satisfied. The assessee, it would appear, would prima facie be eligible for the allowance even on the basis of what the ITO has stated in the order if the assessee's claim was correct, viz., that there was a gratuity fund in existence as at the end of the accounting year. The first appellate authority has also raised some doubt that the entire amount is not a provision since the amount of Rs. 1,50,000 would appear to be an amount which has not been charged to the profit and loss account during the year but only a transfer. If this amount had not been allowed as a deduction in any earlier year, it would appear that even this amount would be entitled to deduction. At any rate, since the ITO himself had promised consideration after recognition, we think the ends of justice will be met if the entire claim is remitted back to the ITO to decide the issue afresh in the view that if the fund had been constituted prior to the end of the accounting year, it makes no difference to the assessee's claim merely because such fund has been recognised only subsequently. The appeal on this point will be treated as allowed. 13. In the result, the appeal is partly allowed in the manner indicated in the earlier paragraphs.

Mopeds India Ltd. vs Inspecting Assistant ... on 30 September, 1983

Income Tax Appellate Tribunal - Hyderabad

Court No. - 1 Case :- MISC. BENCH No. - 980 of 2010 Petitioner :- Rakesh Bahadur Singh S/O Late Mahavir Singh Respondent :- State Of U.P. Thru Prin. Secy. Home & Ors. Petitioner Counsel :- Dr. L.P. Mishra Respondent Counsel :- C.S.C. Hon'ble Pradeep Kant,J. Hon'ble Ritu Raj Awasthi,J. Heard the learned counsel for the petitioner Dr. L.P. Mishra and Sri Vivek Kumar for the State. The petitioner is aggrieved by the action of the respondents in withdrawing his security of gunner which was given to him, without giving any reason and without communicating any such order. The security was continuing since long but the petitioner's case is that when his elder brother Dinesh Pratap Singh remained as a member of ruling party, the security was provided to the petitioner but the moment he withdrew from the said party and joined Congress party on 7.12.2009 and was declared as a member of Legislative Council, the security provided to the petitioner has been withdrawn. Submission is that it is because of change of political association, the security was withdrawn, though there is report of Superintendent of Police, Raebareli dated 17.12.2009 that the petitioner faces life threats and the Deputy Secretary vide order dated 15.12.2009 though had extended the security of one gunner to the petitioner, but the same has been withdrawn even two days before. On the plea of the State that since the petitioner is Thekedar, therefore, in terms of the relevant Government orders he cannot be provided security, the learned counsel for the petitioner stated that the petitioner is neither Thekedar nor any Theka was given to him and he is only the Block Pramukh. The questions aforesaid can more appropriately be looked into by the State Government. Even otherwise, the matters regarding grant/extension of security lie within the domain of the State Government and the High Court rarely interferes in such matters unless and of-course exceptional reason are there. We, under the circumstances give liberty to the petitioner to move an application for grant/extension of security as was provided to the petitioner earlier before the State Government within a maximum period of two weeks from today. If such an application is moved, the same shall be considered and decided by the authority concerned in accordance with law within a period of next six weeks. In case application is moved within a period of two weeks from today before the State Government, the security of one gunner as was provided to the petitioner shall be continued at 10% costs which shall be borne by the petitioner. Subject to aforesaid direction, the petition is disposed of finally. Order Date :- 4.2.2010 vks

Rakesh Bahadur Singh S/O Late ... vs State Of U.P. Thru Prin. Secy. Home ... on 4 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SA/125/1997 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 125 of 1997 ========================================================= DWARKADHISHJI TEMPLE'S JAGIR TRUST THRO'ADMINISTRATOR - - Appellant(s) Versus BAKALI FATMABAI IBRAHIM WD/O BAKALI AMAD JUSAB - Defendant(s) ========================================================= Appearance : MR YS MANKAD for Appellant(s) : 1, MR CH VORA for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 25/04/2011 ORAL ORDER At the joint request made by learned Advocate Mr. Y.S.Mankad for the Appellant and Mr. C.H.Vora for the Respondent, the matter is adjourned to 28.6.2011. (Rajesh H. Shukla,J) Jayanti*     Top

Author: Rajesh H.Shukla,&Nbsp;

Dwarkadhishji vs Bakali on 25 April, 2011

Gujarat High Court

Court No. - 36 Case :- WRIT - C No. - 4287 of 2010 Petitioner :- Committee Of Management Sri Dron Gaushala Samiti And Other Respondent :- State Of U.P. And Others Petitioner Counsel :- Uma Nath Pandey,Ravi Kant Respondent Counsel :- C.S.C. Hon'ble Prakash Krishna,J. Hon'ble Yogesh Chandra Gupta,J. As prayed, put up on 01.02.2010. (Prakash Krishna, J.) (Yogesh Chandra Gupta, J.) Order Date :- 29.1.2010 LBY

Committee Of Management Sri Dron ... vs State Of U.P. And Others on 29 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/1485/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1485 of 2010 ========================================= CHHAGANBHAI GANESHBHAI VAGHELA & 130 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) =========================================Appearance : MR KB PUJARA for Petitioner(s) : 1 - 131. MS MANISHA NARSINGHANI, ASSTT GOVT PLEADER for Respondent(s) : 1 - 2, 4, RULE SERVED for Respondent(s) : 1 - 3, 5, ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 15/10/2010 ORAL ORDER1. Learned Assistant Government Pleader Ms. Manisha Narsinghani pointed out that on 2.3.2010, this Court passed the following order:- Rule returnable on 20.01.2011... Learned advocate for the petitioners submitted that after this order was passed, as interim relief was not granted, a Letters Patent Appeal was preferred and in that Letters Patent Appeal, the Division Bench passed an order, relevant part of which reads as under:- 3. In view of the above facts and circumstances, it would be appropriate to request learned single Judge to hear and decide Special Civil Application No.1485 of 2010 as expeditiously as practicable and preferably by the end of September, 2010. It would be, in the meantime, neither necessary nor proper nor legal to entertain the present appeal for grant of any interim relief, overturning the impugned interim order of the Court. Therefore, the appeal is dismissed with the observations, as aforesaid, and request to learned single judge to hear and dispose the pending petition of the appellants, as far as practicable by the end of September, 2010. Notice is discharged. Learned advocate for the petitioners submitted that learned Single Judge then passed an order on 17.6.2010, which reads as under:- In view of the order of the Division Bench, the matter shall be fixed for hearing on 2nd July 2010. 2. On perusal of the record, it is found that respondent No.3 has not filed appearance so far. In light of that, the learned advocate for the petitioners requested that he be permitted to effect the service of order dated 17.6.2010 to the respondents, more particularly respondent No.3 and other similar respondents who have not filed appearance so far. Request is granted. The matter is peremptorily fixed for hearing on 26th October 2010. Direct service is permitted. It will be open for the petitioners to effect direct service by Registered Post A.D. in addition to other mode of service. (RAVI R.TRIPATHI, J.) omkar     Top

