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JUDGMENT S.K. Seth, J. 1. The Additional Sessions Judge, Chhatarpur vide his judgment dated 21-7-1980 passed in Sessions Trial No. 33 of 1980 convicted accused Munna Singh under Section 302 of the Penal Code and sentenced him to imprisonment for life. This appeal by the accused is directed against his abovesaid conviction and sentence. 2. The prosecution case, briefly stated was as follows: The incident took place on the night of 1-11-1979 in village Kusuma of Chhatarpur district. About 10, 15 villagers were gambling with the help of playing cards near a well called Bhadhauwa Kua in the village. Accused Munna Singh and deceased Waheed were amongst those who were standing nearby and watching the game. Accused Munna Singh was having a lathi to which a farsa was attached. All of a sudden, he made an assault on the deceased with the abovesaid weapon. On seeing this, all those who were gambling or were watching the game fled away from there. These included P. W. Devideen, P. W. 4 Har Prasad, P. W. 5 Bhuwania and P. W. 8 Barelal. On the next day i.e. 2-11-1979, in the morning, P. W. 10 Umashanker a boy aged about 10 years, saw Waheed lying dead near the well without wounds over his body. He went and told P. W. 9 Guddi younger sister of Waheed, about what he had seen. P. W. 9 Guddi went to P. W. 1 Alam Khan who was a cousin of the deceased and informed him about the dead body of Waheed lying near the well. On hearing this, P. W. 1 Alam Khan rushed to the well. He too saw the dead body of Waheed lying there without wounds over it When he was returning to his house from the well, he met P. W. Devideen on the way. P. W. 2 Devideen told him that it was accused Munna Singh who had committed the murder of his brother. P. W. 1 Alam Khan then went to police-station Maharajpur which was situated at a distance of about 1½ Kms. from the village and lodged first information report (Ex. P-l) at 7.15 A. M. 3. There were certain remarkable features of the evidence produced on behalf of the prosecution in the case. All the so-called eye-witnesses to the incident, namely P. W. 2 Devideen, P. W. 4 Har Prasad, P. W. 5 Bhuwania and P. W. 8 Barelal were meaningfully silent on the point as to what had led to the assault in question made on the deceased. All of them were stated to have consumed liquor that had been served to them by P. W. 5 Bhuwania before the gambling began. They were so delightfully vague even regarding the one blow said to have been heard or seen by them that the inference was irresistible that they were trying to suppress the truth as regards not only the genesis of the incident but also the manner in which the same occurred. 4. Again, it was remarkable that all the abovesaid persons returned quietly to their respective houses after the incident and none of them bothered to go to the house of the deceased and inform his relations as to what had happened. Even on the next day, it was only because he happened to meet P. W. 1 Alam Khan on his way to the place of his work that P. W. 2 Devideen was alleged to have informed Alam Khan about Munna Singh having Committed the murder of his brother Waheed 5. Further the injuries found on the dead body of Waheed were comprised of as many as 9 incised wounds and multiple abrasions, which did not appear to be a handiwork of one man. There did exist some evidence on the record, for whatever worth it was, about all the abovesaid persons having been hauled up at the police-station on the next day and coerced to name Munna Singh as the assailant. 6. In the abovesaid situation, we fail to understand as to how when the evidence of three of the above-mentioned witnesses namely P. W. 4 Har Prasad, P. W. 5 Bhuwania and P. W. 8 Barelal was rejected as worthless by the Additional Sessions Judge, what particular merit the learned Additional Sessions Judge found in the evidence of P. W. 2 Devideen so as to base the conviction of the accused on the basis of the evidence of the said witness. In our opinion there was no qualitative difference between the evidence of P. W. 2 Devideen and that of the other three witnesses mentioned above and it was equally unsafe to base the conviction of the accused for the offence of murder on the evidence of this witness. There was no other evidence produced in the case to connect the accused necessarily with the commission of the said offence. The accused was entitled to benefit of doubt and deserved to be acquitted. 7. For the reasons stated above the appeal is allowed. The conviction and sentence of the accused under Section 302 of the Penal Code are set aside and he is acquitted. He shall be set at liberty forthwith unless required to be detained in some other matter.

Author: S Seth

Munna Singh vs State Of Madhya Pradesh on 3 March, 1983

Madhya Pradesh High Court

JUDGMENT Kania J. 1. This is a second appeal from the decision of the District Judge at Poona which raises a question in execution. The respondents filed in the Bombay High Court suit No. 250 of 1929 against one Nowroji Kawasji. The suit was dismissed with costs. After the costs were taxed the figure of Rs. 3,500 was fixed. The decree was transmitted to Poona and from there transferred for execution to the Court of Second Class Subordinate Judge at Vadgaon. On September 28,1936, appellant No. 1, who is the executor of the will of Nowroji Kawasji, filed a darkhast. The property was then duly advertisedfor sale and knocked down to appellant No. 2 on August 4, 1937. On September 2, 1937, the respondents made an application headed " Under Order XXI, Rule 90" to set aside the sale. The relief was sought on three grounds: (1) that the Second Class Subordinate Judge at Vadgaon had no jurisdiction to sell the property; (2) material irregularities; and (3) that the purchaser was a benamidar of the original decree-holder. I am not concerned with the last two as the lower Courts have recorded their findings against the respondents on those points. On this application being filed certified copies of the concise statement and the judgment of the High Court in suit No. 250 of 1929 were produced and filed before the Court. On September 20, 1937, the Second Class Subordinate Judge dismissed the application and issued a certificate of sale, with an order for possession. From that an appeal was preferred to the District Judge at Poona. The District Judge confirmed the view of the lower Court on points Nos. 2 and 3, but came to the conclusion that the Second Class Subordinate Judge had no jurisdiction to sell the property, and, therefore, set aside the sale. The decree-holder and the auction purchaser have appealed to the High Court. 2. On behalf of the appellants it is contended that the decree received for execution by the Second Class Subordinate Judge's Court did not show on its face that it was not capable of being executed by that Court. Secondly, that after the execution proceedings came to an end by the sale of the property, it was not open to the respondents to contest the jurisdiction of the Court at a later stage. The application being headed under Order XXI, Rule 90, the question of jurisdiction cannot be raised by the respondents, and the trial Court was therefore right in ignoring that question. Thirdly, because the respondents stood by till the execution proceedings came to an end, the objection should be considered waived. Lastly, it was urged that if it be held that the Second Class Subordinate Judge had no jurisdiction, as the subject-matter was over Rs. 5,000, the lower appellate Court (the District Judge) had no jurisdiction to entertain the appeal as in that event an appeal would lie to the High Court. When an executing Court proceeds to execute a decree it proceeds on the footing of the decree which is transmitted to it for execution. The executing Court will have no jurisdiction to go behind the decree to question the jurisdiction of the Court which had passed the decree. If, however, a dispute arises as to the jurisdiction of the executing Court, it has to be deeded by that Court. When doing so, documents which are part of the proceedings in execution of the decree can be legitimately looked at. Therefore to determine the jurisdiction of the executing Court the concise statement and the judgment of the Court, showing what was the suit, will be relevant to be looked at. I do not find anything in law to prevent the executing Court from looking at those documents to determine its jurisdiction to execute the decree. The contention that on the face of the decree it did not appear to be beyond the jurisdiction of the executing Court overlooks the fact that the concise statement and the prayers of the plaint normally form part of a decree. The decree in this case, as presented to the Second Class Subordinate Judge, commenced with a statement that the plaintiffs had prayed for specific performance of an agreement dated November 10, 1925, and in the alternative for damages. Although the decree as drawn did not mention the amount involved, it was clear that the matter might be within the jurisdiction or beyond the jurisdiction of the executing Court. There was nothing on the face of the decree to show that it was within the jurisdiction of that Court. I do not agree with the contention that unless the decree on the face of it shows that it was beyond the jurisdiction, the question cannot be raised at a later stage. Section 21 of the Civil Procedure Code does not help the appellants as the dispute is not in respect of the place of suing but goes to the very foundation of the jurisdiction of the executing Court. In Shri Sidheshwar Pandit v. Shri Harihar Pandit (1887) I.L.R. 12 Bom. 155. in considering the jurisdiction of the executing Court, it was stated as follows (p. 157): .. .execution of the decree by Section 223 of the Civil Procedure Code [of 1882] belongs to the Court which has pronounced it, and as the Second Class Subordinate Judge could not have entertained the suit, so neither could he deal with it in execution. 3. That passage shows that the standard by which the jurisdiction of the executing Court has to be considered is its capacity to try the suit itself. Under the circumstances it cannot be urged that unless the decree on the face of it showed want of jurisdiction, the same must be deemed to exist. This question is material because the jurisdiction of each of the subordinate Courts is based on what the Legislature has invested it with. It is not a matter of consent of parties. Therefore if a Court attempts to deal with a matter which is beyond its jurisdiction, no consent of the parties, as has been repeatedly held, can give it jurisdiction. Of course the question of irregular exercise of the jurisdiction vested in the Court stands on an entirely different footing. Proceeding in this case on the footing that the Second Class Subordinate Judge at Vadgaon had no jurisdiction to try the suit filed in the High Court, it will have, according to the observations in Shri Sidheshwar Pandit v. Shri Harihar Pandit, no jurisdiction to execute the decree in that suit. 4. The contentions that the objection should have been taken at an earlier stage and that there was a waiver are based only on the grounds of general principles of justice. A question of waiver cannot arise unless it is pleaded, and in the present case there is nothing to show that the respondents by their conduct had waived the objection. The sale took place on August 4, 1937, under the first darkhast filed in September, 1936. Moreover, as I have pointed out, when the question goes to the root of the jurisdiction there is no question of waiver or acquiescence. 5. On behalf of the appellants my attention was drawn to the judgment in Naro Hari v. Anpurnabai (1874) P. J. 218, quoted in the foot-note to Vishnu Sakhram Nagarkar v. Krshnarao Malhar (1886) I.L.R. 11 Bom. 153, 100n. Some observations in that judgment, indicating that there may be acquiescence, have been relied upon, but the facts were entirely different. The parties there had rested content with the situation arising from certain orders for years after they were made. In the light of subsequent rulings and observations of the Privy Council, I do not think the observations there found, about acquiescence, as sought to be construed by the appellants, can be given effect to. The decision in that case was based particularly on the fact that the parties had acquiesced in the situation for years and it was not proper to disturb the position by inquiring into the question of jurisdiction of the executing Court. 6. Because the application was headed under Order XXI, Rule 90, the question of jurisdiction raised in it cannot be ignored. The heading was immaterial. 7. The last contention that the appeal should haVe been made to the High Court and not to the District Court is unsound. The Second Class Subordi- nate Judge purported to exercise jurisdiction over the matter. The validity of the order made by that Judge is disputed. The appeal under the circumstances would lie to the District Judge. It is no argument that because the District Judge holds that the Second Class Subordinate Judge had no jurisdiction (as the subject-matter of the suit filed in the High Court; was beyond his jurisdiction) the appeal should lie to the High Court. In my opinion the conclusion of the lower appellate Court is correct and the appeal is therefore dismissed with costs of respondents Nos. 1 and 2.

Author: Kania

Rustomjee Sorabji Kapadia vs Mahadev Chintaman Wadekar on 14 February, 1940

Bombay High Court

Court No. - 1 Case :- SECOND APPEAL No. - 1119 of 2009 Petitioner :- Shobha Respondent :- Smt. Dharma Devi And OthersPetitioner Counsel :- V.S. Srivastava Respondent Counsel :- Rahul Sahai Hon'ble Rakesh Sharma J. List in the third week of February 2010. Till then, interim order, if any is extended. Order Date :- 19.1.2010 pks

Shobha vs Smt. Dharma Devi And Others on 19 January, 2010

Allahabad High Court

Court No. - 7 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14735 of 2010 Petitioner :- Jitu Sharma And Another Respondent :- State Of U.P. Petitioner Counsel :- Ashok Kumar Sharma Respondent Counsel :- Govt.Advocate Hon'ble Mrs. Poonam Srivastava,J. Heard learned counsel for the applicants and learned A.G.A. on behalf of the State. This is a case of circumstantial evidence and the co-accused Santosh and Jagdish have been granted bail by this Court in Bail Application No. 11397 of 2010 on 12.5.2010. Taking into consideration the facts and circumstances of the case and without expressing any opinion on merits, the bail application is allowed on the ground of parity. Let the applicants Jitu Sharma S/o Jagdish and Pawan Gupta S/o Raju Gupta, involved in Case Crime No. 72 of 2010, under Sections 302, 201, 506 I.P.C. and 3 (2) (5) S. C., S.T. Act, P.S. Raya, District Mathura, be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned. Order Date :- 15.6.2010 vinay

Jitu Sharma And Another vs State Of U.P. on 15 June, 2010

Allahabad High Court

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 5396 of 2006 Petitioner :- Smt. Sneh Lata Respondent :- Kamlesh Kumar Yadav, D.I.O.S., MathuraPetitioner Counsel :- P.K. Jain Respondent Counsel :- S.C.,Manish Goyal,V.M. Tiwari,Vashishth Tiwari Hon'ble Vikram Nath J. As jointly prayed, list in the next cause list. Order Date :- 2.7.2010 SS

Smt. Sneh Lata vs Kamlesh Kumar Yadav, D.I.O.S., ... on 2 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 13145 of 2009(Q) 1. BIJU VARGHESE, ... Petitioner Vs 1. SUDHA, W/O LATE CHANDRADHARAN, ... Respondent 2. RENJITH, S/O LATE CHANDRADHARAN, 3. RENINI, D/O SUDHA, 4. THE SUB INSPECTOR OF POLICE, 5. THE CITY POLICE COMMISSIONER, For Petitioner :SRI.GOPAKUMAR R.THALIYAL For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :22/05/2009 O R D E R M.SASIDHARAN NAMBIAR, J. ================== W.P.(C) No. 13145 of 2009 ================== Dated this the 22nd day of May, 2009. JUDGMENT This petition is filed under Article 226 of the Constitution of India for a direction to the 4th respondent- Sub Inspector of Police to take action on Exhibit P7 complaint filed and also to direct the 5th respondent- Commissioner of Police, Thiruvananthapuram to take action on Exhibit P8 complaint. 2. The learned Counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. The allegations in Exhibit P7 and P8 complaints are that respondents 1 to 3 executed Exhibit P1 agreement for sale and received Rs.18.45 lakhs as advance and agreed to execute the sale deed before the expiry of 17-6-2008. After receiving the balance consideration, respondents 1 to 3 failed to comply with the conditions in the agreement and in such circumstance the petitioner approached the civil court and got an order of attachment and respondents 1 to  WPC.13145/2009 2 3 are attempting to protract the civil case and on enquiry the petitioner is satisfied that as per the revenue records they have Patta only in respect of 9 cents and they had forged Patta in respect of remaining 10 cents and got the agreement executed and in such circumstances a proper investigation has to be conducted. 4. Argument of the learned Counsel for the petitioner is that no proper investigation is done and no case is registered and so respondents 4 and 5 are to be directed to conduct proper investigation. The learned Government Pleader submitted that even though Exhibit P7 and P8 were enquired into no crime is registered. 5. If the petitioner is aggrieved by the case registered or investigation of the case pursuant to Exhibit P7 complaint, remedy of the petitioner is to approach the Magistrate by filing a private complaint under Section 200, Cr.P.C. With that liberty the Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr 

Biju Varghese vs Sudha on 22 May, 2009

Kerala High Court

JUDGMENT A. Ansari, J. 1. Heard Mr. K. K. Gupta, the learned Amicus Curiae for the appellant and the learned P.P. 2. This appeal is directed against the judgment and order, dated 13-7-99, passed by the Sessions Judge, Golaghat, in Sessions Case No. 37/92, convicting the accused-appellant Under Section 302. IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 100/- and, in default, to undergo further imprisonment for one year. 3. The prosecution case in brief is that on 2-2-92 at about 8 A.M. while Smt. Tilo Panika was sitting at her house and talking to her neighbour and relative, Jumuna Panika, at her own house, the accused-appellant, suddenly, entered into her house and assaulted Tilo Panika with an axe over her head as a result of which Tilo Panika died on the spot. On alarm being raised by Jumuna Panika and the children present in the house, people from the neighbourhood came rushing and saw the accused running away with an axe in his hand and blood stains on his wearing apparels. However, the accused was apprehended and tied by a rope and the police was informed by one Ramdas Panika. Thereafter, police arrived at the place of occurrence, held inquest over the dead-body and took the accused into their custody and seized the said axe. On completion of investigation, charge sheet Under Section 302, IPC was submitted against the accused. 4. In this case, the death of the deceased is not in dispute. PW-9 Dr. R.K. Deka held the post mortem examination on the dead body of the deceased and found as follows;-- "A stout healthy female body. Rigormortis present. INJURIES. 1) A deep seat blunt wound present over right temporal and occipital region of the head involving skin, trachea, vessels, bones of the skull. Scalp, vertebrae, membrane, brain and spinal cord are lacerated. Meninges congested. Stomach-healthy and contained water. Other organs were found healthy. All the injuries described above are ante-mortem in nature." 5. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased. 6. Besides the medical evidence, we have evidence of Jamuna Panika (PW-2), Sangram Ekka (PW-5), Jirku Tirki (PW-6) and Satyen Lal Tati (PW-7), who have deposed that Smt. Tilo Panika died at her house as a result of the injuries sustained by her on her head. 7. In the face of the evidence on record, we have no difficulty to conclude that the death of the said deceased was homicidal in nature. 8. In the present case, Jamuna Panika (PW-2) is the only eye-witness to the occurrence. According to her evidence, on the day of occurrence of about 8 A.M. while she was sitting with Tilo Panika at the latter's house, accused Baghia Urang, suddenly, came there and gave a blow with an axe on the head of Tilo Panika and out of fear, she (PW-2) initially, hid herself under the bed of the deceased, but when she saw the accused running away, she came out and raised alarm, whereupon the villagers came running and apprehended the accused and kept him tied at the house of the deceased. It is in the evidence of PW-2 that Tilo Panika expired at her house as a result of the injuries sustained by her. 9. Jamuna Panika (PW-2) was put to cross-examination by the defence at length, but nothing could be elicited at all from her cross-examination to show that her evidence should not be believed. The evidence of PW-2, thus, remained wholly unshakened. This apart, the presence at the house of the deceased, of PW-2, who is, admittedly, a close relation and neighbour of the deceased is not unnatural. 10. Coupled with the above, the neighbouring witnesses, namely, Sangram Ekka (PW-5), Jirku Tirki (PW-6) and Satyen Lal Tati (PW-7) have all deposed, in tune with each other, that on hearing hue and cry from the house of the deceased, they came running towards the place of occurrence and found the accused running away with an axe in his hand. They apprehended the accused, snatched away the axe from him, kept him tied and informed the police. The defence elicited nothing from the cross-examination of these three witnesses to show that their evidence cannot be relied upon. 11. It is also in the evidence of Satyen Lal Tati (PW-7) that he had seen stains of blood on the wearing apparel of the accused at the time, when the accused was apprehended. Thus, apart from the eye-witness's account of the occurrence showing, as indicated hereinabove, the accused-appellant as the assailant of Tilo Panika, we, now, have on record strong circumstantial evidence showing that the accused was apprehended, while he was running away with an axe in his hand and blood stains were noticed, at that time on his wearing apparel. Coupled with these facts, the evidence of the Investigating Police Officer and other evidence on record clearly show that on arrival at the place of occurrence, police seized the axe, which had been snatched away by the witnesses aforementioned from the possession of the accused. 12. What, thus, crystallizes from the above discussion is that the evidence of the sole eye-witness to the occurrence, namely, PW-2 as well as the circumstantial evidence on record as indicated above, coupled with the medical and other evidence on record, leave no room for doubt that it was the accused-appellant who had assaulted the deceased and caused her death. 13. The present one is a case in which no animus between the accused-appellant and the deceased has been alleged by the prosecution. This apart, the evidence on record discloses that it was the blunt side of the axe, which was used for dealing the blow on the deceased and that there was only one blow on the head of the deceased, which proved to be fatal. 14. In the face of the facts pointed out hereinabove, we are of the view that the offence committed by the accused appellant falls Under Section 304 Part-1 IPC. Considering, therefore, the matter in its entirety, we set aside the conviction of the accused-appellant Under Section 302, IPC and convert the same to one Under Section 304, Part-I IPC and sentence him to suffer Rigorous Imprisonment for ten years. The period already undergone by the accused-appellant shall be set off in accordance with the provisions, of Section 428, Cr.P.C. 15. With the above modification in the conviction and sentence passed against the accused-appellant, the appeal stands disposed of.

Author: A Ansari

Baghia Urang vs State Of Assam on 9 January, 2004

Gauhati High Court

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In the, affidavit; in su;;3%r.l:r"t: of the gait? /-' &mpiicat%a:sn, it was staiaai that thay have signatures am E;«:.¥'12 am with rafererace tea E'x_§P1j2~{é),% " " $12(b) and Filzqfi) am in viaw sf ifié'Ci'efsa§-ace;4t:$i<'e;*2:Vt:--'§*' therrs in the written staieiwxent, it wiéi 1%: 1£é)f;z:Dafiiévi_§_ ?2 'i;€:~ the signatures ma:'ke:d as Ex.P12'{L:§3;:);. Efxé examined by a hand wriii:fi§; exg§$:*%i afiici'u;5a:~.;f*;*:;3aAfAé'§;.;:»:~2?*;1 with the admitted ssigrxatures c;ri;{?';T_«§V at E)<*:~;.D1 ta D3. The Sam;..a5§:§§V:§catii§:§V§%V'%§$2_§:;=s the piairxtifi', aw fiiimg its ,2": has :;;:;.;;m5ar::T the apgmintngéent é2':"*Ij'i;Vif_%ze iT4c§s*:%z4t%*:«i§:sEt§r*s»2e%-f' E12,, the hand writing eaxgmrt €"mf'=e>e'arr1%w;§E§%§n:"i--;é;;.f::-r ::;ar"ngaes:'ér:g fzm ac§r:'1H:¥ta<;§ szmci s3é;<g::_utet:%Kfiirgiiiez-%:.1i'~:*ee§:; V'*%V:%*ze trial Cazmiz, C€3i"1£Eii&§'§F"1t.} rim 'a;:>uii?<:;aE%c:..r:; £5-%;je::ti:3fi'§"'§é:é:uci %;he:»: $i;3?b%"T':i£~3E&%£'2n£ mafia by me 'i'e§;ja'§";fae:%fi--<§§.«s;_:*r:;ié%__a:_;:=;::e:~:a«a:*'§1':g far rhea par't;ias,. has; pzaaaafi the 0rcEé:f__ fiis;fs*;i§:§§:1§ I.A.2 can 4.3.2896, wh§g:h hm been 'é=;.;'azeatic;s*:&«:iE'1~i:z Wig writ; metétien. $VE_€_i.3a3 and yerused tiw: rer:a:>rci. \ /A I have éxemd Eearnad cmuzxsei appearirzg or; beam n I 3. R is cafiiended by the iearfiv.-d murmeiga;:§;;;é§gf{z9éi§'::_sg far tine peiitiarzerg ttzat the triafi (Izmir? §*ra s.__'§f§;--:fi;f;ra:*iT§:ti?;,%:ci "a7 materéai error it'? dissmésamg I.1"§~..2._ «Lé&r'?i'a§i__"€.;;:«I.;iiS§3 cormenfied that the trim CGwfi;_ by 4r*;*:;'§c£V.Er"ectiTV:f':v%§ £.i$éif,'3';E€é:3 "~L' named 221% énwgxugmezfi <::-rder", VJw.Vij#'i%<:f": if 'és~E.i_oéi;w'§é:i ts; $tam3, wfméd causa i:*z"eparaE§E£:é_ ma _é§sI1r;§.__:;é§?;&:§uéiCe'A {:9 ?;?"ié&§'¥'¥, inaamimh as, we ciaém i5-n' t ?i5aV'sz;~iA€;vv"é:§i'V_*vfi:é--r rectavery (sf R:-3.3,36,1fi2;'-§evi'i:§1 }:3te%_ev5?; ;32%fi"aé$%i$.~» 4. Qgr"e:p"rsi%§;aj,!_ V§e2:a;_i:*:"aVéz;§ 'cz:;zVnss§.*! appearmg for the 15" §'@§fi{3i'E&.'§_f€Ef"!t -E3afi'§«."=-¥'{'iz:éé~._:és;:..hv:":"1issEQ:':3 in suppnri 0?" the émrsugnefi "0:§:£ia;'. aAque'§fic;m';3usad to tha iearnaci ttourssei far the '..\£vh.: ai,;fierT the petitionerg i,.e., defenciarzts 5 ta Ir' their side :33' evidence and whether thra =.__ ._§tria£ aftiée suit has cmmz. ':9 an ereczi, iaamefi cmmsei '*:Lf*3:§;b5T§iiétted that the deferafiarwts 3 ts: 'F have further evidence téfiiead in ihe suit. I?" that be ac, tha triaé :21' the Suit ha$ mt ::m"s"§e in an anti. i..%n3<a:=s:-::, ma tréai <:>f the suit has came '£0 at'; end, m3:r%"ma§Ey, a C:3m:'r'si3:a§a:*se:' Tm" Efiiéfiflfifi \ K scieniific inmatégating by an expat. if ma c:(3ma3 Est: ijixa conciuaien that thax evizjerma cm ':?'§T€:0,:*z»i.V: §U§"5EflieE?E am that were is my rseeci f'¢r':'ti"t:::.;« haw :;':?.*aé':';r~;§-s,%:«:wiriT.» of 'km sciarxtific §nvasti:;a'i:is3r:;:.§><;g;rear*%; a%'.2»r;§ ififaéét c:z§'i£?;e..ba$2.§'~_, Q? the materiai avaiiabia ~ca';:..AVéfffaéé;§i"v'ei'§* $3£"fi?'}€3§.3i"i£taE3 the j:.u:%gmenE;, V Sig. §rV;}";a'}.:'«.iL3'ét;i§.if:f§ xi-a g:'%%é§;' 'E-iéa-éeiief. Sigma §:%w t;r%a§ cf the sunk; '1r'"';e:r.t;§V:"V;*v;c¥::%1:9&§f.§§§:e_:*E;;;eV"~§m:i aii the avmfiahie evids2n;;p_.--; :"} -the§:'§?£V§§§t§:§§y.::§:{'fihgél ;§;%§%ia$ have no-1: been piaced $e2%*:"*jti'9¢."'»a.. at the stage of tim s3uEt,7.__ thfi- __ §ia:~.:VtWe< to be rejectacri aw ;3:'ematm'"e. A ' _?£',,HV:;£v«:msar, "a"§"*;E'«_;__i_"___§;A§.'z§:_'* trial sf iihea suit is; €;£.'N'r"2§"2}&?:tE and if ;~."':;};"2.%g:;3%.i;;-:a:%i§.,éVi"'*§$ flied at am a;;::rwrA:ai;aa gtaga fcxr raiiaf, 3:..z€:§*2 iaf-2-'3?aV§;::V§'§'&::a?§g¢fisVé'9§ aim; ba :.*:<'2:"::e:§dv.=sr'ed by the triai Quart in '«3€.€Z£Z%:'t!lZ§44«;.9Ié¢?'f.f{:V"E:§.'V'%..!'9J§%}'I iaw, wéthmfi; Ewing infiuenced by the ;";ii;s;f:'sia§ai V16? i.A.2. The iiismiaasai :3? 1.33.2 -ahaii nut came. in of the ma? Cau;-'t cmyzsidering any freaah apgfiicatiws, "~« V§f"%*'§T%&:j by the parties, keeping in V'§€%3W tha wservations: made hareénabeve. /K 8. fiimza iihe suit is. for racevery of"A4'.;i1:>n;a§3%L-'iaxéfi?iiag been pvandimj far nee:-.=sr"£y 5 yearé} 'th.aa_ '£.rfEas§_ .C§6ié.;"£V:;§.i%:¥if'e>:;{é:i tn: £:i%$;::c3se sf the guit ex+peéiéi§:§-uszly aim-5% -at«.a"v{i;~_.Véxrer1t, A within a périofi cf 6 r1"x<*$:2%:.Ei{§"s...%frc:r§;i théa--.fi:5»f£é"'~--§"'{:'€:;ijy ca? 'ifiifi arder' is pniaceczi er; =i!";$ rer:,r.>'rfi; Writ g3s_ai;itE::méaz..é:_<;r:m§r;':Aix;;eg§:,e'véE:%;$}*iivg:~£§;'ezi 0%', ~%fjW\-A]; =»w %%%% Iudgo

Author: A.N.Venugopala Gowda

Ramakrishna Venkatesh Shanbhag ... vs Canara Bank Venkatapura Branch on 1 July, 2008

Karnataka High Court

JUDGMENT P.N. Nag, J. (1) This appeal has been directed against the order dated 19th April, 1991 passed by Ms. Kanwal Inder, Additional District Judge, Delhi whereby she has dissolved the marriage between the parties by passing a decree of divorce under Section 13 A of the Hindu Marriage Act (for short the "Act"). (2) Relevant facts as set out in the divorce petition are that the respondent-wife filed the petition under Section 13A of the Act against the appellant-husband. They were married according to Hindu rites on 9.5.1979 at New Delhi but the respondent-wife was turned out of her matrimonial home on 24.6.1981 with a view to harassing her and with an intention not to taking her back. The appellant-husband had filed a petition No. Hma 118/83 under Section 9 of the Act for restitution of conjugal rights, which was decreed on 21.3.1987 by the court of Shri R.C.Jain, Additional District Judge. Delhi. In spite of passing such a decree for restitution of conjugal rights, there has been no cohabitation between the parties for a period of more than one year after passing of the said decree. Hence the petition under Section 13A of the Act seeking divorce, has been filed. (3) It may be noticed here that an execution application was filed by the appellant- husband seeking execution of the restitution of conjugal rights and the same was pending before court when petition under Section 13A of the Act was filed. The petition under Section 13A has been contested by the appellant-husband on the ground that the respondent-wife cannot take the benefit of her own wrong because in spite of the decree for restitution of conjugal rights having been passed she has failed to join the society of the appellant-husband in spite of repeated requests and approaches made by the appellant-husband from time to time and his pending execution application. According to him, during the course of proceedings filed under Section 125 of the Code of Criminal Procedure on behalf of the respondent-wife, he has come to know that his wife was living with a third person, which fact was verified on an application moved by him before the learned Metropolitan Magistrate, Shahdara. In the replication, the same averments are reiterated. On the pleading of the parties the following issues were framed: 1. Whether there has been no resumption of cohabitation between the parties for a period of one year after passing of decree of conjugal rights, as alleged? 1-A. Whether The petitioner is taking advantage of her own wrong? If so, to what effect? (4) The learned Additional District Judge found that although there has not been restitution of conjugal rights in. spite of the decree obtained by the appellant-husband, but the respondent-wife has every right to file the petition under Section 13A of the Act for dissolution of the marriage. Issue No. 1-A was decided by the learned Additional District Judge in favor of respondent-wife, with the result that the marriage was dissolved and a decree of divorce under Section 13A passed. (5) Learned counsel for the appellant-husband has vehemently argued the matter and reiterated the submission which has been made before the learned Additional District Judge. According to him, since his execution application for restitution of conjugal rights was pending before the court when the present petition for divorce under Section 13A was filed, the respondent-wife has refused to abide by the decree of the learned court for restitution of conjugal rights, therefore, she was not entitled to the decree of divorce. She cannot take advantage of her own wrong. (6) I have carefully considered the submission of the learned counsel for the appellant-husband. I regret my inability to accept , same. There is no dispute that there has been a decree passed against the respondent-wife and in favor of the appellant-husband for restitution of conjugal rights but in spite of this decree having been passed and the execution application pending there against, the respondent-wife has not gone back to the house of the appellant-husband. But the question that arises for consideration is whether this act of the respondent-wife is a wrong on the part of the wife and whether she is taking advantage there of. (7) This question has been considered by is Full Bench of this court in Ram Kali vs. Gopal Dass (1971-1 Tlr 6) and it has been held that the law as amended by Act 44 of 1964 is that for the purpose, of applying for a decree under sub-section (1A) of Section 13) a spouse against whom an earlier decree for judicial separation for restitution of conjugal rights has been awarded shall stand on the same footing as the spouse in which favor such a decree had been granted. (8) In Smt. Bimla Devi d/O Bakhatwar Singh vs,Singh Raj s/o Dasondhi Ram similar question arose for consideration and it has been held by the Pull Bench of that Court that the provisions of Section 23A on the ground of noncompliance of a decree of restitution of conjugal rights where there has not been restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in proceedings in which they were parties. There is no provision in the Code of Civil Procedure by which the physical custody of the spouse, who has suffered the decree, can be made over to the spouse who obtained the decree for restitution of conjugal rights. Thus merely because the spouse, who suffered the decree, refused to resume cohabitation, would a ground to invoke the provisions of Section 23 so as to plead that the said spouse is taking advantage of his or her own wrong. (9) The decision of Ram Kali(supra) has been approved by the Supreme Court in Dharmendra Kumar vs. Usha Kumar . The Supreme Court has held that in order to be a wrong within the meaning of Section 23 the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. (10) In the face of the authoritative pronouncements and settled law, there is no doubt left now that in these facts and circumstances it cannot be said that the respondent wife was taking advantage of her own wrong and, therefore, the finding of the learned Additional District Judge on this issue is perfectly justified and correct and cannot be interfered with. (11) Next submission made by the learned counsel for the appellant-husband is that the learned Metropolitan Magistrate in an order dated 27.9.1989 passed in the proceedings filed by the respondent-wife under Section 125 of the Code of Criminal Procedure has observed that the respondent-wife was living in adultery with a third person. (12) There is no dispute that the present proceeding under Section 13A of the Act, no allegation has been made in the written statement by the appellant-husband that the respondent-wife was living in adultery with a particular person, as is required under the law. Therefore, vague allegations cannot be taken in to consideration. Even otherwise, it is the admitted case of the petition under Section 125 of the Code of Criminal Procedure was dismissed as withdrawn. There is no plea of the petitioner in his petition regarding the misconduct on the part of. the respondent-wife which is grave enough to dis-entitle her to ask for a relief. (13) I have seen the order dated 27th September, 1988 passed by the learned Magistrate wherein he has mentioned "It appears that the Petitioner is not interested in any maintenance because she has re-married with the person with whom she was found, on 18.4.88, as per the record." This order does not advance the case of he appellant-husband as the learned Metropolitan Magistrate has simply made this observation starting with the words "It appears". At any rate in the present proceedings, no congent evidence has come forth from the appellant-husband that there has been misconduct on the part of the respondent-wife and that the respondent-wife is living in adultery.Therefore the finding of the learned Additional District Judge is correct and has to be maintained. (14) Insofar as issue No. 1-A is concerned there is no dispute that there has been no resumption of cohabitation between the parties within one year from the date of passing of the decree for restitution of conjugal rights. But that will not dis-entitled her in getting the decree for divorce. (15) In the light of the discussion above, the impugned order is upheld and the marriage is dissolved by a decree of divorce under Section 13A of the Act. The appeal is dismissed with costs.

Author: P Nag

Ashok Kumar Sakhuja vs Sweety on 21 July, 1992

Delhi High Court

[Article 371F(b)] [Article 371F] [Constitution]

Central Government Act

Court No. - 27 Case :- MISC. BENCH No. - 6567 of 2008 Petitioner :- M/S Gur Dayal Singh Cold Storage Thru Prop. Respondent :- C.M.D., U.P. Power Corporation Ltd. & 4 Ors. Petitioner Counsel :- Rajendra Pratap Singh Respondent Counsel :- Manoj Kumar Dwivedi Hon'ble Devi Prasad Singh,J. Hon'ble Ritu Raj Awasthi,J. Shri Kapil Mishra learned counsel is reported to be on sanctioned leave. List in the second week of July, 2010. Till the next date of listing interim order, if any shall continue. Order Date :- 1.7.2010 Madhu

M/S Gur Dayal Singh Cold Storage ... vs C.M.D., U.P. Power Corporation ... on 1 July, 2010

Allahabad High Court

-1- IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 15"?" DAY OF APRIL, 2QO'9..fi".:.. BEFORE THE I-§ON'BLE ar.3usTIcE A CRIMINAL PETITTQN M11209 0% ;j_Qg2g~ ' BETWEEN : A.L.NAVE£-IN I s/0 R/o_ ' MURTHUR & sAraAA TAzTus<.%A? v:k{IfiéAY.§®i§'VS/Q'¢'VRTé§VEENDRA AGED ABOUTT. 3Q_"YEARS NEAR RA3!hGLiRU.~'KALYANA MANTAPA _; ANALEKQPPA A A SAGAR TAE_éJ%(' PETITIONERS :i"JT§Y,AKUMAR s PATIL ASSTS, ADVOCATES) " STATE BY SAGAR TOWN as REPTD BY SPF HIGH COURT OF KARNATAKA BANGALORE. .. RESPONDENT (By Sri : A.V.RAMAKRISHNA, HCGP) .... 3 ... wiiiing to abide by the condition that may be irnposed in the event of enlarging them on bail. 3. The learned High chart"GevernnjentPlieavderl7.__ it submits that the poiicego.have"'se'i~2ed containing 30 kg each""'i'r»of' dupl'icate' Tea Powder weighing totaliy containing 190 Kgs, ,Pov€'d'er,1i_4'ew!eL9t'ro'nic scale, two steel vessels, 'iredo':;ivdve,'_y_'sn*§ai~i vessel & other items under -'petitioners are required for the pu'rp_ese of 'linlvestégation and if they are released it wxoi.rEd,__t:;orne in the way of their investigation. is stated that accused No.1 has been enierged on bail. The offence aileged against the v.ge'titioners are triable by the JMFC. There is no impediment to enlarge the petitioners on bail subject to strict cond\tmi1: .. 4 - 5. In the resuit, the Petition is showed. The Investigating Officer in Crime Ne.39(C.R.No.41_[2DO9) is directed to reiease the petitioners on bei:i*':'i'ij:fthe event of their arrest subject to fuifiiimerfiibf. conditions: 1) The petitioners, _shaii.Ablappear,.'v.A.iiiefore;u"~the.,L Investigating Officer on oribiefere 2) .sha«iViife§te£:tite a personai bond for with a surety for the iikeso«m'--to or the Investigating Officer. petViti.oners shaii mark the attendance coh'ce«rned Poiice Station between 9.00 am =&f_ every day for a period of 10 days from thgedavte their arrest by the Investigating Officer. " The petitioners shalt appear. before the inxiestigating Officer as and when required for the .1 .._..purpose of investigation ation. .. 5 .. S) The petitioners shall attend the Court reguiarly. 6) The petitioners shall not tamper viiith the prosecution witnesses/evidence. 7') The petitioners shall move..fof:iv.regiiJl.ai-bail'*:,__ within a period of one month arrest by ti1e.VInvestiga"tiifl§?j in mat event, this bail___oi--:lei{:$l3all'j_:§e imeuniii the regular bail mfitson 55% * . sofa Iuege

Author: Dr.K.Bhakthavatsala

A.L.Naveen vs State By Sagar Town P.S on 15 April, 2009

Karnataka High Court

Gujarat High Court Case Information System Print FA/4179/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4179 of 2009 To FIRST APPEAL No. 4180 of 2009 ========================================================= SAJID YAKUB PATEL - Appellant(s) Versus SAYEEDABEN D/O. MOHAMMAD MASTER (PATEL) - Defendant(s) ========================================================= Appearance : MR LR PATHAN for Appellant(s) : 1,MR MA SAPA for Appellant(s) : 1, MR VIVEK N MAPARA for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 16/07/2010 ORAL ORDER On a request made by learned Advocate Mr. L.R. Pathan for the appellant to explore the possibility of an amicable settlement of the entire dispute, the matter is kept on 22nd July 2010. The appellant to remain present. Leaned Advocate Mr.V.N.Mapara for the respondent has filed leave-note. However, the party-in-person Sayeedaben with her father Mohammad Master is present. She informs that she will be present on that day with the child. (RAVI R. TRIPATHI, J.) jani     Top

Author: Ravi R.Tripathi,&Nbsp;

Sajid vs Sayeedaben on 16 July, 2010

Gujarat High Court

Central Information Commission 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110 066 Website: www.cic.gov.in Decision No. 5721/IC(A)/2010 F. No.CIC/MA/A/2010/000352 Dated, the 9th August, 2010 Name of the Appellant : Shri Ram Kumar Gupta Name of the Public Authority : HPCL Decision: 1. Both the parties were heard on 9th August, 2010. 2. In the course of hearing, the details of information asked for and CPIO's response were discussed. 3. The CPIO agreed to furnish the information asked for, mainly the list of registered customers for supply of LPG cylinders. The CPIO would thus furnish a fresh response within 10 days from the date of receipt of this decision. 4. The appeal is thus disposed of. Sd/- (Prof. M.M. Ansari) Central Information Commissioneri Authenticated true copy: (M.C. Sharma) Deputy Registrar i "All men by nature desire to know." - Aristotle 1 Name & address of Parties: 1. Shri Ram Kumar Gupta, Main Market, Purana Bazar, Bilisanda, Dist: Pilibhit, UP. 2. Shri V.K. Goyal, CRM & CPIO, HPCL, Loni LPG Regional Office, Vill. Tilla Shabhajpur, PO: Loni, Dist: Ghaziabad, UP.