Author: Ravi R.Tripathi,&Nbsp;

Chhaganbhai vs State on 15 October, 2010

Gujarat High Court

I IN 'f"'I~II5£ HIGH COURT OF' KARNATAKA AT BAN Salted: This the 25" day ofdanuary 5 _ BEFORE THE HONBLE MR.JUS'i'ICE?'i2'.;J;¢'»'3<}\i~JI\E§;:;1?1+'3¥§'~3' ' CRL.P.N0§>_9_.96/20 1"O - AV 2 SR1 MITHUN, : S/O SHIVARAM, AGED'AI3OUTT=1'33 YE ARS~, _ R/AT NEKKILA, NEAR BANNURLI s#::~HoQI.,.--~ BANNURU V11,LA<3E:, 1?U'T'I'E.If2_TAL'UK,'~ " DAKSHINA ¥IA}\fN,ADA:j-. % 'V .. PETITIONER [By Sn. I:1AI¥k1_S}1'Q;,_::HARIjm<A;,::A:)?;/. FOR M/s.:jAGA£}.}?;I{,S1-i1V';V;8i_ ,F_IARISI~£ ASSOCIATS.) AND: S'£'AT_E BY4"'E'I.:*£*":°I.j.:2 ':'*0W'N POLICE. REE? BY S']_'ATE PUBLIC PROSECUTOR. V' . H-1<:;Ha.c.ot5RT OFVKPLRNATAKA BUILDING, . ' BAN GALORF-, ... RESPONDENT Sn' 9' EAWAZ. ADDL. SP9} Z VZWEIS CRLP FILEE) U,/84,439 CIxP.C PRAYENG TO z<:iE~é:Z.;AI2;G £3 "{'HiE:Z Pi§l'I'ZT'ZONE1R ON BAIL IN N i::Is:.1\sG.2;2:/2010 03' PU'i"i.'UR TOWN PS.' :::.K. W"?-{ESE ES REGDW FCFR 'T§"iE3 O¥'F'£§NCE P/if/S 375 R/W' 34. OF "f'I"--I£I; EPC 3'-RN11 SEC. 3{2}{v} OF SC/SI' {POA} ACT, 1989. THIS PE'.I'I'E'1ON COMING ON FOR 0Rr3:L:~e:§V'V" DAY, "me COURT MADE TE--IE FOL.L0wING_; ORDER Heard both sides i'e__v'r'e.speet'~ of the petitioner who is__ said t(J.._t§jave"eLomr'nj1ttedfiffenees L1/S 376 }'/W 34 :$('2){v) of SC/ST (POA) Act, 19%e9ttM " V% 2. made by the in the c:0mpIai11t lodged' by 'd;a'te of the offence has been me11tiorted3 'other hand, reading of the weti'id.._g0«'t0 Show that the aileged. iI1Cid€i1t ' is" taken place long back and after the v1<§JiL:i§n1 eetgaiiile pregnant. and delivered a Child, that the case was filed against the petite3.0'ner. 3. In VIEW' ef the above contents of the §SOi'E1p1ai1'fi; and eubmi-sei0z1 being made that even at. the time Of admissioil tie the hesgpital. :10 eempiaint -'"'~, :3 3:' ., fig/, /.5 -"3 's was lodged by the ViC,i',im alleging rape petitioner and aiso the of the victi.m _ 36 years, taking 211} these fe>.ct.o1".s;3jVn'1':.o the View that the petitioner imposing conditions. In the resuit, ielposing the foilowing C()f1CIiti()}T1.SL;_ 9 2 A» 1. on baii """ H 1 personal bond for __ 'eviih two sureties for the ' v . satisfaction of the triai shall not hamper the investigation shall not give threat €10 the prosectmion witinesses in any manner. He shall mark; his :«;1ttendaI1(:e before the jurisdietionezl pelice on every Saturday between 10.00 21.11": and 5.00 pm. 5": '= ,3, ,5?" 4. shali appear' bef'01'e the tzria} céo11'.fr_t "»(>n ail dates 0i'h(2ar1ng Vvithoui: faiigw I V 'A DVTI

Author: V.Jagannathan

Sri Mithun vs State By Puttur Town Police on 25 January, 2011

Karnataka High Court

Central Information Commission Appeal No.CIC/PB/A/2008/00718-SM dated 08.04.2008 Right to Information Act-2005-Under Section (19) Dated 22.01.2009 Appellant: Shri Ram Naresh Yadav Respondent: Debts Recovery Tribunal The Appellant is present in person. On behalf of the Respondents, the followings are present: (i) Sh. J. S. Mishra, Recovery Officer (ii) Sh. R. K. Trivedi, Registrar In addition Shri Ashok Arora, Sr. Manager, PNB is present as a third party. The brief facts of the case are as under. 2. The Appellant had requested the CPIO for a number of information concerning certain orders passed by the Debt Recovery Tribunal(DRT) for recovery of dues. The CPIO, in his reply dated 29 December 2006, provided item-wise information to the Appellant. Not satisfied with the reply, he filed an appeal before the first Appellate Authority within the organisation. The first Appellate Authority decided the appeal in his order dated 12 February 2008. That Authority, in a speaking order, upheld the decision of the CPIO and disposed off the appeal. The Appellant has now approached the Commission in second appeal. 3. During the hearing, both the Appellant and the Respondent made several submissions. We also carefully examined the appeal memo and the documents enclosed therewith. The Respondent claims that a copy of the appeal memo before the Commission was never received by them though the Appellant claims to have sent a copy to them earlier. However, after going through the records and keeping the submissions made by both sides in view, we find that the CPIO had indeed provided all the information as available to the Appellant within the stipulated period. We find no infirmity in the order of the Appellate Authority either. What appears to be the case is that the Appellant is not satisfied with the decision of the DRT to recover certain dues from him without the concerned Bank having deposited the requisite Court fees. This is a matter which has to be adjudicated by the relevant Appellate Authority under the relevant act and not by the Commission under the Right to Information Act. Since the information sought has already been provided, we do not see any ground to entertain this appeal and, hence, reject it. 4. Copies of this order be given free of cost to the parties. Sd/- (Satyananda Mishra) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission. Sd/- (Vijay Bhalla) Assistant Registrar

Shri Ram Naresh Yadav vs Debts Recovery Tribunal on 22 January, 2009

Central Information Commission

Court No. - 43 Case :- CRIMINAL APPEAL No. - 273 of 2010 Petitioner :- Santosh Pal & Another Respondent :- State Of U.P.Petitioner Counsel :- Rajiv Gupta,Dileep Kumar,Rajrshi Gupta Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad J. Admit. Summon the trial court record. Learned AGA is allowed one week time to file an objection on the bail prayer of the appellants. List this appeal on 9.2.2010 for consideration of bail prayer of the appellants. Order Date :- 22.1.2010 AKG/-

Santosh Pal & Another vs State Of U.P. on 22 January, 2010

Allahabad High Court

JUDGMENT A.K. Singh, J. 1. As per order-sheet dated 7.4.1997, all the respondents have been duly served. 2. Heard the learned Counsel for the appellants and the learned Counsel for the respondent No. 2. 3. This appeal is directed against the order dated 25.1.1996 passed by the learned Additional District Judge No. 2, Jodhpur in civil misc. case No. 56/93 Natharam v. Smt. Sukhi and Ors., under Order 39 Rules 1 & 2 read with Section 151 C.P.C. 4. By the impugned order, the learned Additional District Judge restrained the defendants (appellants and respondents Nos. 2 and 3) from raising any constructions and alienating the disputed property which consists of house as well as agricultural land, till the disposal of the suit. 5. Shri R.R. Nagori, counsel for the appellant, has submitted that on 25.1.1996, the date on which the impugned order was passed, he was representing Smt. Sukhi and Smt. Kamla and he was not representing Durgaram defendant No. 3 who is respondent No. 2 in this appeal.. It is further submitted by him that on 25.1.1996, the application under Order 39 Rules 1 & 2 read with Section 151 C.P.C. as well as the suit was being heard ex-parte against the defendant No. 3 Durgaram as an order under Rule 6 of Order 9 C.P.C. was passed against him. 6. The learned Counsel for the respondent No. 2 has submitted that when the respondent No. 2 came to know that the suit was proceeding ex-parte against him, he moved an application under Order 9 Rule 7 C.P.C. before the learned trial court and prayed that the order passed under Rule 6 of Order 9 C.P.C. be set aside. It is further submitted by him that on his application, the learned trial court has, by order dated 6.5.1998, set aside the order dated 20.11.1993. A certified copy of the order 6.5.1998 has been filed by the respondent No. 2. 7. A perusal of the order dated 6.5.1998 shows that on 11.3.1997, defendant No. 3 Durgaram filed an application before the trial court praying that the order dated 20.11.1993 be set aside. The grounds on which the prayer was made was that he came to know about the pendency of the suit when the notice dated 26.3.1997 pertaining to civil misc. appeal No. 277/96 was served upon him. The learned Additional District Judge No. 2, Jodhpur, by the order dated 6.5.1998, set aside the order dated 20.11.1993 whereby the suit was directed to proceed ex-parte against the defendant No. 3 Durgaram. As a necessary consequence of the order dated 6.5.1998, the defendant No. 3 Durgaram is entitled to take part in the proceedings before the lower court. He is entitled to file the written statement and raise such defences as may be available to him. The question is whether the impugned order dated 25.1.1996 against which this appeal has been filed, should be set aside on the ground that the application of Durgaram defendant No. 3 (respondent No. 2) under Order 9 Rule 7 C.P.C. has been allowed by the trial court and the order passed under Rule 6 of Order 9 C.P.C. directing that the suit be heard ex parte has been set aside. Rule 7 of Order 9 C.P.C. reads Procedure where defendant appears on day of adjourned hearing and assigns good cause for previsous non-appearance - when the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. 8. A bare reading of Order 9 Rule 7 C.P.C. shows that if the defendants assigns good cause for his previous non-appearance, and the Court recalls the order passed under Order 9 Rule 6 C.P.C, the defendant becomes entitled to take part in the proceedings from the date which had been fixed for his appearance on which due to non-appearance the direction that the suit would be heard ex parte was given by the Court. In view of this position of law, any order, which was passed in the absence of the defendant, must be regarded as an order passed otherwise than in accordance with law and that order deserves to be set aside because if the defendant, on account of the order passed under Rule 7 of Order 9 C.P.C. becomes entitled to take part in the proceedings in the same manner as if he had appeared on the date fixed for his appearance, the defendant must be heard afresh regarding the matter in respect of which order passed in his absence. 9. Where there are more defendants than one and the order under Rule 7 of Order 9 is passed in favour of only one of several defendants, whether the order passed against other defendants should also be set aside is not indicated by Rule 7 of Order 9 C.P.C. but there is an indication in the First proviso to Rule 13 of Order 9 C.P.C. in this regard. The First proviso to Rule 13 of Order 9 reads - Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendant also. 10. The proviso clearly indicates that if the order passed in the absence of a defendant is of such a nature that it cannot be set aside against such defendant only then the order may be set aside as against all or any of the other defendants also. The principal contained in the First proviso to Rule 13 of Order 9 C.P.C., appears to apply to the cases in which an order is passed by the Court under Rule 7 of Order 9 C.P.C. 11. For the reasons mentioned above, in exercise of powers conferred by Rule 23-A read with Rule 33 of Order 41 C.P.C., the impugned order dated 25.1.1996 is hereby quashed and set aside and the case is remanded to the learned Additional District Judge No. 2, Jodhpur with a direction that after giving opportunity to the defendant No. 3 Durgaram to file a reply of the application filed by the plaintiff Natharam and after giving an opportunity to the parties for hearing the application should be disposed of in accordance with law. In the facts and circumstances of the case, it appears to be just and proper to give a direction that as far as possible, the learned Additional District Judge No. 2, Jodhpur shall dispose of the application filed by the plaintiff Natharam under Order 39 Rules 1 & 2 read with Section 151 C.P.C. within a period of 60 days from the date of receipt of a copy of this order. It is further directed that till the disposal of that application, the status quo shall be maintained. 12. The appeal is disposed of accordingly.