Shri. Ram Kumar Gupta vs Hindustan Petroleum Corporation ... on 9 August, 2010

Central Information Commission

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Author: Dr.K.Bhakthavatsala

T R Palaksha vs The State Of Karnataka on 20 April, 2009

Karnataka High Court

Court No. - 28 Case :- CRIMINAL APPEAL No. - 730 of 2009 Petitioner :- Smt. Shyam Murti Respondent :- State Of U.P. Petitioner Counsel :- Ravi Nath Ti1hari,Chandra Prakash Verma Respondent Counsel :- GA. Hon'ble Alok K. Singh,J. List after three months as requested. Order Date :- 4.1.2010 PAL/

Smt. Shyam Murti vs State Of U.P. on 4 January, 2010

Allahabad High Court

JUDGMENT S. M. Jhunjhunwala, J. 1. The petitioner is a public limited company registered under the provisions of the Indian Companies Act, 1913 having its registered office at J. K. Building, Narottam-Morarjee Marg, Ballard Estate, Bombay - 400038 and a factory at Thane. The 1st Respondent is the State of Maharashtra. The respondent 2 and 3 are the Trade Unions. 2. At all material times, the petitioner at its factory at Thane has been engaged in manufacture and sale of Sodium Hydrosulphite and other Chemicals. For the financial year ending on 31st December, 1979, the petitioner suffered a loss of Rs. 55.99 lakhs. In the following year, the petitioner changed its accounting year from 1st January 1980 to 30th April, 1981. For the accounting year ending on 30th April, 1981, the petitioner suffered a loss of Rs. 79.5 lakhs (after providing for depreciation of Rs. 51.1 lakhs). 3. To provide for payment of bonus to persons employed in certain establishment on the basis of the profits or on the basis of production or productivity and for matters connected therewith, the Payment of Bonus Act, 1965 (for short, 'the Act') was enacted. The Act applied to the petitioner, section 10 of the Act as amended with effect from 21-8-1980 provides for payment of minimum bonus by every employer to every employee. As per amended section 10, every employer is bound to pay to every employee in respect of the accounting year commencing on any day in the year 1979 and in respect of every subsequent accounting year, a minimum bonus of 8.33 per cent of the salary or wage earned by the employee during the accounting year or one hundred rupees, whichever is higher, whether or not the employer has any allocable surplus in the accounting year. While conferring rights on the workman to get the minimum bonus without regard to whether the business of the year results in the profits or losses, the legislature has, in section 36 of the Act conferred power on the Government to exempt any establishment from liability to pay such minimum bonus, having regard to the financial position of the concerned establishment and other relevant factors so justify. As per section 36, if the appropriate Government, having regard to the financial position and other relevant circumstances of any establishment or class of establishments, is of opinion that it will not be in public interest to apply all or any of the provisions of the Act thereto, it may, by notification in the official Gazette, exempt for such period as may be specified therein and subject to such conditions as it may think fit to impose, such establishment or class of establishments from all or any of the provisions of the Act. In other words, by providing for exemption from any or all the provisions of the Act, the legislature has cast a duty on the appropriate Government to examine the financial position and other circumstances of the establishment concerned and decide them as to whether grant or rejection of such application is in the public interest or not. Section 36 thus creates right in the parties as also duty on the part of the appropriate Government to consider the application on merits and dispose it of in accordance with scheme of the Act. Both sections 10 and 36 are contemporaneous provisions in the Act. Thus, it is patent that the Government has the competence to exempt any establishment or class of establishments even from section 10 notwithstanding that section 10 is mandatory so far as the employer's liability to the workmen and notwithstanding the said provision is an ameliorative one from the point of view of the workmen. 4. For the accounting year ending on 31st December, 1979, the petitioner became liable to pay bonus amount of Rs. 5,55,907/- which the petitioner has paid. In the accounting year ending on 30th April, 1981, the petitioner had employed 743 workmen to whom the petitioner became liable to pay the sum of Rs. 6,99,720/- as and by way of minimum bonus under section 10 of the Act. As per section 19(b) of the Act, the petitioner was required to pay the said amount to its employees within a period of eight months from the close of the said accounting year i.e., by 31st December, 1981. On 15th December, 1981, the petitioner made an application under section 36 of the Act to the 1st Respondent of grant of exemption to the petitioner from payment of compulsory bonus payable for the accounting year ended on 30th April, 1981. In the said application, the petitioner stated that the petitioner had suffered heavy losses during the two years preceding the accounting year ended on 30th April, 1981 which accumulated to Rs. 99,71,879/- after adjustment and that the loss for the said accounting year was to the extent of Rs. 79,50,137/-. The petitioner further stated that the petitioner had no resources at all left with which the petitioner could make the payment of even the minimum bonus as provided under the Act. The petitioner also stated in the said application that the workmen had resorted to strike from 27th June, 1981 which was subsequently declared as illegal by the Labour Court resulting into even closure of petitioner's factory. 5. By its letter bearing No. PBA/1081/ (948) /Lab-12 dated 4th October, 1983, the 1st-Respondent informed the petitioner that its said application for exemption from payment of compulsory bonus for the accounting period commencing from 1st January, 1980 to 30th April, 1981 could not be granted for the following reasons : (i) that it was not be in public interest not to apply the provisions of the Act to the petitioner; (ii) that the petitioner did not make out a satisfactory case for grant of exemption except that it had suffered losses during the previous two years and no overwhelming considerations were advanced by the petitioner for grant of exemption; And (iii) that the management of petitioner had not proved that the losses were due to any direct action on the part of the workers during the period for which the compulsory bonus had become payable. By this petition, the petitioner has challenged the said order not granting exemption under section 36 of the Act to the petitioner. 6. Mr. Parekh, learned counsel appearing for the petitioner, has submitted that though there was overwhelming evidence before the 1st respondent to show that the financial position of the petitioner was precarious and that the petitioner did not have the necessary fund to make payment of bonus for the relevant period, the 1st respondent did not consider the same and proceeded on totally unsustainable grounds in refusing to grant exemption to the petitioner. Mr. Parekh has further submitted that the fact that strike in the factory of the petitioner commenced from 27th June, 1981 which ultimately led to the closure of the factory was a relevant consideration for grant of exemption since the capital of the petitioner was eroded resulting into inability of the petitioner to pay the bonus which the 1st respondent did not consider while deciding the application of the petitioner for exemption. It is further submitted that since the decision of the 1st respondent is based on extraneous considerations, it is liable to be quashed and set aside in this writ petition. In support of his submissions, Mr. Parekh has put reliance on the unreported Judgment of the Division Bench of our Court in Appeal No. 214 of 1977, decided on 2nd December, 1977, in the case of the Phoenix Mills Ltd. & Ors. v. The State of Maharashtra and also the judgment of this Court in the case of M/s. Navbharat Potteries Pvt. Ltd. v. The State of Maharashtra, reported in 1989 II CLR 129. Mr. Parekh has also put reliance on the judgment of our Court in the case of The Phoenix Mills Ltd. & Ors. v. The State of Maharashtra & Ors. reported in 1991 II CLR 878. 7. The Act is a Welfare Legislation, the validity of which has been upheld by the Supreme Court of India in the case of Jalan Trading Co. v. Mill Mazdoor Sabha . As indicated earlier, the Act creates liability to pay the minimum bonus as against the employer and confers a right on the workman but this obligation and right is subject to the claim of exemption under section 36 of the Act. However, payment of compulsory minimum bonus cannot be avoided merely because there is a loss in the accounting year concerned. There are two stages in section 36. The first stage is that the Government shall consider financial position and other relevant circumstances of an establishment or class of establishments. The second stage is that it should be of the opinion that it would not be in the public interest to apply all or any of the provisions of the Act. The expression 'financial position of the establishment's is comprehensive enough to include loss suffered by the establishment during accounting year concerned as also various other factors, the totality of which would picture the economic condition of the establishment. The expression 'other relevant circumstances' will include every consideration as to whether the workmen had principally contributed to the financial loss of the company during the accounting year concerned. Moreover, if the bonus liability of the establishment is negligible compared to the loss suffered by the company, it is even not advisable that the power of exemption should be exercised by the Government as when the Company is to shoulder all other liabilities, there would be no justification to relieve the company of this statutory liability. On the facts of each case, the Government has also to consider public interest in processing the application for grant of exemption under section 36 of the Act. 8. Though the petitioner has stated in the said application made for grant of exemption under section 36 that the petitioner had no resources at all left with it with which the petitioner could make payment even of the minimum bonus under the Act, perusal of the audited accounts of the petitioner for the accounting year ended on 30th April, 1981, on which the reliance has been placed by the learned Counsel for the petitioner, establishes that to say the least, the said statement of the petitioner is not accurate since the reserves and surplus for the said period as mentioned therein aggregated to Rs. 1,34,72,400/- even after adjusting the losses of Rs. 99,71,879/- which included even the carried forward loss for the previous accounting year ended on 31st December, 1979. For the financial year ended on 31st December, 1976, the petitioner had made gross profit of Rs. 46,60,774/-. In the financial year ended as 31st December, 1977, the petitioner had made gross profit of Rs. 13,79,287/- and in the financial year ended on 31st December, 1978, the petitioner had made gross profit of Rs. 84,83,718/-. Even though the petitioner had suffered loss of Rs. 28,15,436/- for the accounting year ended on 31st December, 1979, the petitioner had paid the bonus amounting to Rs. 5,55,907/-. At the end of accounting year on 30th April, 1981, the capital worth of the petitioner was at Rs. 2,14,94,400/- and it is absolutely incorrect to say that the capital of the petitioner had eroded at the end of the said accounting year. Even in the accounting year ended on 30th April, 1982, not current assets of the petitioner are shown at Rs. 2,14,07,569/- and in the accounting year ended as 30th April, 1983 at Rs. 84,86,707/-. The liability of the petitioner for payment of compulsory minimum bonus for the accounting year ended on 30th April, 1981 was only to the extent of Rs. 6,99,720/-. The strike of the workers had commenced from 27th June, 1981 when the liability of the petitioner for payment of the compulsory minimum bonus had risen on 1st May, 1981. There is even no whisper to suggest that the workers had contributed to the financial loss of the petitioner during accounting year concerned. This being the financial position of the petitioner for the accounting year concerned, it cannot be said that the petitioner was entitled to exemption under section 36 of the Act or that the grant of exemption was in the interest of public. The 1st respondent had considered the said application of the petitioner on merits and had disposed it of in accordance with the scheme of the Act. The 1st respondent having arrived at the decision not to grant exemption to the petitioner in payment of compulsory minimum bonus for the accounting year concerned by the relevant and germane considerations and no extraneous considerations having weighed with the 1st respondent, no interference of this Court in writ jurisdiction is called for. 9. Mr. Ganguli, the learned Counsel for the 2nd respondent has submitted that even intention of management of the petitioner is not bona fide since the management had wrongfully dismissed all workmen and till the year 1991, settled with all the said 743 workmen exempting 53. Barring the said 53 workmen, other workmen have been paid their dues including the amount of compulsory minimum bonus for the accounting year concerned. Since these 53 workmen have not opted to settle with the petitioner, they have not yet been paid compulsory minimum bonus for the accounting year concerned. Hence, in the submission of Mr. Ganguli the non-payment of compulsory minimum bonus by the petitioner for the accounting year concerned has no nexus with alleged deteriorating financial condition of the petitioner and the said application of the petitioner for grant of exemption under section 36 has been not allowed on sound and good reasons. Since in out view no extraneous consideration weighed with the 1st respondent in not granting the said application of the petitioner, it is not necessary to consider the subsequent developments as pointed out by Mr. Ganguli. However, suffice it to say that in the facts and circumstances, the application for grant of exemption made by the petitioner for the accounting year concerned lacked bona fides. 10. In the case before Division Bench of our Court in Appeal No. 214 of 1977, The Phoenix Mills Ltd. & Ors. v. The State of Maharashtra, the Learned Single Judge had summarily rejected the Miscellaneous Petition No. 1566 of 1977 at the admission stage itself and in appeal, the Division Bench on the facts thereof opined that it was necessary to issue Rule Nisi and accordingly allowed the appeal and remanded the matter for issuing rule and disposing of the same in accordance with law. In the case of M/s. Navbharat Potteries Pvt. Ltd. v. The State of Maharashtra (supra), the accumulated losses as on 31st December, 1979 were to the tune of Rs. 58 lakhs. In respect of liability for payment of bonus for the year 1978, the application was made on 27th November, 1979 and second application for the year 1979 was made on 25th July 1980. The exemptions for the years 1976 and 1977 were already granted to the company. On the facts involved therein, the Court concluded that the company had wiped out not only its reserved capital by the end of the year 1978 but also its assets and losses were suffered right from the year 1972 onwards save and except a profit of Rs. 10,000/- in one year. The Court held that such financial condition of the Company could not have been ignored by the State Government while exercising powers under section 36 of the Act. In the case of The Phoenix Mills Ltd. & Ors. v. The State of Maharashtra & Ors. reported in 1991 II CLR 878, the liability to pay minimum bonus to workers was to the extent of Rs. 26,60,000/-. The financial year involved was from 1st April 1981 to 31st March, 1982 and application for exemption under section 36 of the Act was filed on 25th October, 1982. On 18th January, 1982, there was general textile industries strike in the City of Bombay which lasted for a long period. The company had suffered severe financial set back during the concerned accounting year and even earlier. The accumulated losses aggregated to Rs. 6,56,82,622/- which had put the company in a dismal financial condition. In the facts of the case, the Court held that the company had made out good and sufficient case for grant of exemption under section 36 of the Act. Since facts in these cases relied upon by Mr. Parekh have been different than the facts in the present case, the said judgments are of no assistance to the petitioner. 11. In the result, the petition, being devoid of any merit, is dismissed. Rule is discharged. However, there shall be no order as to costs of the petition. 12. On application being made, issuance of certified copy hereof is expedited. 13. Petition dismissed.

Author: S M Jhunjhunwala

J. K. Chemicals Ltd. vs Government Of Maharashtra & Ors. on 16 August, 1995

Bombay High Court

Court No. - 39 Case :- WRIT - C No. - 38519 of 2010 Petitioner :- C/M Lal Bahadur Singh Amarak Mahavidyalaya Thru' Sec. & Ors. Respondent :- State Of U.P. & Others Petitioner Counsel :- Anurag Khanna Respondent Counsel :- C.S.C.,R.A. Akhtar Hon'ble Dilip Gupta,J. Learned Standing Counsel appears for respondent No.1. Sri R.A. Akhtar, has put in appearance on behalf of respondent Nos. 2, 3 and 4. The respondents may file a counter affidavit within three weeks. Rejoinder affidavit, if any, may be filed within a week thereafter. List this petition for admission/hearing in the week commencing 9th August, 2010. Order Date :- 6.7.2010 NSC

C/M Lal Bahadur Singh Amarak ... vs State Of U.P. & Others on 6 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print TAXAP/747/2008 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 747 of 2008 ========================================= THE INCOME TAX OFFICER, WARD 6(3) - Appellant(s) Versus SAHYOG COMPLEX - Opponent(s) ========================================= Appearance : MR BB NAIK for Appellant None for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 14/02/2011 ORAL ORDER(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI) Leave to add the proposed question of law as Question No.(iii). Admit. The following substantial questions of law arise for determination : "[i] Whether, on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is right in deleting addition of Rs.11,10,000/- under section 68 of the Income Tax Act, 1961? [ii] Whether, on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is right in deleting disallowance of Rs.2,21,891/- as interest on capital by the partners? [iii] Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in reversing the order passed by the Appellate Commissioner without assigning any cogent and relevant reasons to show how the appellate order is illegal, unlawful and invalid?" [HARSHA DEVANI, J.] [H.B.ANTANI, J.] parmar*     Top

Author: Harsha Devani,&Nbsp;Honourable H.B.Antani,&Nbsp;

The vs Unknown on 14 February, 2011

Gujarat High Court

JUDGMENT N.M. Miabhoy, J. 1. The only question which is raised in this Second Appeal is about the correctness of the decision recorded by the two Courts that the instrument dated 30th December 1951 was a promissory note within the meaning of the Indian Stamp Act 1899 (XI of 1899) (hereafter called the Act) and as such inadmissible in evidence. Plaintiff-appellant brought the suit from which the Second Appeal arises for recovering a sum of Rs. 769-4-0 from defendant respondent The claim was based on the aforesaid document dated 20th December 1951 When the document was sought to be got admitted in the trial Court defendant raised an objection that as the document was a promissory note within the meaning of Section 2 Sub-section (22) of the Act and as it was not stamped as required by Article 49 of the Act the same was not admissible in evidence under Section 35 of the Act. This contention was upheld by the trial Court and on that finding the suit of plaintiff was dismissed. Plaintiff preferred an appeal to the District Court Gohilwad at Bhavnagar 2. The learned District Judge upheld the finding of the trial Court and dismissed the appeal. 3. Mr. Hathi on behalf of respondent raises a preliminary objection based on Section 102 Civil Procedure Code 1908 He contends that as the claim involved in the suit does not exceed Rs. 1 0 no Second Appeal lies The limit of Rs. 1 0 was introduced in Section 102 for the first time by the Amending Act LXVI of 1956 which Act came into operation on 1st January 1957 The suit from which the Second Appeal arises was instituted in the year 1954 before the aforesaid amending Act came into force. Before the amendment the limit was Rs. 500/-. Mr. Mankad contends that the question as to whether a Second Appeal lies or not depends upon the value of the subject-matter at the date when the suit was instituted and not the value of the subject-matter at the date when the question is raised for the first time in the Second Appeal. Mr. Mankad contends that a right of appeal is a vested right which comes into existence at the very inception of the suit and unless the amendment introduced by Act LXVI of 1956 in Section 102 of the Civil Procedure Code 1908 was retrospective the right to present a Second Appeal which became vested when the suit was first filed would not be affected. In my judgment the contention of Mr. Mankad is valid and must be upheld. Mr. Hathi was unable to show to me that the amendment introduced by the aforesaid amending Act was retrospective in operation. In the absence of such retrospective operation it is quite clear that the right of presenting a Second Appeal which became vested at the date of the institution of the suit would not be affected by the limit being raised from Rs. 500/- to Rs. 1000/- 4. The document the admissibility of which is challenged has been translated by the learned appellate Judge and the translation which is reproduced by him in paragraph 6 of his judgment is as follows: The account of Samvat 2008 of Luvar Mohan Arjan. Cr.... Dr.... Rs. 2000/- dated 30th December 1955 Rs. 2000/- in cash have been taken to-day from Chhabildas Mangaldas Desai for investing that amount in the partnership business of a grinding mill. The interest at the rate of 3/4 per cent per month was agreed. This amount is to be paid on demand by you with interest. I agree to pay this amount accordingly on demand by you. The maker of the document has then put his thumb-mark. On the credit side there are entries regarding vasuls The maker ot the document has then put his thumb-mark. On the credit side, three are entires regarding vasuls. There are seven entries on the credit side. The first entry is dated 30th December 1951 crediting a sum of Rs. 1000/- The other credit entries are for small amounts and represent payments either in cash or in kind on various dates ranging from 3rd January 1954 to 30th March 1954. Now the question as to whether the document is or is not admissible in evidence depends upon the document being a promissory note as defined by Section 2 Sub-section (22) of the Act. Article 49 of the Act at the relevant time required such a document to be stamped with a stamp of two annas. This is not in dispute. It is also not disputed that the document does not bear any stamp whatsoever. Section 35 of the Act enacts that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or by consent of parties authority to receive evidence or shall be acted upon unless such instrument is duly stamped. Therefore if the document is a promissory note within the meaning of the Act it is not disputed that the document would not be admissible in evidence. But the contention of plaintiff all through out has been that the document is not a promissory note within the meaning of Section 2 Sub-section (22) of the Act that the document is an ordinary agreement and that being so it is admissible in evidence on a penalty being paid. Therefore the whole controversy in the present appeal turns on the question as to what is the true character of the document in question. Now the expression promissory note has been defined in Section 2 Sub-section (22) of the Act. Firstly the definition states that a promissory note means a promissory note as defined by the Negotiable Instruments Act XXVI of 1881. Then follows an inclusive definition. It is not necessary for me to reproduce that inclusive definition in the present appeal because it is common ground that that inclusive definition is not applicable to the facts of the present case. Therefore in order to decide the question as to whether the document in suit is or is not a promissory note one has to turn to the definition of the expression promissory note as given in the Negotiable Instruments Act 1881 That Act defines promissory note in Section 4. The definition is as follows: A promissory note is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking signed by the maker to pay a certain sum of money only to or to the order of a certain person or to the bearer of me instrument. 5. Both the lower Courts have held that the document in question fulfils the requirements of this particular section. In my Court Mr. Mankad did not chal-lenge the validity of this decision. It is not disputed that the document is not a bank note or a currency note. There cannot be any dispute also that the document is an instrument in writing and that it is signed by the maker thereof. There is also no dispute that the document contains an unconditional undertaking to pay a certain sum of money and that the payee is the plaintiff and therefore a certain person. But Mr. Mankads contention is that in order that a document may be a promissory note it is not enough that it must only fulfil the requirements of Section 4 aforesaid. He submits that in order that the document may be a promissory note the document must fulfil a further condition and that condition is the condition of its negotiability. He contends that in order that the document may come within the mischief of Section 35 read with Article 49 of the Act it is necessary that the promissory note must be a negotiable instrument. He further submits that the question as to whether a document is a negotiable promissory note or not depends upon the intention of the parties to the instrument in question and that having regard to the terms of the document and the surrounding circumstances it can never have been the intention of the parties to make the aforesaid document a negotiable instrument. Prima facie the argument does not appear to be sound. The very same argument came up for consideration before a Division Bench of this Court in the case of Jagjivandas Bhikhabhai v. Gumanbhai Narottamdas (Letters Patent Appeal No. 21 of 1961) and was negatived by the judgment delivered on 25th March 1965 by Bhagwati J. speaking for the Division Bench consisting of himself and Mr. Justice Shah (since reported at VI G.L.R. 78). In that case it was held that in order to determine whether the instrument is a promissory note or not regard must be had only to the definition of promissory note contained in Section 4 of the Negotiable Instruments Act 1881 and if the instrument satisfies the requirement of that definition the instrument must be held to be a promissory note quite irrespective of the fact whether it is a negotiable instrument or not. Their Lordships further pointed out that If the promissory note is not a negotiable instrument it may not be negotiable and the person to whom it is delivered or purported to be indorsed and delivered may not be entitled in his own name to the possession of the promissory note and to receive or recover the amount due thereon from the parties thereto but that cannot deprive the instrument of its character of a promissory note.... This follows from the fact that negotiable instrument has been defined in Section 13 of the Negotiable Instruments Act XXVI of 1881 as meaning a promissory note bill of exchange or cheque payable either to order or to bearer. From this definition it is quite clear that all promissory notes are not negotiable instruments. In order that a promissory note may be a negotiable instrument besides satisfying the ingredients of the definition of a promissory note as given in Section 4 it must be payable either to order or to bearer. It is true that under Explanation I to Section 13 of the Negotiable Instruments Act 1881 if a promissory note is expressed to be payable to a particular person then it would be payable to the order of that person provided the instrument does not contain words prohibiting transfer or indicating an intention that it shall not be transferable. It is not necessary for me to elaborate this point any further because apart from the fact that with great respect I entirely agree with the reasoning adopted by the Division Bench in the aforesaid case I am bound by hat particular decision. But Mr. Mankad contends that the aforesaid Division Bench decision is contrary to two decisions recorded by Their Lordships of the Privy Council none of which unfortunately was brought to the notice of Their Lordships and none of which is referred to or considered in that judgment. The first Privy Council case is that of Mohammad Akbar Khan v. Attar Singh and others A.I.R. 1936 Privy Council 171. In that case also exactly the same point as arises in this appeal and as arose for decision in the aforesaid Division Bench case arose for consideration of Their Lordships of the Privy Council. After referring to the definitions of the expression promissory note in the aforesaid two enactments and to Section 13 of the Negotiable Instruments Act 1881 Their Lordships at Page 174 proceeded to dispose of the point by the following observations: Their Lordships prefer to decide this point on the broad ground that such a document as this is not and could not be intended to be brought within a definition relating to documents which are to be negotiable instruments. Such documents must come into existence for the purpose only of recording an agreement to pay money and nothing more though of course they may state the consideration. This decision was confirmed by Their Lordships of the Privy Council in Lala Karam Chand and another v. Firm Mian Mir Ahmad Aziz Ahmad and another A.I.R. 1938 Privy Council 121. In that case after referring to the fact that there was a strong current of authority in India to the effect that the promissory notes of the type which Their Lordships had to consider in that case came within the ban of Section 35 of the Stamp Act and further to the fact that it was because of the strong current of authority that the promissory notes in that case had been held by the learned Judicial Commissioners to be the promissory notes Their Lordships made the following observations: But since the judgment of the Judicial Commissioners Court a decision of this Board Mohammad Akbar Khan v. Attar Singh and others has made it clear that the shadow resting upon these exhibits throughout the case was unreal; that documents of this nature which were clearly never intended to be negotiable instruments at all are not promissory notes and are not therefore for want of a stamp inadmissible in evidence. In view of these two Privy Council cases Mr. Mankad contends that the test of negotiability which he propounds is still a good test and must be answered before holding a promissory note to be inadmissible in evidence. I do not propose to undertake the task of deciding whether the aforesaid two Privy Council cases are distinguishable from the aforesaid decision recorded by the Division Bench of this High Court. Without undertaking that task I propose to consider the applicability of that test to the facts of the present case. The case has been considered by both the lower Courts from that aspect. The learned District Judge in reaching his conclusion has taken into account a number of authorities including the aforesaid two Privy Council cases which were cited before him and recorded his conclusion on the subject of negotiability in two passages which are as follows: In the present case the document is not written in the account book of the plaintiff. It has been written on a separate loose paper. It is not an acknowledgment of settled accounts. It is a case of a fresh loan advanced on the very day. There is express promise to pay. It is an unconditional promise to pay. The payee has been specified. There is nothing in the document itself to indicate that the negotiability of the instrument was prohibited. Money is promised to be paid on demand by a specified person and the maker has signed the document. All the tests which are to be satisfied for the document to be a promissory note are satisfied in the present case. The second passage is as follows: In the present case also there is an express promise to pay. Merely because there is an agreement to pay interest at a stipulated rate and there is a statement about the purpose for which the loan was taken by the debtor the character of the document being a promissory note is not changed. In the present case the payee is specified. A definite sum is promised to be paid to him on demand with interest The maker has signed it. It is not a case where there is an acknowledgment on settlement of accounts for the sum found due. All the requirements for the promissory note are satisfied. There is nothing in the document itself to show that the negotiability was prohibited or that the parties did not intend this document to be a negotiable instrument. The learned Civil Judge was therefore quite justified in holding that this document was a promissory note. The circumstance that this document was not taken in the account book but was taken on a separate loose paper is also indicative of the fact that the parties did not intend to prohibit the negotiability of the instrument. Now if the test which is laid down by Their Lordships of the Privy Council is to be applied to the facts of present case then it is quite clear that the task which is to be performed is to discover as to whether there was or was not an intention on the part of the parties to the document to make the document negotiable. To my mind that is essentially a question of fact. It is true that in order to decide that question not only the document requires to be construed and the terms of the document have to be ascertained but all the surrounding circumstances have got to be taken into account and it would be legitimate to apply all proper tests for the purpose of finding out as to what the intention of the parties was. However once these tests have been applied and a conclusion reached by a Judge on the application of the tests in my judgment the question so decided would be a question of fact and it is not amenable to be revised in Second Appeal. Mr. Mankad however contends that the document in question is the foundation of the claim in suit and when such is the case the question of the construction of the document is one of law and as such this Court has jurisdiction to consider whether the document is or is not a negotiable instrument. Even applying this particular test in my judgment the present appeal deserves to be dismissed. Having once reached the conclusion that the aforesaid document satisfies all the requirements of the definition of a promissory note as given in Section 4 of the Negotiable Instruments Act it is quite clear that under Explanation I to Section 13 the document would be a negotiable instrument inasmuch as the document would be deemed to be payable to the order of plaintiff inasmuch as it is expressed to be made payable to plaintiff and there are no words in the instrument which prohibit the transfer of document. Therefore when the document is read in the light of the aforesaid Explanation there cannot be any doubt that the document would be a negotiable instrument within the meaning of Section 13 of Negotiable Instruments Act. Even if in spite of this construction the law permits introduction of evidence for the purpose of finding out as to whether the intention of the parties was to make the instrument negotiable then in my judgment the burden would be on plaintiff to show that such was the intention and one of the ways in which such an intention could be proved would be to show that though the document does not say in express terms that the transfer thereof was prohibited in fact the parties intended to prohibit such transfer. In my judgment all the arguments which Mr. Mankad urges for the purpose of showing a contrary intention are of no consequence Mr. Mankad says that the true nature of the document is a mere agreement and that there fore it cannot be termed a promissory note. He also draws my attention to the fact that the words of promise are preceded by certain recitals relating to the purpose for which the advance was made. In my judgment the mere fact that a promissory note recites as to how the consideration was fixed by the parties and that a part of that particular document is couched in the form of an agreement does not deprive that document of its character as a promissory note if there are words which in law can be construed as meaning a promise to pay. Then Mr. Mankad urges that the document is in the form of an account and not in the form of a mere paper which would pass from hand to hand. In my judgment this again is not an indication of the intention of the parties to prohibit transfer of the document on the contrary in the Division Bench case aforesaid Their Lordships observed that in this part of the country promissory notes are usually expressed in the form in which the present document has been expressed. Then Mr. Mankad contends that on the credit side of the document entries have been posted showing payments under the document I fail to understand as to how this can take away the character of negotiability if the document possessed one when actually the document was signed. The fact that the payments have been noted on the credit side is not at all any indication on the part of the payee that the document was not a negotiable instrument. Then Mr. Mankad makes a reference to the manner in which the whole document has been written and the tenor thereof and contends that as stated by Their Lordships of the Privy Council in Mohammad Akbar Khans case such a document would be a somewhat unusual visitor in the accustomed circle of negotiable paper. However in my judgment these observations were not made by Their Lordships to take away a document from the category of promissory note if it is found to be one after applying proper tests simply on the ground that the document would be a stranger in the accustomed circle of promissory notes. In my judgment for the purpose of deciding as to whether a document is or is not negotiable the primary test is to find out whether in fact the terms thereof satisfy the definition of a negotiable instrument as given in Section 13 of the Negotiable Instruments Act 1881 If having regard to the Explanation attached to that section the document is found to be a promissory note which is made payable to a certain person then the document would be an instrument which is payable to the order of that person and unless there are other surrounding circumstances in the case which indicate that negotiability was not intended by parties the mere fact that the document is one which in the opinion of the Court is not drawn up in the customary manner in which promissory notes are drawn up by bankers and merchants it does not follow that the document must be deprived of its character of negotiability simply because it is a strange visitor in the accustomed circle of negotiable papers. 6. For the aforesaid reasons I have come to the conclusion that this appeal must fail and must to dismissed with costs. Appeal dismissed with costs.

Author: N Miabhoy

Shah Chhabildas Mangal Das ... vs Luhar Mohan Arjan on 3 August, 1965

Gujarat High Court

(A.S. Sanghavi) (V. Ramakrishnan) Member (J) Vice-Chairman JUDGMENT A.S. Sanghavi, Member (J) 1. This O.A. seeking alteration in the date of birth of the applicant from 19.3.34 to 19.9.36 alongwith the reinstatement of the applicant with all consequential benefits has a chequered history. The applicant has joined the service with the railways on dated 11.5.53 under the Loco Foreman, Kankaria and since then he has been working with the railways. When he was working as diesel mechanic grade I under the Diesel Mechanical Engineer, Vatva, he had sent representation to the respondents to alter date of birth to 9.3.36 instead of 9.3.34 shown in the service record. His representation was turned down and hence, he had filed the O.A. 41/92 before this Tribunal. The respondents had resisted the O.A. contending inter alia that the applicant had given the different birth dates at different times and that he had not availed of the opportunity of changing his date of birth in the year 1972 when all the railway employees were given an opportunity of making the representations for changing the date of birth. After hearing the learned advocates of both the parties and considering the documents on record, the learned Tribunal had vide its order dated 3.4.92 directed the CPO for reconsideration of its decision in the case of alteration of the birth date of the applicant and had further directed the CPO to decided the case of the applicant for change of date of birth if the CPO found the date of birth of the applicant in the certificate of the ST. Xavier's High School, Annexure A, genuine and if there was no prohibition of the appointment of the applicant on the date of his appointment below the age of 18 years, the CPO should rely on the school leaving certificate of the applicant and to decide the case of the applicant for change of date of birth. The O.A. was disposed of with these directions. 2. After the O. A. was disposed of with the above directions, the CPO considered the case of the applicant for the change of birth date and by his order dated 22.7.92 held that as per the school leaving certificate issued on 16.4.52 and subsequent duplicate copy obtained by the applicant, his actual date of birth was 9.3.36, but according to him, as the employee had mislead at the time of his appointment with a purpose and the perusal of the record indicate i n the various declaration that he had given different dates of birth varying from 1934 to 1929 and had kept quiet till the date of his retirement and only when his date of retirement is notified he had started representing and therefore he did not see no reason to change the date of birth at this stage. He had also given finding that at the time of appointment, the applicant would have been appointed under age but with reduction in pay, could have been appointed as on the date of appointment, he would have been below 18 years of age. 3. Since the CPO refused to change the date of birth, the applicant has filed the present O.A. with a prayer to quash the order of the CPO Annexure A and direction to the respondents to alter his date of birth from 9.3.34 to 9.03.36 and reinstating the applicant with all consequential benefits. It is needless to mention that on the date of filing of this O.A. i.e. 29.9.92, the applicant has been retired from the service on his attaining the age of superannuation as per the birth date recorded in his service sheet. 4. After this O.A. was filed by an order dated 6.1.94, this Tribunal had directed the CPO, Western Railway, Churchgate to examine and record his findings on the two points viz. [1] whether there was any prohibition prescribing lower age limit for appointment to a Class IV post in 1953 and [ii] whether the applicant was appointed against a post reserved for Sportsmen. Pursuant to that order, the CPO examined the case of the applicant, as per the directions given by this Tribunal and by a speaking order dated 17.3.94 answered both the points in the negative. Though he clarified that in case of BB and CI Railways and ex-State Railways, relaxation below 18 years was permitted and the above stipulation mainly applied to staff of these railways for pay fixation under the prescribed scales laid down in 1947 as a result of the recommendations of the central pay commission, referring to Sub rule 307 (ii) of western Railway Establishment Manual, he has opined that the minimum age for recruitment was laid down as 18 years for class IV staff and no rule is provided in the Establishment Manual indicating the relaxation in age. According to the learned CPO, the minimum age for recruitment at the time when the applicant was appointed on 11.5.53 was 18 years. 5. Obviously these orders of the CPO based on different reasons and passed under the different directions clearly reveal the reluctance of the railway authorities to make change in the birth date of the applicant. Mr. Shah learned advocate for the applicant has vehemently submitted that the CPO has not considered the main aspect of the matter i.e. the genuinty of the birth date of the applicant and inspite of the directions of this Tribunal he has given incorrect findings. Mr. Shevde learned advocate for the respondents on the other hand has maintained that no case for change of birth date is made out by the applicant and that in view of the various Supreme Court judgments this O.A. cannot be allowed. The main thrust of the submission of Mr. Shevde was that at the fag end of the service, the employee cannot be permitted to change his date of birth so as to get the benefit of increase in his service. 6. There is lot of substance in the submission of Mr. Shevde, it appears that when the order in O.A, 41792 was passed on dated 3.4.92 the learned Members of the Tribunal had not the benefits of the decisions of the Supreme Court in the case of Union of India v. Harnaam Singh, 1993 (2) SCC 162 as well as the case of Union of India v. Kantilal Hematram Pandya, 1995 (2) GLR 1650 wherein the Supreme Court has elaborately dealt with the principles to be applied for in the case of change of date of birth. In view of these two decisions, the whole complaxion of this case is changed. In fact we may say that the case of Union of India v. Kantilal Hematram Pandya, (supra) which went to the Supreme Court from the decision of this Tribunal is based on identical facts. In that case, the employee had entered the railway service on 1.7.55 giving his date of birth as 6.9.30 at the time of entry into the service. That date of birth was entered in his service record. On the basis of the said date of birth, the railway administration issued orders on 5.2.88/8.3.88 for the retirement of the respondent with effect from 30.9.88 on attaining the age of 58 years. The respondent-employee represented contending that his correct date of birth was 4.9.34 and he was liable to be retired from service only on 30.9.92. He challenged the order of the Railway Administration by filing the O.A, 283/87 before Central Administrative Tribunal at Ahmedabad and by its order dated 26.8.88 the Tribunal allowed the application directing the CPO to decide the matter a fresh and if the petitioner's claim for correction of his date of birth was established, the competent authority to give such effect to the correct date of birth by giving all consequential benefits. Pursuant to these directions, the CPO of Railway administration held an inquiry into the claim of the railway employee regarding his date of birth and parties were permitted to lead the evidence and they were oraly heard. It was also noticed that the respondent-employee had not availed of the opportunity given by the Railway Administration in 1972 asking all the literate employees serving with the railways to submit their representations, if any, in case they wanted any correction or alteration in the recorded date of birth latest to 31.1.73. It was found by the CPO that the employee had made representation for the first time on 25.12.85 and on 12.3.87 seeking an alteration of his date of birth and claiming his date of birth to be as 4.9.34, he had also produced school leaving certificate in support of his claim that his date of birth was 4.9.34. The CPO after analysing the evidence and material on record and after hearing the parties, rejected the claim of the employee for the alteration of the date of birth from 6.9.30 to 4.5.34 vide order dated 24.1.89. Aggrieved by the decision of the CPO, employee once again moved an application before the Tribunal challenging the order dated 24.1.89. By its order dated 30.9.93, the Tribunal allowed the application and quashed the order dated 24.1.89 and directed the Railway Administration to alter the date of birth of the employee in his service records from 6.9.30 to 4.9.34 and since the employee had already retired from service on 30.9.88, the Tribunal directed that the employee be treated as if he had continued in service from 1.10.88 till 30.9,92 and on that basis, he be given all consequential benefits including the pay and allowances. The Tribunal took the view that even though vide its earlier order of 26.8.88 the CPO had been directed to pass a speaking order after giving an opportunity to the concerned employee to produce his evidence and considering the same, the CPO had not complied with the order in its correct perspective. The Tribunal found fault with the opinion of the CPO that since the employee had not availed of the final opportunity, provided by the Railway Board asking all the literate employees to submit their representations, if any, for correction of their recorded date of birth, latest by 31.7.73, therefore his belated claim for correction of his date of birth suffered from the vice of latches. The Tribunal relied upon a full bench judgment of the Tribunal in T.A. No. 1104 and 1089 of 1986, wherein it had been held that the Railway Board's letter No. E(NG) ii-70 BR/1, dated 04.8.72, prescribing 31.7.73 as the last date for making representation for effecting the change of date of birth, did not have the force of law and that an application by a railway employee for correction of his date of birth, could not be rejected on the ground that it had not been made before the last date prescribed in the Railway Board's letter dated 04.8.72. 7. When the case reached the Supreme Court, relying on the decision in the case of Union of India, v. Harnam Singh, (supra), the Supreme Court observed as under:-- "The approach of the Tribunal is patently objectionable and does not commend to us. It attempted to circumvent the law laid down by this Court on untenable reasons by stating that "we are required to consider the case on merits" without in fact so considering. The law laid down by this Court is binding on all Courts and Tribunals. Indeed the law as declared by this Court has to be applied to the facts were so eloquent that no scope was available with the Tribunal to get over the opinion expressed by this Court in Harnam Singh's case and on the facts as established on the record the Tribunal had no option but to refuse relief to the respondents." The Supreme Court has further observed in para- 9 as under:-- "The material on record established that after filing of the option forms declaring his date of birth as 06.09.30; in 1960 and after the filing of the P.P. withdrawl form on 20.2.80, the respondent made his representation for correction of date of birth in 1985 and 1987 but failed to substantiate his claim through any reliable and trustworthy documentary evidence. He allowed the matter to rest till he neared the age of superannuation. The respondents slept over his rights to get the date of birth altered for more than thirty 1 years and woke up from his deep slumber on the eve of his retirement only. The law laid down by the Court in Harnam Singh (supra) was, thus fully applicable to the facts and cirucmstances of the case of the respondent and the Tribunal failed to follow the same without even pointing out any distinguishing features on facts. Stale claims and belated applications for alteration of the date of birth recorded in the service book at the time of initial entry, made after unexplained and inordinate delay, on the eve of retirement need to be scrutinised carefully and interference made sparingly and with circumspection. The approach has to be cautious and not casual. The above observations of the Supreme Court apply with full force to the facts of the instant case. The applicant in the instant case has woken up about his date of birth only at the time of his retirement. It is not that he did not know that his birth date was not correctly recorded in the service-sheet as the facts clearly disclosed that he knew about the same and that he had given different birth dates at different times. His school leaving certificate showed his birth date as 09.3.36 while at the time of joining the service with the BB and CI railways in 1953 he has given his birth date of that of 23.4.29 and in his service sheet of western railway he has given his birth date as 09.3.34. Thereafter in an application for NOC signed by him, he has given his birth date as 09.3.39, whole in his P.P. withdrawl form dated 28.1.80, he has given his birth date as 21.3.34 and in his option form he has given his birth date as 09.3.36 and till 09.5.90, when he first made representation for change of date of birth he had not made any endeavour to get his date of birth altered in the service book. Hence, in view of the decision in the case of Harnam Singh (supra) as well as in the case of Kantilal Hematram Pandya (supra) his case for change of birth date cannot be sympathetically considered. In a recent decision in the case of State of Orissa v. Ramnath Patnayak, AIR 1997 SC 2452, it is laid down that when entry was made in service record and when the employee was in service, he did not make any attempt to have the service record corrected and therefore, any amount of evidence produced subsequently would be of no avail. In the appeal of the State of Orissa, the Supreme Court held that the birth date cannot be corrected. 8. The applicant in the instant case has also woken up at the fag end of his service to get his birth date altered in the service book and no explanation is forthcoming from the applicant as to why he had not made any attempt to get the birth date changed when an opportunity was given to him by the railway in 1973. Even if it is considered that this opportunity could not be said to be last opportunity then also since he had woken up from his deep slumber only at the time of his retirement, his case sufffers from vice of latches and no directions can be given to the railway authorities to alter his date of birth in the service book. This O.A. therefore, cannot be allowed and hence, in our opinion it deserves to be rejected. In the conclusion, we reject this O.A. with no order as to costs. This matter was posted today for pronouncing the judgment but before the judgment can be pronounced, Mr. K.K. Shah learned advocate for the applicant has submitted that he wants to cite some decisions which he could not cite at the time of arguments in this matter. According to him, this Tribunal had dealt with the question of correction of birth date in the past in several cases and these decisions are required to be considered by this Bench. He has relied upon the decisions in the case of Nautamlal Laljibhai Trivedi v. Union of India and Ors. in O.A. No. 140/89 as well as the decision in the case of Kantilal Hematram Pandya v. Union of India in O.A. No. 71/90, and also Datturao Pandurang Shinde v. Union of India in O.A. No. 315/90 as well as the decision in the case of Jayant Vishnu Paranjape v. Union of India and Ors. in O.A. No. 302/91. Since the judgment was yet not pronounced, we have permitted Mr. Shah to cite these decisions and we have carefully considered all these judgments. So far as the case of Nautamlal Trivedi (supra) in O.A. No. 140/89 is concerned, the date of birth of the petitioner was permitted to be corrected on the ground that the school leaving certificate ought to have been considered as a genuine one and the date of birth ought to have been corrected by the respondents. Similarly in the case of Kantilal H. Pandya (supra) in O.A. No. 71/90, the date of birth of the applicant was directed to be corrected on the ground that the respondents were not able to give satisfactory reasons how the wrong date of birth was entered into the service record of the applicant. It was also decided on the basis of the full bench judgment in the case of Malleala Sreeram Murthy v. Union of India in T.A. No. 1104/86 and 1089/86 decided on 17.8.89 rejecting the contention that the railway employee's application for correction of his date of birth cannot be rejected on the ground that it is not filed within the period prescribed in the Railway Board's letter dated 4.8.72. This decision of the Tribunal in appeal has been over ruled by the Supreme Court as mentioned in para - 6 of this judgment. Hence, this decision cannot be applied. The third judgment in the case of Dutturao Pandurang Shinde (supra) in O.A. No. 315/ 90, the date of birth was directed to be corrected on the ground that the date of birth was recorded in the service sheet on the basis of the medical certificate and the same ought to have been corrected when other reliable documents were available. Similarly in the case of Jayant Paranjape in O.A. 302/91, the date of birth of the applicant was directed to be corrected on the basis of the entry of the birth date from the Birth and Death certificate from the municipalities. It is worthwhile to note that none of these decisions has considered the question of delay and latches in moving the application for correction of date of birth. In fact the Tribunal at that time had not the opportunity of considering the judgment of the Supreme Court delivered in the case of Union of India v. Harnam Singh and other judgment as same were delivered in 1993 and thereof. The Supreme Court judgments have the effect of over riding the judgment or this Tribunal or over ruling the judgment or this Tribunal and therefore, none of these judgments of this Tribunal cited by Mr. Shah can be considered to be precedent for deciding this O.A. In fact none of these decisions can be considered to be laying down the correct law in view of the Supreme Court's judgment in the case of Harnam Singh and therefore, they cannot be considered to be a binding principle for this Bench. Our conclusion earlier remains the same as stated before and we hold that this O.A. suffers from vice of latches and no directions can be given to the. Railway Authorities to alter the date of birth of the applicant. The O.A. therefore is rejected with no order as to costs.