Author: A Singh

Smt. Sukhi And Ors. vs Natharam And Ors. on 26 March, 1999

Rajasthan High Court

Gujarat High Court Case Information System Print CR.A/1165/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1165 of 2010 ========================================= STATE OF GUJARAT Versus BHAMBHALA LAKHUBHAI JIVABHAI ========================================= Appearance : MR R.C. KODEKAR, APP for Appellant ========================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 09/02/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) Appeal is ADMITTED. Bailable warrant in the sum of Rs. 5,000/- be issued against the respondent - accused. (A.M.KAPADIA, J.) (BANKIM.N.MEHTA, J.) pnnair     Top

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

Appearance : vs Bailable on 9 February, 2011

Gujarat High Court

(1) Packing charges ... Rs. 4,04,104.80 (2) Bottle deposits ... Rs. 11,61,333.00 (3) Crate deposits ... Rs. 4,48,482.00 JUDGMENT K. Jagannatha Shetty, J. 1. In these writ appeals and the S.T.R.P. facts being similar, common questions arise for consideration as to whether the bottle and crate deposits collected by the respondent-dealer formed part of the sale turnover exigible to tax under the Karnataka Sales Tax Act, 1957 and whether charges for packing materials, charged separately form part of the sale price in view of the provisions of rule 6(4)(ff) of the karnataka Sales Tax Rules, 1957. In other words whether the judgment of the learned single Judge in Write Petitions Nos. 18690 and 2305 of 1980 hoding that such deposits and charges are not exigible to tax, and that the issuance of show cause notices suo motu by the appellant was unwarranted, is sustainable. 2. Since the questions involved in these matters are common they have been heard together and we propose to dispose them of by a common judgment. 3. Writ Appeal Nos. 275 and 276 of 1984 have been filed by the Deputy Commissioner of Commercial Taxes, Bangalore City Division, Bangalore, against the judgment and order of the learned single Judge in Writ Petitions Nos. 18690 and 23015 of 1980. The Mysore Breweries Ltd. (respondent herein), was the petitioner in the two writ petitions. The aforesaid Mysore Breweries Ltd., is engaged in the business of manufacture and sale of liquor, and is a registered dealer under the Karnataka Sales Tax Act, 1957 ("the Act" for short). The liquor manufactured by it is sold in bottles and crates, using packing materials. For ensuring safe return of bottles and crates, it receives deposits from the purchasers. The deposit is refunded on return of bottles. It filed returns for the period from October 1, 1975 to December 31, 1975 and from January 1, 1976 to December 31, 1976, claiming certain sums representing packing materials as not forming part of the taxable turnover and, therefore, deductible under rule 6(4)(ff) of the Karnataka Sales Tax Rules (hereinafter called "the Rules"). Likewise the petitioner also disclosed certain amounts received by it as bottle and crate deposits made by the purchasers, which is claimed were not taxable not forming part of the sale price. The assessing authority after examining the returns and other relevant documents allowed the deductions. But the Deputy Commissioner of Commercial Taxes, Bangalore Division, Bangalore, acting suo motu, by two separate show cause notices, dated November 27, 1980 and August 4, 1981 issued to the petitioner under section 21(4) of the Act, proposed to revise the assessment orders made by the Assistant Commissioner in so far as they allowed the aforesaid deductions. The validity of the said two show cause notices was challenged by the respondent by filing two writ petitions before this Court. In the show cause notices, the Deputy Commissioner has called upon the petitioner to show cause why the assessment made by the Assistant Commissioner, be not revised as the deduction allowed on the following items was inadmissible, having regard to the facts of the case : 4. The learned single Judge, after examining the contentions of the parties held that though the Assistant Commissioner allowed deductions relating to the packing materials, the Deputy Commissioner, without adverting to the relevant rule or the reasoning adopted by the Assistant Commissioner, vaguely stated that the deduction was impermissible. Further, he held that the law permitted deduction on packing material if the same did not form part of sale price and was charged separately. In any event the Deputy Commissioner's proposal to disallow deduction on packing materials was vague and illegal. 5. With regard to the deposits for bottles and crates the learned single Judge, relying on the judgment in Dyer Meakin Breweries v. Commissioner of Sales Tax, U.P. [1972] 29 STC 69 (All.), held that deposits made by the purchaser as bottle deposits or crate deposits can hardly be treated as forming part of sale price. The learned Judge having regard to the orders of the Assistant Commissioner held that the Deputy Commissioner's action to revise them and initiate action suo motu under section 21(4) of the Act, was wholly unwarranted as no circumstances existed justifying the exercise of jurisdiction under section 21(4) of the Act. Consequently, he quashed both the show cause notices. 6. In S.T.R.P. the facts and circumstances under which the deduction for bottle deposits was claimed by the dealer and the deduction allowed on such deposits as not forming part of the sale price are similar. Respondent, M/s. Canara Liquor Agencies, have been dealing in liquor as second and subsequent dealer and the taxable turnover related to the supposed sale of empty beer bottles in respect of which certain deposits were taken by the sellers (manufacturers) from the respondent so as to ensure return of the empty bottles. The Commercial Tax Officer, III Circle, Mangalore, assessed the appellant for the financial year 1979-80 on May 7, 1982, on gross and taxable turnover of Rs. 54,059, surcharge of Rs. 5,406 and additional tax. This included the amount representing bottle deposits. Respondent preferred an appeal before the Deputy Commissioner of Commercial Taxes, Mangalore, contending that the empty bottles were returned by it to the seller and were, therefore, not sales. Relying on the judgment of the Allahabad High Court in Dyer Meakin Breweries [1972] 29 STC 69, and the Kerala High Court in McDowell's case [1980] 46 STC 79, it claimed that the deposits given in respect of the bottles was to ensure the return of the same to the seller, and it did not form part of the sale price. The appellate authority did not acceded to the contentions, and despite the fact this the matter was covered by the judgment of the Allahabad High Court, the appellate authority dismissed the appeal of the respondent. Hence, it filed and appeal before the Karnataka Appellate Tribunal, Bangalore. After considering the respective contentions of the respondent as well as the Revenue, the appellate authority noticed the judgments of the Allahabad, Kerala and Madras High Courts, reported in [1972] 29 STC 69 (Dyer Meakin Breweries v. Commissioner of Sales Tax), [1980] 46 STC 79 [Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. McDowell & Co. Ltd.] and [1980] 46 STC 85 (State of Tamil Nadu v. McDowell and Company Ltd.) and relying on the judgment of this Court in Writ Petitions Nos. 18690 and 23015 of 1980 (which is presently under appeal) allowed the appeal. While allowing the appeal, the Tribunal observed : "We are unable to see any difference between the case of a manufacturer collecting deposit, and a wholesaler or retailer returning the bottles and reclaiming the deposit amount left with the manufacturer. If, as held by our High Court, there is no sale of the bottles when deposit is collected, there cannot be any sale of the bottles when they are just returned and the amount deposited taken back. We, therefore, hold that the deposit collected by the assessee on returning the bottle is not taxable turnover. The appeal is allowed and the orders passed by the authorities below are set aside. The amount of the deposit which has been returned to the assessee by the manufacturer shall be excluded from the taxable turnover." 