Shri Kamaljeet B vs Union Of India (Uoi) And Ors. on 16 August, 1999

Central Administrative Tribunal - Ahmedabad

JUDGMENT Chandra Reddy, C.J. 1. This application for leave to appeal to the Supreme Court is filed under Section 110 and Order XLV Rules 2, 3 and 8 C.P.C. and Articles 132 and 133 of the Constitution. 2. The suit out of which this application arises was instituted by the first respondent for dissolution of partnership between him and defendants 1 to 6 in the suit and for accounts. 3. The suit was mainly contested by the fourth defendant, the other defendants sailing with the plaintiff. The main issue to be tried in the suit, therefore, was whether it was the fourth defendant that was liable to render an account to the other partners. 4. The trial court upheld the contention of the plaintiff and the other defendants that it was the fourth defendant that managed the concent and consequently he was liable to give an account to the other partners. In the result, the suit was decreed as prayed for making the fourth defendant liable to account to the plaintiff and other defendants. 5. On appeal, this order was reversed by the District Judge in the view that the fourth defendant was not an agent and as such was under no obligation to account to the other partners. He thought that the first defendant company represented by the fourth defendant, the appellant before the District Judge, alone was liable to account to the partners. In the result, he allowed the appeal and remanded the suit to the trial court for consideration of the first defendant's liability. 6. The aggrieved party carried the matter in appeal to this court in C.M.A. No. 515 of 1953. We decided that the fourth defendant was an agent and, therefore, incurred an obligation to render a proper account to the other partners. In this view, we sent back the matter to the lower appellate court to determine the liability of the fourth defendant. It is this order that is sought to be appealed against to the Supreme Court. 7. An appeal would lie to the Supreme Court only against any judgment, decree or final order in a proceeding of a High Court under Article 133 of the Constitution. The point for determination in this petition is whether the order in question satisfies the test of finality contemplated by Article 133 of Section 109 C.P.C. as adapted under the Adaptation of Laws Order, 1950. 8. It is represented by Sri Bhujangarao, learned Counsel for the petitioners, that the order sought to be appealed against to the Supreme Court is a final one in that it has determined the rights of the parties. To put it differently, his contention is that our judgment has decided the liability of the fourth defendant and that, to that extent, it has finally disposed of the claim of the other defendants as against his clients, who are the legal representatives of the fourth defendant. We find it difficult to accede to this argument. In our opinion, although the issue decided by us was a very important and vital one, yet there is no finality in relation to the suit, since the suit is still alive in so far as the dispute as between the plaintiff and the first defendant and the fourth defendant are concerned in regard to the amount that may be found due on taking of accounts. It is only when all the points in issue between the parties are adjudicated upon in a proceeding by an order that the attribute of finality is attached to such an order. 9. We do not think that Abdul Rahman v. D.K. Cassim and Sons, ILR 11 Rang 58 : (AIR 1933 PC 58) called in aid by Sri Bhujangarao renders any assistance to him. On the other hand, the principles enunciated therein by their Lordships of the Judicial Committee does him disservice. The facts of that case are these. The firm of Cassim and Sons had filed a suit for damages against the defendants on the ground that they all entered into a conspiracy to ruin their business. Pending the action, the plaintiffs were adjudged insolvents. The Official Assignee refused to prosecute the suit and it was dismissed on the ground that the cause of action had vested in the Official Assignee and that the plaintiff could not continue the suit. This judgment was reversed by Page, C.J. and Das, J., of the Rangoon High Court in the view that the cause of action was personal to the insolvents and did not pass to the Official Assignee. The learned Judges granted a certificate under Section 109 (c) C.P.C. being of the opinion that the requirements of Section 110 C.P.C. were complied with. 10. An objection was taken on behalf of the respondents in that case before the Judicial Committee that an appeal was incompetent for the reason that the order appealed against was not a final one within the contemplation of Section 109 (a) C.P.C. Their Lordships gave effect to this submission on the ground that the effect of the order from which appeal was sought to be filed was not to 'finally dispose of the rights of the parties' and that though the High Court had decided an important and even a vital issue in the case, it left the suit alive and provided for its trial in the ordinary way. In support of their conclusions, their Lordships referred to Ramachand Majimal v. Govardhanadas Vishindas Ratnachand, 47 Ind. App. 124 : (AIR 1920 PC 86). In that case, the question arose with reference to an order in a suit on a cotton contract which had been stayed by Court under Section 19 of the Indian Arbitration Act. This order was set aside on appeal and the case was remanded for disposal on the merits. Leave to appeal against this order was granted on the ground that it was a final order. At the hearing before the Privy Council, a preliminary objection was taken that the order in question was not a final one and, therefore, the certificate was wrongly given and that the appeal was incompetent. This preliminary objection was accepted by their Lordships and the appeal was dismissed. In upholding the objection, this is what Viscount Cave observed : "The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights but leave them to be determined by the courts in the ordinary way. In their Lordships' view, the orders were not final, and accordingly the appeals cannot proceed". 11. It is clear from this pronouncement that the fact that an important and vital issue is decided in a case would not make the order a final one, if there are some matters left to be determined in the suit, in other words, if the rights of the parties have yet to be determined. 12. We are unable to see how Raghavacharyulu v. Vcnkata Ramanujacharyulu, comes to the rescue of the petitioners. On the other hand, the doctrine embodied in this ruling furnishes an answer to the contention now urged on behalf of the petitioners. Venkatarama Ayyar, J., who spoke for the court, dealt with this aspect of the matter elaborately and ruled that an order could be held to be final order only if it finally disposes of the rights of the parties in the suit or the proceedings. The learned Judge remarked : "On the same principle, it has been held that when an action is dismissed by the Court of First Instance on the ground that it is barred by limitation or that it is res judicata, or that it is barred by Order 2, Rule 2, or that the suit is not maintainable arid the dismissal is reversed on appeal and the case remanded for trial on the merits, the order is not a final one within the meaning of Section 109. Judged by these tests, the order sought to be appealed against will only be an interlocutory order and not a final order". 13. The above passage makes it clear that the fact that an important and even a vital issue was decided in the suit, does not make the order a final one, if there arc still other disputes to be decided in the suit. 14. We may also advert to the judgment of the Federal Court in Kuppuswami Rao v. The King, (1948) 1 Mad LJ 103 : (AIR 1949 FC 1). There, the appellant was charged with criminal misappropriation of funds and with signing false certificates of payments of cheques. When the trial began, the accused raised an objection that the prosecution was vitiated by the failure to obtain the sanction of the Governor for the institution of criminal proceedings, The court overruled the objections and dismissed the application with the result that the trial had to go on before the Magistrate. The accused wanted to take this matter in appeal to the Federal Court. Kania C.J., after referring to the authorities laid down that "to constitute a final order, there must be such a determination of the points in dispute as would dispose of the proceedings". 15. To a like effect is the decision of the Supreme Court in Mohammed Amin Brothers v. Dominion of India, 1950 SCJ 139 : (AIR 1950 FC 771. 16. It is unnecessary to multiply citations on this question. Suffice it to say that, in this case, it is "difficult to posit that the order sought to be appealed against is a final order within the meaning of either Section 109 C.P.C. or Article 133 of the Constitution of India to enable the petitioners to file an appeal to the Supreme Court. 17. In the result, the petition is dismissed with costs.

Author: C Reddy

G. Royrao And Anr. vs Datta Venkatapathi Raju And Ors. on 27 August, 1960

Andhra High Court

******** ******** ******** If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial. 2. In view of the aforesaid settlements in the present case simultaneously enquiry could not be started when on police report challan has been presented on December 17,1992. 3. On notice of motion having issued reply has been filed by the respondent Bank inter-alia alleging that the criminal trial had not been commenced and thus the enquiry could proceed. Further-more, it is stated that for one year from the commission of the offence the trial did not commence and the enquiry cannot be quashed. JUDGMENT A.L. Bahri, J. 1. Vijay Singh Petitioner is an employee of the Central Bank of India-the respondent. He, in this petition filed under Articles 226 and 227 of the Constitution prays for quashing of order Annexure P-4 whereby Enquiry Officer was appointed to hold departmental enquiry against him. An FIR was lodged on February 10, 1992 with respect to embezzlement of bank funds to the tune of Rs. 1,14,500/- as per details given in Annexure P-3 which is part of the charge-sheet served on the petitioner for holding departmental enquiry. The aforesaid charge-sheet was served on March 27, 1992. The Enquiry Officer was appointed vide Annexure P-4 date April 24, 1992, after reply to the charge-sheet was not considered satisfactory. The case of the petitioner is based on bipartite settlement dated October 19, 1966. Para 19.4 extract of which is quoted, from the writ petition is as under :- "If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of 'gross-misconduct' or of 'minor misconduct." 4. A perusal of the settlement aforesaid shows that para 19.4 applies in the two contingencies. Firstly that if the accused is to be put to trial, departmental enquiry cannot be initiated on the same allegations and secondly if the departmental enquiry is initiated and subsequently the person is put to trial in the criminal Court, such proceedings are to be stayed. Thus the question for consideration is as to whether Vijay Singh petitioner has been, put to trial by simple presentation of the challan against him in the criminal court or the trial would commence from the stage question of framing charge is considered against him. Simply by presentation of the police challan it could not be said that the accused has been put to trial. Before charge is framed if the accused absents from the trial, his presence is to be procured and the trial will only commence when the Court applies mind to the allegations contained in the report submitted Under Section 173 of the Code of Criminal Procedure and the documents accompanying thereto as to whether the accused is to be charged or not. After framing of the charge, the same is put to the accused to record his plea. If he pleads guilty to the charge the case may finish by order of conviction and sentence. If he pleads not-guilty and claims to be tried, he is put on trial (Section 240(2) of the Criminal Procedure Code). Thus, as and when the charge is framed, it can be said that the accused has been put on trial. It is undisputed that the petitioner has not so far been charged by the criminal court. That being the position, departmental inquires could be initiated against him. Annexure P-3 shows that allegations of embezzlement contained about 35 items relating to different amounts. Some of the items relate to the months of June and July 1991. Other items are earlier in time. In the present case, departmental proceedings were initiated and the petitioner was charged on March 27, 1992. An enquiry Officer was appointed on April 24, 1992. Most of the entries are beyond one year from the appointment of the Enquiry Officer. Even if some are within one year, it will not make any difference as already stated above in the criminal case charge has not been framed against the petitioner and the departmental enquiry proceedings cannot be stopped. 5. From perusal of the written statement it is further clear that statement of several witnesses of the department have already been recorded. The petitioner did not choose to approach this Court promptly. Rather the petitioner concealed this fact of recording of the evidence by the Enquiry Officer though he did mention about the pendency of the enquiry. 6. For the reasons recorded above, we find no reason to interfere in the enquiry proceedings and dismiss the petition. No order as to costs.

Author: A Bahri

Vijay Singh vs Central Bank Of India And Anr. on 4 February, 1994

Punjab-Haryana High Court

Court No. - 40 Case :- FIRST APPEAL FROM ORDER No. - 1937 of 2010 Petitioner :- Smt. Rinki Dubey And Others Respondent :- The New India Insurance Company Ltd. And Others Petitioner Counsel :- R.K. Singh Hon'ble Satva Poot Mehrotra.J. Hon'ble Shyam Shankar Tiwari,J. Case called out. None is present for the appellants. Put-up as fresh on 31st August, 2010. Order Date :- 26.7.2010 Ajeet

Smt. Rinki Dubey And Others vs The New India Insurance Company ... on 26 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.MA/3590/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3590 of 2011 In CRIMINAL MISC.APPLICATION No. 11366 of 2010 ========================================================= MULABHAI RAICHANDBHAI NAI - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR VIRAT G POPAT for Applicant(s) : 1, MR LB DABHI, ASST. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, MR RJ GOSWAMI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/03/2011 ORAL ORDER Considering the submissions and the averments made in this application, the delay of six days occurred in filing restoration application is CONDONED and CRIMINAL MISC. APPLICATION No. 11366 of 2010 is RESTORED to file along with the AD-INTERIM RELIEF, granted earlier. This application stands DISPOSED OF, accordingly. (AKIL KURESHI, J.) Umesh/     Top

Author: Akil Kureshi,&Nbsp;

Mulabhai vs State on 18 March, 2011

Gujarat High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 3107 of 2005 Date of Decision: July 3, 2009 Ballarpur Industries Limited ...Petitioner Versus Excise and Taxation Officer-cum-Assessing Authority, Khanna and another ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Kashmiri Lal Goyal, Senior Advocate, with Mr. Sandeep Goyal, Advocate, for the petitioner. Ms. Sudeepti Sharma, DAG, Punjab, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. (M.M. KUMAR) JUDGE CWP No. 3107 of 2005 3 (JASWANT SINGH) July 3, 2009 JUDGE Pkapoor The instant petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of prohibition restraining the respondents from framing the assessment under the provisions of the Punjab General Sales Tax Act, 1948 (for brevity, 'the Act') in respect of assessment year 1990-91. According to the petitioner the period of limitation prescribed under Section 11(4) of the Act for framing the assessment had already expired. On 25.2.2005, while issuing notice of motion, a Division Bench of this Court also directed that the order, if any, passed by the Assessing Authority would be subject to the final adjudication of the instant petition. Subsequently, on 3.10.2005, while hearing the parties on the question of grant of interim relief, liberty was granted to the Assessing Authority to CWP No. 3107 of 2005 2 complete assessment for the relevant assessment year but the said order was not to be given effect to without the leave of the Court. At the hearing, learned counsel for the petitioner has apprised the Court that the Assessing Authority has already completed the assessment and passed the assessment order but the same has not been given effect to in terms of interim directions dated 3.10.2005 passed by this Court. He has also disputed the factum of issuance of notices issued to the petitioner in Form ST-XIV under Sections 11 and 14 of the Act before finalisation of assessment order. According to the learned counsel all these notices were fabricated to overcome the period of limitation. The aforesaid fact is a disputed question of fact. Moreover, remedy of appeal has been provided under Section 20(1) of the Act against the assessment order passed by the Assessing Authority during the pendency of the instant petition. Accordingly, we are of the view that the aforesaid question of fact could more appropriately be determined by the Appellate Authority, especially when appeal is provided and the remedy of appeal against the assessment order has not been availed by the petitioner due to pendency of present petition. In view of above, the petitioner is relegated to the remedy of appeal. If any appeal is filed by the petitioner then the petitioner may file an application for condonation of delay in filing the appeal by citing the reason of pendency of this petition. If such an application is filed then the same shall be considered sympathetically by the Appellate Authority. The writ petition stands disposed of in the above terms.

Ballarpur Industries Limited vs Excise And Taxation ... on 3 July, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B.CR.MISC.BAIL APPLICATION NO.4009/2010. Hanuman & Anr. Vs. State of Rajasthan Date of order : 13/5/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.S. Sunda for the petitioners. Shri Amit Poonia, Public Prosecutor for State. Shri Anil Upman for the complainant. ****** Upon hearing learned counsel for petitioners, learned Public Prosecutor for the State as well as learned counsel for the complainant and perusing the material available on record especially the statement of the prosecutrix recorded under Section 164 Cr.P.C., I am not inclined to enlarge the accused-petitioners on bail at this stage. This bail application under Section 439 Cr.P.C. is therefore dismissed. (MOHAMMAD RAFIQ), J. anil

Hanuman And Anr vs State Of Rajasthan Through P.P on 13 May, 2010

Rajasthan High Court

JUDGMENT Hari Lal Agrawal, J. 1. The petitioner, who has been detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the 1980 Act) by an order of detention dated 9th Apr., 1980 (annexure '4') passed by the District Magistrate, Singhbhum for alleged violation of the restrictions imposed by notification No. 21423 P. C. Dated 20-12-1954 in the Department of Supply and Commerce of the Government of Bihar, with respect (o the despatch of salt from the State of Bihar to the State of West Bengal, has filed the present writ application for quashing the order of his detention. The main ground on which the detention order has been challenged by Shri A. K. Sen, learned Counsel appearing on behalf of the petitioner, is that the notification, which controlled the movement of salt, itself was not in force and, therefore, the order of detention cannot be sustained. 2. The facts: The petitioner is resident of a place known as Chakulia, which lies within the district of Singhbhum and is situate only at a short distance from West Bengal, One of his sons, Bharat Kumar, resides with him in the same house and carries on business in salt. The stand of the petitioner is that, he had no connection, whatsoever, with the business of his son. This fact is controverted by the respondents. The reasons and points which have been urged before us in challenge of the order do not necessitate entering into the realm of the disputed fact. 3. On 17th Mar., 1980 the petitioner's son was summoned by Chakulia Police, but inasmuch as he was out of station, the petitioner himself went there. The Police authorities desired to search thJ premises of his son and search was made in presence of the petitioner of the business premises which is situated in a part of the residential house of the petitioner. The stock registers and cash memos etc. in respect of the salt business (vide seizure list, annexure '1') were seized by the police and the petitioner was asked to accompany them to the police station. And on his arrival, he was suddenly arrested. In the counter-affidavit filed on behalf of respondents Nos. 1 and 2 in this regard, however, this fact is controverted and according to them he was arrested only on the filing of the first information report on the next day, i.e. on 18-3-1980 which was lodged by the Circle Officer, Chakulia, a copy of which has been made annexure '2' to the writ application. The first information report was received at 21.30 hours and was registered as Chakulia P.S. Case No, 7 dated 18-3-1980 Under Section 7 of the Essential Commodities Act and Section 471 of the IPC against the petitioner and his son, aforesaid. It has been alleged in the first information report that: ....Hemraj Jhunjhunwala has been violating the ban on the export of salt out of territories of the Bihar State. This is the cognizable offence Under Section 7. E.C, Act, and the notification No. 21423 dated 20-12-54 of the Depart, of supply and commerce, Govt, of Bihar. Besides this, Mi. Jhunjhunwala has committed the act of tampering with a document which by itself is a substantive crime. Apart from that he has also tried to cheat the authorities by despatch of salt in the name of fictitious or benami firms. Keeping stock book at residence is also improper. In the body of the report particulars of various discrepancies regarding despatches of salt made from Chakulia to West Bengal were stated. 4. An application for bail was made on 18-3-1980 on behalf of the petitioner before the Additional Chief Judicial Magistrate, Singhbhum, but the same was rejected and thereafter the petitioner moved this Court on 8-4-1980. The matter was finally heard on the next day by a learned single Judge of this Court. It was alleged by the petitioner that the officers concerned with the detention of the petitioner were present in the Court and his bail application was strenuously opposed by the State, so that thepetitioner may not come out of the custody. However, this Court allowed the bail application ' by order dated 9-4-1980 (Annexure '3', The undertaking given on behalf of the petitioner that he"...will not deal, in salt till the disposal of G.R. Case No. 156 of 1980 pending in the court of the Addl. Chief Judicial Magistrate, Jam-shedpur" was also recorded. The petitioner has further pleaded that the authorities were determined to detain the petitioner and frustrate the order of bail and as such they caused the detention order to be issued Under Section 3 of the 19S0 Act. The detention order, which is dated 9-4-1080, was served on the petitioner in jail on 10-4-1980, a copy of which has been made annexure '4'. It states that ...With a view to preventing Shri Hemraj Jhunjhunwala son of late Dharam Chand Jhunjhunwala of Chakulia, P.S. Chakulia, District Singhbhum from acting in any manner prejudicial to the prevention of Black Marketing and Maintenance of Supplies of Essential Commodities to the Community, it is necessary to make an order that he-is detained. It was accordingly directed that the petitioner should be detained, tie result feeing that the petitioner, in spite of the order of his release, could not come out of the jail. Two days thereafter on 12th April, the petitioner was served with the grounds of detention issued by the District Magistrate. The petitioner thereafter filed his representation. 5. The law: In order to appreciate the main argument advanced by Mr. AK. Sen it is necessary to notice the legislative history. In view of the provisions contained in the Government of India Act, 1935, the India (Central Government and Legislature) Act, 1946 was passed by the British Parliament empowering the Central Parliament to make laws. with respect to the matters which under the 1935 Act were within the competence of the provincial Legislatures and Essential Supplies (Temporary Powers) Act, 1946 was passed by the Central Legislature. This Act was kept alive up to the 26th Jan., 1955 by successive Acts of Parliament. It is not disputed that the provisions of the 1946 Act contained provisions similar to the Essential Commodities Act, 1955, including the power of delegation and such delegation was made by the notification dated 21-10-1946 by the Government of India (Department of Food) in relation to food stuffs to the Provincial Governments. In pursuance of this delegated powers, an order was made by the State Government regulating export of salt from the State of Bihar on permits by the notification dated 20-12-1954, a copy of which has been made annexure '6'. It is this notification which is the sheet anchor of the order of detention. The notification provides as follows: (a) No person shall export or carry or cause to be exported or carried by rail, river, road or otherwise any quantity of the commodities specified in the schedule annexed hereto from any place in the State of Bihar to any place outside the State except with the written permission of the Chief, Controller of Prices and Supplies, Bihar, the Central Government or any competent authority subordinate to the Central Govt. xx xx xx 6. On 1-4-1955 the Central Legislature enacted a permanent legislation with respect to the Essential Commodities, namely, the Essential Commodities Act, 1955 after repealing the Essential Commodities Ordinance No. 1 of 1955(hereinafter referred lo as the 1955 Act). On coming into force of this Act, 1946 Act, which had come into force on and from the 1-10-1946, expired. The 1955 Act contains a saving clause in Section 16 as usual. II prescribes that in spite of the repealed Ordinance No. 1, 1955 which in its turn repealed the 1946 Act. "notification made thereunder as well will continue to be in force except when it is superceded by any order that may be made under the Essential Commodities Act, 1955." 7. Ordinance no. 1 of 1955 provided that Whereas the Essential Supplies (Temporary Powers) Act, 1946(XXIV of 1940, which confers powers to control the production, supply and distribution of and trade and commerce, in certain commodities expires on the 21th day of January, 1955. And whereas it is necessary in the interest of the general public, to provide for the continuance of such powers in relation to some of the commodities specified in that Act and certain other commodities; xx xx xx The Ordinance was being promulgated by the President under Article 123 of the Constitution. Curiously enough the date from which the said Ordinance was to come into force, was 26th' Jan., 1955. This is the entire relevant legislative history with respect to the law, under the provision of which the impeached action of the respondents has to be examined. 8. It has already been said that under (he Government of India Act 1935 the power to make laws with respect lo trade and commerce in relation to various essential commodities etc. was with the Provincial Governments until the British Parliament had passed the (Central Government and Legislature) Act, 1946 and it was then that the 1946 Act was passed, 9. Mr. A. K. Sen based his argument mainly on Article 369 of the Constitution which gave temporary power lo the Parliament to make laws with respect to certain matters in the State List as if they were matters in the concurrent list, for a period of five years from the commencement of the Constitution, namely, 26th Jan., 1950. It further provided that "...any law made by the Parliament, which Parliament would not but for the provisions of llrs article have been competent to make, shall, to the extent of the incompelency, cease to have effect on the expiration of Ihe said period, except as respects things done or omit led to be done before the expiration thereof". It was not disputed that left to itself Ihe 1946 Ad would come to its natural end by virtue of the above provision, inasmuch as it would expire on 26th Jan, 1955. The stand of the petitioner, which was also emphasised liy a supplementary affidavit, is that Ordinance no. 1 of 1955, which was promulgated by The President on 21st Jan., 1955, could not operate beyond 26th Jan., 1955 in the absence of any legislative competence in the Central Parliament to that effect. In this regard CL (3) of Article 123 was relied on. In support of the above case, the petitioner has referred lo entry no, 33 of the Concurrent List of ihe VII Schedule of the Constitution. This entry as it originally stood before Ihe 3rd amendment of the Constitution in the year 1954 simply provided for "Trade and commerce in, and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the Public interest...." It is not disputed that under this entry, as it stood, the Central Legislature was not compentent to pass any law with respect to the essential commodities. Entry 33, however, was amended by the third amendment in the year 1954 and by Section 2 thereof, on 22-2-1955, a new Entry was substituted, which apart from making some marginal changes in the original Entry also added under Clause (b) food stuffs, including edible oil seeds and oils. It was said that thus in between 26-1-1955 on the expiry of the 1946 Act and 22-2-1955 there was an interregu-num and, therefore, Ordinance no. 1 of 1955(21-1-55) could not revive or save any matters or things under the 1946 Act as until the amendment of Entry 33, the President himself had no authority to enforce any law which the Parliament itself was not empowered. It is, accordingly argued that the saving clause contained in Section 16 of the Ordinance no. 1 of 1955 would be of to consequence and did not save the 1954 notification which had already become defunct on 26-1-1955. Section 16 of the Ordinance, no doubi, purported to save the orders made or deemed to be made under the 1946 Act in force immediately before the commencement of the Ordinance, as if it was made under the Ordinance itself. Similarly the Essential Commodilies Act also in Section 16 contained a similar saving provision. It is well settled that the repealing and saving provision by its very nature can repeal or save only a law or thing which continues to be in force until the saving provisions itself came into play and can save only such Order or action etc which is in force under the law they were passed which law is then repealed. If the law sought, to be repealed itself stands lapsed or expired, then the saving provisions cannot revive or restore any dead and defunct law. This legal position was not contested by the learned Government Pleader and in my opinion, rightly. 10. In the supplementary counter-affidavit, which was filed after the supplementary affidavit of the petitioner, the respondents have conceded that the 1946 Act lapsed automatically on 26th Jan., 1955 by virlue of the provisions of Article 369 of the Constitution 'and that in order to empower the Central Parliament to make laws in regard to those matters, Entry no. 33 of the Concurrent list was amended by the 1954(Third Amendment) Ad, which came into force on 22-2-1955. In view of this circumstance the respondents took a stand that the Stale Government was competent to legislate under Article 246 read with Entry no. 42 of List I which deals with inter-State trade and commerce. It was then said that the Central Government was fully competent to regulate inter-State trade and commerce of any commodity. The clear stand of the respondents is that l.he Ordinance, no. 1 of 1955 was issued by the President, aa Entry no. 42 of the Union List empowered the Parliament to regulate the inter-State trade of all commodities, inasmuch as the impugned notification (annexure '6') banned the export of salt outside Bihar. It came in the category of inter-State trade and commerce. Thus the said notification was kept alive till the enactment of the Essential Commodities Act, i.e. during the interregnum and, therefore, there was no break in the legislation and the field always remained occupied. It is quite obvious that this plea, on the face of it, is erroneous, inasmuch as Ordinance no. 1 of 1955 cannot be said to have been issued under Article 246 read with entry 42 of the Union List, inasmuch as the very preamble of the Ordinance said that it was to provide for the control of the production, supply and distribution of, and trade and commerce in certain commodities and Section 3 of the Ordinance conferred extensive powers on the Government in this regard "for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein." Perhaps on becoming alive of the above infirmity in the stand the learned Government Pleader adopted an entirely new argument during the course of his reply. He took the stand that salt was an industrial product and, therefore, was covered under item no. 52 of the Union List. Item no. 52 of the Union List reads as follows : Industries, the control of which by the Union is declared by Parliament... In order to substantiate his argument that salt was a manufactured commodity, the learned Government Pleader referred to various provisions of the Central Excises and Salt Act, 1944. He also placed reliance upon Entry no. 58 of this very List which reads as follows: Manufacture, supply and distribution of salt by Union agencies; regulation and control of manufacture, supply and distribution of salt by other agencies. In support of this proposition, he also strongly placed reliance upon Tikaramji v. State of U. P. ). In this case it was observed that the 1954 amendment of the Constitution only enlarged the scope of Entry No. 33 and set a limit on the exclusive jurisdiction which the State Legislature possesses under Entry No. 26 and Entry No. 27 respectively of the State List over "trade and commerce within the State" and "production, supply and distribution of goods". An 'industry' falls under Entry 24 of the Slate List and 'production, supply and distribution of its products' fall under Entry No. 27. But the Parliament which has power under Entry 52 of List I may vest the control of that industry in the Union of India. Then neither Entry No. 24 nor entry No. 27 of the State List would apply. Trade and commerce in the product of that industry and production, supply and distribution of those products then become subject matter of the concurrent jurisdiction of both Parliament and State Legislatures under this Entry. Tn this case the question was whether the State of U. P. could legislate with respect to the raw material, namely, sugarcane, the finished products thereof, i.e., sugar which was a subject matter of a Central legislation and a controlled industry, It was accordingly held that U. P. Sugarcane (Regulation of Supply and Purchase) Act (Act 24 of 1953) was fully intra vires of the U. P. Legislature. The Supreme Court clearly laid down that after amendment of Entry 33 whereas it was possible for the Central Parliament also to legislate in relation to sugarcane, but that in no way affected the legislative competence of the State legislation as well to legislate on the same subject matter, the effect of the amendment being simply to enlarge the scope of the entry and not to affect the legislative competence of the Parliament and (he State Legislature. This case was again referred to by the Supreme Court in the case of A. K. Jain v. Union of India ) where it was observed thai Essential Commodities Act. 1955 and various control orders passed by the Slate Governments as delegates of the Central Government under the Essential Commodities Act were enacted, under this Entry and not under Entry No. 52 of the List I. This decision, therefore, is of no assistance to the respondents. 11. Mr. A. K. Sen look an objection that the respondents should not be permitted to take a new stand, for the first time in the reply argument and thereby lake the petitioner by surprise. However, he contended that even assuming for the sake of argument that salt would be held to be an Industrial product, that by itself would not empower the Parliament to legislate with respect to an industry unless it was declared by the Parliament by law to be expedient to control such an industry in public interest. He cited various instances in support of his contention that such declaration was a sine qua non for legislating with respect to any industry. Reliance was placed on the case of Bai-jnalh Kedia v. Stale of Bihar ) and the Industry (Development and Regulation) Act, 1951, whereby the sugar industry became 'a controlled industry'. Trade and commerce of the controlled industry and production, distribution and supply of those products then become the subject matter of concurrent jurisdiction of both the Parliament and the State Legislature within Entry No. 33, as was held by the Supreme Court in Tikaram's case. Even assuming, therefore that salt was an industrial product, trade and commerce in salt, which was the resultant product of the industry would not be covered by Entry 52 of List I, but would fall under Entry No. 33 of List III. Clause (a) of Entry No. 33 also says that trade and commerce and production, supply and distribution etc., of the products of only that industry would fall under this article which is "declared by Parliament by law to be expedient in the public interest". It is, therefore, obvious that a declaration by Parliament with respect to each specific industry is a condition precedent to cover its products under Entry 33 for its regulation by the Parliament or the State. In the absence, therefore, of any further materials to show (that such a declaration was made by the Parliament with respect to the salt industry, the argument of the learned Government Pleader does not hold good that the impugned notification or Ordinance No. 1 of 1955 could be upheld under the above constitutional powers. 12. Coming to Entry No. 58, which covers manufacture, supply and distribution of salt, Mr. Sen invited our attention to corresponding item No. 47 of List I in the Government of India Act, 1935, where it was simply 'salt. He, therefore, contended that under the 1935 Act, Legislation with regard to salt without any limitation was within the reasonable legislative competence of the Central Legislature. This contention finds support from the decision in Lahore Municipality v. Daulat Ram AIR 1942 FC 14). But under the present Entry, the Union Parliament has reasonable jurisdiction with regard to the manufacture, supply and distribution of salt by Union agencies. With respect to manufacture, supply and distribution by other agencies, i, e., the agencies other than the Union agencies, it has only the power of regulation and control and not with respect to its manufacture, supply and distribution. 13. Mr. Sen seems to be right in his contention. He also referred to Rule 2 of the Salt Act, lo derive support for his contention that the said rules contemplated provision of agency by grant of licence. He further argued that when the salt came into market as a finished product manufactured by the Central Agency or by any other agency, there was no law to regulate its distribution and supply. The argument of the learned Government Pleader in his attempt to save Ordinance No. 1 under the spell of Entry No 58 of List I seems to be far-fetched. The Ordinance which was followed by the Act in its very "statements of objects and reasons" says that t:as public interest required that the Centre should continue to have even after 26-1-1955, the same legislative power as it had under Article 369 of the Constitution, a bill providing for necessary amendment of Entry No. 33 of List 3 in 7th Schedule, lo the Constitution was passed by both Houses of Parliament in September last year" and-that Ihe amendment having become law and 1946 Act having expired "an ordinance was promulgated to take effect on 26-1-1955 which provided for the regulation of trade and commerce in and the production, supply and distribution of the commodities which fell within the first category referred to in the preceding paragraph". With respect to Entry No. 42 of the Union List, the statement itself stated that under the said Entry the Parliament has had power to regulate only inter-State trade and commerce, and Section 4 of the 1955 Ordinance was limited in the first instance only to wheat, raw cotton and sugarcane. The Statement further says that: Pending the passing of the Central law providing for control in respect of all essential commodities; now falling within Entry 33 of the Concurrent List. ... the present Bill sought to replace the Central Ordinance and at the same time include within the definition of 'essential Commodities' those commodities which had to be left out by reasons for passing the Essential Commodities Act itself, therefore, do not bear out the arguments advanced by the learned Government Pleader. 14. Having considered the rival arguments advanced by learned Counsel for the parlies on the main question as above, I, feel inclined to accept the argument of Mr. A. K. Sen and to hold that after the expiry of the Essential Supplies (Temporary Powers) Act, 1946 on 26-1-1955 a vacuum prevailed in the legislative field until 22-2-1955, that is, until Entry No. 33 was amended by the Constitution 3rd Amendment Act, 1954, which empowered the Central Parliament to make laws with respect to foodstuffs and various other commodities. The intention of the Parliament that Ordinance No. 1 of 1955 and Act No, 10 of 1955 were issued under the authority derived by it after the amendment of entry No. S3 is also quite obvious. In that view of the matter, it must be held that the notification dated 20-12-1954(Annexure 6) issued Under Section 3(1) of the 1946 Act, prohibiting export of salt from any place in the State of Bihar to any place outside thereof without obtaining permit from the authorities mentioned therein ceased to be operative on 26-1-1955 by the provisions contained in Article 360 of the Constitution and, therefore, the said notification could- not be deemed to have been saved by the repeal and the saving provisions contained in Section 16 either of the Ordinance or the Act of 1955. It is not disputed that after coming into force of the 1955 Act, no provision of' the nature as the notification dated 20-12-54, has been issued. It therefore, must be held that the petitioner cannot be said to have violated any law in force by despatching salt from Chakulia, a place inside the territory of Bihar, lo places oulside thereof. This is the main ground for the petitioner's detention under the impugned order; but as Mr. Sen challenged the order of detention on some other grounds as well, I would like to consider some of them which were pressed with some vehemence. 15. The next ground which was argued with equal force by Mr. Sen was that the main purpose of the provisions of the Prevention of Blackmarkeling and Maintenance of Supplies of Essential Commodities Act, 1980 was "prevention of blackmarketing etc." In other words the argument was that the preventive detention being to prevent a person from acting in future to the detriment of the maintenance of supplies etc., and not to punish him for his pasl laches in view of the undertaking given by the petitioner before this Court in the bail matter, which was a condition for the grant of his bail, whereby the petitioner undertook not to deal in salt until the criminal case instituted against him by the respondents, on the basis of the first information report, already noticed earlier, the very purpose of the petitioner's detention became meaningless and no order should have been passed. Reliance was placed in support of this contention on the case of P. L. Lakhanpal v. Union of India AIR 1%7 SC 908). In reply to this argument Mr. Government Pleader argued that inasmuch as the order of detention itself was passed on 9-4-1980 at Chaibasa, the District Magistrate cannot be said to be aware of this development and, therefore, the order cannot be impeached on this ground. The argument of the learned Government Pleader is fallacious raas-much as, as rightly contended by Mr. Sen, the order oj detention having been approved by the State Government Under Section 3(3) of the Preventive Detention Act on 21-4-1980, it cannot be said that even by that time, the respondents were not aware of the undertaking of the petitioner. Proceeding further Mr. Sen argued that in any view of the matter, the petitioner having been already lodged in jail on 18-3-80, in pursuance of the criminal proceeding instituted against him for the alleged violation of the provisions of the notification (annexure '6', there was no question of his indulging in any business activity which could call for his detention under the Act. Long statements have been made in the writ petition to show that ihe respondents have passed the orders simply as a vindictive measure, inasmuch as neither there was any control of price of distribution of supply of salt, the commodity being available in open market in abundance, nor there was any embargo on Us entry in the State of West Bengal directly from the manufacturing centre. It being more convenient to import the commodity from the producing centres at Chakulia due to transportation facilities, the business men were importing salt at that place instead of directly to the places in West Bengal. Such business admittedly was coming on from more than a decade and to the knowledge of all the authorities and the despatches were also made through the Railways. The only purpose of the large scale import was for its sale and despatch outside the State where it had not so much market or was in demand. 16. It is not 'he case of Ihe respondents nor any statement to this effect has been made in the counter affidavit that on account of the despatches of salt from Bihar to West Bengal, there was created any scarcity or shortage of the commodity or for that matter, it occasioned any price rise for the excesive sales by the petitioner and various other business men of the locality. It seems obvious that the petitioner and some other business men of the locality, against whom also such measures have been taken by the respondents and who have come to this Court, were transporting salt to oilier places in West Bengal, as according to the own case of the respondents, Chakulia was not a field where such a large quantity of salt could be imported for local consumption. According to the case of the respondents themselves, therefore, the imported quantity of salt was in far excess of the local consumption and, therefore, if that was diverted outside the surplus area to places where it was in demand, I fail.to understand as to how such an action would amount to adversely affecting the maintenance and distribution of its supply. The question of blackmarketing in the absence of any fixation of price at any stage, is simply a misnomer. It has been repeatedly held by the Supreme Court that the scheme of such provisions presupposes that on the date of the order of detention or in the near future, the person sought to b detained has or will have freedom of action. Therefore, the inclination of a person to act in any prejudicial manner indicated in Section 3 of the Act is a sine qua non for making an order of detention, There must be a proximate nexus between the preventive action and the past activity of the detenu on Which the order is founded. In the case of Rameshwar v. District Magistrate, Burdwan and Dulal Roy v. District Magistrate, Burdwan , where the detention orders were passed against persons while they were in jail custody as under-trial prisoners and the grounds of detention related to the same incidents as it is in the case before us, for which they were being prosecuted it was held that in the absence of a clear and complete counter-affidavit on behalf of the State giving any explanation or apparent reason as to why the making of the preventive order was deemed necessary jeven while the detenu was already in jail custody and had no freedom of action, the inescapable conclusion that would follow, in such circumstances, would be that the impugned orders had been passed mechanically and as a colourable exercise of jurisdiction. In the case before us, not only was that the petitioner in jail custody at the time when the detention order was made and served upon him, but he had already undertaken to a Court that he would not carry on the offensive business' m future for some time. To meet this argument learned Gov-vernment Pleader placed reliance upon the case of Dr. Ramakrishna v. District Magistrate Jabalpur , where it was held that detention order can be validly made against a person who is in jail custody. This case in my view is of no assistance to the respondents, as the petitioner in this case was detained in security proceeding itself Under Section 151/117 of the Criminal P, C. On the basis of the antecedent activities in the proximate past, the detaining authority had reasonably, reached to a conclusion that the person was likely to indulge in the activities prejudicial to the maintenance of the public order after his release on the termination of the security proceedings. I would, therefore, following the line in the above cases, hold that the order of detention . against the petitioner has been passed mechanically and without any foundation. 17. Mr. Sen advanced yet another ground in challenge of the detention order and that was that some of the grounds of the petitioner's detention were either irrelevant or non existent. In this connection he referred, in particular, to grounds Nos. 6 and 7, which say that there was a ban on the export of salt outside the State of Bihar imposed by the notification dated 20-12-1954(annexure 6) and that the illicit business has been going on for at least last five to six years which was an offence under the provisions of the Essential Commodities Act, 1955. It was contended that both these grounds, which were the backbone of the order of detention, were either irrelevant or non-existent, in view of the fact that there was no licensing order controlling the business in salt nor was there any prohibition in the eye,of law imposing any ban for the export, 18. For the view I have taken, with respect to the first question, this argument also must be accepted. No authority is needed for the well settled proposition that where some of the grounds of detention are either irrelevant or non-existing, any order of detention cannot be sustained. 19. Now remains for consideration a subsidiary argument advanced by Mr. Sen and that was (that where an ordinary criminal prosecution could well serve the purpose, the detaining authority must, satisfy the Court that the order of detention was not passed in a mechanical manner without, keeping present to its mind the Question whether it was necessary to make such an order. He contended that inasmuch admittedly the 'so called clandestine' business in salt was going on to the knowledge of all the authorities for the last 10-15 years and the grounds of detention were all the same which were the grounds for prosecution of the petitioner in the criminal proceeding, the authority should have been satisfied that the ordinary criminal prosecution could well serve the purpose and should not have taken recourse to this extraordinary measure. In this connection, he referred to the case of Kanchanlal Maneklal v. State of Gujarat ). On the fact and in the circumstances of the case discussed above, particularly that the offending act of the petitioner did not create any scarcity or price rise of salt in the State, much leas in the area, where the admitted case of the respondents being that the import itself was surplus, in my view the anxiety of the law could be well satisfied by taking recourse to the ordinary procedure, proceeding against the petitioner under the existing machinery, namely, the provisions of the Essential Commodities Act. 1955, if a case was made out against him. After all, the responsible officer must be conscious of the value of the civil liberty. 20. No other matter remains for consideration and having given my anxious consideration to all the questions canvassed before us by the learned Counsel for both the parties and on the facts and circumstances of the case, I hold that the order of detention passed against the petitioner cannot be upheld. I would, accordingly, allow this application, quash and set aside the order of detention and direct that the petitioner be set at liberty forthwith. S. Roy, J. 21. I agree.

Author: H L Agrawal

Hema Raj Jhunjhunwala vs State Of Bihar And Ors. on 13 May, 1980

Patna High Court

Gujarat High Court Case Information System Print SCA/3571/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3571 of 2007 ========================================================= RAJAN TECHNO CAST PVT. LTD. - Petitioner(s) Versus PASCHIM GUJARAT VIJ COMPANY LTD. - Respondent(s) ========================================================= Appearance : MR TUSHAR MEHTA for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE D N PATEL Date : 08/02/2007 ORAL ORDER NOTICE, returnable on 28th February, 2007. (D N PATEL, J.) Amit/-

Author: Dn Patel,&Nbsp;

Rajan vs Paschim on 13 December, 2010

Gujarat High Court

[Section 581ZM(3)] [Section 581ZM] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 882 of 2006() 1. NATIONAL INSURANCE COMPANY LTD., ... Petitioner Vs 1. RAJINA THIDIL, AGD ABOUT 21 YEARS, ... Respondent 2. N.MUHAMMED ASHARAF KUNHI, AGED ABOUT 35 3. M.IBRAHIM, S/O.MUHAMMED, R/A. P.O. For Petitioner :SRI.P.R.RAMACHANDRA MENON For Respondent :SRI.T.K.VIPINDAS The Hon'ble MR. Justice M.N.KRISHNAN Dated :19/12/2008 O R D E R M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 882 OF 2006 = = = = = = = = = = = = = = = Dated this the 19th day of December, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV)17/02. The claimant sustained injuries in a road accident and the Tribunal has awarded a compensation of Rs.23,400/- and made the insurance company liable to pay the compensation. The insurance company has come up in appeal challenging the finding of the Tribunal on the question of its liability. Unfortunately, the Tribunal has not considered the pleadings raised in the written statement. In paragraph 4 of the written statement there is a specific contention that the first respondent was not having any valid driving licence to drive the motorcycle and thereby had committed violation of the policy conditions. It is submitted that an interim application was also filed calling upon the owner cum driver to produce the driving licence as I.A.1633/03. The Tribunal did not consider that application even. So it is matter where the  M.A.C.A. 882 OF 2006 -:2:- Tribunal has to adjudicate whether there has been any breach of policy conditions. Therefore the matter requires reconsideration on that point. So the award under challenge is set aside so far as it relates to the interse dispute between the insurance company and the insured is concerned and the Tribunal is directed to frame appropriate issue and answer the question whether the insurance company is entitled to right of recovery if there is no driving licence as there is breach of policy conditions. But the insurance company has to pay the amount to the claimant and the junction of the claimant need not be insisted in the proceedings before the Tribunal. Further the insurance company is permitted to produce both documentary as well as oral evidence in support of their respective contentions and it is also directed to take out notice to the owner of the vehicle after it enters appearance before the Tribunal for proper adjudication. Parties are directed to appear before the Tribunal on 22.1.09 and the amount deposited shall be disbursed to the claimant. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-

National Insurance Company Ltd vs Rajina Thidil on 19 December, 2008

Kerala High Court

Court No. - 21 Case :- WRIT - C No. - 5620 of 2010 Petitioner :- Ram Sewak Respondent :- State Of U.P. & OthersPetitioner Counsel :- Moti Lal Chauhan Respondent Counsel :- C.S.C. Hon'ble V.K. Shukla J. Eight weeks and no more time is accorded to learned standing Counsel to file counter affidavit. List after two weeks. Office shall submit its report in respect of service on respondent no.4. Order Date :- 15.7.2010 T.S.

Ram Sewak vs State Of U.P. & Others on 15 July, 2010

Allahabad High Court

JUDGMENT John Beaumont, Kt., C.J. 1. This is an appeal from an order made in chambers by Mr. Justice B. J. Wadia. The suit was filed on April 23, 1031, and the plaintiff was described as " Messrs. Jitta Amichand and Co., a firm of bankers carrying on business at Karwar Street within the Forti of Bombay", and the declaration of the plaint was made in the name of Naimal Pratapmat described as a "partner in the plaintiff firm residing at Karwar Street in Bombay." Various applications were made by the defendant's attorneys to-the plaintiff's attorneys to ascertain the names of the partners in the alleged plaintiff firm, and it is not putting it too high to say that the plaintiff's attorneys put off those requests. Eventually on August 5, 1931, the plaintiff obtained an ex parte order enabling him to amend the plaint by describing: the plaintiff as " Naimal Pratapmal of Bombay Marwari carrying on business as Jitta Amichand & Co." That is to say the plaintiffs substituted the name of an individual for the name of the firm. The defendant took out a summons in chambers to vacate that ex parte order, and on August 24, 1931, that summons was dismissed with costs, and from that order the defendant appeals. 2. A preliminary point is taken that no appeal lies from that order under Clause 15 of the Letters Patent, but I think our decision on the preliminary point and on the merits must turn upon the same question. Under Order XXX, Rule 1, any two or more persons claiming or being liable as partners and carrying on business in partnership in British India may sue or be sued in the name of a firm, and under Rule 10 of that Order any person carrying on business in a name or style other than his own may be sued in such name or style as if it were a firm name; but nowhere is it laid down that a person carrying on business in a name other than his own may sue in that name. He may be sued, but unless there are two or more persons in the firm the plaintiff cannot sue in a firm name. Therefore it is quite clear that the plaint as originally framed was wrong, and the question which we have to determine is whether the amendment had the effect merely of putting right an irregularity by describing the existing plaintiff correctly, instead of incorrectly, or whether at the date when the ex parte order was made the suit being in the name of a non-existent person was a nullity. It is clear that if the suit as framed was a nullity as being in the name of a non-existent person, then the ex parte order substituting the name of an existing person for a. non-existing person affected the rights of the defendant by preventing him from applying for an order dismissing the action. In that case I think the order would be appealable under Clause 15 of the Letters Patent. On the other hand if the effect of the order was merely to describe the existing plaintiff correctly, then I think the order was not appealable, because it was merely a matter regulating the procedure in the suit. Even if the order was appealable,, we should not entertain the appeal, if that was the effect of the order. 3. Mr. Coltman says that the action as instituted in the name of the firm which had no right to sue is a nullity, and he refers to a decision of Mr. Justice Blackwell in the case of Vyankatesh Oil Mill v. Velmahomed (1927) 30 Bom. L.R. 117. In that case a suit was brought in the High Court in the name of a firm which was carrying on business outside British India by one of its partners. On. objection being taken the plaintiff applied for leave to amend the plaint, and it was held by the learned Judge that the amendment ought to be allowed, but on stringent terms as to costs. Undoubtedly the learned Judge does in some portion of the judgment refer to the suit as a suit by a non-existent entity. But I do not think the learned Judge intended to hold that the suit was a suit by non-existent persons and therefore a nullity, because had he held that he would not have given leave to amend, since it is clearly impossible to amend a suit which is non-existent, 4. In my opinion the original plaintiff firm is identified as being in fact the present plaintiff and I think that the amendment of the plaint was only a correction of the plaintiff's name and not a substitution of an existent plaintiff for a non-existent plaintiff. Therefore the order was one for regulating procedure, and no appeal lies, and therefore we must dismiss the appeal with costs. Rangnekar, J. 5. I agree.

Author: K John Beaumont

H. Scott vs Jitta Amichand And Co. on 28 September, 1931

Bombay High Court

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Ram Naresh vs State Of U.P.,Thru. Prin. ... on 12 August, 2010

Allahabad High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/09/2008 CORAM THE HONOURABLE Mr.JUSTICE D.MURUGESAN AND THE HONOURABLE Mr. JUSTICE M.SATHYANARAYANAN Habeas Corpus Petition No.639 of 2008 and Habeas Corpus Petition No.643 of 2008 B.Jagadeesh Chandra Bose ... Petitioner Vs. 1. The Superintendent of Police Kanyakumari District, Nagercoil. 2. The Inspector of Police Kulasekaram Police Station Kanyakumari District. 3. Mani 4. The Inspector General of Registration, Govt. of Tamilnadu. ... Respondents (4th respondent was impleaded suo-motu by the Court) Habeas Corpus Petition filed under Article 226 of the Constitution of India praying to direct the respondents to produce petitioner's wife Sheeja, aged about 24 years before this Court. Habeas Corpus Petition No.643 of 2008: #M. Raju ... Petitioner Vs. $1. The Superintendent of Police Kanniyakumari District. 2. The Sub-Inspector of Police Anju Kirammam Police Station Kanyakumari District. 3. Paul Rajarathnam 4. The Inspector General of Registration, Govt. of Tamilnadu. ... Respondents (4th respondent was impleaded suo-motu by the Court) Habeas Corpus Petition filed under Article 226 of the Constitution of India praying to direct the respondents 1 and 2 to produce the detenue namely Jeba Jenitha before this Court. !For Petitioner in ... Mr.C.K.M.Appaji HCP No.639/2008 For Petitioner in ... Mr.K.Mahendran HCP No.643/2008 ^For Respondents ... Mr.N.Senthurpandian, 1&2 in both HCPs Addl.Public Prosecutor. For Respondent -4 ... Mr.T.Raja, in both HCPs. Addl. Advocate General, Assisted by Mr.Pala Ramasamy, Spl.Govt.Pleader. ... Mr.M.Ajmal Khan, Amicus Curiae. - - - - - :ORDER (Order of the Court was made by D.MURUGESAN,J.) By the common order in the above two habeas corpus petitions, dated 02.09.2008, we have directed as follows. "The petitioner by name M.Raju, S/o. Murugan of Manikkam Nagar, Kumara Puram Thoppu, Akastiswaram Taluk, Kanyakumari District has approached this Court with Habeas Corpus Petition No.643 of 2008 seeking for a direction to the second respondent Sub-Inspector Police, Anju Kirammam Police Station, Kanyakumari District to produce the body of the detenue namely "Jeba Jenitha". 2.In support of the petition, it is alleged that he and the detenue were fallen in love with each other for the past one year and after a clear understanding, they decided to marry. They appeared before the Parasala Sub- Registrar Office at Kerala and registered the marriage on 14/8/2008 and lived as husband and wife. 3.While they were living in Kerala, the detenue wife of the petitioner wanted to go back to her parents house to get consent for the marriage. Accordingly, she went to her parents house on 20/8/2008 and thereafter, she was not allowed to join with the petitioner. As she was illegally confined by the third respondent, he gave a complaint on 23/8/2008 to the second respondent and though it was received on 24/8/2008, no action was taken. Hence, he is constrained to approach this Court by way of Habeas Corpus Petition No.643 of 2008. 4.When this petition came up for hearing on 29/8/2008, it has been brought to our notice that similar petition has been filed by another petitioner by name Jagadeesh Chandra Bose in Habeas Corpus Petition in H.C.P. No.639 of 2008. 5.Considering the facts and circumstances of the case, we doubted as to under which provisions of law, these agreements were being registered? Accordingly, this Court had directed the Superintendent of Police, Kanyakumari District to enquire and submit a report as to details of the marriage agreements that were registered in the said Registrar Office. Accordingly, a report dated 1/9/2008 is filed by the Superintendent of Police, Kanyakumari District, wherein he had replied as follows:- "As per Kerala Registration Rules, the Document No.707/2008 has been registered in this Office and the executants of this agreement doesn't get the status of married couple by the above said deed. The agreement has registered with the consent of the concerned parties. They have produced sufficient stamp and fees for the registration. The detenue cancelled the above noted Marriage Document No.707/2008 dated 14/8/2008 vide Marriage Cancellation Document No.760/-8 dated 26/8/2008 of Sub-Registrar Office, Parasala, in which she has specifically stated that she never lived with the petitioner as wife." 6.However, the Superintendent of Police had not furnished the details of such marriage agreements said to have been registered in the said Sub-Registrar's Office. 7.On the above factual background, we heard the counsel appearing for the petitioners and the Additional Public Prosecutor for the respondents 1 and 2. 8.As far as Habeas Corpus No.643 of 2008 is concerned, the petitioner claims that he has married the detenue and they lived as husband and wife and there was co-habitation. Hence, the learned counsel had submitted that the detenue should be secured and send along with the petitioner. However, we are not inclined to pass such an order on the facts of this case. 9.First of all, even as per the communication of the Sub-Registrar, Parasala dated 14/8/2008, it is seen that the agreement does not give any marital status in law to both the petitioner and detenue. Mere registration of marriage as has been done in this case cannot give any legal sanctity to the alleged marriage. The petitioner cannot claim the custody of the detenue on the ground that she is his wife. Further, the marriage certificate on which the petitioner had placed heavy reliance had been cancelled by the subsequent document dated 26/8/2008 registered in the same Office. In these circumstances, the Habeas Corpus Petition cannot be ordered. 10.The petitioner in Habeas Corpus Petition No.639 of 2008 also claims that he and the detenue by name Sheeja loved each other and due to love affair, they decided to marry. They registered their marriage on 27/7/2008 in Document No.463 of 2007 on the file of the Parasala Sub-Registrar, Thiruvananthapuram and on the first week of August 2008, the factum of marriage was leaked and the same was brought to the notice of the third respondent and therefore, the third respondent forcibly took away the detenue from his custody and in spite of his attempt to secure the detenue, he could not succeed and therefore, he preferred a complaint to the Inspector of Police, Kulasekaram Police Station on 23/8/2008. As the said complaint was not acted upon, a representation was made to the Superintendent of Police, Kanyakumari District on 25/8/2008, but no effective steps have been taken to secure the girl. Hence Habeas Corpus Petition No.639 of 2008 is filed. 11.In this case also, the report of Superintendent of Police, Kanyakumari District dated 1/9/2008 is filed. On a perusal of the report shows that pursuant to the order of this Court, enquiry was made and the Superintendent of Police had received communication dated 30/8/2008 from Sub- Registrar, Parasala which reads as under:- "The detenue Sheeja says that the petition was filed by the petitioner only with the ulterior motive to take over the detenue under his custody and she says that she is not interested to live with him but she is willing to live with her parents." 12.Even though the detenue is not willing to go along with the petitioner, having regard to the fact that the marriage itself is not recognised under law and the marriage certificate that was registered in Parasala, Sub- Registrar's Office has no legal sanctity, the claim of the petitioner that he is the husband of the detenue, cannot be accepted and accordingly, the detenue cannot be ordered to be sent along with the petitioner. Hence,the Habeas Corpus Petition is liable to be dismissed and accordingly the same is dismissed. 13.While hearing the matters, Mr. Ajmal Khan learned counsel who is present in the Court had brought to our notice that similar marriage agreements are registered in various Sub-Registrar's Office in the Tamil Nadu as well. 14.This Court has posed the question as to how the Sub-Registrars are entertaining such marriage agreements for registration. In fact, in Habeas Corpus Petition No.639 of 2008, the petitioner is a converted Christian from Scheduled Caste Shambavar Community and the detenue is a Christian Nadar Backward Community. Whether the marrige can be performed either under the Christian Marriage Act or under the Special Marriage Act itself is in question. In these circumstances, mere registration of the marriage throw serious doubt and that too in the very same Sub-Registrar Office. This Court had taken note of the fact that in recent time, a tendency of creating fake marriages have become popular and under the guise of such marriages, women are being indulged in trafficking and for commercial exploitation. In fact, such marriage agreements are being registered in the State of Tamil Nadu as well presumably not for the intended purpose to live as husband and wife, but for some extraneous purposes. 15.In these circumstances, we are of the considered view that the Inspector General of Registration, Government of Tamil Nadu should be impleaded as one of the respondents in both the Habeas Corpus Petitions to find out as to the registration of such marriage agreements in the office of the Sub- Registrar/Registrars in the statement of Tamil Nadu. 16.Accordingly, The Inspector General of Registration, Government of Tamil Nadu is impleaded and he is directed to furnish the details of such marriage agreement registered in the State of Tamil Nadu for the last one year commencing from 1/1/2007. Such reports had to be filed before this Court giving details of such registration on or before 26/9/2008. 17.Mr.Ajmal Khan learned counsel is also appointed as Amicus Curiae to assist the Court to resolve the dispute." 2.Pursuant to the above direction, the Inspector General of Registration, Chennai, has filed a report giving a list of yearwise registration of Marriage Agreements in the State of Tamil Nadu, which reads as under. Sl.No. Name of the Registration Zone Year-2007 Year-2008 Total 1. Coimbatore Nil Nil Nil 2. Tanjore Nil Nil Nil 3 Salem Nil Nil Nil 4. Vellore 1 - 1 5 Chennai 1 1 2 6. Cuddalore 1 3 3 7. Tiruchy 10 6 16 8. Thirunelveli 229 123 352 9. Madurai 268 90 358 TOTAL 509 223 732 3.Apart from giving the above details as to the registration of Marriage Agreements, the Inspector General of Registration has also stated that there is no prohibition in the Registration Act or the Stamp Act to refuse outright the documents presented for registration. He would also state, as early as on 21.04.1981, the Inspector General of Registration had issued orders for Registering Officers to desist from registering such marriage agreements. Subsequently, another order was also passed on similar lines by the Inspector General of Registration on 15.12.2003 and inspite of these two orders, it is still found that such documents are continuously registered and the same is brought to the attention of the Inspector General of Registration. He would also state that such marriages are not legally valid and registration of such marriages will create unsolvable problems not only for the executants but also to their children. 4.On the above backdrop, we heard Mr.M.Ajmalkhan, learned counsel, appointed to assist the Court and Mr.T.Raja, learned Additional Advocate General. 5.Mr.M.Ajmal Khan, amicus curiae, took us extensively to various provisions of Hindu Marriage Act, 1955, The Special Marriage Act, 1954, The Indian Christian Marriage Act, 1872, the Indian Contract Act, 1872, the Registration Act, 1908 as well as the Tamil Nadu Hindu Marriages (Registration) Rules, 1967. In nutshell, he would submit that each of the Acts by itself is a separate Code, not only providing for solemnization of the marriage but also the manner by which such marriages should be registered by the empowered Registrars. He would submit that as none of the provisions of the above Acts recognize registration of marriage agreements, without there being proper marriage as per the respective enactments and without there being a proper application made, the procedure adopted by the various Registrars in entertaining such marriage agreements and registering the same would only pave way for abuse of such documents, resulting in abuse of the girls who are shown as a party to the agreements. He would, therefore, submit that in the absence of any legal sanctity attached to such marriages, it would be proper and justifiable to pass an order of injunction restraining all the Registrars/Sub-Registrars from entertaining and registering such marriage agreements. 6.Mr.T.Raja, learned Additional Advocate General, on the other hand, would submit that there is no provision in the Registration Act or the Rules made thereunder prohibiting registration of documents. He would rely upon Section 34 of the Registration Act, which contemplates enquiry by the Registering Officer before the registration and Rules 54 and 55 of the Registration Rules which empower the registering authority to verify as to whether the parties appearing or about to appear before him are not the persons they profess to be; whether the document is forged; whether the person appearing as a representative, assign or agent, has no right to appear in that capacity, whether the executing party is not really dead, as alleged by the party applying for registration; or that the executing party is a minor or an idiot or a lunatic. Hence, learned Additional Advocate General would submit that in the absence of provisions contrary, the registering authority cannot refuse to register the document presented before him. He would also submit in this context that an amendment was brought in by the Tamil Nadu Act 48 of 1997 with effect from 28.08.1997 inserting Section 22-A in the Registration Act empowering the State Government to notify in the Tamil Nadu Gazette declaring that registration of any document or clause of document is opposed to public policy. Pursuant to the said provision, the Government Tamil Nadu issued G.O.Ms.No.150 Commercial Taxes Department, dated 22nd September, 2000 declaring certain documents and registration of such documents would be opposed to public policy. 7.The Apex Court had struck down Section 22-A of the Act in the Judgment reported in 2005 (4) CTC 606 - State of Rajasthan vs. Basant Nahata. Similarly, the Notification, dated 22.09.2000 was also quashed by the High Court and, therefore, the said notification was revoked in G.O.Ms.No.1l39, Commercial Taxes Department, dated 25.07.2007. In view of the above, learned Additional Advocate General would submit that there is no provision as on today restraining the registering authority from entertaining Marriage Agreements for registration. He would also submit that nevertheless, having regard to the fact that registrants used to enter into agreements to live as husband and wife, without proper marriage being duly solemnized and registered under the relevant marriage Act and when there are specific provisions in the Marriage Acts for dissolution of marriage, the registrants unaware of the same entering into agreements for divorce, the Government proposed to bring in an amendment to Registration Act by inserting Section 21-A and by that amendment, among other things, the registering officer is directed not to register any document evidencing any agreement relating to marriage or to live together as husband and wife, divorce, restraining marriages, trade, legal proceedings or bonded labour. Hence, learned Additional Advocate General has expressed the difficulty of the Government to presently directing the registering authority to refrain from registering marriage agreements. He would also draw our attention to Section 7(A) of the Hindu Marriage Act relating to Suyamariyathai and seerthiruthatha marriage. According to the learned Additional Advocate General, in view of the said provision, a marriage, if performed under Section 7-A of the Hindu Marriage Act, can be registered in the manner done presently and therefore such registration of marriage agreement cannot be said to be against law. 8.We have carefully considered the above submissions. 9.We are conscious of the fact that we are dealing with the petitions filed under Article 226 of the Constitution of India relating to illegal custody/detention. As far as the facts leading to the present habeas corpus petitions are concerned, we have referred the same in the earlier portion of this order, and, therefore, we are not once again reproducing the facts. 10.The concern of the Court to direct the Inspector General of Registration to furnish details as to the number of Marriage Agreements registered through out the State of Tamil Nadu from 01.01.2007 onwards was obvious. In the given two cases, when such marriage agreements were registered and when habeas corpus petitions were entertained and the Superintendent of Police of Kanyakumari District was directed to file a report, in one case, the alleged detenue, who was also a party to such marriage agreement, had written to the Superintendent of Police stating that the petition was filed by the alleged husband with an ulterior motive to take the her under his custody and she is not interested to live with him. She has also expressed her willingness to live with her parents. In another habeas corpus petition, though the petitioner claimed that a marriage agreement was registered on 14.08.2008, the same was cancelled by the detenue (the girl) on 26.08.2008 indicating that the marriage agreement was either forceful or fake. Hence, we entertained a serious and genuine doubt over the registration of such marriage agreements, as to whether such marriage agreements are registered either with the consent of the concerned girls; or only in order to misuse such girls under the cover of the registration of the marriage agreements and without resorting to the various provisions of the respective Laws governing marriages and the consequential registration. 11.Only under these circumstances, we directed the Inspector of General of Registration to submit a report and the registration of marriage agreements is not a welcoming factor. As many as 732 marriage agreements were registered in various districts, especially in Tirunelveli Zone alone, in the year 2007, 229 marriage agreements were registered, apart from 123 in the year 2008 and in all 352 marriage agreements were registered. In Madurai Zone, during the year 2007, 268 of such marriage agreements have been registered and in the year 2008, 90 such agreements were registered and in all 358 agreements were registered. 12.The above particulars take us to the rival contentions of the respective counsel. The marriage agreements are produced before the Sub- Registrars or the Registrars, as the case may be, and they are registered. The marriages are not solemnized in accordance with the respective enactments. Hence marriages themselves are not valid as per law and a mere registration of such marriage agreements will not give any legal status to the spouses. 13.Insofar as the Hindu marriages are concerned, Section 5 of the Hindu Marriages Act contemplates conditions for a Hindu marriage, section 7 relates to ceremonies and Section 8 relates to registration of Hindu Marriages. Unless conditions under Section 5 relating to a valid consent and either of the spouse is not insane, the bride groom has completed 21 years and bride completes 18 years and they are not within the prohibited degrees and are not sapindas, marriage cannot be solemnized. Unless there is solemnization marriage, it cannot be performed as per the ceremonies under Section 7 and consequently registration of such marriage under Section 8 cannot be done. Rule 5 of the Tamil Nadu Hindu Marriage (Registration) Rules, 1969, contemplates compulsory registration of marriage and the mode of application for registration. Applications are to be made in Form-I, along with application in Form-III, for registration of Hindu Marriage on the date of solemnization and a declaration is also provided as per Rule 10 in Form No.III by the husband and wife where the marriage is registered on the date of solemnization. Unless conditions under Sections 5 and 7 are fulfilled, the marriage cannot be registered under Section 8 and the registration of the marriage should also be in conformity with the Rules referred to above. Without following the above, a Hindu Marriage cannot be registered. Further, registration of the marriage cannot be equated to a registration of marriage agreement. 14.Under The Indian Christian Marriage Act, Section 60 contemplates conditions of marriage, where both the spouses should be Christians and again the bride groom must be over 21 years and the bride should be over 18 years, apart from some other conditions. Part-VI of the said Act contemplates a notice of intended marriage before registration of marriage, filing a copy of the notice to be entered into the marriage notice book, issue a certificate of notice and the oath made thereon, issue an oath before the issue of certificate, the consent of father or guardian and thereafter filing petition for registration. For a false oath, declaration, oath or a certificate for procuring marriage, a penalty is also contemplated under Section 66 of the Act. Hence, a procedure is contemplated for the marriage and for the consequential registration of such marriage and issue of certificates. 15.In terms of Section 3 of the Special Marriages Act, marriage officers are appointed by the Government by notifying in the official gazette. Section 4 contemplates conditions relating to solemnization of special marriages. Section-5 contemplates notice to intended marriage for a period not less than 30 days immediately preceding the date of such notice. Section 6 contemplates notice book and publication. Section 7 contemplates objection to marriage. Section 8 contemplates procedure on receipt of petition and an enquiry as contemplated by the Marriage Officers in terms of Section 9. Thereafter, the marriage is registered and a certificate could be issued under Section 3. A procedure is also contemplated under Chapter-III for registration of marriages celebrated in other forms. 16.On the above backdrop of the specific provisions, any marriage, which is not solemnized as per the respective provisions of Laws, cannot be recognized as a valid marriage and consequently the same cannot be registered. Further, such marriage registration must be by following the procedures provided under the respective enactments. Under these circumstances, a mere presentation of documents for registration of marriage cannot by itself confer any legal status to the parties and such registration of marriage would be contrary to the procedures provided under the respective enactments. 17.Insofar as the submission of the learned Additional Advocate General as to the Suyamariyathai and Seerthiruththa marriages is concerned, here again, under Section 7-A, the procedure as contemplated under the Section to recognize the marriage alone is dispensed with and made optional. Nevertheless, in terms of Section 8 of the Act, registration is compulsory and must be done only in accordance with Section 8 of the Act and the corresponding rules, namely Rule 5 and Form Nos.I and II of the Rules. 18.Of course, Section 22-A of the Act was struck down by the Apex Court on the ground that the term "opposed to public policy" was vague and consequently the Government Order G.O.Ms.No.150, Commercial Taxes Department, dated 22.09.2000 was also quashed by this Court. In our opinion, in terms of Rule 162-A of the Registration Rules, no registration officer shall accept for registration any document or service agreement evidencing bonded labour or transaction constituting any offence under any law or opposed to public policy or morality. Though Section 22-A was struck down on the ground that the power conferred on the Government to direct the Registrars not to register certain documents as opposed to public policy, in the teeth of other conditions, particularly transaction constituting an offence under any law or morality, the registration of marriage agreement without following any of the procedures of the respective enactments cannot be permitted. Of course, knowing the serious implications of registration of such marriage agreements, the Government themselves have come out with a draft amendment proposing to insert Section 21-A in the Registration Act whereby under Section 21-A(3), directing the registering officer not to register any document evidencing any agreement relating to marriage or to live together as husband and wife, etc. 19.Under these circumstances, in order to curtail the misuse of such marriage agreements, whereby the hapless women may also possibly be misused, we deem it necessary that the Registrars and Sub- Registrars under the control of the Inspector General of Registration, Government of Tamilnadu, should be restrained from entertaining any marriage agreements produced without following the mandatory provisions of respective enactments and consequently registering them. Accordingly, there will be an order of injunction. This order shall be communicated by the Inspector General of Registration to all the Registrars and Sub-Registrars empowered to register the marriages under respective enactments applicable to the parties to such registration of marriages. We place our appreciation on record as to the valuable assistance rendered by Mr.M.Ajmal Khan, learned counsel, appointed by this Court as amicus curiae to assist the Court. 20.With the above order and direction, the habeas corpus petitions shall stand dismissed. gb. 1.The Inspector General of Registration, Government of Tamil Nadu, Chennai-4. 

B.Jagadeesh Chandra Bose vs The Superintendent Of Police on 30 September, 2008

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 4040 of 2008(E) 1. K.KUNHIMOHAMMED, S/O.MAYIN, ... Petitioner Vs 1. THE SECRETARY, REGIONAL TRANSPORT ... Respondent For Petitioner :SRI.SAJU J.VALLYARA For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :25/02/2008 O R D E R ANTONY DOMINIC, J. = =W.P.(C)=No.=4040=OF=2008 = = = = = = = = = = E = = = = = = = = = = = = = = = = Dated this the 25th February, 2008 J U D G M E N T Petitioner submits that Ext. P1 permit was granted subject to settlement of timings. It is submitted that timing has not been settled pursuant to Ext. P1 and therefore the regular permit granted has not been issued. 2. Learned Govt. Pleader, on instructions, submit that the respondent is following a priority system in terms of which the timing conference will be convened. 3. If, as stated by the learned Govt. Pleader, a priority system is followed, this Court will not be justified in directing that a person approaching this Court should have any overriding priority than those who have not approached this Court. In view of this though I direct that the timing conference shall be expedited, I do not wish to fix any timing conference to be convened for this purpose. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-

K.Kunhimohammed vs The Secretary on 25 February, 2008

Kerala High Court

Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15833 of 2010 Petitioner :- Ram Ratan Respondent :- State Of U.P. Petitioner Counsel :- Rajeev Kumar Singh Parmar Respondent Counsel :- Govt. Advocate Hon'ble B.N. Shukla,J. Heard learned counsel for the applicant and learned A.G.A. appearing for the State. It is contended by the learned counsel for the applicant that co-accused Satish alias Raju and Narveer Singh have been granted bail by this court. In the supplementary affidavit criminal history of the applicant has been explained and in the all the cased he has been acquitted.. Learned A.G.A. contended that applicant has criminal history of seventeen cases. The involvement of the applicant is based on confessional statement of the co- accused. There is no direct or circumstantial evidence against the applicant. The applicant is in jail since 29.8.2009. Considering the facts and circumstances of the case and submissions made by the learned counsel for the applicant and without expressing any opinion on the merits of the case, the applicant is entitled to be released on bail. Let the applicant Ram Ratan involved in Case Crime No. 528 of 2009(S.T. No. 132 of 2009), under Sections 364-A, 302, 201 IPC Police Station Merapur District Farrukhabad be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions :- 1. The applicant shall not indulge in any such activity in future. 2. The applicant shall not pressurise/intimidate the prosecution witnesses and evidence during trial. 3. The applicant will appear before the trial court on the date fixed. In defiance of any of the aforesaid conditions, the court below will be at liberty to cancel the bail of the applicant. Identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted. Order Date :- 6.7.2010 Aks

Ram Ratan vs State Of U.P. on 6 July, 2010

Allahabad High Court

JUDGMENT P.K. Bahri, J. 1. This appeal has been brought against judgment dated March 21, 1990 and order dated 24th August 1990 by which the appellant Ami Chand, has been convicted of offences punishable under Section, 302 I.P.C. and 324 I.P.C. and has been sentenced to undergo life imprisonment and pay a fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for six months under the first count and to undergo rigorous imprisonment for one year under the second count with the direction that substantive sentences shall run concurrently. 2. The case is initiated on the statement of complainant Harbhajan Singh, PW-4, who was also allegedly injured in the same occurrence statement made to the police, the F.I.R. was registered and in the said statement, it was disclosed that he was residing in House No. 109. Har Nagar Ashram and his friend, since now deceased, Brahm Dutt alias Brahmi aged about 16/17 years, resident of House No. 161, Hari Nagar, New Delhi was having a barber shop in Hari Nagar Ashram whereas Harbhajan Singh was employed as a carpenter in Ishwar Industries at the relevant time. Both have been childhood friends and in his spare time, Harbhajan Singh had been often sitting at the shop of his friend Brahm Dutt. 3. He also disclosed that Ami Chand, appellant, has also been coming to the shop of Brahm Dutt often and he also used to visit and sit at the Dhaba (hotel) of Om Prakash alias Omi located nearby where he used to also sleep. He disclosed that on the 2nd September, 1973, at about evening time, he, as usual, after being free from his work had come to the shop of Brahm Dutt and at that time Ami Chand was also standing outside the said shop and he made a query from Ami Chand as to what sort of business he was carrying on these days and he also asked him whether he was standing there to have his kill on which Ami Chand lost his temper and became ready to fight with him. He further mentioned that he then came out of the shop and tried to pacify Ami Chand on which he gave abuses and started beating him and Brahm Dutt separated them and Ami Chand gave the threat that he would see to them and went away. 4. The story, as narrated by him, proceeds further that he along with Brahm Dutt, after closing the shop, went for stroll and for easing themselves towards DDA Flats, Sunlight Colony and at about 9.15 P.M. when they were returning, Ami Chand accompanied by another person of fair colour having height of 5" 3" 4" aged about 30/35 years, whom he could identify if he were to come before him again, came there and Ami Chand exclaimed that now they should tell how they can save themselves and thereafter he took out a dagger from the pant's dub and assaulted him with the said dagger towards his head but he warded off the blow which struck on his neck on the back side and meanwhile Ami Chand's companion caught hold of Brahm Dutt and Ami Chand struck a blow with the same dagger on Brahm Dutt's chest just below the neck and they raised the alarm to save themselves. Ami Chand and his companion made their escape and Brahm Dutt also proceeded to some distance towards his house and then he fell down and he informed the family members of Brahm Dutt at his house and Brahm Dutt's father came with a taxi in which Brahm Dutt and he himself were taken to the hospital. Brahm Dutt was declared, on examination by the doctor at the hospital, as dead while he got his treatment from the doctor. PW-4/A is the said statement on the basis of which the case was registered. 5. Information to the police was given by Ram Dhan, which was recorded at serial No. 24 and Hira Lal, S.I. was deputed to inquire into the matter and he had first reached the place of occurrence and on learning that the injured had been removed to the Safdarjung Hospital, he, leaving behind Constable Padam Singh to preserve the spot, reached the hospital and obtained the M.I.C. and then recorded the statement of Harbhajan Singh in the hospital. The I.O. took into possession sample blood and sample of dust and earth from the place of occurrence and converted them into sealed parcel vide memo Ex. PW-4/B which was signed by Premwati, mother of the deceased and Harbhajan Singh, PW-4. 6. Ami Chand could not be arrested. The name of the other culprit also could not be traced. Ami Chand was got declared proclaimed offender. Hue and cry notices were issued repeatedly for arresting Ami Chand but without success and thus, the challan was filed under Section 512 of the old Criminal Procedure Code and the statements of the witnesses were recorded and the file was consigned to the record room. 7. Appellant came to be arrested by Himachal Pradesh Police and Delhi Police was informed and he was brought to Delhi on 6th October 1986. The appellant had pleaded not guilty to the charges and had mentioned in his statement under Section 313 that he was working at the hotel of Omi in Hari Nagar Ashram till July 1973 and be had developed strained relations with Harbhajan Singh and it is at the instance of Harbhajan Singh that he has been falsely implicated in this case. 8. The offences to the appellant have been brought home beyond reasonable doubt by the Additional Sessions Judge basing implicit faith in the testimony of Harbhajan Singh who was also injured in the same occurrence. The learned counsel for the appellant has assailed the finding of the Additional Sessions Judge in this regard by arguing that the statement of Harbhajan Singh bristles with contradictions and improvements and at least the Court should have given benefit of doubt to the appellant as two views are possible with regard to the reliability of the facts given by Harbhajan Singh. 9. Harbhajan Singh was examined in Court at first on 14th August 1974 at the time when appellant was absconding. Thereafter, he had appeared in Court on 21st December 1987. In examination-in-chief, he narrated the facts as have been culled out in the opening of the order. Except that he has not given any physical features of the other co-accused who had accompanied Ami Chand at the time of occurrence. In cross-examination, he deposed that he could not identify the other accused because incident had taken place in the night. 10. Learned counsel for the appellant, referring to the translated F.I.R., argued that it was recorded in the F.I.R. that this witness and Brahm Dutt were going for taking meals while in Court Harbhajan Singh has stated that he and Brahm Dutt had gone for answering call of nature and while they were returning, that the said occurrence took place. We have perused the original statement of Harbhajan Singh on the basis of which the F.I.R. was recorded which is in Hindi language and we find that therein also Harbhajan Singh had mentioned that he and Brahm Dutt had gone for a stroll and answering call of nature in the open space near the D.D.A. Flats. So, it cannot be said that there has been any discrepancy made by the witness in this connection. 11. Mere fact that Harbhajan Singh has, in Court, deposed that because of darkness he could not identify the other companion of Ami Chand is not of much consequence. After all, the occurrence took place long long time back and witness is liable to forget certain facts which he had noticed at the time of occurrence and which he had incorporated in his first statement to the police when his memory was fresh. It is not possible to give any importance to the contention of the learned counsel for the appellant that in case Harbhajan Singh could not identify the other culprit, there is every doubt that he could properly identify Ami Chand. Ami Chand was very well-known to the witness and a quarrel had taken place between them in the earlier part of the day and thereafter Ami Chand had also tried to strike a blow on Harbhajan Singh with a dagger, so he had come very close to Harbhajan Singh for that purpose and there could not be any difficulty in Harbhajan Singh recognising the appellant as the assailant. In the F.I.R. he had named Ami Chand as the assailant who gave the fatal injuries to Brahm Dutt and also had given the blow with the dagger on his neck at the back side. 12. Referring to the post-mortem report of Brahm Dutt, learned counsel for the appellant pointed out that two stab blows were given to Brahm Dutt whereas in the F.I.R. as well as in his statement made in Court, Harbhajan Singh has referred to only one blow. We do not think that it is such a vital discrepancy which could throw any doubt to the truthfulness of the statement of Harbhajan Singh. After all, Harbhajan Singh himself had received an injury at the hands of the appellant in the same occurrence and his presence at the time of the occurrence can indeed be not doubted. He had gone to the hospital where Brahm Dutt was also taken. While Brahm Dutt was declared brought dead, he was given treatment by the doctor at the hospital. It is true that the prosecution has (sic) doctor who had prepared the M.L.Cs. as the whereabouts of the doctor could not be found out, still the fact remains that it is Harbhajan Singh, who was present in the hospital where he made the statement to the police, on the basis of which the case was registered. There was no previous enmity except the quarrel which took place in the evening between Harbhajan Singh and Ami Chand. Thus, it cannot be said that Harbhajan Singh had any motive to falsely implicate Ami Chand for this crime. 13. It is then pointed out by learned counsel for the appellant that exclamation imputed to Ami Chand in the F.I.R. has not been referred to by Harbhajan Singh in his testimony in Court. We do not think that this omission on the part of Ami Chand to disclose this fact also in Court in any manner affects the veracity of his testimony. In the F.I.R. he had mentioned that knife was taken out from the pant's dub by Ami Chand whereas in Court he referred to the fact that Ami Chand gave the blow with the dagger at first to him and thereafter to Brahm Dutt. Again, we do not think that it is such a discrepancy which affects in any manner the merits of the case. It is, then pointed out that in the F.I.R. it has been mentioned that the companion of Ami Chand had caught hold of Brahm Dutt when dagger blow was given by Ami Chand to Brahm Dutt whereas in Court, the witness did not refer to the fact that Brahm Dutt was held by the other accused and thereafter Ami Chand had given the dagger blow to Brahm Dutt. These small variations in statement of the witness have occurred obviously on account of lapse of considerable time. It is impossible for any person to remember the facts in detail after lapse of about 15 years, as has happened in the present case. 14. On similar count, there has appeared a discrepancy whether Harbhajan himself had gone to call Brahm Dutt's father on he had sent someone else to call Brahm Dutt's father. In F.I.R. he had mentioned that he himself called the family members, but in Court he deposed that he had asked some public person out of many persons who had collected at the spot to inform at the house of Brahm Dutt and thereafter parents of Brahm Dutt came to the spot. We do not treat it as any material discrepancy which could make the statement of the witness doubtful in any manner. 15. Harbhajan Singh appears to be a 'natural witness' whose presence at the time of occurrence indeed cannot be doubted as he had himself received the injury. His testimony by and large tallied with what he had disclosed to the police in his first statement which is the basis of the F.I.R. Nothing has come out from his cross-examination which, in our view, could disclose that Harbhajan Singh had any reason to falsely implicate the appellant for these offences. 16. It has been urged before us that Omi and other public persons, who gathered at the time of occurrence, were also material witnesses which have been withheld by the prosecution. It is not the case of the defense that police had recorded statements of any such witnesses under Section 161 of the Criminal Procedure Code and then they have been withheld. We do not know whether Omi and other public persons had witnessed the occurrence. So, it cannot be said that the prosecution had withheld any material witnesses. 17. The Supreme Court in Srichand v. State of Maharashtra, has laid down that an adverse inference against the prosecution can only be drawn if it withholds some evidence and not merely on its failure to obtain certain evidence. 18. It has been urged that the C.F.S.L. report shows that blood of deceased has also come on the shirt of Harbhajan Singh. It is to be remembered that both Harbhajan Singh and Brahm Dutt were stabbed and at the time of occurrence they were standing very close to each other and the possibility of blood of deceased falling on Harbhajan Singh's shirt cannot be overruled, particularly also when he and deceased had gone to the hospital in the same taxi. 19. PW. 2, Premwati, was examined to show the dagger in his hand and his clothes being blood stained at that time. But for good reasons given by the Additional Sessions Judge, her testimony has not been found to be creditworthy. However, in view of the testimony of Harbhajan Singh, which is wholly reliable, no illegality has been committed by the Additional Sessions Judge in bringing home the offences to the appellant on the solitary statement of Harbhajan Singh. If the witness's testimony is wholly reliable, there is no legal requirement that testimony of such a witness should also be corroborated in any material particulars before bringing home the offences to the accused. It is only where the testimony of a particular witness is partly reliable that necessity arises for seeking corroboration to his testimony from some other evidence. 20. It is, indeed, not disputed before us that the occurrence had taken place at the said time and place and Brahm Dutt had met homicidal death in that occurrence. The only question argued before us by learned counsel for the appellant was that it was not Ami Chand who had caused the death of Brahm Dutt or given simple injuries to Harbhajan Singh. We need not refer to the statements of other witnesses which are formal in nature and which establish the facts that occurrence took place in which Brahm Dutt met his homicidal death and Harbhajan Singh received the injury. It is to be emphasised here that the appellant had remained absconding for years together and in his statement under Section 313, he has not disclosed as to where he had been all these years after he left Delhi. 21. Be it as it may, the conviction of the appellant in respect of the said offences is well made out from the testimony of Harbhajan Singh. The learned Additional Sessions Judge has given good reasons for believing the testimony of Harbhajan Singh and we agree with those reasons. We have not attached any importance to the testimony of PW-13 who claimed that Harbhajan Singh was heard by him on the day of occurrence uttering the word that Ami Chand had killed Brahm Dutt and had injured Harbhajan Singh because his testimony came to be recorded by the police after 3 or 4 months of the occurrence. 22. In view of the above discussion, we find no merit in this appeal. We dismiss the appeal and affirm the conviction and the sentences of the appellant. The appellant, who is in jail, be informed about the fate of the appeal. 23. Appeal dismissed.