7. Both the writ appeals and the S.T.R.P. were heard together. The learned Government Pleader submitted that in S.T.R.P. No. 50 of 1984, the Tribunal has failed to notice that bottle deposits were part of sale price and ought to have seen that the agreements between the dealers and the purchasers do not create any obligation on the purchasers to return the bottles, nor was any time fixed for the return. He further contended that payment of the amount in respect of the bottles in advance (deposit) was a term of the sale and the amount taken for the bottles could only be the cost of the bottles. He also submitted that in the facts and circumstances of the case, the deposit collected by the respondent-dealer formed part of the sale turnover exigible to tax under the Central and the Karnataka Sales Tax Acts. 8. In the writ appeals, the learned Government Pleader submitted that the learned Single Judge has misread rule 6(4)(ff) of the Rules in holding that the charge for packing materials charged separately would not form part of the sale price. He also contended that the learned Judge ought to have held that the amount taken by the dealers from the purchasers towards bottles deposit formed part of the sale price and the transaction included sale of bottles and crates by the dealer to the purchaser and as such was liable to be assessed to sales tax under the Act. He also contended that the learned Judge ought not to have allowed the writ petitions but ought to have remitted the matter for finding out whether there was a written agreement as to the deposit of amount towards bottles and crates for ensuring return of the same. In the event, the Deputy Commissioner had issued only show cause notices and at that stage it was prematurely challenged, though necessary materials were not available for purpose of finding out whether there was an express or implied contract to support the conclusion that the deposits on bottles and crates were taken only for purpose of securing return of the same. 9. We have carefully considered the contentions urged on behalf of the appellant by the learned Government Advocate, but we have come to the conclusion that those contentions cannot be accepted for more than one reason. Firstly, we have had the advantage of the well considered order of the learned single Judge (Puttaswamy, J.), who found that there was no justification for issuance of the show cause notice, when the respondent claimed deduction on the packing materials, which had been separately charges and did not form part of sale price, and the assessing authority (Assistant Commissioner) being satisfied with the same allowed the same. The Deputy Commissioner, could not have proposed to disallow deduction on packing materials when rule 6(4)(ff) was so clear. We find that the fact that the respondent charged separately for packing materials is not disputed in the show cause notice. The Assistant Commissioner having held that deduction was permissible under rule 6(4)(ff) of the Rules, there appears no reason to question the deduction allowed. The learned single Judge taking into consideration the conspectus of these facts had reached the conclusion that the Deputy Commissioner has illegally proposed to disallow the deduction on packing materials, and in our view, he has rightly held so. 10. The second contention of the learned Government Advocate is that the bottle and crate deposits taken by the respondent from the purchasers while selling liquor amounts to a sale of such bottles and crates, and though it is intended to ensure the return of the bottles and crates no deduction could be allowed, and the Deputy Commissioner has rightly issued show cause notices, proposing to disallow the deductions. In the show cause notices facts and figures as to deposits for bottles and crates have been shown item-wise. The learned Government Advocate, further contended that there is no express written agreement as to the terms and conditions under which the bottles as well as crates are to be returned. Further, he pleaded that the matter will have to be investigated into, and as such the matter ought to have been remitted back for investigation to the authority concerned. In support of his contention he relied upon the decision in Rayalaseema Enterprises v. State of Andhra Pradesh . This decision is inapplicable to the facts of this case for the facts borne out in this case do clearly establish that there was no sale of the bottles and crates, and the very fact that deposits were made for ensuring returns of the bottles and crates, support an implied agreement between the seller and purchaser that there was no transfer of title in such bottles and crates which were required to be returned. 11. A perusal of the show cause notices also discloses that they contain statement of facts which are not in dispute, and further establish that there was implied contract between the dealer and the purchaser, that bottles and creates were not sold along with the liquor. The Deputy Commissioner in the said show cause notices states as follows : "Purchasers such as wholesaler/retailers and the consumers are aware of the fact that they were paying the cost for the beer contained in the bottle and not for the bottle itself. There is no implied or express contract between the seller and the purchaser for the sale of bottle along with the beer. Price received by the dealer is towards beer only but not the bottles." 12. In view of the undisputed factual foundation on which the show cause notices proceed, we see no reason to accept the contention of the Government Advocate to remit the cases for investigation to find out whether there was an express or implied contract between the seller and the purchaser of liquor with regard to the bottles and crates in question. 13. The contention of the learned Government Advocate that the amounts taken by the dealer from the purchasers as deposits for bottles and crates, though termed as deposits are really part of the sale price cannot be accepted. 14. Let us examine the position to find out as to whether the deposits do form part of the sale price; and whether such amounts taken by the seller from the purchaser amount to sale of bottles and crates. 15. At the outset it may be stated that the very fact of taking deposits by the seller from the purchaser is to ensure return of bottles and crates. The learned single Judge, after referring to the Chambers Dictionary has observed that the term "deposit" in the context the meanings given to the term, viz., something entrusted to another's care, a pledge, a bailment, where one entrusts goods to another to be kept without recompense appears to be apposite. 16. "Sale" is defined to mean a contract between two parties called respectively the "seller" and the "buyer" by which the former in consideration of the payment or promise of payment of certain price in money transfers to the latter the title and possession of the property. Sale is also to be distinguished from bailment and the difference is to be found in the fact that the contract of bailment always contemplates the return to the bailer the specific article delivered. But sale never involves the return of articles, but only consideration in terms of money. This amount, viz., deposit made by the purchaser with the seller as bottle deposits or crate deposits while selling liquor cannot be treated as forming part of the sale price. 17. In Dyer Meakin Breweries v. Commissioner of Sales Tax, U.P. [1972] 29 STC 69, the Allahabad High Court has held, that deposit, made with the manufacturer and the seller of liquor does not form part of the sale price and is not assessable to sales tax under the Uttar Pradesh Sales Tax Act, 1948. 18. Similar view was also expressed by the High Court of Kerala in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. McDowell & Co. Limited [1980] 46 STC 79 and by the Madras High Court in State of Tamil Nadu v. McDowell and Company Ltd. [1980] 46 STC 85. Relying on these decisions the learned single Judge, has held that the deposit relating to bottles and crates does not form part of the sale price and it is not exigible to tax. We are in full agreement with the view expressed by the learned single Judge. 19. In the aforesaid view of the matter, we do not accept any of the contentions raised on behalf of the appellants in these writ appeals, as well as in the S.T.R.P. No. 50 of 1984. 20. The appeals fail and they are accordingly dismissed. 21. Similarly, S.T.R.P. No. 50 of 1984 is also dismissed. 22. In the facts and circumstances of the case, there will be no order as to costs. 23. Writ appeals and revision petition dismissed.

Author: K J Shetty

Deputy Commissioner Of ... vs Mysore Breweries Ltd. on 17 August, 1990

Karnataka High Court

Central Information Commission, New Delhi File No.CIC/SM/A/2010/000926 Right to Information Act­2005­Under Section  (19) Date of hearing : 23 February 2011 Date of decision : 23 February 2011 Name of the Appellant  : Smt. Nirmala Tirkey W/o. Late Shri Charles Tirkey, Alert Compound, Pathal Kudwapurulia  Road, Ranchi. Name of the Public Authority   : CPIO, Punjab National Bank, Inspection & Audit Department, Jharkhand Circle Office, Ranchi. The Appellant was present along with Shri J.A. Kauzar. On behalf of the Respondent, Shri A.K. Patra, Senior Manager was  present. Chief Information Commissioner : Shri Satyananda Mishra 2. Both the parties were present in the Ranchi studio of the NIC during the  hearing. We heard their submissions. 3. The   Appellant   had   sought   a   number   of   information   regarding   the  reimbursement/payment of various entitlements of her deceased husband who  served the Bank for more than 24 years and had been hospitalised due to a  paralysis attack prior to his death. The CPIO had taken quite a long time to  provide the information. Although he had provided extensive details against all  CIC/SM/A/2010/000926 the queries of the Appellant, she was not satisfied and felt that some of this  information was incorrect and misleading. She also expressed serious objection  to the inordinate delay in providing whatever information. 4. The Respondent submitted that the desired information was not held at  one place and had to be collected from a number of Branches and offices of the  Bank where the deceased had served from time to time during his career in the  Bank   and,   that   was   the   reason   why   it   took   so   long   to   piece   together   the  information. Looking to the volume and extent of information sought, we think  that   some   delay   beyond   the   stipulated   period   of   30   days   was   inevitable;  nevertheless, we think that the CPIO should have collected it much earlier. 5. Be that as it may, we think that the Appellant should be shown all the  relevant  records  for   inspection.  Therefore,  we  direct  the   CPIO  to   invite   the  Appellant on any mutually convenient date within 20 working days from the  receipt of this order and to show her and her representative all the records  relating to her queries. If, after inspection, she chooses to get the photocopies  of  some  of  those  records,  the   CPIO  shall   provide  the   same  to   her  free  of  charge. 6. The appeal is disposed off accordingly. 7. Copies of this order be given free of cost to the parties. (Satyananda Mishra) Chief Information Commissioner CIC/SM/A/2010/000926 Authenticated true copy.  Additional copies of orders shall be supplied against  application and payment of the charges prescribed under the Act to the CPIO of this  Commission. (Vijay Bhalla) Deputy Registrar CIC/SM/A/2010/000926

Ms.Nirmala Tirkey vs Punjab National Bank on 23 February, 2011

Central Information Commission

Gujarat High Court Case Information System Print SCA/25260/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25260 of 2007 ========================================================= SANJAYKUMAR NAVINCHANDRA PAREKH - Petitioner(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR AJ SHASTRI for Petitioner(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1, MR SM SHUKLA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/07/2008 ORAL ORDER Considering the dispute between the parties, more particularly, custody of the minor, it will be appropriate to explore the possibility of some settlement. Let the parties remain present before the Court in the Chamber on 30.7.2008 at 4.45 p.m. (M.R.Shah,J) pathan     Top

Author: M.R. Shah,&Nbsp;