Author: P Bahri

Ami Chand vs State on 18 July, 1995

Delhi High Court

JUDGMENT M.S. Ratnaparkhi, J. 1. The accused-appellant is challenging the order of conviction and sentence imposed upon him by the Additional Sessions Judge, Amravati on 26-7-1985 in Sessions Trial No. 109 of 1984, convicting him for the offence punishable under Section 306 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years, fine of Rs. 100/- or in default further rigorous imprisonment for one month. 2. The deceased Durga was the second wife of the accused-appellant. He has his first wife by name Mala. The deceased came to be married to the appellant about 10 years prior to the incident. After her marriage, she and her co-senior wife used to stay with the appellant. It is the prosecution case that there were some bickerings between these two co-wives. In the morning of the date of the incident i.e. 25-2-1984, there was an exchange of words between them on a cup of tea. As a result of that exchange the senior co-wife Mala left her martial house and went to stay with her sister-in-law at Mangrul. 3. While the deceased was at the house, there was some exchange of words between her and the appellant. It is the prosecution case that the appellant supplied a kerosene can full of kerosene to the deceased, as a result of which the deceased poured on her person the kerosene, kindled the match stick and set fire to her clothes. She then came running outside. This was in between 12 noon and 1 P.M. Persons assembled there on hearing the cries and flames were extinguished. The accused also participated in extinguishing the flames. The deceased was removed to Amravati and she was admitted to the Irwin Hospital in Ward No. 4. She suffered 100 p.c. burn injuries of second degree. Her dying declaration came to be recorded at about 10 p m. where she alleged that her husband instigated her and in pursuance of that instigation supplied a can of kerosene which she had poured on her person and set fire to her clothes. The deceased succumbed to her injuries at about 3 A.M. on the same night. The offence was registered on the basis of the dying declaration. It was investigated into and the charge-sheet was put up against the appellant. 4. A charge under Section 306 of the Indian Penal Code along with some other sections was framed. The accused pleaded not guilty to the same and claimed to be tried. His defence was purely of denial. It was suggested that while the deceased was preparing meals, her clothes caught fire and she came running outside. The accused was not present at the house then. He was coming to the house at about 12.30 or 1 in the noon when he found her wife on the road in flames. He, therefore, raised cries. Persons assembled there and he himself extinguished these flames. The deceased was then removed to the hospital where she died in the same night. 5. The learned Additional Sessions Judge on trial held that there was no other evidence except the dying declaration which could implicate the accused. He relied solely on the dying declaration and on the basis of the dying declaration be held the accused guilty of the offence punishable under Section 306 of the Indian Penal Code and sentenced him to the terms detailed in the opening paragraph of this judgment above. 6. Feeling aggrieved with the order of conviction and sentence, the appellant-accused had come up in appeal. Mr. Vaidya, the learned advocate for the appellant, strenuously urged before me that the trial court committed an error in accepting the so-called dying declaration at its face value without seeking for any further corroboration in support. There appears to be much force in what Mr. Vaidya says. It is not necessary to go into the details of other evidence, though the prosecution has examined about 17 witnesses. The learned Additional Sessions Judge has not relied on any oral evidence of the other witnesses or the documentary evidence, but he has relied upon the dying declaration and two witnesses supporting that dying declaration i.e. Dr. Deshmukh (PW 5) and Ramkrishna Dadhu (PW 4), who was the Executive Magistrate. It will, therefore, be necessary to examine and scrutinise the dying declaration and its effect. 7. Before going to the dying declaration, it will be necessary to point out the factual positions which are either undisputed or well-established and not challenged : (1) There is no evidence to show that the relations between the appellant and the deceased were strained any time prior to the date of the incident. (2) The accused and the prosecution have given different versions and according to the accused the clothes of the deceased caught fire while she was cooking inside the house. (3) There is evidence on record to show that while she was removed from the village to Amravati she was unconscious. We have also the evidence of one Jaikisan (PW 1) who was the ward-boy. (4) The deceased was unconscious when she was brought to the Outpatient Department. She was admitted to the Outpatient Department at about 8-35 p.m. and her dying declaration came to be recorded at the hands of the Executive Magistrate Mr. Ramkrishna Dadhu (PW 4) at about 10 p.m. (5) The deceased succumbed to her injuries in the early hours of the following day i.e. at about 3 a.m. 8. As the prosecution is relying solely on the dying declaration, it will be necessary to scrutinise the whole dying declaration. In the early part of the declaration she has given the history as to when she was married and how they were living. The relevant part of the declaration reads as follows : (matter omitted in vernacular) 9. For the acceptability of the dying declaration the prosecution has to prove, firstly, that it is voluntary and secondly, that it is truthful. Voluntariness cannot be challenged in this case because it is more or less an undisputed position that there was hardly any chance of tutoring. There is ample evidence on record to show that the appellant was all along with his wife after the incident till her death. It is also an admitted position that there were no other persons from the side of the deceased till she breathed her last. The only attack which Mr. Vaidya had was on the truthfulness of this dying declaration. 10. Mr. Vaidya strenuously urged before me that the deceased was not at all in a position to narrate anything much less making a dying declaration. He invited my attention to some of the circumstances which are well-established on record : (1) That when the deceased was seen in dames in front of her house by the people, she had already suffered serious burn injuries. (2) When she was removed from the village to the hospital at Amravati she was unconscious throughout. My attention was invited to the testimony of Jaikisan (PW 1) who was the ward boy attached to the O.P.D. of Civil Hospital, Amravati. He deposes that when the lady was brought to the O.P.D. she was unconscious and she could not speak anything. It is because of her unconsciousness that Dr. Rathi who was incharge of the O.P.D. had to ask about her name and address to the persons accompanying her. Mr. Habibuddin, the learned Additional Public Prosecutor for the State urged before me that the evidence of this ward-body may not be accepted because he is not an expert. It is really surprising that the prosecution is condemning their own witness without declaring him hostile. If at all, the evidence witness were false, the learned Public Prosecutor who was incharge of the case before the trial Court could have very well requested the Court for permission to declare the witness as hostile or otherwise for permission to put questions to the witness in the nature of cross-examination. Nothing has been done. The learned Additional Public Prosecutor cannot now legitimately go behind what this witness has said and circumvent that story. The testimony of Jaikisan (PW 1) also shows that it was Dr. Rathi who had the first opportunity to see the deceased at the O.P.D. when she was brought to the hospital. It is Dr. Rathi who directed her to be admitted to Ward No. 4. Dr. Rathi has been examined as (PW 12), but not a single question regarding the deceased has been put to him. As the evidence stands, we have to hold that she was unconscious when she was brought to the hospital at Amravati. 11. It is evident from the record that she was admitted to ward No. 4 at about 8 35 p.m. The bed head Ticket has been filed on record and it mentions the physical conditions of the patient which was observed by the doctor. The bed-head ticket mentions that the patient had suffered 100 percent burns of the second degree. By second degree burner, according to Dr. Tekade (PW 13) it is meant that the injury has gone deep even below the skin. It is contended that the burns were pretty serious. The history recorded by the doctor in the bed-head ticket is of burning while cooking food at the house. The first entry in the bed-head ticket is that the wholebody surface is burnt. Some medicines are prescribed, but pathidine injunction is directed to be administered only after the recording of the dying declaration. There is nothing in the case papers to show that she was conscious when admitted. 12. The authorities incharge of Ward No. 4 sent a requisition to Rajapeth Police Station with a request for recording the dying declaration of the deceased and accordingly Mr. Ramakrishna Dadhu, the then Executive Magistrate was summoned. There is a discrepancy as far as the time is concerned, but let us not be overwhelmed by these technicalities. Mr. Ramakrishna Dadhu came to Ward No. 4 and he asked the doctor to certify whether the patient was in a condition to make the declaration. We have, then, the evidence of Dr. Deshmukh (PW 5). Dr. Deshmukh was not the incharge of this Ward, but he was called only for the purposes of certifying the physical condition at that particular moment. The evidence of Dr. Deshmukh shows that he saw the pulse and heart-beats. He asked the name to the deceased and from this perfunctory examination, he certified that the patient was in a position to make a declaration. As a matter of fact, the physiological symptoms disclosed by the heart-beats and the pulse rate only could satisfy an expert about the receptivity of the individual and nothing more. Similarly asking the name to the person would merely show that the patient is receptive. What, the doctor had to satisfy himself was whether the patient was in a rational state of mind so as to make a rational and logical disclosure of the evidence. This opinion becomes important particularly in view of the fact that the patient had suffered 100 percent burns of second degree and that she was unconscious when was brought to the hospital. There is absolutely no evidence to show that Dr. Deshmukh had practised means to ascertain not only the receptivity but also the facility of reasoning of the deceased. As far as PW 4 Ramakrishna Dadhu is concerned he was not at all an expert witness and had to rely upon the opinion given by Dr. Deshmukh. The dying declaration came to be recorded in pursuance of this opinion. It is now for us to decide as to whether the dying declaration and the contents thereof were truthful. 13. The learned Additional Sessions Judge has considered the evidence of Dr. Deshmukh and Ramakrishna Dadhu (PW 4) and he has come to the conclusion that both of them are the responsible officers working under the State Government and their evidence could not be discarded on any count. According to me, this is too vague a reasoning to be accepted because what is concerned in this case is a right of a person to life and liberty. PW 4 Ramakrishna and PW 5 Dr. Deshmukh might not have any axe to grind against the accused. They might have no sympathies with the deceased. But what we find in the present case particularly in respect of Dr. Deshmukh is a most rational approach. He just comes from another Ward, asks the name of the patient, only sees the pulse rate and heart-beats and declares that she is in a state to make a statement and this has to be viewed on the background that when the patient was brought to the hospital she was unconscious. There is evidence of Dr. Tekade (PW 13), who is equally an expert and who says that with these 100 percent burns of second degree, the patient must have become unconscious within 3 to 6 hours. 14. What has been established in this case is that when the patient was admitted in the hospital she was unconscious. Surprisingly the doctor who has admitted the patient and who was incharge of Ward Dr. Dixit has not been examined by the prosecution. There was no best person to depose about the faculties of the deceased. Dr. Tekade, who is working in the same hospital, says that with such nature of burns the patient is bound to go into unconsciousness after 3-4 hours. This evidence thus cautions the Court to be very alert in appreciating the evidence of Dr. Deshmukh, whose approach to the whole problem has been very casual. Inspite of the fact that the patient was unconscious when reached to the hospital, on merely perfunctory examination he declares her fit. It is surprising to note at this stage that there is evidence on record to show that the patient was groaning with pains even at that stage. We can just imagine the pains that the deceased could have suffered after 100 percent burn injuries of second degree. 15. The learned Additional Sessions Judge found that there was some corroboration to the story disclosed in the dying declaration. When the Court seeks corroboration, it seeks corroboration only on the material points add not on other points which are not so material. As is evident from Exh. 12 the only material part of the story is that the accused and deceased were in the Osari, that the accused supplied the deceased a can containing kerosene, the deceased poured that kerosene on her body, ignited the match stick, set fire to her clothes and ran outside. This is the integral part of the story. The deceased had also stated that while she was out, her husband was inside the house. This is a very material part of the story, because she insists that inspite of the fact that she was in flames, her husband did not do anything. He did not extinguish the fire. There are now circumstances on the record itself which prove that some of the statements in this declaration are false because what she stated in the dying declaration is that she was put in flames in the outer chhapri and from there went outside. On the other hand, as the accused has suggested she was preparing meals in the Mazghar and there her clothes caught fire. We have the panchanama of the spot drawn by the police on 27th morning and shows that half cooked food was still lying on the hearth. This circumstance is consistent with the story put in by the accused and it is inconsistent with the story depicted in the dying declaration. 16. According to the declaration as soon as her clothes were set on fire she ran outside. The panchanama on the other hand shows that there were pieces of burnt clothes, ashes etc. in the inner room i.e. Mazghar, where half cooked food was lying on the hearth. This circumstance is more consistent with the story put up by the accused and it is equally inconsistent with the story put in the dying declaration. This is thus a circumstance which falsifies the dying declaration to that extent. The deceased insisted in the dying declaration, that while she was out, her husband was inside. We have the evidence of Pundlik (PW 8) and other persons who say that the accused was throughout by the side of the deceased when she was in dames outside. This circumstance is contrary to what has been stated in the dying declaration. The deceased has stated in the dying declaration that the accused did not help in extinguishing the flames. The accused on the other hand states that be did extinguish the flames and while doing it he did sustain some injuries and we have the evidence of Dr. Rathi (PW 12), who deposes that the accused had burn injuries on the toe posterior aspect and another contusion on the forearm ulnar aspect. This circumstance is also consistent with the story put up by the accused and it is equally contradictory to the dying declaration. I have pointed out these circumstances only to show that the learned Additional Sessions Judge considered only the part of the circumstances in favour of the dying declaration and there were other circumstances which were running contrary to what is contained in the dying declaration. On the other hand, these circumstances, which I have pointed out above, have a tendency to falsify whatever has been stated in the dying declaration. 17. Thus what emerges from the evidence on record is that though the dying declaration maintains that it is the accused who supplied the kerosene to the deceased, there is considerable doubt regarding the truthfulness of this statement. The four circumstances which I have pointed out in the foregoing paragraph do show that at least some part of the dying declaration is definitely false. Apart from that, this dying declaration came to be made 7-9 hours after the incident though at the village itself, the deceased had ample opportunity to tell to the neighbours as to what happened. There is evidence on record to show that when she was in flames on the street, males and females in the vicinity assembled there and it is not her case that she was stranger to the village. In fact she is staying at that village for not less than 10 preceding years. There is no evidence that she had enmity with all these persons, as a result of which she could not make a disclosure about it to anybody-else. 18. Taking into consideration all these circumstances together, I find myself unable to agree with the learned Additional Sessions Judge that the dying declaration made by the deceased is hundred percent truthful at its face-value. On the other hand, from the circumstances which I have enumerated. I have grave doubts about the truthfulness of the very essential and important part of the dying declaration, namely, the handing over of the can of kerosene by the accused to the deceased. On this point there is no corroboration. As regards other contents of the dying declaration, there are circumstances to show that this part of the dying declaration are not correct. 19. As far as the law on the point is concerned, there is no dispute regarding the proposition that a conviction can be based solely on the dying declaration without any corroborating evidence. The only requirement is that the Court must be satisfied regarding the voluntariness and truthfulness thereof. In the present case some circumstances are brought on record which have a tendency to falsify some statements in the dying declaration. On the other hand, there is another set of circumstances which throw a considerable doubt on the physical capacity of the deceased to make this declaration. Taking all these circumstances together, I hold that the dying declaration cannot be accepted at its face-value as it contains falsehood. 20. In view of this, the order of conviction and sentence based solely on this dying declaration cannot be sustained. If this dying declaration is kept aside, there is absolutely no other evidence to connect the accused-appellant with this offence. The dying declaration contains in itself the germs which can falsify it. It will not, therefore, be advisable to rely solely on this dying declaration. The result is that there is no other evidence connecting the accused-appellant with this offence. The order of conviction and sentence thus cannot be sustained. The appeal has to be allowed and it is accordingly allowed. The order of conviction and sentence is set aside. The accused-appellant stands acquitted. Fine, if paid, be refunded to the accused. His bail bond stands cancelled.

Author: M Ratnaparkhi

Krushna vs State Of Maharashtra on 22 April, 1988

Bombay High Court

JUDGMENT N.C Sharma, J. 1. Shri Ramjas s/o Birdha, by caste Gujar R/o village Jhundwa, Police Station Aligarh (District Tonk) was brought to Sadat Hospital, Tonk September 13, 1981 in an injured condition. He was a stoat person while he was examined by the Medical Jurist and had lacerated wound on the scalp on left temporal region 1/4" x 1/4" touching the bone. There was fracture left temporal bone of the skull. He had also lacerated wound on right forcatm in center with fracture of Ulna shaft of right fore arm just below the injury. His eyes were closed and pupils dilated. Internal examination showed that Ramjas had haemorrhage over the vault of the skull on left temporal region with blood deposited in the muscles on left side of skull, clotted blood presenting from the fractured piece of the skull. The skull on left temporal region was having fracture 3" long with multiple bone fragments presents. On the brain there was subarachnoid haemorrhage present on the temporal lobe. So far as the right fore arm was concerned, there was fracture of ulna shaft. The medical jurist in his report Ex. P. 16 opined that the cause of death was sub aruchrioid cerabral haemorrhage with fracture of akull of left temporal bone. The report of the incident was lodged by Ramnatn, Patwari Circle Jhundwa an September 13, 1981 where in it was mentioned that there had been a quarrel between She ram and his brothers two or three days in which She Ram sustained injuries. It was also mentioned that the family members of She Ram bad taken him to the hospital for treatment where She Ram died on September 12, 1981 in the evening. Upon this report, Investigating Officer choose to proceed on the spot. The Station House Officer, Police Station went to the place of incident on September 13,1981 and prepar-ed the site plan Ex. P. 10. He prepared the inquest report Ex. P. 9. Post-mortem of the dead body of Shri She Ram was also conducted and the dead body was handed over to Gajanand brother of She Ram. The appellant and Kailash were arrested on that very day by arrest memo Exhibit P. 12 and Exhibit P. 13. The bloodstained cloths of She Ram were siezed. Statements of the witnesses examined Under Section 161 Cr. PC by the Investigating Officer were recorded and after necessary investigation, a charge-sheet was filed in the court of Chief Judicial Magistrate, Tonk for offence Under Section 302 IPC. The ease was committed to the Court of Sessions Judge, Tonk by Chief Judicial Magistrate on November 13,1981. The Sessions Judge held the trial and after consideration of the evidence produced, held him guilty for offence Under Section 304, Part-II, IPC and passed the sentence against him for a term of 5 years and with fine of Rs. 500/-. So far as Kailash was concerned, he was acquitted Ramjas has come up in appeal to this Court against his conviction and sentence. 2. The learned Counsel for the appellant contended that from the facts and circumstances of the case, no offence was made out against the appellant. Apart from that, the appellant was below 21 years of age and the trial court should have given him benefit under the Probation of Offenders Act. Even the Investigation Officer was not examined by the prosecution and there were no blood stains on the lathi. The learned Public Prosecutor has supported the prosecution case. 3. The arrest memo of appellant Ramjas Ex. P. 12 mentioned his age as 20 years. In his examination Under Section 313, Cr. PC recorded by the Sessions Judge on August 27, 1982, the appellant gave his age as 19 but it was estimated by the Sessions Judge to be 22 years. Kalyan P.W. 5 has stated in his cross-examination that the age of Ramjas appellant was 18 and 19 years. It will thus appear that the age of the appellant at the time of the commission of the offence was less than 21 years. The appellant was found guilty Under Section 304, Part II, IPC So far as the sentence for the offence Under Section 304, Part-II, IPC is concerned, it is punishable with imprisonment by either description for a term which may extent to 10 years with fine or with both. Section 6 of the Probation of Offenders Act, 1958 provides that if any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprison-ment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender that it would not be desirable to deal with him Under Section 3 or Section 4, and if the Court passes any sentence of imprisonment of the offender it shall record its reasons for doing so. 4. For the purpose of satisfying it self whether it would not be desirable to deal Under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report from the Probation Officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. 5. In the instant case, the learned Sessions Judge, Tonk has not at all taken into consideration the circumstances of the case, including the nature of the offence and the character of the offender in determining whether the appellant was entitled to benefit of the Act. He also did not call for a report from the Probation Officer and did not consider any report. He also did not refer to any other information available to him relating to the character and physical and mental condition of the appellant. Lastly, no reason have been recorded in passing the sentence instead of giving to the appellant benefit under the Probation of Offenders Act. Thus the trial court has totally ignored the provisions contained in Section 6 of the said Act. 6. So far as the merits of the incident are concerned, even the hostile witness have deposed that it was appellant who inflicted injury on the head of deceased She Ram which resulted in his death. There is evidence of She ji P.W. 1, Gulaba P.W. 2, Sua P.W. 3, Ram Nath P.W. 4, Kalyan P.W. 5, and it finds corroboration from the medical report and evidence. 7. So far as the appellant is concerned, the incident has not been denied by him. How ever, he has set-up in his examination Under Section 313 Cr. PC the right of private defence of his person. The version of the appellant as that the deceased had asked him as to. how the latter has dismantled the water course of the field. The appellant denied having done so. Thereupon out of anger, the deceased inflicted Lathi blow on his shoulder. He wanted to repeat the blow but in the mean while the appellant inflicted lathi blow on the deceased. As already stated, there is consistent evidence that it was the appellant who dealt with the first blow on the head of the deceased. There is no injury report of the appellant which could indicate that any injury what so ever was sustained by the appellant in the incident. It is also not in evidence that it was the deceased who first attempted to inflict any lathi blow upon the body of the appellant. No defence has been led by the appellant and he has failed to substantiate the right of private defence. It is true that the Investigating Officer has not been examined but that hardly affects the truth of the prosecution case and more so, when the incident was admitted by the appellant and only private defence of person was set up as his defence, which he failed to substantiate. The conviction of the appellant for offence Under Section 304, Part-II, IPC was, therefore, correctly recorded by the Sessions Judge and I confirm the conviction. 8. As to the sentence I have already referred to the provisions contained in Section 6 of the Probation of Offenders Act, 1958. The appellant was admittedly under 21, years of age at the time of the commission of the offence. The offence, which was not punishable with imprisonment of life. There is nothing to show that the appellant was a man of bad character. As a matter of fact, the appellant was related to the deceased. The incident occured on account of a petty quarrel on the dismantling of the water course. In such circumstances, it was desirable that the appellant should have been given the benefit of probation. 9. I, therefore, while, upholding the conviction of the appellant for offence Under Section 304, Part-II, IPC instead of sentencing him do here by direct that the appellant upon entering a personal bond in the sum of Rs. 6,000/- with two suieties in the sum of Rs. 3000/- each to maintain peace and be of good behaviour for a period of two years from the date of this order, be released on probation of good conduct and good behaviour. The appellant would file the required person as bond and surety binds before the Sessions Judge, Tonk within three months from the date of this judgement.

Author: N Sharma

Ramjas vs State Of Rajasthan on 17 February, 1990

Rajasthan High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5352 of 2006 MD.YAKUB, SON OF LATE MD.PANCHU, RESIDENT OF VILLAGE- SAGI, P.O.- DAULATPUR, P.S.- KHUDAWANDPUR, DISTRICT- BEGUSARAI (BIHAR.) Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, SAMASTIPUR. 3. THE SUB-DIVISIONAL OFFICER, MANJHAUL, BEGUSARAI. 4. THE DEPUTY COLLECTOR LAND REFORMS, MANJHAUL, BEGUSARAI, 5. THE CIRCLE OFFICER, KHODAVANDPUR, DISTRICT- BEGUSARAI. 6. THE BLOCK DEVELOPMENT OFFICER, KHODAVANDPUR, BEGUSARAI. 7. THE DISTRICT EDUCATION OFFICER, BEGUSARAI. 8. THE SUB-DIVISIONAL EDUCATION OFFICER, BEGUSARAI. 9. IN CHARGE, 'SARVA SHIKSHA ABHIYAN' BEGUSARAI DISTRICT., 10. INSPECTOR OF SCHOOLS, KHODAVANDPUR, BEGUSARAI. 11. THE HEADMASTER PRIMARY URDU SCHOOL, VILLAGE- SAGI, POST OFFICE- DAULATPUR, P.S.- KHODAVANDPUR, SUB-DIVISION- MANJHAUL, DISTRICT- BEGUSARAI. 12. MD. MUTIN ALAM, TEACHER, PRIMARY (URDU) SCHOOL, VILLAGE- SAGI, POST OFFICE- DAULATPUR, P.S.- KHODAVANDPUR, BEGUSARAI :---RESPONDENTS. ----------- 2. 18.03.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner is the grantee of purcha under Bihar Privileged Persons Homestead Tenancy Act with respect to 0.045 decimals of land bearing Plot No. 1263 appertaining to Khata No. 775 in Village- Sagi, P.O. Daulatpur, P.S. Khodavandpur, district- Begusarai. This writ petition has been filed by him praying inter alia, to direct the Collector under the Act who has issued purcha for the aforesaid land, photo copy whereof is contained in Annexure-1 to visit the site and ensure removal of encroachment of the school building from the part of the land settled with the petitioner under the said purcha. 2 Respondents have not filed counter affidavit disputing the submissions. 3. Having heard counsel for the parties, I direct the petitioner to appear before the Circle Officer, Khodavandpur with the original purcha, copy whereof is contained in Annexure-1 to this application and the Circle Officer having satisfied himself about the genuineness of the purcha shall proceed to the lands-in-question and ensure that the land allotted to the petitioner under the said purcha is made encroachment free, even by removing the structure raised by the school, if any, as early as possible, in any case within one month from the date of receipt/production of a copy of this order and the purcha before the Circle Officer. 4. The writ application is, accordingly, disposed of. (V.N.Sinha,J.) P.K.P.

Md.Yakub vs The State Of Bihar &Amp; Ors on 18 March, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print FA/975/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 975 of 2010 ========================================= ORIENTAL INSURANCE CO. LTD (HUB) - Appellant(s) Versus HEIRS OF DECEASED SANJAYBHAI RANCHHODBHAI @ KALUBHAI DABHI & 2 - Defendant(s) ========================================= Appearance : MR RITURAJ M MEENA for Appellant(s) : 1, None for Defendant(s) : 1 - 2. ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 17/08/2010 ORAL ORDER Heard Mr.Meena, learned Advocate for the appellant Insurance Company. 2. Learned Advocate for the appellant Insurance Company submitted that the Tribunal has erred in holding the Insurance Company liable, though it is on record that the deceased was travelling, sitting on a mudguard of a Tractor. He submitted, that being so, the Tribunal ought to have held that there was no insurance coverage qua the deceased and the Insurance Company is not liable to pay any amount of compensation. 3. The matter requires consideration. ADMIT. (Ravi R.Tripathi, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

Oriental vs Heirs on 17 August, 2010

Gujarat High Court

JUDGMENT S. Mohan, J. 1. The 8th defendant is the appellant in the second appeal. The short facts are as follows: 2. The father of the plaintiff, Vedamani Nadar was the owner of 28 cents, while. the father of defendants 2 and 3 was the owner of another 22 cents. Both of them jointly executed a mortgage deed under Exhibit A-5, dated 10-4-1107 (M.E.) in favour of the first defendant. In Exhibit A-5, it was undertaken to deal with the prior mortgage Exhibit A-1, dated 3-2-1076 (M.E.), which prior mortgage was executed by the predecessors in title of the mortgagor's principal under Exhibit A-5 in favour of one Poruthiyudayan. The mortgagee Poruthiyudayan, died leaving behind 5 sons. On 7-4-1093 (M.E.), under Exhibit A-2, the mortgagor executed a purakadam deed in favour of the 4 sons of Poruthiyudayan. It is only after these transactions that the mortgagors executed Exhibit A-5 directing the redemption of the prior mortgages under Exhibits A-1 and A-2. The first defendant paid 2,400 fanams, towards the discharge of these deeds. Out of the mortgage amounts, the plaintiff's father being the owner of 28 cents, received 1,300 fanams and defendants 2 and 3 together, received 1,200 fanams being the owners of 27 cents. As per the mortgage, the first defendant is in possession and enjoyment of the suit property as mortgagee. 3. While so, Vedamani Nadar, the father of the plaintiff partitioned his property by Exhibit A-7, dated 5th October, 1933, by which the 28 cents fell to the share of the plaintiff. By the deeds dated 6-10-1105 and 23-2-1109 (M.E.) the mortgage dated 3-2-1066 (M.E.), is acknowledged and hence the mortgage is not barred by limitation. Under these circumstances, the suit is filed for redemption. 4. In the written statement of the first defendant, it is contended that the mortgage deed recites to redeem the prior mortgages Exhibits A-1 and A-2. The first defendant has redeemed from only 2 of the 5 sons. Therefore, the other three sons of the original mortgage ought to have been impleaded. In any event, without paying the mortgage, there cannot be any redemption by the plaintiff. 5. On similar lines, the other defendants also filed written statements, It was mainly contended that the rights of redemption had become barred. 6. The learned trial Munsif, on a consideration of the oral and documentary evidence passed a preliminary decree for redemption. On appeal, in A.S. No. 244 of 1958, the said finding of the trial Court, was confirmed by the learned District Judge of Kanyakumari, Hence, the present second appeal. 7. The only point that arises for my determination is, as to whether the suit is barred by limitation. 8. Mr. Ganapathi Subramania Iyer, learned Counsel for the appellant, strenuously contends before me that upon the execution of the purakadam, Section 20 of the Travancore Regulation VI of 1100 (M.E.) gets attracted, as a result of which the limitation of 50 years will have to be computed from the date of the purakadam. In 1951 the Part-B States (Laws) Act, 1951 came into force and extended the Indian Limitation Act, 1908, to Travancore, the result of which would be that within two years since the coming into force of Part-B States (Laws) Act, 1951, the suit ought to have been filed. In so far as it has not been done, the present suit for redemption is barred. In support of this submission the learned Counsel relied on Syed Yousuf v. Syed Mohammed . 9. These submissions arc countered by Mr. Section Padmanabhan by contending as follows: (a) the recitals of Exhibit A-2 are to the effect that the mortgage's possession will be on the basis of Exhibit A-2, Such being the position, it was not open to the mortgagor to redeem the mortgage piecemeal. Therefore even without reference to the Travancore-Gochin Limitation Act, if the period of 50 years of limitation is reckoned from Exhibit A-1 of the year 1076 (M.E.) (1918), it is well open to the mortgagors to redeem the property. (b) Though the provisions of the Transfer of Property Act were not made applicable directly to Travancore-Cochin, the principles adumbrated, therein were made applicable to Travancore-Cochin. One such provision was Section 61, as it stood prior to the Amending Act II on 1929, under which the mortgagor was in duty bound to consolidate all the mortgages. If, therefore, a separate redemption of Exhibit A-1 was not possible, it cannot be contended that the right of redemption had become barred, (c) In any event before the expiry of the period of limitation, the new Limitation Act of 1963 had come into force, and therefore, it cannot be contended that the suit ought to have been filed within 2 years after the passing of Part-B States (Laws) Act, 1951. In support of these submissions, the learned Counsel relies on Nackappa Goundan v. Samiappa Gotindan (1946) 2 M.L.J. 358 : 230 I.C. 387 : A.I.R. 1947 Mad. 18, Bhaskaran Moothathu v, Agnisaramaju Namboori (1946) T.L.R. 546, Pakavathi Neelakantan v. Ummini Pillai (1952) K.L.T. 129 : A.I.R. 1952 T.C. 295 and Mohammed Akbar Khan v. Mussammat Motai (1947) 74 I.A. 285 : (1948) 1 M.L.J. 130 : 61 L.W. 76 : A.I.R. 1948 P.C. 36. 10. In reply, Mr. Ganapathi Subramania Iyer, learned Counsel for the appellant says that the execution of purakadam does not give an extended period of limitation and once limitation started running it cannot be arrested. 11. Undoubtedly, by the execution of purakadam under Exhibit A-2, Section 20 of Travancore Regulation No. VI of 1100 Will be applicable. That categorically states that the period of limitation has to be reckoned from the date of such purakadam and the said period is 50 years. On 1st April, the Part-B States (Laws) Act of 1951 came into force and extended the Limitation Act, 1908, to Travancore-Cochin. The result was that the Travancore Regulation VI of 1100 stood repealed by Section 30 of the Indian Act. On this basis, it is contended that there is no period of limitation prescribed for a purakadam under the Indian Limitation Act of 1908, and consequently, the suit ought have been filed within 2 years viz., by 1953. Therefore, the present suit filed in 1966 is hopelessly barred by limitation : In advancing this contention, the following passage in Syed Yousuf v. Syed Mohammed is pressed into service: Ex facie, Section 30 applied to a suit for which the period of limitation prescribed by the Indian Limitation Act, 1908 is shorter than the period of limitation prescribed by the corresponding law in force in the Part B State. Now, the Hyderabad Limitation Act did not apply to a suit for recovery of possession of a wakf property. The result was that under the corresponding law in force in Hyderabad, there was no limitation for such a suit. In other words, the period of limitation prescribed for the suit by the corresponding law in Hyderabad was an unlimited period. Article 142 of the Indian Limitation Act, 1908 applied to a suit for recovery of possession of the wakf property. As it prescribes a shorter period of limitation for the institution of the suit, Section 30 enabled the plaintiffs to institute the suit within a period of two years after 1st April, 1951. The Part B States (Laws) Act, 1951 while extending the Indian Limitation Act, 1908 to Hyderabad thus allowed the plaintiffs reasonable time to institute the suit for recovery of the property. The extension of the Indian Limitation Act, 1908 to Hyderabad and the consequential change in law prescribing a shorter priod limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for its enforcement. We must, therefore, apply the normal rules that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit. The suit is, therefore, governed by the Indian Limitation Act, 1908. 12. Though these observations seem to support the contention of the learned Counsel for the appellant, to a great extent, in making these submissions, he ignores the recitals occurring in Exhibit A-2, since thereunder it is stated that the possession under the mortgage deed shall be on the basis of Exhibit A-2 also. Under these circumstances, the mortgagors ought to consolidate both the mortgages and redeem Exhibit A-1 and A-2 to together and piecemeal redemption was impossible as per the law under the Transfer of Property Act that stood prior to the Amending Act II of 1929. This right of consolidation was not a mere right to have the advantage of an existing statute, but it was a vested right in the property. This is the dictum laid down in Nachappa Goundan v. Samiappa Goundan (1946) 2 M.L.J. 35 : 230 I.C. 387 : A.I.R. 1947 Mad. 18. 13. No doubt, the Transfer of Property Act as such did not apply to Travancore-Cochin, then. But the principles enunciated therein were made applicable. It was held in Bhaskaran Moothathu v. Agnisaramam Namboori (1946) T.L.R. 546, that all the mortgages over the same property in favour of one and the same person must be simultaneously redeemed. It was further held that the right of redemption involves the obligation to discharge all the debts due to the partiuclar creditor, as against whom redemption is sought. 14. Again in Pakavathi Neelakantan v. Ummini Pillai (1952) K.L.T. 129 : A.I.R. 1952 T.C. 295, it was held: Notwithstanding the fact that the Transfer of Property Act was not law in Travancore and Cochin before its introduction there, the principle which Section 61 (before its amendment in 1929) impliedly recognised was applicable to Tranvancore and Cochin and all the mortgages over the same property in favour of one and the same person must be simultaneously redeemed, and the mortgagor is not entitled to redeem one without redeeming the other or others. 15. The above rulings full support the stand of Mr. Padmanabhan, learned Counsel for the respondent. 16. Lala Soni Ram v. Kanhaiya Lal (1913) 40 I.A. 74 : I.L.R. 35 All. 227, was a case wherein the question arose whether by reason of acknowledgment by deeds of 1866 arid 1867, the limitation could be extended. It was held that it was not so extended, since those acknowledgments were not made by a person through whom the defendants claimed title and therefore, the statutory time continued to run during the period between 1883 and 1898. This case is clearly distinguishable. 17. To my mind, it appears that the recitals in. Exhibit A-2, to which I have made a reference earlier, are of great, consequence and of immense value in deciding the point of limitation. The fallacy in the argument of Mr. Ganapathi Subramania Iyer is, that he wants to reckon the 50 year period of limitation from the date of the purakadam, Exhibit A-2 without reference to the recitals contained therein. 18. Thus, I am in entire agreement with the findings of the Courts below. Consequently, I hold that there are no merits in the second appeal and the same shall stand dismissed. In the circumstances, of the case, I make no orders as to costs. No leave.