Sanjaykumar vs The on 22 July, 2008

Gujarat High Court

JUDGMENT Kulwant Sahay, J. 1. This is a reference made by the District Magistrate of Gaya, recommending that the order passed under Section 147 of the Cr.P.C. by the Deputy Magistrate, directing the second party to desist from putting in earth on a weir, should be set aside. The reason upon which the learned District Magistrate recommends that the order should be set aside is that in the proceeding under Section 147 the second party was one Isher Singh who was the gomashta for the 9-annas Tikari Raj and the proprietor was not made a party. It appears that the first party, who is a proprietor of village Khaira, objected to the second party, the gomashta of the Tikari Raj, putting earth work on a certain weir which had the effect of diverting water into his own village Khaira with the apprehension of submerging the whole village. The learned District Magistrate is of opinion that the real party interested in the dispute is the proprietor, namely, the Maharaja of the 9-annas Tikari Raj, and that the Maharaja himself or his duly appointed mukhtear-am should have been made a party, and not the gomashta as it is possible that the gomashta might be dismissed or transferred to another place and the order would not be binding upon the Tikari Raj or any other gomashta when he comes in place of Isher Singh. He has referred to certain cases where it is held that the person really interested should be made a party in the dispute. There can be no doubt that it was desirable that the person really interested ought to have been made a party but I am not satisfied that the proceeding will be illegal or without jurisdiction because the gomashta, and not the proprietor, was made a party to the proceeding. The cases referred to by the District Magistrate have almost all been referred to in the Full Bench case of the Calcutta High Court in Dhondhai Singh v. Follet 31 C. 48 : 7 C.W.N. 825 where it was held by the Full Bench that there is jurisdiction under Section 145 of the Cr.P.C. to make an order in favour of a person who claims to be in possession of the disputed land as agent to, or the manager for the proprietors when the actual proprietors are not residents within the Appellate Jurisdiction of the High Court. In Bhola Nath Singh v. Wood 32 C. 287 a Division Bench of the Calcutta High Court distinctly held that the fact that the manager, and not his employer the zemindar, has been made a party to a proceeding under Section 145 of the Cr.P.C., is a mere irregularity, or at most an error of law which does not affect the Magistrate's jurisdiction. 2. No doubt, under the amended provisions of the Cr.P.C., orders under Sections 145 and 147 can be revised by the High Court not only on the question of jurisdiction but also on the question of illegality, but I do not find any illegality in the Magistrate's making the order under Section 147 against Isher Singh, who as gomashta filed the written statement on behalf of Tikari Raj and set up the claim of the Tikari Raj to put up earth work on the weir. The learned Vakil appearing for the petitioner is unable to cite any authority which would go against the decision in the cases reported as Dhondhai Singh v. Follett 31 C. 48 : 7 C.W.N. 825 and Bhola Nath Singh v. Wood 32 C. 287 referred to above. 3. I am unable to accept the recommendation of the learned District Magistrate. The order under Section 147 will, therefore, stand.

Author: K Sahay

Chhakauri Lall vs Isher Singh on 6 November, 1924

Patna High Court

[Complete Act]

Central Government Act

Central Information Commission SA/UG/09/F6802BX/AD Dated January 22, 2009 Name of the Appellant : Mr.A.M.Attar Name of the Public Authority : Haj Committee of India Background1. The Appellant filed his RTI application dt.14.6.08 with the PIO, Haj Committee of India. He sought information against 12 points with regard to increase in cost of Haj pilgrimage. The PIO replied on dt.Nil giving point wise information. The Appellant filed an appeal dt.14.7.08 with the Appellate Authority seeking clarifications and information on certain replies provided by the CPIO for the points 2,3,4,6,7,10 & 12. The Appellate Authority replied on 28.7.08 providing clarifications to all the points. Not satisfied with the reply, the Appellant filed a second appeal dt.22.9.08 before the CIC. 2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing on January 22, 2009. 3. Mr. M.A. Khan, Personnel Officer and Md. Owais, CEO represented the Public Authority. 4. The Appellant was not present during the hearing. Decision 5. The Commission reviewed the information provided to the appellant and noted that all available information have been provided to and accordingly disposes off the appeal. (Annapurna Dixit) Information Commissioner Authenticated true copy: (K.G.Nair) Designated Officer Cc: 1. Mr.A.M.Attar Shamshad Nagar D/2 Building, Flat No.5 Mumbai - Pune Road Mumbra 500 612 2. The CPIO Haj Committee of India Haj House 7 - A.M.R.A. Marg Mumbai 400 001 3. The Appellate Authority Haj Committee of India Haj House 7 - A.M.R.A. Marg Mumbai 400 001 4. Officer in charge, NIC 5. Press E Group, CIC

Mr.A.M.Attar vs Haj Committee Of India on 22 January, 2009

Central Information Commission

IN THE man coxxm 0:: KARNATAKA A1' nAN<;,a.}f';?§i2i#:*»{.%, HATED THIS THE am DAY 0? FE3RuARYv2<)09' ' % BEFORE THE HON'F§LE MR. .111vsT1<:i%;~{§'s:iéoéA:§N%AV A. awn. PFYTITION N'€):_"2?8/.§(}£}7' BETWEEN ; A" M 1 N SAVYFHA W/O AN NAVAEENE. D/{3SGNAGfiRAJA '- _ ' ' AGED A5501}? 31 YEARS - . ., OLD N039 {NEW NhO.?_;3}---~" * ., 1211: mass, SUBBMAH R_C}A¥) KoDANAr;£xRAM'?URAT;..Mm,L€,sHv1ARAMA BANGA§,oi?Ego3 ' 2 MASFER' 'f§KAS».SfQ AN NAVEEN AGES ABoUT"5Y'.aARs"'*--- ' ' 01.32: N329 (NE»§§2'._N'D,7"£:,1 xzmcaess,'-N suaasuan ROAD KO§ANAD£RAM?i¥RA;' MALLESHWARAMA 4 BANGALORE-G3 "~:.R15:PRE,sENTEm_3Yv HES MOTHER AND A _ " N.F+.'§'{IRA§.. GUARDIAN. SMT N SAVITHA PEj'{'iTIQNE.R No.1 PEWPIONERS " s:3§'sfi;V'isé5@Ht§"KAR M DESHPANDE, ADV.) ._AND: ~~ ' % Q3: r~':'i~z;e.vEB;r~: 3/0 A NACARMA AGED' ABOUT 36 YEARS ~ Ego GANDHINAGMZ', arm CROSS _ "_E's" BLOCK, SHIMOGA RESPONDENT1: Snlcmniseti fin i'?'.4.2002. Due tn marital petitiontiar and the rcesgmndcnt are resaiding : V' is smtm that the saetmnd petitioner " petitioner. The petitinncm herein cm the parents nf the first at fimt = L' petitioner has no indeper1dent...s{¢'i3uwa_V nf iismd the smttnnd pfifitifitiflf is pfiéssi-.n.tlj.'L. }3:;!r'Vl'i:I'{"'§.'I'}'V§F§["i£,c;> '}']l'_S mhooling at Bangalore. 4. 't::vz§.\/:°. }vii1'stit11t::=:ti a suit in 0.3. Fiangalmra seeking maintcnxé.m:¢ from the respondent since accmfiing = tjl_ic:".rz1,';-- tiie Vféégmndent has failed to maintain tlw: fifing of the said suit, the to have filed a gjaetitian under Sectinn 9 of Act awaiting utsfitllticm of ocmjugai rights 'pefiding in MG No.2[2OQ7 an the: file af ("fivil Jurlgc A .. ' Shimoga. The Eearnezi aollnsei for the petitioners ggantrrnds that they are unable to appear in Shixnrga and Jag whct.'he:"r the petifinrzer is jtlfifififid in staying 3 nespnndent an as to entitle herself to mamtfinafltaé an insane which would be common tG both;« «_ 6. For thf) said reasonse, ifiiizy 'Vstcauight 'V for Inquires tan be gzaantgcia {he fiéfifionvvimnding on the file of Civil J11dg(x:4"(V.%,'9..__1".'¥"'.fi*:} No.2/200*? sh:-xii stand ' to the Family along with 0,S.No.,3--7Q 1% di§apns.ved of. & % Sd/-3 " %%%%% Tudgé i .. _L % Aka/bmhs':.