Author: S Mohan

Thomas vs Victor on 19 September, 1975

Madras High Court

Court No. - 26 Case :- WRIT - A No. - 15061 of 1992 Petitioner :- Hari Karan Singh Respondent :- D.I.O.S. & AnotherPetitioner Counsel :- Raj Kumar J ain,Rahul Jain Respondent Counsel :- S.C. Hon'ble Shishir Kumar J. Learned counsel for the petitioner states that he has filed an application for amendment application for regularisation on 24.8.2006. Office is directed to trace out the same and place on record. Put up this case day after tomorrow. Order Date :- 4.1.2010 V.Sri/-

Hari Karan Singh vs D.I.O.S. & Another on 4 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1336 of 2007 SANJAY SAH Versus STATE OF BIHAR ----------- 07/ 04.11.2010 I.A. No. 2069 of 2010 Appellant Sanjay Sah has renewed his prayer for bail in the light of the observation in order dated 8.10.2009, where it was observed that if the appeal is not heard within a period of one year, the appellant may renew his prayer for bail. Till date the appeal has not been listed for hearing and the appellant has remained in custody for more than six years. Considering this fact, prayer for bail on behalf of appellant, namely, Sanjay Sah is allowed. During the pendency of this appeal, he is directed to be released on bail on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Ist Additional Sessions Judge, Vaishali at Hajipur in connection with Sessions Trial No. 226 of 2006. Realization of fine shall remain stayed. (Mridula Mishra, J.) (Dharnidhar Jha, J.) DKS/

Sanjay Sah vs State Of Bihar on 4 November, 2010

Patna High Court - Orders

JUDGMENT Venkataramana Rao, J. 1. The question in this second appeal turns upon the construction of a will Ex. III, dated 27th November, 1917, left by one Vijiaraghavalu Naidu. It was his last will and testament. He executed the previous wills Exs. I and II dated 25th July, 1917 and 21st November, 1917, respectively. Before July, 1917, the testator was ill. He had no male issue. He had only a daughter by name Kuppammal. The persons who were the objects of his affection were his wife Chinnammal, the said daughter Kuppammal and her husband Rangaswami Naidu the seventh defendant in this case. He had properties in four villages, namely, Vallam, Nemili, Mazhayur and Vadakku-mangalam in the North Arcot District. By his will dated 25th July, 1917, he purported to bequeath his properties in the Vallam village to his daughter Kuppammal and the extent of the bequest is thus stated in the said will: She shall hold and enjoy the same from generation to generation with powers of alienation by gift, mortgage, sale, etc. 2. By his second will dated 21st November, 1917, he purported to make a bequest of the properties both in favour of his daughter and son-in-law the seventh defendant. There are two schedules to the said Will A and B. The A schedule properties tomprise the properties in the Vallam village the subject-matter of the prior will and also the properties in Mazhayur village and these he gave to his daughter Kuppammal. The B schedule comprises the properties in the village of Nemili and these he - gave to his son-in-law the seventh defendant. The extent of the bequest is stated thus in the said will: They shall hold and enjoy the same from generation to generation with powers of alienation by gift, mortgage, sale, etc. If besides these any other properties have been left out, the same shall be got by my daughter Kuppammal. 3. Six days later he made a third will the construction of which is now in question. It will be seen from the first two wills that no provision was made for his wife Chinnammal and so he purported to make one. It may be necessary to give the terms thereof so far as they ma}' be relevant for the decision of the question in issue. It runs thus: I am at present physically weak on account of asthma, as I apprehend that I may not live long, as you are my wife, and as, in the wills previously executed (by me), no mention is made about your maintenance, all the properties that belong to me, that is, all the immovable and movable properties in these villages, namely, Vellam, Vadakkumangalam and Mazhayur, shall after my lifetime be enjoyed by you with powers of alienation by gift, mortgage, sale, etc., and after you, the properties then remaining shall, according to the wills executed by me on 25th July, 1917 and 21st November, 1917, be held and enjoyed by our daughter, Kuppammal, with powers of alienation by gift, mortgage, sale, etc. 4. On the date of his death Chinnammal, Kuppammal and Rangaswami Naidu were alive. Kuppammal died first in 1924 leaving a daughter Vijialakshmi who died six months later. Chinnammal died after June, 1927, having before her death executed three deeds of settlement dated 1st June, 1927, in and by which she disposed all the properties that were bequeathed to her under the said will in favour of defendants 1 to 3, defendants 1 and 2 being her brothers and the third defendant being her sister's son-in-law. 'The plaintiff is an alienee of a fourth share of the said properties from the seventh defendant who claims to succeed thereto on the ground that after the death of Chinnammal he became entitled thereto. His case is that Chinnammal had only a life interest in the said properties and his wife Kuppammal had a vested remainder and that vested remainder on her death vested in her daughter Vijialakshmi and on the latter's death vested in him as her father. The questions for decision in this case are, what is the nature and extent of interest taken by Chinnammal under the will and whether the deeds of settlement executed by her are valid. If they are yalid, the plaintiff's suit fails because no interest would vest in the seventh defendant capable of being disposed of by him. The learned District Munsif was of the opinion that Chinnammal had only a life interest in the said property and the settlement deeds executed by her were invalid. The learned Subordinate Judge reversed this decision holding that Chinnammal took an absolute estate and she was competent to dispose of the properties bequeathed to her under the will. It is against this decision this second appeal has been preferred by the plaintiff. 5. Mr. Rajah Aiyar who appeared on his behalf contended that the will conferred only a life interest on Chinnammal and the gift over in favour of her daughter took effect. The contention of Mr. T.M. Krishnaswamy Aiyar on behalf of defendants 1 and 2 is that Chinnammal took an absolute estate or a life estate with a power of appointment and in either case the settlement deeds were valid. The question is which of these contentions is right. Both the learned Counsel relied upon a number of cases, English and Indian, in support of their respective contentions. Before I deal with the said cases, it is better to remember the rule so often laid down that each will must be construed by itself and all the light that can be got from the decisions serves only to show in what manner the principle of reasonable construction have by Judges of high authority been applied to cases more or less similar--vide the observations of Lord Chancellor Selborne in Waite v. Little-wood (1872) 8 Ch. Ap. 70 at 73. Therefore without reference to cases it is the duty of the Court to ascertain what is the expressed intention of the testator and whether, there is anything in law to preclude effect being given to the said intention. The intention has to be collected from the words used in the will having regard to the facts and circumstances respecting persons to which the will relates. The question therefore is, what is the nature and extent of interest conferred on Chinnammal under the terms of Ex. III which is the last will and testament? The language used is: shall after my lifetime be enjoyed by you with powers of alienation by gift, mortgage, sale, etc. and after you, the properties then remaining shall, 6. If the testator had died intestate Chinnammal would have inherited his property and taken a widow's estate therein. She would be the owner for the time being with a restricted power of alienation, which restriction could only be removed by a power of alienation conferred by her husband. The power of alienation may be partial or absolute. Where he confers an unrestricted absolute power of alienation, she will take an absolute estate unless he intended to confer on her, by the language used by him a life estate with such a power. Whatever may have been the view taken in some of the early decisions in regard to the nature of the interest taken by a Hindu widow under a husband's gift or will, since the decision of the Privy Council in Surajmani v. Rabi Nath Ojha (1907) 18 M.L.J. 7 : L.R. 35 I.A. 17 : I.L.R. 30 All. 84 (P.C.), it is settled law that: If words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended." (Bhaidas Shivdas v. Bai Gulab (1921) 42 M.L.J. 385 : L.R. 49 I.A. 1 : I.L.R. 46 Bom. 153 at 159, 160 (P.C.)) 7. Prima facie, where powers of absolute disposition are conferred on the donee, it is taken as an indication that the testator intended to create an absolute estate on the donee. The will in this case confers powers of alienation of the widest amplitude, such as gift, mortgage, sale, etc. In my opinion the language is wide enough to confer a power of disposition both testamentary and non-testamentary. Therefore giving the plain grammatical meaning to the said language it would follow that the nature of the interest taken by the widow is an absolute estate. It is settled law that if an absolute estate is given to a donee, a gift over on the termination of the life of the donee of the property remaining undisposed of by the donee is invalid, the principle being that once a property is given absolutely to another, he cannot dispose of another man's property. The principle is sustained on various grounds, such as public policy or repugnancy to the prior estate. It is well expressed by Lord Justice James in In re Stringer's Estate: Shaw v. Jones-Ford (1877) 6 Ch. D. 1 at 14 thus: It is settled by authority that if you give a man some property, real or personal, to be his absolutely, then you cannot by your will dispose of that property which becomes his. You cannot say that, if he does not spend it, if he does not give it away, if he does not will it, that which he happened to have in his possession, or in his drawer, or in his pocket at the time of his death, shall not go to his heir at law if it is realty, or to his next of kin if it is personalty, or to his creditors who may have a paramount claim to it. You cannot do that if you once vest property absolutely in the first donee. That is because that which is once vested in a man, and vested de facto in him, cannot be taken from him out of the due course of devolution at his death by any expression of wish on the part of the original testator. 8. In short, a man cannot create a new course of devolution when a gift is made. The question therefore is whether there is anything in the will which would prevent effect being given to the language employed by the testator which 'prima facie confers an absolute estate. It is no doubt true that although the words are absolute in the first instance, subsequently occurring words may be sufficiently strong to cut down the absolute interest to a life interest. Vide In re Jones : Richards v. Jones (1898) 1 Ch. 438 at 441. But before this is done there must be words sufficiently precise and certain to cut down the said interest, it may at once be stated that there are no words in the will in question conferring expressly an heritable estate nor are there words limiting the gift to a life interest or otherwise, but there are words of wide amplitude to make the estate absolute and therefore heritable. Mr. Rajah Aiyar however relied on the following circumstances in support of his argument that what was intended to be conferred was only a life estate; (1) the reason given by the testator for making a provision in favour of his wife is that no-mention was made about her maintenance in the prior wills; the use of the word "maintenance" is strongly relied on for the purpose of indicating that it is only a very limited interest that was sought to be conferred on the widow and the power of disposal conferred on her is qualified by this word 'maintenance' so that whatever power she might exercise she could only do for the purpose of maintaining herself; (2) the gift over in favour of the daughter: After you, the properties then remaining shall, according to the wills executed by me on 25th July, 1917 and 21st November, 1917, be held and enjoyed by our daughter Kuppammal with powers of alienation by gift, mortgage, sale, etc. 9. The argument based on this clause is that the gift over cannot be given effect to unless the prior estate is construed to be a life estate; and (3) having regard to the prior two wills in which the words 'from generation to generation' are used in connection with the bequest in favour of the daughter and the absence of such expression in the bequest in favour of Chinnammal would connote that what was intended to be conferred on Chinnammal could only be a life interest and what was conferred on the daughter was an absolute heritable interest. 10. In regard to the first ground urged by Mr. RajahAiyar based on the use of the word 'maintenance', the context clearly indicates that the words are only expressive of the motive of the gift and did not cut down the interest intended to be conferred on her. Though the testator gave a reason for making provision for her, namely, that he omitted to make any provision in the prior wills for her maintenance, the operative portion of the gift is absolutely clear. The power of alienation is not qualified or restricted to any limited purpose: it is unrestricted. In Jogeswar Narain Deo v. Ram Chand Dutt (1896) 6 M.L.J. 75 : L.R. 23 I.A. 37 : I.L.R. 23 Cal. 670 (P.C.), where a testator gave a bequest to his widow and son stating the object of the gift to be for their maintenance, having regard to the unrestricted power of alienation given in the later clause of the will, their Lordships of the Privy Council were not inclined to restrict the extent of the interest conferred by the mere fact that the object was stated to be for their maintenance. Lord Watson says: These words are quite capable of signifying that the gift was made for the purpose of enahling them to live in comfort and do not necessarily mean that it was to be limited to a bare right of maintenance." (Vide also Hilalsing Govinda v. Udesing Vithal A.I.R. 1938 Bom. 125.) 11. The case in In re Fox : Fox v. Fox 62 L.T. 762 is distinguishable. The power to use and enjoy the property was expressly qualified by the words "for her maintenance during her lifetime". 12. I shall now deal with the second ground urged by Mr. Rajah Aiyar, namely, the argument based on the gift over in favour of the daughter. His contention is that the gifts both in favour of the wife and in favour of the daughter should be construed together and it must be inferred that what was intended to be conferred was a life interest in favour of the wife. In the first instance, the two gifts are independent gifts. The two clauses cannot be read together as forming one gift. Secondly, the fact of a mere gift over should not be taken to cut down a prior absolute interest. The question therefore is, was there an absolute gift to the wife; if so, no question arises with reference to the gift over. It is in this connection that the question arises whether there is anything in the context or in the surrounding circumstances which would show that the testator while giving power of disposition did not intend to confer an absolute estate in the sense that she would take also a heritable estate. One cardinal rule of construction in construing a will is to give effect to every word in the will and try to effectuate the intention of the testator as far as possible and not frustrate it. As observed by Joyce, J., in In re Sanford : Sanford v. Sanford (1901) 1 Ch. 939 at 943 and 944; The rule is to construe a will ut res magis valeat quam pereat,... in a case of obscurity or ambiguity, even when the question is one of invalidity on the ground of remoteness, repugnancy, or the like, weight may be given to the consideration that it is better to effectuate than to frustrate the testator's intention. 13. In this connection the arguments of Mr. Rajah Aiyar based on the absence in Ex. Ill of the words 'from generation to generation' used in the wills Exs. I and II may be relevant. In the gift over it is clearly stated that the property should be held and enjoyed by the daughter according to the wills executed by him on 25th July, 1917 and 21st November, 1917, with full powers of alienation. The use of the words 'according to the wills executed by him' would show that in the case of the daughter he meant to have a heritable estate to be enjoyed by her from generation to generation; therefore, if the will were to be construed by giving Chinnammal a life estate with an absolute power of appointment the intention of the testator will be effectuated rather than frustrated. In this view Chinnammal would not take an absolute estate but a life estate with a power of appointment and the gift over will be valid only with reference to what was left undisposed of by Chinnammal. But Mr. Rajah Aiyar contends that either the estate conferred must be an absolute estate of a life estate and to construe a disposition as a life estate with absolute power of appointment is tantamount to construing the disposition as an absolute estate. There is considerable force in the argument of Mr. Rajah Aiyar but the law does make a distinction between an absolute estate and a life estate with a power of appointment. In the one case what is conferred is property, that is, the interest conferred is capable not only of disposition by the donee but capable of transmission to his heirs and in the case of the other, that is, a life estate with a power of appointment, what is conferred is not property but power. The distinction between a power of appointment over property and property has always been well recognized - vide Ex parte Gilchrist: In re Arpistrong (1886) 17 Q.B.D. 521 at 526. "No two ideas can well be more distinct the one from the other than those of 'property' and 'power'," as Lord Justice Fry points out in the same case at page 531. Both in England and in India it is well settled that it is open to a person to make a disposition of the property either inter vivos or by will so as to confer on a donee a life estate with a power of appointment - vide In re Stringer's Estate : Shaw v. Jones-Ford (1877) 6 Ch. D. 1, re Sanford: Sanford v. Sanford (1901) 1 Ch. 939, Saroda Sundari Dassi v. Kristo Jiban Pal (1900) 5 C.W.N. 300 and S.M. Hara Kumari Dasi v. Mohim Chandra Sarkar (1908) 12 C.W.N. 412. 14. Mr. Rajah Aiyar relied on a number of cases where a distinction is drawn between cases where a power of testamentary disposition is conferred and where no such power is conferred for indicating that what was conferred on Chinnammal was only a life estate limited to enjoyment in specie for the bare purpose of maintenance. Having regard to the construction placetl by me that the power of disposition conferred in this case would include a testamentary disposition and having regard to the fact also that the dispositions in this case were all inter vivos, I think it unnecessary to deal with those cases. I also think it unnecessary to deal with the question regarding the nature of the estate taken by a Hindu widow on whom the widow's estate with an absolute power of alienation is conferred based on the decision in Thayalai Achi v. Kannammal (1934) 12 C.W.N. 412 and whether in such a case a gift over will be valid. In this case whatever view is taken, whether it is an absolute estate conferred on Chinnammal or only a life estate with a power of appointment or a widow's estate with a power of appointment, the deeds of settlement are valid. 15. The result is that the plaintiff's suit fails and the second appeal is dismissed with costs. 16. Leave to appeal granted.

Author: V Rao

Minor Anantha Sayana Naidu, By ... vs Kondappa Naidu Alias Devarajulu ... on 24 February, 1939

Madras High Court

JUDGMENT Badar Durrez Ahmed, J. 1. This is an application under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 which has been filed jointly by the parties requesting that the suit be disposed of as having been fully satisfied in terms of a Memorandum of Settlement dated 28.03.2006 filed Along with this application as Annexure-C-1. The said annexure as well as the application is marked as Exhibit-X. Essentially, the respondent (ONGC) had filed objections to the award dated 16.12.2004 By way of the settlement, an amount of Rs.45 lakhs has been agreed to be paid by the respondent to the petitioner in satisfaction of all the claims under the award. This amount is being paid by way of a cheque dated 24.03.2006 bearing No.334384 for an amount of Rs.41,63,400/- drawn on State Bank of India, Tel Bhawan, Dehradun in favor of the petitioner / plaintiff. The cheque has been handed over to the learned Counsel for the petitioner in court and he acknowledges receipt of the same. The balance amount of Rs.3,36,600/- has been deducted by the respondent as Tax Deducted at Source for which the relevant certificate will be handed over to the counsel for the petitioner within one week. 2. In view of these developments, the learned Counsel for the plaintiff states that, as mentioned in the application, the plaintiff/petitioner is left with no claim whatsoever against the defendant, the award having been fully satisfied. 3. Accordingly, this matter is disposed of with the direction that the award stands satisfied and the application [Exhibit-X Along with its annexure] shall form part of this order. The parties shall bear their own costs.

Author: B D Ahmed

Triveni Engg. And Industries Ltd. vs Oil And Natural Gas Corpn. Ltd. on 29 March, 2006

Delhi High Court

Gujarat High Court Case Information System Print AO/259/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 259 of 2008 ========================================= GUJARAT INSTITUTE OF HOUSING & ESTATE DEVELOPERS Versus NARENDRA K PATEL AND OTHERS ========================================= Appearance : MR MIHIR JOSNI assisted by MR SANDEEP SINGHI for SINGHI & CO for Appellant(s) MR JS YADAV for Respondent(s) : 1, None for Respondent(s) : 2 - 18. ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 02/03/2010 ORAL ORDER Heard learned Senior Advocate Mr.Mihir Joshi with learned Advocate Mr.Sandeep Singhi for the appellant. Learned Senior Advocate for the appellant invited attention of the Court to the relevant part of the judgment and order passed by the learned Judge, Court No.7, Ahmedabad below application Exh.48 in Civil Suit No.2001 of 2007. ADMIT. (Ravi R.Tripathi, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

Appearance : vs Mr Js on 2 March, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 516 of 2007(M) 1. MOOSA, S/O. HUSSAIN, ... Petitioner Vs 1. THE SUB INSPECTOR OF POLICE ... Respondent For Petitioner :SRI.T.B.SHAJIMON For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :01/02/2007 O R D E R V. RAMKUMAR, J. - - - - - - - - - - - - - - - - - BAIL APPLICATION NO. 516 OF 2007 - - - - - - - - - ----------------------- - - - - - - DATED THIS THE 1ST DAY OF FEBRUARY, 2007 O R D E R B.A.NO.516/06 Page numbers 2. The petitioner shall make himself available for In this Petition filed under Sec.438 Cr.P.C. the petitioner who is the accused in Crime No.363/05 of Manjeshwar Police Station for offences punishable under Sections 376, 420 and 506(ii) I.P.C., seeks anticipatory bail. 2. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Having regard to the nature of the allegations levelled against the petitioner and the other circumstances of the case, I am inclined to grant anticipatory bail to the petitioner. Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above case on his executing a bond for Rs.10,000/- with two solvent sureties each for the like amount to the satisfaction of the said officer and subject to the following conditions: If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above. V.RAMKUMAR,JUDGE. dsn 

Moosa vs The Sub Inspector Of Police on 1 February, 2007

Kerala High Court

ORDER Mirdhe, J. 1. This Writ Petition is filed by the petitioners praying to quash the order passed by Respondent - 3, Tahsildar, Jamkhandi, which is produced at Annexure 'G' and also to quash the mutation entry as per Annexure 'H'. 2. I have heard the learned Counsel for the petitioners and the learned Additional Government Pleader for R-1 to R-3 and perused the records of the case. 3. The case of the petitioners is as follows; One Lt. Adrushappa Gurusiddappa Desai was watan holder of Konnur village and he was in possession of watan property and he died intestate on 27.01.1973. 4. Petitioners-1 and 2 and two others filed a Civil Suit in O.S. No. 6/76 before the Civil Judge, Bijapur, which came to be transferred to the Civil Judge, Jamkhandi, and that suit came to be numbered as O.S. 32/79. In that suit, O.S. 32/79, agricultural lands shown in schedule 'A' of the plaint were under the personal cultivation of Lt. Adrushappa Gurusiddappa Desai and they were never tenanted lands. Schedule 'B' of the plaint lands were admittedly in possession of various tenants. There was also 'C' schedule of lands and there were several litigations. The State of Karnataka was the first defendant in O.S, 32/79. A final decree came to be passed in that suit on 06.06.1991 in terms of the compromise petition and the Receiver who was appointed in this proceedings was directed to deliver physical possession of the lands to the respective parties and it is the contention of the petitioners that they are in possession of the respective lands that had fallen to their share from 15.07.1991 till today. 5. The second respondent-Tahsildar, Jamkhandi, passed an order purporting to be under Section 44(1) of the Land Reforms Act and asked the Village Accountant to enter the name of the Government in the relevant records. It is this order that is challenged by the petitioners in this Writ Petition. The order passed by the Tahsildar, Jamkhandi, is produced at Annexure 'G'. The Tahsildar has referred to Section 44(1) of the Karnataka Land Reforms Act and he has passed the order under the said Section. The contention of the learned Counsel for the petitioners is that the Tahsildar has no jurisdiction to pass the impugned order and since it is an order passed by the Tahsildar without jurisdiction such an order can be challenged by a Writ Petition by the petitioners even though the same order could have been challenged in an appeal before the competent authority. In other words, the existence of an alternate remedy is no ground to deny relief to the petitioners when the impugned order is passed by an authority without jurisdiction. In the case of A.V. VENKATESWARAN v. RAMCHAND SOBHRAJ WADHWANI, , the Supreme Court has held as follows; "The rule that the party who applies for the issue of a high prerogative Writ should, before he approaches the Court, have exhausted other remedies, open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or nonest and that in all other cases Courts should not entertain petitions under Article 226 or in any event nor grant any relief to such petitioners cannot be accepted." Similarly, in , KSRTC, Bangalore v. KSTA it has been held as follows; "Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are affected; where rules of natural justice are violated; or where there is a failure on the part of the authority concerned to confine itself within the bounds of its legitimate jurisdiction or where there is a failure to exercise a jurisdiction vested in it or where there is an error of law apparent on the face of the record, a person aggrieved can invoke the extraordinary jurisdiction of this Court under Article 226 without reference to any remedy however efficacious it be. The existence of an alternative remedy does not oust the jurisdiction of the High Court under Article 226. The rule that the Court does not entertain a petition under Article 226 when there is an equally efficacious alternative remedy is not a rule of law; but is a principle the courts have evolved for the guidance of their own discretion." 6. In this case if it is found that the Tahsildar has no jurisdiction to pass the impugned order then the Court can interfere its jurisdiction notwithstanding the fact that there may be an alternate remedy available to the petitioners. 7. The impugned order is passed by the Tahsildar under Section 44(1) of the Karnataka Land Reforms Act holding that the lands are vested in the State Government. In 1977 (1) KLJ 252, Beerappa Lakkappa Devakatti v. Land Tribunal, Bijapur this Court has held as follows; "The question whether the land vested in the State Government and the claim of the tenant for registration or occupancy are related questions and hence it is necessary for the Tribunal to adjudicate upon the question whether the land has vested in the State Government under Section 44." 8. This law laid down by this Court makes it clear that it is the Tribunal which is required to adjudicate upon the question whether the land is vested in the State Government under Section 44 and the Tahsildar has no such power. Therefore the impugned order passed by Tahsildar is without jurisdiction and it is a void order and it requires to be quashed. Consequently the entries that have been made pursuant to that order are also liable to be quashed. Hence I proceed to pass the following order; ORDER The Petition is allowed. Impugned order is quashed. Consequently the mutation entries in the record of rights pursuant to the impugned order are also quashed.

Author: Mirdhe

Lalitabai vs State Of Karnataka on 29 November, 1995

Karnataka High Court

Court No. - 47 Case :- APPLICATION U/S 482 No. - 20310 of 2010 Petitioner :- Diwan Chand Sonkar Respondent :- State Of U.P. & Anr. Petitioner Counsel :- Sriprakash Dwivedi Respondent Counsel :- Govt. Advocate Hon'ble Naheed Ara Moonis,J. Heard the learned counsel for the applicant the learned AGA for the State and perused the record. This is the correction application no. 171409 of 2010. After perusing the records, the order dated 9.6.2010 is hereby corrected by mentioning 'No coercive action shall be taken against the applicant' after paragraph five of the order. Accordingly, the correction application is allowed. Order Date :- 17.6.2010 Manoj

Diwan Chand Sonkar vs State Of U.P. & Anr. on 17 June, 2010

Allahabad High Court

Gujarat High Court Case Information System Print OJMCA/237/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC. CIVIL APPLICATION No. 237 of 2010 In STAMP NUMBER No. 2259 of 2009 ========================================================= COMMISSIONER OF INCOME TAX-IV - Applicant(s) Versus ASHOK R PATEL - Respondent(s) ========================================================= Appearance : MRS MAUNA M BHATT for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 14/12/2010 ORAL ORDER(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. By this application, the applicant seeks recall of the order dated 30th August, 2010 made in Tax Appeal (Stamp) No.2259 of 2009 has been dismissed for non-prosecution on account of non-removal of office objections. 2. Heard Mrs.Mauna M. Bhatt, learned senior standing counsel for the applicant. 3. Having regard to the averments made in the application, the application is allowed. Order dated 30th August, 2010 made in Tax Appeal (Stamp) No.2259 of 2009 is hereby recalled. Tax Appeal(ST.) No.2259 of 2009 stands restored to file. Office objections to be removed on or before 21st December, 2010, failing which the appeal shall stand dismissed for non-prosecution without further reference to the Court. 4. The application stands disposed of accordingly. (HARSHA DEVANI, J.) (H.B.ANTANI, J.) Hitesh     Top

Author: Harsha Devani,&Nbsp;Honourable H.B.Antani,&Nbsp;

Commissioner vs Ashok on 20 December, 2010

Gujarat High Court

JUDGMENT Walsh, A.C.J. 1. We think that there has possibly been a miscarriage of justice in this case and that we must remit the matter for a hearing in the lower Court. It is entirely the fault of the applicant, or rather his misfortune, because at the critical moment he was absent through Illness. The Judge did not believe that he was ill, because he said, that there was only the statement of the pleader to support it. The Judge does not say why he thinks, a man should keep away from an important appointment of this kind which ha himself had started, unless there was some insuperable obstacle which prevented his attendance. As the matter was only a miscellaneous case and could be disposed of on any convenient day the learned Judge ought to have adjourned it to another day or dismissed it altogether for default Instead of that he did just the worst thing he could have done. Ha started a kind of enquiry on imperfect material. We must, therefore, return it to the learned Judge to find as a fact whether, Billhaur in Cawnpore, was on the 25th September, 1923, a residence of the lady in question. People do not always realize. She true meaning of the word "residing" for the purpose of jurisdiction. In this case Section 62 requires the Court to be the District Court within whose jurisdiction such person is residing. That does not necessarily mean that she slept the night on the particular day when the application was filed in the jurisdiction. If person may have several residences and may be residing in more than one place for the purpose of jurisdiction. If a person has a private house to which be may resort in Calcutta, he has a residence there, and therefore, resides there even, if he only goes there once in five years. He may have a residence in Kashmir which he prefers to Calcutta. The word used by the Legislature to get over that difficulty when it desires to specify one place only as the place of service, or for establishing jurisdiction, is the word "ordinarily" that is to say, the place where a person ordinarily resides. Then that confines the Court to the duty of ascertaining the ordinary residence. Here, it is sufficient if she had any residence even although she was not staying at the time. Now the evidence on the record throws a heavy burden on the party objecting, not to show that she had a residence elsewhere, but to show that she had no sort of residence in Cawnpore. A sale-deed alleged to be executed by her only one month before the application, namely, the sale-deed, dated 18th August, 1923, describes her as a resident of Billhaur in Cawnpore, at present in Kanauj. Unless the Judge comes to the conclusion that, by a curious but true coincidence, there has been a complete abandonment of this residence between the 18th of August and 25th of September, the lady is really estopped from denying that this place is not a residence of hers within the jurisdiction. It is a question of fact, on which the evidence appeal's to us to be all one way, even though she may also have a residence in Kanauj. We therefore, remit the case to the learned Judge to hear and determine on these facts as to whether this residence in the sale deed is a residence of her in Cawnpore and, if it is, to dispose of the application. The Judge will listen to any further evidence that may be tendered by either party on this question.

Author: Walsh

Tawassul Husain vs Wajid Ali And Anr. on 12 June, 1924

Allahabad High Court

JUDGMENT Ravindra Singh, J. 1. This application is filed by the applicant Amar Singh with a prayer that entire criminal proceedings of S.T. No. 511 of 2005 State v. Ram Kumar and Ors. under Sections 307, 302, 504 and 506 pending in the court of learned Additional Sessions Judge, Court No. 3 Mathura and charge framed against the applicant on 28.11.2005 by the same court may be quashed. 2. It is contended by the learned Counsel for the applicant tint in lire present case the evidence collected by the Investigating Officer during the investigation is not sufficient to frame the charge under Section 307 I.P.C. against the applicant, The date of birth of the applicant is 1.1.1956. He was posted in July, 1993 in the State Bank of India on the post of clerk cum cashier, presently he is posted as Senior Assistant in village Tarauli district Mathura, He is a non-violent, peace loving and law abiding citizen and is not having any criminal antecedent. The allegations made against, the applicant are hyperbolical, exaggerated and false. The first informant Dinesh is a harden criminal and history sheeter, the deceased Ramu was also a harden criminal and the witnesses Mukesh Misra is also a criminal and one of the eye witness'Gopal has filed an affidavit mentioning therein that he has been falsely named as eye witness in the F.I.R. The participation of the applicant and the role of firing upon the complainant party from a distance of about 280 feet in the dark hours of night is absolutely false because it was not possible to identify a person from such a longdistance and from such a distance it was not possible to cause any injury. The alleged occurrence has taken place on 20.5.2004 at 7.15 p.m. in the back side of Hindustan Petroleum Building where no source of light was available and in the present case no identification parade was held. According to the prosecution Dinesh, the brother of the deceased Ranu alias Rain Prasad, lodged an F.I.R. on 20.5.2004 a, about 9.15 p.m. at P.S. Kotwali Mathura stating therein that co-accused Jeetu, Ram Kumar and Prashant are goondas, on 20.5.2004 at about 7.15 p.m. the first informant Dinesh who is the elder other of Ramu went for walking in the Army Garden, his brother Vishnu, Mukesh Mishra, Gopal had also come for walking purpose. The co-accused Ramu, Jeetu and Prashant hurled abuses on the deceased and gave challenge, thereafter they caused injuries by using knife blows on the person of the deceased. The alleged occurrence was witnessesed by the first informant and other persons in the Mercury light, when they were chased, the ' applicant fired by gun and due to that firing, the first informant and another could not proceed further. The deceased was taken In an injured condition by the first informant and his brother Vishnu to hospital where he died. 3. It is further contended that there was over writing in the panchayatname and the name of the accused were not mentioned therein. The prosecution story was not corroborated by the postmortem report and there was no explanation of abrasion. The learned trial court has illegally famed charge against the applicant under Section 307 I.P.C. because no offence under Section 307 I.P.C. is made out and there was no sufficient material to frame of the charge under Section 307 I.P.C. and the entire proceedings against the applicants are abuse of the process and are liable to be quashed. 4. It is opposed by the learned, A.G.A. by submitting that in the present case F.I.R. was lodged against the applicant and other co-accused persons. The first informant and another persons are eyewitness and there was sufficient source of light. In the present case the brother of the first informant has been murdered. Thereafter the applicant has fired upon the first informant and another person with an Intention to kill them. Active role of firing is given to the applicant but luckily no one received any injury. The investigation was completed by the I.O. who came to the conclusion that the applicant and other co-accused persons have committed the offence under Section 307 I.P.C. The charge sheet was submitted and on thy basis of the charge sheet submitted by the Investigating Officer, learned magistrate took cognizance. The case was committed to the court of sessions and charge was framed against the applicant on 28.11.2005. There is no illegality in the charge-dated 28.11.2005 and on the basis of the evidence collected by the Investigating Officer a prima facie offence is made out against the applicant and other co-accused persons and is no ground to quash the criminal proceedings and the charge dated 28.11.2005 framed against the applicant. 5. After considering the facts and circumstances of the case and the submission made by the learned Counsel for the applicant and the learned A.G.A. and after perusing the material present on record and the charge dated 28.11.2005 framed by the trial court 'against the applicant, it appears that on the basis of allegations made against the applicant find other co-accused persons prima facie offence is made out and there is sufficient material to proceed, further. There is no illegality in the investigation as will as in framing of the charge. At the stage of charge, the only material collected by the Investigating Officer is required to be considered, no other material is required to be considered and it is not a stage of appreciation of the evidence including the probability and contradictions etc. The Stage of appreciation of evidence shall come when the evidence is adduced at the stage of trial. At this stage it is to be considered whether on the basis of the. allegation made against the accused prima facie offence is made 'out or material collected by the Investigating Officer is sufficient to proceed further. The apex court has' decided this controversy in a case of State of Orrisa v. Devendra Nath Pathi reported in 2005(1) J.I.C. 289(SC). 6. In view of the above discussion, there is. no illegality in the charge dated 28.11.2005 and there is no ground to quash the criminal proceedings pending against the applicant, the prayer for quashing the criminal proceedings of S.T. No. 511 of 2005 ending in the court of learned IIIrd Additional Sessions Judge Mathura and the charge dated 28.11.2005 framed by the learned Additional IIIrd Additional Sessions Judge, Mathura, is refused. 7. Accordingly this application is dismissed.

Author: R Singh

Amar Singh S/O Chhotey Lal vs State Of Uttar Pradesh And Dinesh ... on 30 January, 2006

Allahabad High Court

JUDGMENT B.N. Kirpal, J. (1) The challenge in this writ 'petition is to the Award of the Labour Court who had held on a reference being made, that the petitioner was not a workman. (2) The petitioner as appointed as a Fire Fighting Officer by letter dated 7th January, 1963. He was subsequently confirmed as such in a scale of Rs. 510-555. The duties of a Fire Officer are enumerated in the Fire Manual. The duties of a Fire Officer, as per the manual, are as under : (1) Fire fighting. (a) Operational and maintenance of fire fighting equipment in the mills (springlers, hydrants hand appliances, overhead tanks and pumps, etc.). (b) Prepare equipment for inspection and send test and inspection reports. (c) Organise, arrange drill for fire fighters and supervise their day-to-day work. (d) Fight fires and prepare reports after investigation. (e) Keep contact with the Delhi District Fire Fighting authorities and seek their help when needed. (f) Inspect the fire equipment installed at various places outside the mill e.g. Head Office building near Nazz Cinema, City Shop, C.D.S., D.C.S., Shi ram Institute for Industrial Research, etc. (2) Safety Engineering. (a) Attend meetings of safety Committee ; (b) Observe and make a note of unsafe practice ; (c) Take steps to minimise or eliminate unsafe practices in consultation with Mechanical Engineer and Maintenance Superintendent; (d) Organise publicity for education of the workers on safety, etc. by posters, writing articles, etc. (3) To organise Civil defense Programme in consultation with Mr. Mittar. In all matters he will take steps in consultation with Mechanical Engineer and Maintenance Superintendent." In the year 1974 the petitioner was appointed as Assistant Security Officer-cum-Fire Officer. His functions as Assistant Security Officer were as follows : 1.Recruitment, transfer, promotions and placement of security, sanitation and fire fighting staff. 2.Grant of leave to security, sanitation and fire fighting staff. 3.Regularisation of absence/overstay of leave cases. 4(A)to instate disciplinary action proceedings. (b) to represent the Management in disciplinary action proceedings. (c) to issue warnings to security, sanitation and fire fighting stff. 5.Recommending of rewards/incentives. 6.To place indents for purchase of material for the security Fire Fighting Sections. 7.To represent the Management in Court & disciplinary case. 8.To work as shift officer and as such was responsible for all security matters during his shift. 9.To supervise security arrangement and security personnel at the residence of Managing Directions and other high officers of the company. 10.To maintain liaison with police authorities Delhi Fire Services, etc. 11.To officiate on occasions as Security Officer and to discharge all his functions in his absence. 12.To rationalise working of the Security departments. 13.To submit work reports, suggest improvements and to take follow up action. 14.To undertake specific projects like elimination of thefts, etc, 15.To import training in fire preventive measures and fire fighting to other officer watch and ward staff and workers. 16.To suggest improvement? and effect economics in fire fighting equipment and to supervise the fire fighting equipment and to supervise the fire fighting operations. Vide letter dated 13th September, 1977 the services of the petitioner were terminated by the respondent. The petitioner raised a dispute and after report had been made by the conciliation officer by order dated 5th April, 1978 the following industrial dispute was referred to the Labour Court for its adjudication: "Whether the termination of services of Shri M.M. Marwaha is illegal and/or unjustified, and if so, to what relief is he entitled". (3) Before the Labour Court a preliminary objection was raised by the Management. The contention of the respondent-management was that the petitioner was not a workman and, therefore, the reference itself was not valid. Evidence was lead before the court by the petitioner as well as ihe Management. The Labour Court vide its order dated 21st August, 1981 came to the conclusion that since 1974 the petitioner was essentially working as a supervisor even though he had certain technical duties. The Labour Court came to the conclusion that the technical or manual work done by the petitioner was ancillary and his main function was clearly supervisory in nature and therefore, he was not a workman because he drew salary of more than Rs. 500. The aforesaid decision of the Labour Court is challenged in the present writ petition. (4) The first contention of the learned counsel for the petitioner is that the Labour Court has erred in not deciding the reference which was made. It is true that in the present case the Labour Court has not adjudicated on merits as to whether the termination of the petitioner was valid or not. The Labour Court has not decided the case on merits because it came to the conclusion that the petitioner was not a workman and, therefore, the reference itself was not valid. It has now been held by the Supreme Court in the case Management of Express Newspapers v. Workman, that such jurisdictional facts have to be determined by the Labour Court Tribunal. The question as to whether the petitioner was a workman was a jurisdictional fact and the Tribunal had the jurisdiction to decide the same. If the Tribunal came to the conclusion that the petitioner was not a Workman then the question of proceeding further did not arise. This is what the Labour Court did in the present case. It was then submitted by the learned counsel for the petitioner that Labour Court erred in coming to the conclusion that the petitioner was not a workman. The question as to whether ihe petitioner is a workman or not is a question of fact and under Article 226 of the Constitution the court will not ordinarily investigate facts. But where on the face of the Award it appears that the decision on a jurisdictional fact arrived at by the Labour Court is unsustainable then writ court would be entitled to determine the correct jurisdictional fact. (5) In the present case before 1974 the petitioner was admittedly working as a Fire Officer. His duties had been the one enumerated above and they are those which are provided in the Fire Manual. The very first duty which the petitioner was required to undertake was that of Fighting Fire. The said manual also provides that he was required to fight fires and prepare reports after investigation. These duties contained in the Manual are undoubtedly manual in nature. The petitioner had to fight fires with his own hands and he was, therefore, certainly working as a workman. (6) What impressed the Labour Court is that after 1974 he was required to work as Assistant Security Officer, and according to the Labour Court, these duties were supervisory in nature. The Labour Court, however, seems, to have ignored the fact that when the petitioner was a Workman prior to 1974 he could not have ceased to be a Workman thereafter merely because he was required to perform additional duties. If the petitioner had been absolved of his responsibilities to perform the duties as a Fire Officer and had been required to perform duties only that of an Assistant Security Officer then, of course, it could possibly have been held that the petitioner ceased to be a Workman w.e.f. that date. In the present case, however, possibly for fuller utilisation of the services of the petitioner he was asked to perform additional duties. The fact that these duties which the petitioner was asked to perform were in addition to his duties as Fire fighter is borne out from the evidence of Mr. R.K. Ahuja, M.W. 2 who had appeared on behalf of the respondent wherein he said, "Shri Marwaha approached me that he may bs given duties of Assistant Security Officer in addition to his duties to his office as Fire Officer. This clearly shows that whenever the fire would take place the petitioner was required to work as Workman namely he had to fight fire himself. It is true that there were persons who were working in a capacity which was subordinate to that of the petitioner but that did not mean that the petitioner ceased to be a workman. A person is required to fight fires only when the fire breaks up. In the present case in 1973 the petitioner had fought fire with his own hands and he suffered burns and he had been duly compensated by the mills. The petitioner presumably fought fire because that was expected of him. This position was not altered after the re-designation of the petitioner as Assistant Security Officer cum Fire Officer. The petitioner was still obliged, even after 1974, to perform the functions of Fire Officer which primarily require him to fight fire whenever such fire breaks out. The petitioner, therefore, never ceased to be a workman as he continued to perform the duties of a Fire Officer. If any other person had been appointed as Fire Officer in place of the petitioner and the petitioner was required to perform duties of Assistant Security officer only then, possibly, the contention of the respondent may have been correct next para. In the present case, however, this has not happened. I, therefore, do not agree with the conclusion arrived at by the Labour Court when it says that the main functions of the petitioner were supervisory. In fact, is erroneous the evidence of Shri R.K. Ahuja shows that the petitioner has no power or authority entrusted to him when Shri Ahuja in the course of his cross-examination deposed as under: "Shri Marwaha had no power to appoint, promote, dismiss any workman nor could be revered for good services rendered or imposed punishment for misconduct. He had power to make recombinations in this regard, as the ultimate power vests with the head of the unit. The management did not delegate any power of authority to Mr. Marwaha. He had no power to issue gate pass on behalf of the company. He was not empowered to issue the excise gate pass He had no financial powers for issuing vouchers with regard to petty payments etc." (7) For the aforesaid reasons, I am of the opinion that the jurisdictional fact found by the Labour Court was incorrect. The evidence on the record clearly shows that the petitioner was a workman at the time when his services were terminated. (8) For the aforesaid reason writ of certiorari is issued quashing the award dated 21st August, 1981. The Labour Court is directed to decide therefore once on merits. If possible the reference should be decided within one year. The petitioner will be entitled to costs. Counsel fee Rs. 1,000.