Author: A.S.Bopanna

Smt N Savitha vs Sri A N Naveen on 6 February, 2009

Karnataka High Court

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Smt. Noor Jahan vs District Panchayat Raj Officer & ... on 27 August, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/13646/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13646 of 2010 ========================================= THAKORE LAKHMANJI HARCHANDJI LAGOTHI & 7 - Petitioner(s) Versus HABIBBHAI RAHIMBHAI MUMAN & 1 - Respondent(s) ========================================= Appearance : MR DIPEN A DESAI for Petitioner(s) : 1 - 8. None for Respondent(s) : 1 - 2. ========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 15/11/2010 ORAL ORDER Notice returnable on 13.12.2010. Direct service is permitted. [M.D.Shah, J.] satish     Top

Author: Md Shah,&Nbsp;

Thakore vs Habibbhai on 25 November, 2010

Gujarat High Court

Gujarat High Court Case Information System Print SCA/1529/1998 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1529 of 1998 ========================================================= MANOJKUMAR H PATHAK - Petitioner(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR MIHIR H JOSHI for Petitioner(s) : 1,MS HEMANI S BHATT for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 31/03/2010 ORAL ORDER Office is directed to place this matter along with the order Special Civil Application No. 7825 of 1997 dated 2nd July 1998 and also copy of the judgment in the case of Government of Andhra Pradesh and Ors. Vs N. Subbaryudu and Ors reported in (2008) 14 Supreme Court Cases 702. S.O to 14th April 2010. (K.S. Jhaveri,J.) mary//     Top

Author: Ks Jhaveri,&Nbsp;

Manojkumar vs State on 31 March, 2010

Gujarat High Court

HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Case :- WRIT - A No. - 10532 of 2022 Petitioner :- Durgesh Singh Respondent :- The Chief Manager H.R.M. Staff Admin Depot And 6 Others Counsel for Petitioner :- Arvind Kumar Tiwari Counsel for Respondent :- Anadi Krishna Narayana Hon'ble Neeraj Tiwari,J. Case was called in revise. Learned counsel for the petitioner is not present whereas Sri Ashok Trivedi, learned counsel for the respondents is present. Present petition has been filed with following relief; "(a). Issue a writ, order or direction in the nature of certiorari to quashing the impugned order dated 01.03.2021 issued/ passed by respondent no. 4 respectively. (b). Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to consider the claim of the petitioner with regards of compassionate appointment." Sri Ashok Trivedi, learned counsel for the respondents submitted that as per Circular dated 01.12.2020, family member of employee, who died after age of 55 years is only entitled for higher quantum of Ex-gratia Financial Relief and no option for recruitment in such cases. In the present case, father of petitioner died at the age of 59 years, therefore, he is not entitled for appointment on compassionate ground as claimed. He next submitted that as per very same Circular, either appointment on compassionate ground or Ex-gratia Financial Relief is to be given as per choice of dependent. Admittedly, Ex-gratia amount of Rs. 18,00,000/- have already been paid to the mother of petitioner, which is also recorded by this Court in Writ A No. 10468 of 2022 in its order dated 21.07.2022. Lastly, he submitted that undisputedly, in the present case, father of petitioner died at the age of 59 years, therefore, he is not entitled for compassionate appointment coupled with the fact that his mother has also availed the remedy of Ex-gratia payment to a tune of Rs. 18,00,000/-. Under such facts of the case, there is no illegality in the impugned order dated 01.03.2021, therefore, petition lacks merit and may be dismissed. I have perused the Circular dated 01.12.2020 as well as order dated 21.07.2022 passed in Writ A No. 10468 of 2022. The facts so argued by learned counsel for the respondents are undisputed and part of record, therefore, there is no illegality in the impugned order dated 01.03.2021 passed by respondent no. 4. Accordingly, writ petition lacks merit and is dismissed. No order as to costs. Order Date :- 22.7.2022 Arvind    

Durgesh Singh vs The Chief Manager H.R.M. Staff ... on 22 July, 2022

Allahabad High Court

Court No. - 7 Case :- CIVIL REVISION No. - 30 of 2005 Petitioner :- Mohd. Farookh Respondent :- Pratap Narain Jaiswal Petitioner Counsel :- Anurag Srivastava Hon'ble Dr. Satish Chandra,J. List has been revised. None appeared on behalf of the revisionist to press this revision. It may be mentioned that the law helps those who are vigilant and not those who sleep over their rights as per the maxim, "VIGILANTIBUS, ET NON DORMIENIBUS, JURA SUB VENIUNT". The revision is dismissed for want of prosecution. Order Date :- 27.7.2010 KS/

Mohd. Farookh vs Pratap Narain Jaiswal on 27 July, 2010

Allahabad High Court