Author: B Kirpal

Madan Mohan Marwaha vs Delhi Cloth & General Mills Co. ... on 6 February, 1987

Delhi High Court

JUDGMENT STONE, C.J. - This matter came before my learned brother Sir Harilal Kania and myself on the 10th of November, 1944, when we sent the reference back to the Tribunal to ascertain certain additional and necessary facts. We then pointed out that the Tribunal had made an incorrect approach to rules 2(b) and 3 (a) of the Schedule to the Income-tax Act to which I will presently refer. The point which arises when analysed resolves itself into an extremely narrow one. By Section 10(7) of the Income-tax act, it is provided that notwithstanding anything to the contrary contained in Sections 8, 9, 10, 12, or 18, the profits and gains of any business of insurance and the tax payable there on shall be computed in accordance with the rules contained in the Schedule to the Act. Turning to the Schedule it will be found that rule 1 provides :- "In the case of any person who carries on, or at any time in the preceding year carried on, life insurance business, the profits and gains of such person from that business shall be computed separately from his income, profits or gains from any other business." Rule 2 provides :- "The profits and gains of life insurance business shall be taken to be either -" Then two alternatives are given, and it is the greater which is to be taken. In this case it is the second alternative, viz., that which is lettered (b) which is relevant, it provides : "the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the actuarial valuation made for the last inter-valuation period ending before the year for which the assessment is to be made, so as to exclude from it any surplus or deficit included therein which was made in any earlier inter-valuation period and any expenditure other than expenditure which may under the provisions of Section 10 of this Act be allowed for in computing the profits and gains of a business." But it is to rule 3 to which importance is attached in this case :- "In computing the surplus for the purpose of rule 2, - (a) one-half of the amounts paid to or reserved for or expended on behalf of policy-holders shall be allowed as a deduction." It is under that sub-rule that the three sums with which we are concerned are said to fall. In remitting their supplemental case, the Tribunal has not raised any fresh question. Therefore, the questions which we have to consider are those which are to be found in the original case which are :- (1) Whether income-tax deducted at source of Rs. 33,860 and the income-tax reserve created by the company of Rs. 1,00,770 are the amounts expended or reserved for or on behalf of the policy-holders within the meaning of rule 3(a) of the rules made under Section 10(7) of the Income-tax Act ? (2) Whether the assessee is entitled to a deduction under rule 3(a) of half the amount of Rs. 14,142 being the unappropriated carry-forward to the subsequent valuation period ? On behalf of the assessee, the insurance company, Sir Jamshedji Kanga has submitted that any amount which the company expends out of its life fund is an expenditure on behalf of its policy-holders, because they are virtually the owners of the fund. With regard to that submission the following further material is to be found in the supplemental case, paragraph 9 :- "The actuary had taken into account in preparing the consolidated revenue account two items, viz., Rs. 33,860 as income-tax paid, and Rs. 1,00,770 being the reserve for income-tax and super-tax. Under rule 2(b) only such items are allowed as a deduction as are allowable under Section 10 of the Income-tax Act. Both these items cannot be allowed as an expenditure under Section 10 of the Income-tax Act. The assessee company does not object to the deduction of the above two items as provided under Section 10, but it is contended that the company is entitled to the deduction of one half of the above items, as these amounts have been paid to or reserved for or expended on behalf of the policy-holders, as provided under rule 3(a). In support of this contention the assessee company relied upon the following evidence :-" Then are set out, first of all, a resolution and a quotation from the prospectus, the effect of which is to show that the policy-holders of participating policies are entitled to 90 per cent. of the life fund, whereas the remaining 10 per cent. goes to the shareholders. On the other hand, Mr. Setalvad on behalf of the Income-tax authorities submits that income-tax paid by the insurance company is paid on behalf of itself and no one else, and in support of that proposition the case of Lalita v. Tata Iron and Steel Co., Ltd., is relied upon, as is also a case in the House of Lords : Cull v. Commissioners of Inland Revenue, in which Lord Atkin at page 56 said that the company pays income-tax in discharge of its own liability and not as agents for its shareholders. Be it observed that policy-holders are still further removed than shareholders in their relationship with the company and that their rights rest in the contracts provided by their policies. In my judgment this argument is well founded. So far as the sum of Rs. 33,860 is concerned, it represents the amount deducted at source from the interest payable to the company on its invested funds and it is, therefore, deducted in part discharge of the liability of the company to pay its own taxes. It is to be observed that there is no such provision, as Section 49B of the Income-tax Act, which could apply to policy-holders. That section was enacted to give special rights to shareholders in respect of income-tax paid by the company of which they are members. I cannot see how it can be said that this Rs. 33,860 has been paid on behalf of the policy-holders, especially is this so when there is no liability whatever on them to pay this amount. With regard to Rs. 1,00,770, this is a provision which under the Insurance Act must be made by the insurance company, and it is a liability which must be provide for before the surplus can be shown in the revenue accounts of the life department. In the companys annual revenue accounts of the life department no figures in respect of income-tax are shown except a single separate figure for each of the three years; the total of these figures for the 3 years is the sum of Rs. 1,00,770. In each year there is in fact a separate amount reserved, and these annual reservations are no doubt adjusted when it is discovered whether the reserve of the preceding year was more or less than the actual amount which had to be paid to discharge the income-tax. In my opinion this sum of Rs. 1,00,770 cannot be said to be reserved for or expended on behalf of the policy-holders any more than the sum of Rs. 33,860. Even if it could, the deduction would have to be brought back again under the proviso to rule 3(a), whereby it is laid down that if any amount so reserved for policy-holders ceases to be so reserved, and is not paid to or expended on behalf of policy- holders one-half of such amount, if it has been previously allowed as a deduction, shall be treated as part of the surplus for the period in which the said amount ceased to be so reserved. But in my opinion that provision never becomes operative, because neither the Rs. 33,860 nor the Rs. 1,00,770 is a permissible deduction under rule 3(a). That leaves the second question with regard to a sum of Rs. 14,141, which is to be found in the accounts described as a carry-forward to the credit of policy-holders. Sir Jamshedji Kanga on behalf of the insurance company has stated in this Court that the Rs. 14,141 is not only carried forward to the credit of the policy-holders, but is ear-marked for the policy-holders and that it will be used for no other purpose. On that statement by counsel being made Mr. Setalvad on behalf of the Commissioner does not press the matter further, and this sum must be treated as a permissible reserve for policy-holders within the terms of rule 3(a). The answer to the questions, therefore, which I propose is that question No. 1 be answered in the negative and question No. 2 in the affirmative. CHAGLA, J. - I agree. The first contention raised by Mr. Setalvad is that the question referred to us, "whether the income-tax deducted at source of Rs. 33,860 and the income-tax reserve created by the company of Rs. 1,00,770 are the amounts expended or reserved for on behalf of the policy-holders within the meaning of rule 3(a) of the rules made under Section 10(7) of the Income-tax Act," is a question of fact, and Mr. Setalvad says that inasmuch as the Tribunal has come to the conclusion that these sums are not reserved for nor expended on behalf of the policy-holders, we cannot go behind that finding of fact. I do not accept that contention of Mr. setalvad. The question referred to us is a question of law. We have been asked to consider whether the conclusion arrived at by the Tribunal from admitted or proved facts is a conclusion justified in law, whether the conclusion is justified on a true construction of rule 3(a) of the rules framed under the Income-tax Act. Now, the question of the applicability of a section or the construction of a section is always a question of law. Mr. Setalvad has relied, and from his point of view rightly relied, on an expression used by Mr. Justice Kania, when he referred this matter back to the Tribunal for a further statement of facts, the expression being that the question whether the amount in question was paid to or reserved for or was expended on behalf of the policy-holders is a question of fact. I do not think it is fair to the learned Judge to wrench that expression from its context. When one looks at the context, it is clear, what the learned Judge means, and really, if the question referred to us was a question of fact, I fail to see the necessity for referring it back to the Tribunal for a further and better statement of the case. Now, the scheme of rules 2 and 3 framed under Section 10(7) of the Income-tax Act to my mind is perfectly clear. The profits and gains of a life insurance business are to be assessed under rule 2(b) on the surplus arrived at on an actuarial valuation subject to certain deductions and additions. First the actual surplus arrived at by the actuary is to be taken as the basis. Then under rule 2(b) there is to be excluded from that surplus two amounts, first any surplus or deficit which is included in it which was made in any earlier inter-valuation period and does not belong to the valuation period under consideration and the second amount to be excluded is all such expenditure as is not permissible under Section 10 of the income-tax Act. Then under rule 3 certain deductions are allowed and the most important deduction and the one which we have got to consider for the purpose of this reference is the deduction permitted under rule 3(a) which is one-half of the amounts paid to or reserved for or expended on behalf of policy-holders. Now, under section 13 of the Insurance Act an actuarial report and abstract have got to be prepared as part of the statutory obligation of a life insurance company and in Schedule IV to that Act a form is given, Form G, which lays down the manner in which a consolidated revenue account has to be prepared. It is important to note that in this form one of the items of expenditure shown on the debit side is taxes paid in United Kingdom, British India, Dominion and foreign countries and on the credit side is shown interest, dividends and rents but less income-tax thereon, which undoubtedly means income-tax deducted at the source. Therefore, in order to arrive at a proper actuarial surplus, the Insurance Act requires that certain expenses must be first deducted and among those expenses are payments of income-tax. Therefore, before the surplus in this case of Rs 7,17,282-7-0 was arrived at by an actuarial calculation, the sum or Rs. 1,00,770-7-6 was debited as transferred to reserve for income-tax and super-tax and also the sum of Rs. 33,860 was deducted from the interest earned as income-tax deducted at the source. What the actuary was doing was what he was bound to do under the law, viz., to make these deductions before he certified that the surplus was Rs. 7,17,282-7-0. Now I fail to understand, with great respect to Sir Jamshedji Kanga, the argument that if these two deductions were not provided for in the account books, the surplus would have been increased by the same amount. Whether entries were made to this effect in the account books or not, I fail to see how the surplus could have been increased which could have been divisible among the shareholders. The contract between the company and the shareholders, which is referred to in the supplementary statement, is that 90 per cent. of the profits, after making the necessary provisions, is to be apportioned among the holders of participating policies and it cannot possibly be urged that one of the necessary provisions is not the payment of income-tax. Therefore, and after all, the only relationship between the company and its policy-holders is a contractual one, under the contract a policy-holder can only claim to be entitled to 90 per cent. of the profits after proper expenditure has been incurred, and one of those items of expenditure would be the payment of income-tax. The real question we have to consider is whether these two amounts have been reserved for or expended on behalf of the policy-holders. Sir Jamshedji Kanga has rightly conceded that there is no difference in principle between these two amount; the sum or Rs. 33,860-2-1 has been actually expended, the sum of Rs. 1,00,770-7-6 is not expended but it is kept in reserve to meet a liability similar to the liability for which Rs. 33,860-2-1 was expended. It is not disputed and it cannot be disputed that the assessee in this case is the company. The liability to pay the tax is one the company. There is no liability to pay the tax on the policy-holders, and the amount of Rs. 33,860-2-1 was paid by the company not on anyone elses behalf but on its own behalf in order to discharge a liability which in law it has to discharge for paying income-tax. Similarly the sum or Rs. 1,00,770-7-6 is reserved by the company to meet a liability which again is in law its own liability and not the liability of the policy-holders. In face of that I find it very difficult to appreciate Sir Jamshedji Kangas argument that these two amounts were either expended or reserved on behalf of the policy-holders. With regard to the sum or Rs. 14,142, I really fail to understand how the Tribunal in face of the appropriation account came to the conclusion that this was the unappropriated surplus. In the total which is placed to the credit of the policy-holders, viz., Rs. 6,50,734 the sum of Rs. 14,142 is included. Instead of paying out the whole of this amount, what the appropriation account does is, it pays out or makes provision for the payment of Rs. 6,32,063 to the policy-holders, provides for Rs. 4,530, which is the interim bonus already paid, and carries forward the balance or Rs. 14,141 to the credit of the policy-holders. It is already appropriated, remains appropriated and is carried forward as appropriated to the credit of the policy-holders. To remove all ambiguity Sir Jamshedji Kanga has made a statement, as referred to by the learned Chief Justice, on behalf of the company that this sum is ear-marked for the policy-holders and will not be utilise for any other purpose. Under the circumstances I agree with the learned Chief Justice that the question referred to us should be answered in the manner he has suggested. P.C. - We think that in the circumstances each party should pay his own costs. Reference answered accordingly.

New India Assurance Co., Ltd., ... vs Commissioner Of Income-Tax ... on 23 August, 1946

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30477 of 2010 GAUTAM THAKUR S/O Sahdev Thakur.....Petitioner. Versus STATE OF BIHAR & ANR ----------- Vikash (Mandhata Singh,J.) 2. 06.10.2010 Issue notice to opposite party no.2 under registered cover with A/D and also ordinary process for which requisites must be filed within two weeks failing which this application shall stand rejected as against concerned opposite party without further reference to a bench. In the meantime, No coercive step shall be taken against the petitioner in connection with Complaint Case No.988C of 2008 pending in the Court of S.D.J.M.,Jamui. Let this order be communicated to the court below through fax at the cost of the petitioner.

Gautam Thakur vs State Of Bihar &Amp; Anr on 6 October, 2010

Patna High Court - Orders

PETITIONER: SMT. RAMKUBAI SINCE DECEASED BY LRS. & ORS. Vs. RESPONDENT: HAJARIMAL DHOKALCHAND CHANDAK & ORS. DATE OF JUDGMENT: 13/08/1999 BENCH: V.N.Khare, Syed Shah Mohammed Quadri JUDGMENT: SYED SHAH MOHAMMED QUADRI,J. This appeal, by special leave, is directed against the judgment and order of the High Court of Judicature at Bombay in W.P.No.362 of 1984 dated March 27, 1997. The appellants are the legal representatives of deceased landlady, Smt.Ramkubai, and the respondents are original defendant No.1, Hajarimal Dhokalchand Chandak and the legal representatives of the second defendant Lalchand Dhokalchand Chandak (hereinafter they are referred to as 'landlady' and 'tenants'). The landlady filed civil suit, bearing Civil Suit No.12 of 1975 in the Court of Civil Judge J.D. Igatpuri, against the respondent No.1 herein and the said Lalchand Dhokalchand Chandak who died during the pendency of the proceedings, respondent Nos.'2A' to '2F' are his legal representatives, for recovery of possession of house bearing Municipal No.138 and one of the rooms in house No.150 within the Municipal limits of Igatpuri town (for short 'the suit premises') under Sections 12 and 13(1)(e) and (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short 'the Act'). Recovery of possession was sought on the following three grounds : (1) the tenant committed default in payment of rent for the period, June 1973 to November 10, 1974; (2) the first defendant sublet the premises to the second defendant; (3) bona fide requirement of the landlady for personal occupation of her family. The first defendant did not oppose the suit. The second defendant contested the suit and denied all the grounds. It was pleaded that the first defendant and the second defendant were brothers and they constitute a joint family and that the premises was obtained by the first defendant for the family. The learned trial court found that all the grounds were established by the landlady and granted a decree for eviction of tenants. The tenants went in appeal before the Court of Assistant Judge of Nasik in Civil Appeal No.138 of 1981. The Appellate Court found that there was no wilful default in payment of rent; there was no subletting of the premises and that there was no case of personal requirement of the landlady. However, it has held that there would not be any real hardship to the tenants if decree of eviction is passed on the ground that the landlady's requirement is bona fide and reasonable. In this view, the Appellate Court set aside the order of the trial court and allowed the appeal on September 28, 1983. The correctness of that judgment of the Appellate Court was assailed by the appellants in the High Court of Bombay in Writ Petition No.362 of 1984. The High Court confirmed the findings of the Appellate Court on all the grounds and dismissed the writ petition on March 27, 1997. It is from that judgment and order of the High Court that this appeal arises. The only point canvassed before us relates to bona fide personal requirement of the landlady. Mr. V.N. Ganpule, learned senior counsel for the appellants, contended that the landlady sought eviction of the tenants for personal requirement to establish a Kirana shop for her son - Bhikchand Jasraj Chordiya (for short 'Bhikchand') - which was her family business and that merely on the ground that her other son is carrying on Kirana business in one shop and she is a partner in the firm which is carrying on the business in the second shop, the plea for bona fide personal requirement was negatived by both the Appellate Court as well as the High Court. Mr. V.A. Mohta, learned senior counsel appearing for the respondents, submitted that the reasons given by the Appellate Court and confirmed by the High Court are very cogent and the order under appeal is a just order which does not warrant any interference. Since, the only ground urged for consideration is under Section 13(1)(g), it may be useful to extract that provision here :- "13(1)(g). When landlord may recover possession - (1) Notwithstanding anything contained in this Act [but subject to the [the provisions of Sections 15 and 15A]], a landlord shall be entitled to recover possession of any premises if the Court is satisfied- (g). That the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held [or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust;" A plain reading of Section 13(1)(g) shows that the landlord is entitled to recover possession of any premises if he satisfies the court, inter alia, that the premises are reasonably and bona fide required by him for occupation by himself or by any person for whose benefit the premises are held. It is not disputed before us that the requirement of the landlady to set up her son Bhikchand in business falls under clause (g). What is contended is that the landlady does not bona fide require the premises to set up Kirana business for Bhikchand and that ground is a mere ruse to seek recovery of possession of the premises. We have already noted above that the ground of bona fide requirement of the landlady was accepted by the trial court but it was negatived by the Appellate Court and the same was confirmed by the High Court. The Appellate Court was swayed away by the fact that the landlady herself did not come into the witness box to support her claim. What is not appreciated by the Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for whose benefit the business is to be set up, did come into the witness box to support the case of personal requirement. The Appellate Court was of the view that the bona fide requirement is in the first place a state of mind and might be something more and that could be established only by the landlady. In all fairness to Mr.Mohta, we must note, that he conceded that that reasoning of the Appellate Court could not be supported. The second reason given by the Appellate Court is that at the time of filing of petition the son of the landlady was unemployed but later on he started doing work as a contractor in construction field, so he did not really want to run a Kirana shop in the suit premises. The Appellate Court was of the view that had he really intended to take up Kirana business he would not have started a business like that of a contractor. The third reason given by him is that the landlady was a partner, after the death of her husband, in the Kirana business run by her husband's brother. It was also noted that another son of the landlady is in possession of another shop and doing Kirana business and thus the family is engaged in doing Kirana business in two shops and if Bhikchand wanted to do Kirana business he could have joined existing business. From this the Appellate Court concluded that the landlady did not require the suit premises for establishing Bhikchand in Kirana business. The learned counsel for the respondents strongly supported these reasons. It is correct that Bhikchand was unemployed on the date of filing of the suit but he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken about 25 years. Therefore, we do not think that taking up contractor work, in the meanwhile, will militate against his carrying on the business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently. The facts that the landlady during her life time was a partner in the firm carrying on Kirana business and her elder son is carrying on Kirana business do not disentitle Bhikchand to establish his own business. We are not impressed by the other reasoning and conclusion of the Appellate Court which are confirmed by the High Court. In our view, none of the reasons leads to the inference that Bhikchand did not intend to start family Kirana business, so relief cannot be denied to the landlady to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently. The only other aspect which is required to be noticed is requirement of sub-section (2) of Section 13 of the Act. It enjoins the court not to pass decree for eviction under clause (g) of sub-section (1) if, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, it is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it and if the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court has to pass the decree in respect of such part only. In this case, the Appellate Court recorded the finding that the landlady will suffer greater hardship than the tenants if decree is not passed in her favour. This finding has become final and thus the requirement of sub-section (2) is also satisfied. In this connection, it is apt to notice that Section 17 of the Act provides for recovery of possession of the premises by the original tenant in the event of the landlord not occupying the premises or re- letting the premises to any other person than the original tenant. Further, it also provides penal action against the landlord who violates the provision of clause (g) of sub-section (1) of Section 13. These provisions amply safeguard the interest and rights of tenants and prevent misuse of clause (g). We are satisfied that the present appellants have established bona fide requirement to recover the possession of the suit premises from the respondents. For all these reasons, we set aside the judgment and order of the High Court, under appeal, confirming the order of the Appellate Court and restore the order of the trial court in so far as it relates to the ground under Section 13(1)(g) of the Act. The appeal is, accordingly, allowed. There shall be no order as to costs.

Author: S S Quadri

Smt. Ramkubai Since Deceased By ... vs Hajarimal Dhokalchand Chandak & ... on 13 August, 1999

Supreme Court of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 638 of 1994() 1. SYNDICATE BANK ... Petitioner Vs 1. M.ANANTHESHWARA KAMATH ... Respondent For Petitioner :SRI.M.P.ASHOK KUMAR,P.A.BHASKARAN For Respondent :SRI.KODOTH SREEDHARAN,MANIKANDAN-R1 & 2 The Hon'ble MR. Justice K.NARAYANA KURUP (RETD.Ag.CHIEF JUSTICE) Dated :07/04/2009 O R D E R JUSTICE K.NARAYANA KURUP (RETD. JUDGE, HIGH COURT OF KERALA) & SRI.K.N.SATHEESAN (RETD. DISTRICT JUDGE) ================================ A.S.No.638 of 1994 ================================ Dated this the 7th day of April, 2009 AWARD Suit for money which was decreed in part. The plaintiff- bank has come up disputing the rate of interest awarded by the court. When we heard the matter in the Adalat, it is submitted that the defendant/borrower has already remitted the principal amount of Rs.2,00,000/-(Rupees two lakh only) to the bank. This is admitted by the plaintiff-bank. All that remains is the quantum of interest. When we put a suggestion to the bank to settle the matter reducing/waiving the interest, it has been fairly stated that they will be satisfied with a sum of Rs.10,000/-(Rupees ten thousand only) as interest in full and final settlement of transaction. This submission is recorded. Parties agreed for the above settlement and an Award in terms of the settlement will be passed. However, we make it clear that the respondent will pay an amount of Rs.10,000/- within six weeks from today.  A.S.638/1994 2 Post after six weeks for reporting compliance. Court fee paid by the appellant shall be refunded as per rules. K.NARAYANA KURUP (RETD. JUDGE, HIGH COURT OF KERALA) K.N.SATHEESAN (RETD. DISTRICT JUDGE) dvs  ? IN THE HIGH COURT OF KERALA AT ERNAKULAM +WP(C).No. 18928 of 2008(C) #1. M.J.MATHEW, FLAT NO. 2131-B, ... Petitioner Vs $1. KERALA STATE ELECTRICITY BOARD ... Respondent 2. ASSISTANT ENGINEER 3. ASSISTANT EXECUTIVE ENGINEER 4. GEORGE, MANTHOTTATHIL HOUSE 5. K.J.ELIKUTTY, W/O. GEORGE 6. ADDITIONAL DISTRICT MAGISTRATE ! For Petitioner :SMT.K.A.ANGEL TREENA ^ For Respondent :SRI.P.P.THAJUDEEN, SC, K.S.E.B *Coram The Hon'ble MR. Justice P.K.SHAMSUDDIN (RETD. JUDGE) % Dated :08/04/2009 : O R D E R JUSTICE P.K.SHAMSUDDIN (RETD. JUDGE, HIGH COURT OF KERALA) & SRI.K.N.SATHEESAN (RETD. DISTRICT JUDGE) ================================= W.P.(C).No.18928 of 2008 ================================= Dated this the 8th day of April, 2009 AWARD Heard the petitioner and his counsel, 4th respondent and his counsel and also the Assistant Engineer appearing on behalf of the 2nd respondent. The dispute is with regard to drawing of line to the residence of K.J.Elikutty-5th respondent. Now the line is drawn through the property of the petitioner. The contention raised by the petitioner is that there is a common road used by all the respondents including the 4th and 5th respondents and line can be drawn through this common road. The representative of the Electricity Board submitted that there is no difficulty to draw the line through the common road. The 4th respondent has no objection in drawing the line in that manner. The representative of the Electricity Board submitted that one more post has to be provided which will involve expenditure of Rs.3,217.86. He also submitted that nobody has any objection in drawing the line through the common road. After discussion, the petitioner as  W.P.(C).No.18928/2008 2 well as the 4th respondent submitted that they will equally meet the expenditure relating to the additional post. Accordingly, all parties agreed that they have no objection in drawing the line through the common road by meeting additional expenditure equally by the petitioner and the 4th respondent. Representative of the Electricity Board also agreed that the connection will be given within a period of ten days from today. The matter is settled as above. An Award is passed accordingly. P.K.SHAMSUDDIN (RETD. JUDGE, HIGH COURT OF KERALA) K.N.SATHEESAN (RETD. DISTRICT JUDGE) dvs 

Syndicate Bank vs M.Anantheshwara Kamath on 7 April, 2009

Kerala High Court

ORDER K. Sankararaman, Member (T) 1. The appeal is directed against the Order-in-Appeal passed by the Collector of Central Excise (Appeals), Bangalore upholding the order of the Assistant Collector and rejecting the appeal filed by the appellant before him. By his said order, the Assistant Collector of Central Excise, Bangalore had rejected the claim made before him by the appellant for classification of the goods in question under sub-heading No. 7325.10 together with the benefit of Notification No. 275/88. The Assistant Collector rejected this plea and held that the goods were to be classified under Chapter 84 or 85 depending vipon end use. He had, however, held that benefit of the Notification No. 223/88, dated 23-6-1988 would be admissible to them. This order was upheld by the Collector (Appeals) on challenge before him. The present appeal is a sequel to this. 2. Arguing the case of the appellants, Shri Rajesh Chander Kumar, learned Counsel took us through the relevant parts of the adjudication order, particularly the portion where the Assistant Collector had explained the processes carried out by the appellant in the manufacture of the goods in question. Learned Counsel submitted that these processes do not take the products beyond the stage of casting and accordingly the benefit of Notification No. 233/88, dated 23-6-1988 as applicable to sub-heading No. 7325.10 or 7320.00, as the case may be, would be admissible. This, he submitted was without prejudice to their original claim that the goods are eligible for duty free assessment as unmachined casting. It was submitted that the alternative claim would be covered by the Tribunal decision in Shivaji Works Limited v. Collector of Central Excise, Aurangabad 1994 (69) E.L.T. 674 which had been followed in subsequent decisions also, e.g., Paramount Centrispun Castings Limited v. Collector of Central Excise, Nagpur 1995 (77) E.L.T. 705. A further submission made by the learned Counsel was that as they had originally claimed duty free clearance of the goods under Notification No. 277/88 they had not made a specific claim for the benefit of Notification No. 175/86 as a small scale industry. They had, however, disclosed the fact in the classification list that they were registered with the Director of Industries as a small scale unit. After the Assistant Collector had turned down their case for complete exemption under Notification No. 277/88 they had raised this plea for eligibility for benefit of Notification No. 175/86 in their appeal before the Collector (Appeals). This had, however, not been adverted to by that authority and there is no finding by him in the impugned order on this plea. It was pleaded that in any event this exemption should be available to them and even if they are held liable to pay duty with the benefit of partial exemption under Notification No. 223/88, the benefit of Modvat credit may be granted to them and the fact that they had not filed a declaration under Rule 57G at the appropriate time should not be held out against them. 3. The arguments were resisted by Shri M. Ali, learned Departmental Representative. He pointed out that the Assistant Collector had, while rejecting the claim for exemption under Rule 275/86, nevertheless allowed the benefit under another Notification No. 277/88. Shri Ali, however, laid particular emphasis on the point that the processes carried out by the appellant which had been referred to in the adjudication order are of a type which will clearly take the goods beyond the stage of mere castings. They are machined castings. In this connection, he cited the judgment of the Supreme Court in Eastern Die Casting Industry Pvt. Limited v. CCE, Calcutta 1997 (22) RLT 105 where the goods under consideration were held to be classifiable under erstwhile Tariff Item 68 and and not castings under 1A or 27A(ii). Though this judgment related to a case under the old Tariff Item 68 and the competing entries in the present tariff are more specific. The ratio of the aforesaid decision treating such product as not casting would be equally applicable in the present case also, he submitted. 4. The rival submissions have been considered by us. First taking up the judgment of the Supreme Court cited by the Departmental Representative, we find that the products in that case were described as railway overhead equipment and fittings and the processes undertaken in their manufacture consisted of melting of the required metals and casting them into moulds as per railway specifications; the castings so obtained were subjected to operations such as fettling, grinding, dressing, machining and assembling with fasteners. We find that these are clear operations beyond the casting stage which sets this case apart from the present one. Hence we hold that the Supreme Court decision is not applicable to the facts of the present case. We then find that the products in question, while not being mere casting, have nevertheless only undergone the processes that will still keep them within the scope of Notification 223/88 but then this notification is equally applicable to castings falling under Chapter 73 as also products falling under 84 and 85. The appellant had made a claim that the benefit of this Notification should be extended to them as applicable to goods falling under Chapter 73 as castings of iron or steel. Following the decision of the Tribunal in the cases cited by the learned Counsel which we hold squarely cover the present case we hold that the goods in question will qualify for the benefit of Notification No. 223/88 with reference to SI. No. 1 in the Table annexed thereto. While assessing the goods in terms of this classification read with this Notification, the claim for grant of modvat benefit would require to be considered by the jurisdictional officer without disqualifying them on the ground that declaration under 57G had not been filed by them at the assessment stage. It was pointed out by the appellant's Counsel that they had not filed such a declaration at the assessment stage because their claim then was for the benefit of Notification 277/88 which granted complete exemption from duty subject to the condition that no credit had been availed of in respect of the inputs. Since this classification had been rejected and the need for payment of duty arose only after the classification under a different tariff heading came to be decided, the requirement under 57G should not be a factor for denying the credit once duty is demanded consequent to rejection of the classification claimed and applying a different classification. We hold accordingly. 5. The plea for grant of benefit under Notification 175/86 had been made by the appellant before the Collector (Appeals). This had not been considered by that authority. We note that in the classification list appellant had referred to their being registered as small scale unit. 6. For the foregoing reasons, we allow the appeal partly, holding that the appellant would be eligible for the benefit of Notification 223/88 as applicable to castings and cast articles of iron under Chapter 73. The benefit of Modvat credit as admissible is to be considered on merits notwithstanding the non-filing of the declaration under Rule 57G at the original stage. The matter is remanded to the Assistant Collector of Central Excise for considering the plea for the benefit of Notification 175/86 also. The impugned order is set aside and the appeal is allowed as above.

Venus Metal Works vs Collector Of C. Ex. on 31 October, 1997

Customs, Excise and Gold Tribunal - Delhi

Gujarat High Court Case Information System Print SCA/3295/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3295 of 2011 ========================================================= MANOJ K PATEL - Petitioner(s) Versus GUJARAT MARITIME BOARD & 3 - Respondent(s) ========================================================= Appearance : MR NV ANJARIA for Petitioner(s) : 1, None for Respondent(s) : 1 - 4. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 14/03/2011 ORAL ORDER Heard Mr.N.V.Anjaria, learned counsel for the petitioner. Notice returnable on 7.4.2011. (Smt. Abhilasha Kumari, J.) ~gaurav~     Top

Author: Abhilasha Kumari,&Nbsp;

Manoj vs Gujarat on 6 April, 2011

Gujarat High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 3384 of 2010 Petitioner :- Smt. Rehana Parveen @ Reena Respondent :- State Of U.P. & Anr. Petitioner Counsel :- Rajeev Sisodia,Atul Sisodia Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. As prayed by learned counsel for the applicant put up on 09.02.2010 as fresh. Order Date :- 4.2.2010 RPD

Smt. Rehana Parveen @ Reena vs State Of U.P. & Anr. on 4 February, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 26238 of 2009(Y) 1. PADINHARE PURAYILKALLAYANI, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, KANNUR. ... Respondent 2. THE SPECIAL TAHSILDAR (LA), For Petitioner :SRI.SERGI JOSEPH THOMAS For Respondent : No Appearance The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :17/09/2009 O R D E R THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.26238 OF 2009 ------------------------------------------- Dated this the 17th day of September, 2009 JUDGMENT The petitioner is aggrieved by the award under Section 28- A(1) of the land Acquisition Act, 1894. She applied for a reference on that issue under Section 28-A(3). Whatever be the issue, the application of the petitioner under Section 28-A(3) has to be taken up and orders issued. There is no room to refuse a reference if the reference is sought for in terms of Section 28-A (3). Under such circumstances, the respondents are directed to take up the application of the petitioner under Section 28-A(3) and do the needful in accordance with law within an outer limit of four weeks from the date of receipt of a copy of this judgment. All other issues are left open. This writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.18/9.

Padinhare Purayilkallayani vs The District Collector on 17 September, 2009

Kerala High Court

[Section 42] [Complete Act]

Central Government Act

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/01/2006 CORAM THE HONOURABLE MR. JUSTICE P. JYOTHIMANI W.P.No.817 of 2006 K. Janardhanan .... Petitioner Vs 1. The District Revenue Officer, Tirunelveli. 2. The Inspector of Police, C.S.CID, Tirunelveli, Tirunelveli District. .... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the first respondent to release the Lorry bearing registration No.TN-27-C-2795 seized by the second respondent on 23.1.2006 to the petitioner. !For Petitioner ... Mr.T.Lenin Kumar ^For Respondents ... Mr. J. Viswanathan, Government Advocate. :ORDER Mr.J.Viswanathan, Government Advocate is directed to take notice on behalf of the respondents. 2. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 3. This writ petition has been filed seeking for a direction against the first respondent to release the lorry bearing Regn.No.TN-27-C-2795 seized by the second respondent on 23.1.2006. 4. According to the petitioner, he is the owner of the seized vehicle and the same is being used as a common carrier. 5. Taking into consideration of the relief prayed for, the first respondent is directed to release the Lorry bearing Registration Regn.No.TN-27- C-2795 on 23.1.2006 to the petitioner fulfilling the following conditions. (i) The petitioner shall establish the ownership of the vehicle by producing necessary certificate before the first respondent. (ii) The petitioner shall not alienate the vehicle in any manner till adjudication is over. (iii) The petitioner shall deposit a sum of Rs.10,000/-(Rupees ten thousand only)which is agreed to by the petitioner by way of cash and (iv) The petitioner shall give an undertaking that he will not use the vehicle for any illegal activities in future and also to produce the vehicle as and when required by the first respondent. Accordingly the Writ Petition is disposed of. No costs. nbk To 1. The District Revenue Officer, Tirunelveli. 2. The Inspector of Police, C.S.CID, Tirunelveli, Tirunelveli District. 

K. Janardhanan vs The District Revenue Officer on 27 January, 2006

Madras High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44587 of 2010 1. BINDESHWARI MAHTO 2. PRABHU MAHTO 3. BALKESHWAR MAHTO 4. SURENDRA MAHTO Versus THE STATE OF BIHAR ----------- Vikash ( Mandhata Singh, J.) 02. 19.04.2011 Heard learned counsel for the petitioners and the state. Submission of the learned counsel for petitioners is that no question arises about humiliation to the informant for his belonging to member of one of the Scheduled Castes. According to the learned counsel, land dispute was there in between the parties. Earlier case was filed by petitioner no.1 for the offence under section 341,323,379,504/34 of the Indian Penal Code, to counter the same, this allegation is made in which everything happened inside the house without specifying as who among petitioners abused the informant or any of his family members. Having regard to the facts and circumstances of the case, in the event of arrest or surrender within a period of one month from the date of receipt/production of a copy of this order, the above named petitioners shall be released on bail on furnishing bail bond of Rs.10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Bettiah, West Champaran in connection with Chanpatia P. S. Case No.269 of 2010, subject to the conditions as laid down under section 438(2) of the Cr. P. C.

Bindeshwari Mahto &Amp; Ors. vs The State Of Bihar on 19 April, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print R/SCR.A/1206/2011 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 1206 of 2011 ================================================================ KARSHANBHAI SOMABHAI PARMAR....Applicant(s) Versus STATE OF GUJARAT & 9....Respondent(s) ================================================================ Appearance: MR RM PARMAR as ADVOCATE for the Applicant(s) No. 1 PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 14/06/2011 ORAL ORDER Having heard the learned Advocate for the petitioners, this petition is disposed of directing the respondent No.2 to look into the representation made by the petitioner on 17/02/2011 to respondent No.2. Disposed of accordingly. (M.D.SHAH, J.) SOMPURA Page 1 of 1     Top

Author: Md Shah,

Karshanbhai vs State on 14 June, 2011

Gujarat High Court

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Rakesh Tamta (Bablu @ Rakesh ... vs The State Of U.P. on 1 September, 2010

Allahabad High Court

JUDGMENT Charles Sargent, Kt., C.J. 1. The plaintiff in this case seeks to have possession given him of one undivided sixth part of the property in possession of the defendant. The defendant is admittedly the purchaser at an auction sale in 1865 and 1866 in execution of a decree obtained by one Allarakia, to whom plaintiff's father had executed a mortgage of the property, and he produced an unregistered certificate of sale in proof of his title. Both the Courts below held it to be inadmissible, and passed judgment for the plaintiff. The decision in Padu Malhari v. Rakhmai 10 Bom. H.C. Rep. 435 is conclusive as to the inadmissibility of the certificate. The question, however, whether a purchaser at an auction sale under the Code of Civil Procedure of 1859, who has obtained possession without a certificate of sale, is entitled to retain it, has never, as far as we are aware, been decided in this Court. In Tukaram v. Satvaji I.L.R. 5 Bom. 206 Sir Michael Westropp, C.J., says: "This Court is not to be understood by its present decision as expressing any opinion whether or not a purchaser, who without a certificate of sale has been put into possession, could be lawfully ejected because he has not such a certificate. It was not incumbent on the Court under Act VIII of 1859, Section 264, to put a purchaser into possession until he had his certificate of sale; but if he has been put into possession it has yet to be decided that he would not be entitled to retain it." 2. In the present case, assuming for the moment that the plaintiff is bound by the decree in execution of which the property was sold, it is only necessary to determine whether the defendant did not acquire a good title against the plaintiff's father, the mortgagor, on the strength of the sale and the order confirming it, followed by possession. This was decided in favour of the auction purchaser as far back as 1873 by the Calcutta Court in the case of Rajkishan Mookerji v. Radha Madhab 21 W.R. 349 and we are not aware of any decision of this Court running counter to it. How far this ruling will be affected by the language of Section 316 of Act XIV of 1882 remains to be determined. As no distinct issue was raised in the Courts below as to the nature of the debt secured by the mortgage, it will be necessary for the Court, on the evidence recorded and such other evidence as the parties may wish to give, to record a finding on the following issue, viz., whether the debt secured by the mortgage of plaintiff's father to Allarakia was contracted for a legal and moral purpose, and return the finding to this Court.

Author: K Charles Sargent

Shivram Narayan Mekal Deceased By ... vs Ravji Sakharam Pradhan on 11 October, 1882

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36589 of 2010 PRABHU TANTI @ PRABHU MANDAL Versus STATE OF BIHAR ----------- Vikash ( Mandhata Singh, J.) 06. 13.04.2011 Before signing the order dated 07.4.2011 granting bail to the petitioner, it was detected that the learned counsel for the petitioner made wrong submission with regard to the statement made in paragraph-10 of the application that similarly situated co- accused namely, Rabi Yadav vide Cr. Misc. No.13477 of 2010 has been granted bail by a Bench of this court. Hence, this application has been directed to list under the heading 'To be Mentioned' at the instance of the court. The order dated 07.4.2011 granting bail to the petitioner is hereby recalled. List this case on 25.4.2011 under the heading 'For Admission' at top of the list.

Prabhu Tanti @ Prabhu Mandal vs State Of Bihar on 13 April, 2011

Patna High Court - Orders

mwwma WW i3'~z.:f'"%%Fi"§fi~%ll%'§?%.é% WEWWW %wQmF%3%Ki§,_.W«¥:'§'" Wflfifiwfliflfifl WEWW kakihfflfifi 5-Jlf' nmnmmzmmm WEWH hymn! QM" mmnwmumahm nawm %flaJ3n3!2§.E WW" smwwxwa-mmawm WKWH %s%MMW% In '1-I-In H168 COURT or mmwm, aaneanoas W Imam ms Wm 5 1'3 zwr or wens? BEFORE V ' 'run I-rowan: HR. JUSTICE S¥}JB'Af9i$9;S:"£€¢_E§«&_AI3£A ::' . V . . . R.XS?DNDK!ifT sang, HCGP7 cam» No 31199: 2i:e§'%-- V_A"'T srrrwssn A? sax SATISH mm: e#rioT'r,n~--sI:.~%n.ia%.%A sic smvanua, 5 M. " A. man now 25 was; MAT no.2/2, 3" cmss, EAEWJJI awmxi, " BENGALURU-;»*56'i1!jVL_.026:._ =: " r u_ v_ _k u " ,.. pzwxwzouza :33' 34:1 ro1¥ 'n/5+TgVi:,n1s*.r%;e%::x1§'~;."-Ass':fs';" AV % s7r:x:i*xV o r _ 1<m~tas§*Axa » LAR22. v-$"!"BYA'PARAYANAPURA _ Pouxcz; Jmzcsawnn cnv. t.'.RL.P rxnxn uIs.439 c:n.r.c: 31! mm _ run was mrrzrxomsn rnanus 'rt-M ms AA ;}iOlsI*'BLE CGURT mm' as pamssn TO mums THE _g._s_r§rI1':oHnx Call' mm. :1»: s.c.no.'r46/2no9(camz so.425/2ooa,<:.c.pzc.13!-zzeamor BYATARAYAPKERA ?0laIC3 S'l'R'I'I0N,PKKDIl4IG ON THE Fllafi 0? Wm 3'33? '3"RHCK-'II,S3S5IOHS €FU%3; BKNGALGRI, F911 THE GFFENCX ma/3 143,144,141,14a,5os,n4,.323,3:21.392 NE 149 0? IPC. cuuld be enlarged on bail. Petitioner is enlarged an tfij the Iullowing cunditionst' ' __ _ A H 1) that the :»ahaJ.:i~'.I§;¢§§cutc a parstmgl. .1.'4-V:Sr."_ ._V.a' sun: at R_s.. r;a1a{&'vso19}ént surety 1&2; --:j;1gg fita' satisfaction ii} * shall not tanwur thg vvpxeaéafitiézx witnesses and the L..matd'1-:ia}1.: and ' iii,§v'«th§tv ___tha patitianm: shall appear 1 the Court. regularly. Sd/-3 Judge mmumt UF'flMKNMfiM%M fl'%WW'%WM% W.-'9i}xI""l'bi'K'l§lW;f\'l:l'\l18f§' i"l'I\i3'l"'¥ \us|ul*l.l'l§!'1lI" $§al\'!"VP!.IP\'i\I§ "!1lE$I'I §m\l'UNK' "WT WHEN"!-flQ%?E" l"HXi¥¥'"f'§.a'§J&IMI L5?" W&.MI§N'JR¥LWifl.fl !"I'"3FI' MVWK considering this circumstances and vt;rL§ _f:~T. charga sheet: is filed, as the petitioner judicial mate-dy sine: October 2908. T' " «I . Accordingly, the is u

Author: Subhash B.Adi

Sri Satish Kumar vs State Of Karnataka on 5 August, 2009

Karnataka High Court

JUDGMENT Anna Chandy, J. 1. This appeal is by the 6th defendant in O. S. No. 33 of 1122 on the file of the District Court, Mavelikara. 2. The suit was by a junior member of a Marumakkathayarn tarwad for setting aside certain alienations on the ground of want of consideration and necessity. One such alienation was Ext. C executed by the first defendant, (the mother of the, plaintiff and defendants 2 to 4) in favour of the 6th defendant. It is dated 2-8-1103. It is not disputed that the second defendant, who is the elder brother of the plaintiff, altained majority in 1118. Ext. A partition deed gives his age as three in 1101. This suit was filed in 1121. It was alleged in the plaint that the second defendant had left the State in 114, before he attained majority and was not heard of thereafter and the plaintiff is not even sure if he was alive. By way of reply the 6th defendant stated that he is not aware whether the second defendant had left the State in 1114 as alleged. No plea of limitation was raised by the 6th defendant. But the 5th defendant contended that the suit was not maintainable as the second defendant who is elder to the plaintiff has not sought to set aside the alienation, and that the suit is barred by limitation. Defendants 15 and 17 also raised similar contentions. The plaintiff in his rejoinder stated that the suit was not barred by limitation as the second defendant had left the Slate. Issue 7 regarding limitation was raised on these pleadings, and the learned Sub-Judge found that there was no satisfactory evidence to prove that the second defendant was out of Travaucore from the year 1114 and also held that the suit was barred by limitation by the application of S. 8 of the Travaucore Limitation Act. 3. In this appeal the correctness of the finding that the plaintiff has not proved that the second defendant was absent in the State ever since 1114 is attacked, and it is argued that so long as the second defendant was not available to exercise the right of the tarwad to impeach the alienation, this suit by the plaintiff is not barred. Reliance was placed in support of this position on the decision reported in Eravi Vasudevaru Naraboodirjpad v. Kochu-kunju Narayanan, 28 Trav LJ 1257. 4. In the nature of the evidence its this case, th finding of ihe learned Sub-Judge that it is not proved that the second defendant had left the State in 1114 and was not heard of thereafter, has only to be upheld. In the chief examination, the plaintiff made a vague statement that before she could remember matters, the second defendant left the place, and when cross-examined she admitted that she got that information from her husband and that she is not sure whether the second defendant is alive at mesent. Her marriage took place only in 1121 and it is not likely that her husband himself court have had any personal knowledge about the movements of the second defendant prior to that. On the other hand, the fifth defendant had given positive evidence that the second defendant is his immediate neighbour, that the allegation that he left the country is false, and that he was meeting him resularly at the time of the filing of this suit and before that. Even granting that the second defendant was not available in the State to file a suit within time that would not affect the applica- tion of Section 8 o the Limitation Act. The principle that "where no suit has been instituted at all, but one available member of the tarwad who was sui juris and who could have challenged by a suit the alienation, but did not file a suit in time allows the cause of action to become barred, the loss of the cause of action and the right of suit is the loss of the entire tarwad, and no subsequent suit could be brought by anybody else" has been recognised by the Travancore High Court in Nani Pankajakshi v. Kunjam Krishnan which was a Full Bench decision reported in 1947 Tray LR 320. The same view has been taken by the Tra-vancorc-Cochin High Court in a full bench decision in Ramachandran Potti Narayanan Potti v. Narayanan Sekharan, MR 1950 Trav-Co. 57. The underlying principle has been lucidly enunciated by His Lordship Sankaran J. as follows: "The right of junior members of a joint family or an undivided tarwad to impeach alienations made by the manager or karanavan is a right common to all such junior members. Any one of them is entitled to institute a suit on behalf of the joint family or the tarwad to set aside such alienations. The adult members in the joint family can effect a valid discharge of that right by either electing to institute such a suit or not to institute such a suit. The concurrence of the minor members of the joint family is not necessary for effecting such a valid discharge by, the adult member or members in the family. It follows therefore that the right of suit available to junior members of a joint family to set aside alienations made by the manager is governed V the first part of Section 8, Limitation Act, Travancore, corresponding to Section 7, Indian Limitation Act, and that when any of them is under no disability to institute such a suit the period of limitation will run against all the members in the joint family." The correctness of this view was reaffirmed by 'ho Travancore-Cochin High Court in Radhalaishan Menon v. Chandrasekhara Menon, 1955 Ker L. T. 681: (AIR 1956 Trav-Co 78) and by the Kerala High Court in Gopalkrishna Pillai v. Narayanan, 1958 Ker LT 562: (AIR 1959 Kerala 406) reported on the basis of the decisions reported in Mundan Raman v. Ramasnbba Aiyan Kulathoor Aiyan, 21 Trav LR .41 and 28 Trav LJ 1257 and argued that unless there has been a bona fide exercise by a junior member of the tarwad of the opportunity to contest the validity of a decree or a debt against the tarwad, any junior member of a tarwad may by a separate suit impeach the binding character of the decree or debt which results in the decree. The real effect of these decisions as well as some other decisions bearing on the point was considered in Aiyappan Krishnan v. Chalco Geevarghcse, 30 Trav LJ 872 and it was held "that the effect of a long course of decisions of this court is that the junior members of a tarwad must be afforded an opportunity to have the validity of the bond or decree obtained agains the tarwad tested On the ground of want of consideration and necessity. If in the absence of fraud or colusion the junior members failed to take advantage of the opportunity, they should be deemed to have raised the objection and failed. Thereafter they could not question the validity of the decree in subsequent proceedings. Otherwise it will be open to each junior member as he grows up to file a suit contesting the validity of the decree on the ground that there has not been an actual or bona fide or rigorous exercise of this opportunity. Suits may thus go on ad infinitum, thus bringing about a calamitous undermining of the financial credit of the karanavan as well as the members of the tarwad. As was held in Ambalika Nambishtathiri v. Velayu-dhan, 24 Tray LJ ,1414: 'irrespective of the question whether the opportunity was put to its best use or not, no other opportunity can be given to the junior members tore-agitate the question in a subsequent suit or proceedings." In this case there is a total absence of any allegation of fraud or collusion on the part of the second defendant, who refrained from questioning the validity of Ex. C. within time, and as such the toward has lost its right to challenge the document. In the result, the appeal fails and is dismissed with costs.

Author: A Chandy

Rajamma vs Karthiayani Amma on 17 March, 1959

Kerala High Court

Gujarat High Court Case Information System Print COMA/490/2008 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY APPLICATION No. 490 of 2008 ========================================================= ESSAR SHIPPING PORTS AND LOGISTICS LIMITED - Applicant(s) Versus . - Respondent(s) ========================================================= Appearance : MRS SWATI SOPARKAR for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 12/09/2008 ORDER BELOW NOTE FOR SPEAKING TO MINUTES FILED BY LEARNED ADVOCATE FOR THE APPLICANT Heard Mrs. Swati Soparkar, learned counsel appearing for the applicant. The order dated 2nd September, 2008 passed by this Court in the above application requires to be corrected as some lines which are in the draft order placed by the applicant on the direction of the Court, are missing in the said original order. It appears that while typing out the order, some error has been committed by the transcriber/stenographer and therefore, the words which are mentioned hereafter be added at the relevant place in the original order dated 2nd September, 2008, because, it is rightly submitted that foreign transferor company is having its office at Mauritius and the Essar Sisco Ship Management Company Limited, other Indian transferor company is having its registered office at Chennai. The following may be added in sub-clause [1] of para-3 of the order dated 2.9.2008 after the words India Shipping, foreign Transferor Company having is registered office at : Mauritius and Essar Sisco Ship Management Company Limited, another Indian Transferor Company having its registered office at Chennai Therefore, sub-clause [1] of para-3 of the order dated 2.9.2008 should be corrected and considered accordingly. The Registry to issue certified copy of the corrected order if asked for. Note for speaking to minutes is disposed of. [C.K. BUCH, J.] pirzada/-

Author: C.K.Buch,&Nbsp;

Essar vs Unknown on 12 September, 2008

Gujarat High Court

Year Sales/Turn Cash Profit Net Profit I/Tax paid Over ---------------------------------------------------------------------- 1996-97 136.54 4.06 0.26 0.03 1997-98 170-02 5.19 0.29 0.03 1998-99 182.74 6.15 0.26 0.03 1999-2000 211.04 6.83 1.68 0.19 2000-2001 249.13 5.75 0.35 0.03 2001-2002 240.05 7.30 0.41 6.61 2002-2003 248.78 7.43 0.29 2.65 2003-2004 230.00 7.57 0.36 0.03 ---------------------------------------------------------------------- Schedule Existing scales effective from Proposed scales effective from 1.1.92(Rs.) 1.1.97 (Rs.) ----------------------------------------------------------------------------------- 'A' 13000-500-15000 27750-750-31500 ----------------------------------------------------------------------------------- 'B' 12000-400-14000 25750-650-30950 ----------------------------------------------------------------------------------- 'C' 10000-400-12000 22500-600-27300 ----------------------------------------------------------------------------------- 'D' 9000-300-10500 20500-500-25000 ----------------------------------------------------------------------------------- Below Board Level ----------------------------------------------------------------------------------- 'E-0' 3500-150-6200 6550-200-11350 ----------------------------------------------------------------------------------- 'E-1' 4000-175-7150 8600-250-14600 ----------------------------------------------------------------------------------- 'E-2' 4800-200-5800-221-8275 10750-300-16750 ----------------------------------------------------------------------------------- 'E-3' 5400-225-6300-250-9050 13000-350-18250 ----------------------------------------------------------------------------------- 'E-4' 6500-250-7500-275-9425 14500-350-18700 ----------------------------------------------------------------------------------- 'E-5' 7000-275-8100-300-9600 16000-400-20800 ----------------------------------------------------------------------------------- 'E-6' 7500-300-9900 17500-400-22300 ----------------------------------------------------------------------------------- 'E-7a' 8250-300-10500 18500-450-23900 ----------------------------------------------------------------------------------- 'E-7b' 8500-300-10300 18500-450-23900 ----------------------------------------------------------------------------------- 'E-8' 9500-400-11500 20500-500-26500 ----------------------------------------------------------------------------------- 'E-9' 11500-400-13500 23750-600-28550 ----------------------------------------------------------------------------------- Non-Unionised Supervisors Scales ----------------------------------------------------------------------------------- S-1 2800-90-3430-100-4330 5200-140-8000 ----------------------------------------------------------------------------------- S-2 3000-105-3735-110-5055 5600-150-8600 ----------------------------------------------------------------------------------- S-3 3200-110-3970-120-5290 6000-160-9200 ----------------------------------------------------------------------------------- S-4 3375-120-4335-140-5875 6400-180-10000 ----------------------------------------------------------------------------------- ANNEXURE-VI PROCEDURE FOR APPROVAL AND ADOPTION OF NEW SCALES OF PAY ON IDA PATTERN BY PSEs. a) PSEs which have been making profit consistently for the last 3 years viz. 1996-97, 1997-98 and 1998-99 would be allowed to adopt the scales of pay for the executives holding posts at and below the Board level and non-unionised supervisors strictly in accordance with these guidelines. JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ. 1. By this petition, the petitioners have challenged the order dated 28.4.2005 (Annexure-10 to the writ petition) passed by respondent No. 2 whereby the proposal of revision of pay scale of employees of Bharat Yantra Nigam Limited (in short B.Y.N.L.) with effect from 1.1.1997 has been rejected and the representation of the petitioners dated 31.5.2004 is disposed of accordingly. A further relief of mandamus was sought for directing the respondent No. 1 and 2 to grant pay revision to the petitioner Board level and below Board level executives including non-unionized supervisors of respondent No. 3 B.Y.N.L. w.e.f. 1.1.1997 as approved by the department of Public Enterprises vide order dated 22.7.2002 (Annexure 7 to the writ petition) and pay the arrears of pay revision to the petitioner w.e.f. 1.1.1997. 2. The relief sought in the writ petition rests on the allegations that the petitioners are officers of respondent No. 3 in different capacity. They are working in the respondent No. 3 company having long experience to the satisfaction of the management and there have been no complaint whatsoever in regard to their work and conduct. The respondent No. 3 B.Y.N.L. is a Government of India undertaking registered under the Companies Act, 1956. The main object of company is to coordinate, control and integrate the working of different subsidiary companies to secure the optimum utilization of resources. It is under direct financial and administrative control of department of Heavy Industry, Ministry of Heavy Industries and Public Enterprises. The Government of India, has deep and pervasive control of its management, functions and day to day business inasmuch as the Chairman and Managing Director of respondent No. 3 is appointed by Union of India and its Directors are also appointed/nominated by Union of India, thus it is a state within the meaning of Article 12 of the Constitution of India and is amenable to the writ jurisdiction of this Court. The respondent No. 3 has six subsidiaries company viz.,(i) Bharat Heavy Plate & Vessels Ltd., (BHPV), Visakhapatnam, Andhara Pradesh. (ii) Bharat Pumps & Compressors Ltd. (BPCL), Naini Allahabad. (iii) Bridge & Roof Co. (I) Ltd. (B&R), Kolkata. (iv) Richardson & Cruddas (1972) Ltd. (R&C), Mumbai, (v) Triveni Structures Ltd. (TSL), Naini, Allahabad, (vi) Tungabhadra Steel Products Ltd., (TSPL), Tungabhadra, Karnataka. However, all the subsidiaries are separate legal entity registered under the Companies Act 1956 and they carrying on their business in different fields. Brief facts in regard to its subsidiaries, their nature of work and performance have been given in Annexure 2 of the writ petition. The department of Public Enterprises Government of India has issued guide-lines/office memorandum being office memorandum No. 2(49)98-BPE (WC) dated 25.6.99 with regard to the revision of pay of Board level posts and below Board level posts including non-unionized Supervisors in Public Sector Enterprises w.e.f. 1.1.97, (Annexure 3 of the writ petition). In the aforesaid guidelines it is provided that the Public Sector Enterprises making profits consistently for the last 3 years i.e. 1996-97, 1997-98 and 1998-99 would be allowed to adopt revision of pay scale for executives holding the posts of Board level, below the board level and non-unionized supervisors strictly in accordance with the said guidelines. It is further alleged that the performance of the respondent No. 3 during the aforesaid 3 years period mentioned in the guidelines and thereafter till the last financial year i.e. 2003-04 is quite satisfactory and company has been making profits continuously as under: - (Rs. in Lakhs) ---------------------------------------------------------------------- 3. It is further stated that Board of Directors of respondent No. 3 in its 63rd meeting held on 30.3.2001 has recommended the pay revision of employees and officers w.e.f. 1.1.1997 based on the scale of pay contained in the aforesaid guidelines/Office Memorandum dated 25.6.1999 (Annexure-III) and authorised the management to take up with Administrative Ministry for necessary approval and issue of directives for implementation of the Revision of Scales of pay. In pursuance thereof the respondent No. 3 forwarded the said proposal for the revision of pay of its employees to the Administrative Ministry i.e. Department of Public Sector Enterprises Ministry of Heavy Industries and Public Sector Enterprises New Delhi the respondent No. 2 for its approval vide letter dated 9.4.2001, a copy of the letter dated 9.4.2001 of the respondent No. 3 to the respondent No. 2 is on record as Annexure 6 of the writ petition. In pursuance of the aforesaid letter some queries were made by the department of Heavy Industry twice to examine the feasibility for grant of pay revision in consonance of guidelines issued by the department of Public Sector Enterprises, which were duly replied by the management, thereupon the department of Heavy Industry considered the proposal of pay revision of the petitioner employees of the respondent No. 3 and its integrated financial wing was also consulted in this regard. It recommended the pay revision of petitioner to the department of Public Sector Enterprises for their approval, which is a competent authority for granting such approval to all the Central Public Sector Undertakings. Thereupon the department of Public Sector Enterprises vide order dated 22.7.2002 approved the pay revision proposal of the Executives of the respondent No. 3, (Annexure 7 of the writ petition). In spite of the aforesaid approval of Secretary of Department of Public Enterprises in respect of the pay revision of the petitioners no consequential order was issued for a considerable long time, therefore some of the executives of the respondent No. 3 approached this Court by means of the writ petition No. 47174 of 2004 for direction to the respondent No. 2 Secretary, Department of Heavy Industries to decide their representation dated 31.5.2004 in the light of DPE's approval dated 22.7.2002 for pay revision. Thereupon vide its judgment and order dated 18.11.2004 this Court has directed the respondent No. 2 to decide the aforesaid representation, but the respondent No. 2, without affording any opportunity of hearing to the petitioners of aforesaid writ petition, has rejected the said representation in a mechanical manner vide impugned order dated 28.4.2005 contained in Annexure-10 to the writ petition, hence this petition. 4. Two counter affidavits have been filed one on behalf of the respondent Nos. 1 and 2 and another on behalf of the respondent No. 3, the respondent No. 3 has virtually supported the petitioners' claim in the writ petition. However, the stand taken by the respondent No. 1 and 2 in their counter affidavit has been stated in para 4 and 8 of the counter affidavit filed by Sri V.P. Singh Deputy Director, Department of Heavy Industries Government of India, is as under: 4. That in reply to contents of paragraph No. 18 of the writ petition, it is submitted that as per the Office Memorandum dated 25.06.1999, the Public Sector Enterprises were to revise their pay scales w.e.f. 01.01.1997 in consultation with their administrative Ministries. It is wrong to say that the department of Public Sector Enterprises with the approval of the Secretary had issued the order of pay revision. The ultimate presidential directive for revision of pay scale had to be issued by the Administrative Ministries/Departments after getting it approved with their Minister-in-charge. The financial situation of BYN Group of companies underwent a substantial change during the period when the salary/pay revision of BYNL was being considered. One of its subsidiary Public Sector Undertaking, which had achieved a turnover of Rs. 234.09 crores and a profitability of Rs. 1.72 Crores during the year 2001-02, experienced a sudden downfall in performance and it achieved a turnover of Rs. 147.50 crores and a loss of Rs. 187.63 Crores during the year 2002-03. Similarly Tungbhadra Steel Projects Ltd. (TSPL) Karnataka, which had achieved a turnover of Rs. 15.60 crores and a loss of Rs. 66 lakhs also experienced sudden downfall in their performance. It achieved a turnover of Rs. 11.33 crores and a loss of Rs. 2.63 crores during the year 2002-03 during the year 2003-04 TSPL achieved a turnover of Rs. 12.90 crores and a staggering loss of Rs. 99.98 crore. These developments necessitated the administrative Ministry i.e. Department of Heavy Industry, respondent No. 1, to take a cautious look at the entire proposal and not to agree to the same Bharat Yantra Nigam Limited (BYNL) as an holding company is not engaged in any manufacturing activity and running its expenses based on the service charges it receives from its subsidiaries. The financial position of all the subsidiaries barring Bridge & Roof are precarious and. none of them are in position to pay the service charges to BYNL. The holding company BYNL is deducting the service charge from out of the budgetary support which the Government of India, extend to its subsidiaries. In such a back drop, it would not be proper for the head of a family i.e., BYNL to reap the benefits of pay revision and the others remain deprived of it as they are not eligible. 8. That in reply to the contents of paragraph Nos. 23 to 29 of the writ petition; it is submitted that the Department of Heavy Industry have tried to take a holistic view on the Pay Scale revision proposal of BYNL by keeping into consideration the financial position of the subsidiaries/Public Sector Undertakings. It is fact that Pay Revision based on 01.01.1997 scale of pay has been implemented in one of the subsidiary/Public Sector Undertaking of BYNL i.e., Bridge & Roof, Kolkata. The said revision had taken place vide an Order dated 10.08.2000 at a point of time when the company was making profit and a financial restructuring proposal of the company was under consideration of the Government, which would have cleaned the balance sheet of the company. The position to day is that Bridge & Roof has ended the year 2004-05 with a loss of Rs. 29.80 crores (provisional) and till date the financial restructuring of the company is still to see the light of the day. One wrong done in the past cannot be used as a justification to do a further wrong by carrying out the revision of pay scale of the employees of BYNL based on 01.01.1997 scale of pay. 5. We have heard Sri Shashi Nandan, Senior Advocate assisted by Sri Namit Srivastava, Advocate for the petitioners, Sri K.C. Sinha appearing for the respondent No. 1 and 2 and Sri P.N. Roy for the respondent No. 3. 6. On the strength of various assertions made in several paragraphs of writ petition, the learned Counsel for the petitioner has submitted that in the impugned order only one reason has been mentioned that subsidiary companies are running in heavy accumulated loss. The respondent No. 3 is a holding company. It was incorporated in the year 1986, as one of the Government company and holding company of aforesaid subsidiary companies, whereas the aforesaid six subsidiary companies were incorporated long back. For example one of the subsidiary company viz. Richardson and Cruddas Ltd. was incorporated in the year 1886 and it was nationalized in 1972, it carries on business of structural fabrications etc. and the details of holding company and all subsidiary companies have been given in para 23 of the writ petition. From bare perusal of which it is clear that all the subsidiary companies were incorporated much earlier to the incorporation of holding company and when these subsidiary companies were not working to the satisfaction of Government of India, it decided to incorporate the respondent No. 3 as a holding company in the year 1986 to coordinate, control and integrate the working of its subsidiary companies to secure optimism utilization of resources and further the recital contained in the impugned order that respondent No. 3 has failed to repay Government loan in tune of Rs. 883.74 crores as on 31.1.2005 is wholly incorrect and non existent fact. The aforesaid amount of loan pertains to the six subsidiary companies and in regard to B.Y.N.L., the loan amount is only Rs. 1.10 crores. Further the paid up capital has no relationship with the profit and losses. As a matter of fact, respondent No. 3 is separate company registered under Companies Act 1956, and it has consistently been making profit from its inception, these profits have been arrived after taking into account of the impact of pay revision of its employees. More over the respondent No. 3 is also paying corporate income tax on the profits, therefore, assertions made in the counter affidavit and recitals made in the impugned order is perverse and without any factual basis. 7. It is further submitted that in Bridge and Roof Company, one of the subsidiary company of respondent No. 3, situated at Kolkata, the pay revision has been implemented even though it has not refunded the Government loan along with interest thereon amounting Rs. 42.47 crores upto 31.3.2004. And on account of aforesaid pay revision, an anomaly has also been created between the officers working in the holding company and subsidiary company. For example as pay scale of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/- which was pay scale before 1.1.1997 and the pay scale of Managing Director of Bridge and Roof Company Ltd. (1) before 1.1.1997 was Rs. 12000-400-14000/- and after pay revision, the pay scale of Managing Director of Bridge and Roof has become Rs. 25750-650-30950/-. Thus the Managing Director of subsidiary company whose performance is appraised by Chairman and Managing Director of respondent No. 3 is drawing more salary than his reporting officer. Even salary of the below Board level officers of the Bridge and Roof Company is higher than Chairman and Managing Director of B.Y.N.L.. The scale of pay of General Manager of the Bridge and Roof Company is Rs. 18500-450-23900/- whereas at present scale of pay of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/-. The anomalous situation is so extreme as the salary of Chairman and Managing Director in B.Y.N.L. is in un-revised scale matches nine scale lower in Dy. Manager's scale in Bridge and Roof in revised scale of Rs. 13000-350-18250/-. 8. It is further submitted that at present there are only 31 employees in B.Y.N.L. that include 16 executives whose pay revision is due in line in consonance with DPE office memorandum dated 25.6.99. It is significant to mention that the respondent No. 3 had never sought any Budgetary support from Government of India for payment of salary and wages to its employees and also implemented V.R.S. scheme in the year 2003 without seeking any financial support from the Government of India, as BYTSTL is a profit making company since inception and only skeleton staff is working at present. The respondent No. 3 has also created a provision for Rs. 136 lacs in its account to take care of impact of pay revision from 1.1.97 to 31.3.2004 and not seeking any budgetary support from Government of India. The petitioners are at the stagnation stage for the last 13 years and on account of their stagnation in the pay scale their efficiency and performance is adversely affected. Their counterparts in other Public Sector Undertakings and even in the subsidiary company Bridge & Roof pay revision have been implemented from 1.1.1997. Also the pay revision of petitioners have already been approved by the competent authority (DPE) on 22.7.2002, therefore, in given facts and circumstances of the case it is submitted that the petitioners are entitled to revision of their pay scale in view of office Memorandum dated 25.6.99 and recommendation of department of Public Enterprises dated 22.7.2002. 9. The submissions of learned Counsel for the petitioners appears to have some substance and requires to be examined by this Court but before such inquiry is made, we would like to refer some decisions of Hon'ble Apex Court, wherein some what similar controversy involved in the case have been considered in a slightly different context. 10. In A.K. Bindal v. Union of India and Ors. , the questions as to whether the employees of Public Sector Enterprises have any legal right to claim that though the industrial undertaking or the companies in which they are working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure, incurred in that regard; as to whether non-revision of pay scales of such employees, violates their right to livelihood, particularly when, there is no material to show that salary paid currently to them is wholly inadequate to lead life with human dignity, and as to whether the financial condition of employer can be relevant consideration for denial of benefit of revision of pay scale, were under consideration. While taking note of earlier decisions in para 18 to 22 Hon'ble Apex Court observed as under: 18. We are unable to accept the contention of Shri Venkataramani that on account of non-revision of pay scales of the petitioners in the year 1992, there has been any violation of their fundamental rights guaranteed under Article 21 of the Constitution, Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The scope and content of this Article has been expanded by judicial decisions. Right to life enshrined in this Article means something more than survival or animal existence. It would include the right to live with human dignity. Payment of very small subsistence allowance to an employee under suspension which would be wholly insufficient to sustain his living, was held to be violative of Article 21 of the Constitution in State of Maharashtra v. Chandrabhan , Similarly, unfair conditions of labour in People's Union for Civil Liberties v. Union of India . It has been held to embrace within Us field the right to livelihood by means which are not illegal, immoral or opposed to public policy in Olga Tellis v. Bombay Municipal Corporation . But to hold that mere non-revision of pay scale would also amount to a violation of the fundamental right guaranteed under Article 21 would be stretching it too far and cannot be countenanced. Even under the industrial law, the view is that the workmen should get a minimum wage or a fair wage but not that his wages must be revised and enhanced periodically. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that the salary currently being paid to them is wholly inadequate to lead a life with human dignity. What should be the salary structure to lead a "life with human dignity" is a difficult exercise and cannot be measured in absolute terms. It will depend upon nature of duty and responsibility of the post, the requisite qualification and experience, working condition and a host of other factors. The salary structure of similarly placed persons working in other Public Sector Undertakings may also be relevant. The petitioners have not placed any material on record to show that the salary which is currently being paid to them is so low that they are not able to maintain their living having regard to the post which they are holding. The observations made in paragraphs 276 and 277 in Delhi Transport Corporation v. D.T.C. Mazdoor Congress , strongly relied upon by learned Counsel for the petitioners, should not he read out of its context. In the said case the Court was called upon to consider the constitutional validity of Regulation 9 of Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, which gave power to terminate the services of an employee after giving one month's notice or pay in lieu thereof. The termination of services of some of the employees on the ground that they are inefficient in their work by giving one month's notice was set aside by the High Court as in its opinion Regulation 9(b) gave absolute unbridled and arbitrary powers to the management to terminate the service of any permanent or temporary employee and, therefore, the same was violative of Article 14 of the Constitution. It was in this context that the aforesaid observations were made by one Hon'ble Judge in his separate opinion. The issue involved was not of revision of pay scale but that of termination of service which has an altogether different impact on an employee. 19. The contention that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees, does not appeal to us. The question of revision of wages of workmen was examined by a Constitution Bench in Express newspapers Ltd. and Ors. v. Union of India and Ors. , having regard to the provisions of Industrial Disputes Act and Minimum Wages Act and the following principles for fixation of rates of wages were laid down: (1) that in the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstance to be taken into consideration except in case of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity; (2) that the capacity of the industry to pay is to be considered on an industry-cum-region basis after taking a fair cross section of the industry; and (3) that the proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the organization so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product - no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business. (Emphasis supplied). 20. The same question was again examined in Hindustan Times Ltd. v. Their Workmen and the Court recorded its conclusion in following words in para 7 of the Report: While industrial adjudication will be happy to fix a wage structure which would give the workmen generally a living wage, economic considerations make that only dream for the future. That is why the Industrial Tribunals in this country generally confine their horizon to the farget of fixing a fair wage. But there again, the economic factors have to be carefully considered. For these reasons, this Court has repeatedly emphasised the need of considering the problem on an industry-cum-region basis, and of giving careful consideration to the ability of the industry to pay. (Emphasis supplied). 21. It may be noticed that in these cases the Court was considering the question of wage structure for workmen who belong to economically poor section of society and providing them even living wage was held to be a distant dream on account of economic considerations and also the capacity of the industry to pay. 22. In South Malabar Gramin Bank v. Co-ordination Committee of South Malabar Gramin Bank Employees Union and South Malabar Gramin Bank Officers' Federation and Ors. , relied upon by the learned Counsel for the petitioners. The Central Government had referred the dispute regarding the pay structure of the employees of the Bank to the Chairman of the National Industrial Tribunal headed by a former Chief Justice of a High Court. The Tribunal after consideration of the material placed before it held that the officers and employees of the Regional Rural Banks will be entitled to claim parity with the officers and other employees of the sponsor banks in the matter of pay scale, allowances and other benefits. The employees of nationalized commercial banks were getting their pay scales on the basis of 5th bipartite settlement and by implementation of the award of the national Industrial Tribunal the employees of the Regional Rural Banks were also given the benefits of the same settlement. Subsequently, the pay structures of the employees of nationalized commercial hanks were further revised by 6th and 7th bipartite settlements but the same was not done for the employees of the Regional Rural Banks who then filed writ petitions. It was contended on behalf of the Union of India and also the Banks that financial condition of the Regional Rural Banks was not such that they may give their employees the pay structure of the employees of the nationalized commercial banks. It was in these circumstances that this Court observed that the decision of the National Industrial Tribunal in the form of an award having been implemented by the Central Government, it would not be permissible for the employer bank or the Union of India to take such a plea in the proceedings before the Court. The other case namely All India Regional Rural Bank Officers Federation and Ors. v. Government of India and Ors. arose out of interlocutory applications and contempt petitions which were filed for implementation of the direction issued in the earlier case namely South Malabar Gramin Bank (supra). Any observation in these two cases to the effect that the financial capacity of the employer cannot be held to be a germane consideration for determination of the wage structure of the employees must, therefore, be confined to the facts of the aforesaid case and cannot be held to be a general application in all situations. In Associate Banks Officers' Association v. State Bank of India and Ors. it was observed that many ingredients go into the shaping of the wage structure of any organization which may have been shaped by negotiated settlements with employees' unions or through industrial adjudication or with the help of expert committees. The economic capability of the employer also plays a crucial part in it as also its capacity to expand business or earn more profits. It was also held that a simplistic approach, granting higher remuneration to workers m one organization because another organization had granted them, may lead to undesirable results and the application of the doctrine would be fraught with danger and may seriously affect the efficiency and at times, even the functioning of the organization. Therefore, it appears to be the consistent view of this Court that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves. The material on record clearly shows that both Food Corporation of India and HFC had been suffering heavy losses for the last many years and the Government had been giving considerable amount for meeting the expenses of the organization. In such a situation, the employees cannot legitimately claim that their pay scales should necessarily be revised and enhanced even though the organizations in which they are working are making continuous losses and are deeply in red. 11. Again in Officers and Supervisors of I.D.P.L. v. Chairman and M.D., A.D.P.L. and Ors. , the view taken in A.K. Bindal's case (supra) has been reiterated by Hon'ble Apex Court, the pertinent observations made in para 8 and 11 of the decision are as under: 8. We have carefully gone through the pleadings, the Annexures filed by both sides and the orders passed by the BIFR and the judgments cited by the counsel appearing on either side. Learned Counsel for the contesting respondent drew our attention to a recent judgment of this Court in A.K. Bindal and Anr. v. Union of India and Ors. in support of her contention. We have perused the said judgment. In our opinion, since the employees of Government companies are not Government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scales should be met by the Government. Being employees of the companies, it is the responsibility of the companies to pay them salary and if the company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance the pay scale, the petitioners, in our view, cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. We are unable to countenance the submission made by Mr. Sanghi that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees. 11. In our view the economic capability of the employer also plays a crucial part in it; as also its capacity to expand business or earn more profits. The contention of Mr. Sanghi, if accepted, that granting higher remuneration and emoluments and revision of pay to workers in other Governmental undertakings and, therefore, the petitioners are also entitled for the grant of pay revision may, in our opinion, only lead to undesirable results.... 12. Thus from the aforesaid settled legal position it is clear that even under Industrial law, the view is that workman should get a minimum wage or fair wage but not that his wages must be revised and enhanced periodically and mere non-revision of pay scale of employees has not been regarded as violative of fundamental right of employee under Article 21 of the Constitution. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that salary currently being paid is wholly inadequate to lead a life with human dignity. What should be salary structure to lead a life with human dignity is a difficult exercise and cannot be measured in absolute terms. It will depend upon nature of duty and responsibility of the post, the requisite qualification and experience, working conditions and host of other factors. The salary structure of similarly placed persons working in other Public Sector undertakings may also be relevant. The principles which are relevant having regard to the provisions of Industrial Disputes Act and Minimum Wages Act, inter alia are that in the fixation of rates of wages, which includes within its compass the fixations of scales of wages also, the capacity of industry to pay is one of the essential circumstance to be taken into consideration except in case of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity. In other words it appears that many ingredients go into shaping of wage of an organization but it appears to be the consistent view of the Hon'ble Apex Court, that the economic viability or the financial capacity of the employer is an important factor, which cannot be ignored while fixing the wage structure otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves. 13. Now coining to the facts of the case again vis-a-vis rival submissions of the parties, it is noteworthy to mention here that the department of Public Enterprises Govt. of India has issued guidelines contained in the office memorandum dated 25.6.1999 pertaining to the revision of pay scale of employees of Public Sector Undertakings of Central Government, which deals with the revision of pay of Board level posts and below board level post including non unionized supervisors w.e.f. 1.1.1997. The aforesaid guidelines inter alia provides that Public Sector Enterprises making profits consistently for the last 3 years i.e. 1996-97, 1997-98 and 1998-99 would be allowed to adopt revision of pay scale for Executives holding the posts of the Board level and below the Board level and for non-unionized supervisors strictly in accordance with the said guidelines. For better appreciation of controversy the relevant text of the said office Memo dated 25.6.1999 containing the aforesaid guidelines contained in Annexure-3 of the writ petition is reproduced as under: No.2(49)/98-CPE(WC) Government of India Ministry of Industry Department of Public Enterprises Block 14, CGO Complex, Lodi Road, New Delhi-114003. Dated, the 25th June, 1999 OFFICE MEMORANDUM Subject: Board level posts and below Board level posts including non-Unionized supervisors in Public Enterprises - Revision of scales Of pay w.e.f. 1.1.1997. --- The last revision of the scale of pay of non-unionised supervisors, below Board level executives and executives holding Board level posts in Central Public Sector Undertakings was made effective from 1.1.92 for a period of five years. As the next pay revision fell due from 1.1.97, the Government had set up a high level Committee under the Chairmanship of Justice S. Mohan, Retd. Supreme Court Judge, to recommend revision of pay and allowances for these executives following IDA pay scales. Based on the recommendations of the Committee, the Government have decided that the scale of pay attached to these Board level posts and below Board level posts would stand revised w.e.f. 1.1.1997 as indicated in Annexure-1. 2. In enterprises, where the scales of pay are different from those prescribed in the DPE guidelines or where rates of increments higher that those provided had been adopted in the past, it may be necessary for such enterprises to introduce certain intermediary scales or modify the scales to be provided in the guidelines with appropriate adjustments in their span and rate of increments. In doing so, it should be ensured that the minimum and the maximum of the individual scales prescribed herein are not altered. Such enterprises shall introduce these modifications only in consultation with their administrative Ministries and the DPE. 3. The grant of one increment in the revised scale against every three increments drawn in the pre-revised scales. The fitment benefit and fitment method would be as indicated in Annexure-II. 4. There will be a provision for grant of upto a maximum of three stagnation increments for those who reach the maximum of their scales. 5. 100 per cent DA neutralization may be adopted for all employees covered by the Committee's recommendations who are on IDA scales of pay with effect from 1st January, 1997. The periodicity of adjustment should be once in three months, as per existing practice for these categories. The Industrial DA at AICPI-1708 as on 1.1.97 admissible to the incumbents in these posts in the revised scale would be 'nil', as the amount of IDA as on 1.1.97 has been merged in the revised basic pay. The DA payable from 1.1,97 to the incumbents of these posts would be as per new DA scheme (Annexure-III). 6. In respect of sick enterprises referred to the BIFR, revision of pay scales would be strictly in accordance with rehabilitation packages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages. 7. Presidential directives would be issued by all the administrative Ministries/Departments indicating these scales as a ceiling, as the actual payments would depend on the capacity to pay of the enterprises. The resources for meeting the increased obligation for salaries and wages must be internally generated and must come from improved performance in terms of productivity and profitability and not from Government subvention. The Presidential directives would also cover guidelines relating to dearness allowance and ceilings on perquisites. A format of the Presidential directive is suggested in Annexure-IV. 8. The next pay revision would be after 10 years. 14. There should be no notional revision of pay for the purpose of determining of VRS in sick enterprises. 15. The administrative Ministries are requested to fix the pay of the incumbents of the Board level posts who were in employment in their enterprises as on 1.1.97 in the manner indicated above and forward their files to the DPE for vetting as required under the existing instructions contained in BPE's D.O. letter No. 1/1/89-BPE (S&A) Cell dated 14.2.89 and DOPT's OM. No. 27(14)/EO/89 (ACC) dated 6.12.89, and as per procedure indicated in Annexure-VI. 16. A copy of the direction issued to the Public Enterprises may be endorsed to the Department of Public Enterprises. (S. Talwar) Joint Secretary to the Govt. of India To, All the administrative Ministries/Departments of the Govt. of India. Copy to: 1. Chief Executives of Central Public Enterprises. 2. All Financial Advisers in the administrative Ministries/Departments. 3. Deptt. Of Expenditure, E-1I Branch, North Block, New Delhi. 4. C&AG of India, 10, Bahadur Shah Zafar Marg, New Delhi. 5. Secretary (PESB). 6. Cabinet Secretariat (Shri S. Sasi Kumar, Under Secretary). (Dr. S. Banerjee) Joint Adviser. ----------------------------------------------------------------------------------- Pay Scales for Public Sector Executives ----------------------------------------------------------------------------------- b) PSEs which did not make profit during the last 3 years viz. 1996-97, 1997-98 and 1998-99 or had incurred net loss during any of these financial years would also be allowed to adopt these scales of pay or their executives holding posts at and below the Board level and non-unionised supervisors with the approval of the Govt. i.e. the administrative Ministry acting in consultation with the DPE, provided they give an estimate as to how resources would be generated by them to meat the extra expenditure. c) In respect of sick enterprises referred to BIFR, revision of pay scales for all employees following IDA pattern would be strictly in accordance with the rehabilitation plackages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages. d) PSEs under construction or new Public Sector Enterprises should submit their proposals for adoption of revised scales of pay and DA pattern for their executives holding posts at the Board level, below Board level and non-unionised supervisors, to their administrative Ministries for appropriate approval in consultation with the DPE, giving details of their likely date of going on commercial production, etc. e) The conditions prescribed for Sixth Wage Negotiations of Unionised workers in DPE's Oms No. 2(11)/96-DPE/WC dated 14.1.99 shall be applicable for the above pay revisions. f) DPE will issue detailed instructions, wherever necessary regarding the matters dealt with in the Note. 14. It is alleged that the performance of the respondent No. 3 during the aforesaid 3 years was quite satisfactory that is why the Board of Directors of Company/respondent No. 3 in its 63rd meeting held on 30.3.2001 considered the pay revision of employees and officers w.e.f. 1.1.97 based on scale of pay recommended in the aforesaid guidelines/office memo dated 25.6.99 and passed resolution approving the pay scale of Executives Employees of B.Y.N.L. Board level, below Board level and non-unionized supervisors according to terms and conditions stipulated in the aforesaid guidelines and authorised the management to take up the matter with the administrative Ministry for necessary approval and issue of directives for implementation of revision of scales of pay. In pursuance thereto the respondent No. 3 forwarded the said proposals of revision of pay of its employees to the Administrative Ministry i.e. Department of Public Sector Enterprises Ministry of Heavy Industries. New Delhi i.e. the respondent No. 2 for its approval vide letter dated 9.4.2001. In pursuance of the aforesaid letter some queries were made by Department of Heavy Industry to examine the feasibility for grant of pay revision in response to which the queries were duly replied by the Management. The Department of Heavy Industry considered the proposal of pay revision of the petitioner employees of the respondent No. 3 and its integrated financial wing was also consulted in this regard. It recommended the pay revision of the petitioner to the department of Public Sector Enterprises for their approval, which is a competent authority for granting such approval of all Central Public Sector Undertakings. Thereupon the Department of Public Enterprises vide order dated 22.7.2002 approved the pay revision proposal of executives of the respondent No. 3 but in spite of the aforesaid approval of Secretary of Department of Public Enterprises, no consequential order was passed for considerable long time compelling the employees of respondent No. 3 to file the writ petition before this Court. In pursuance of order passed in the writ petition the proposal for revision of pay scale of the petitioners has been rejected and representation has been disposed of accordingly. These facts have been alleged in para 8 to 18 of the writ petition. In the counter affidavit filed on behalf of the respondents No. 1 and 2, the contents of paragraph Nos. 1 to 17 of the writ petition were not disputed whereas the contents of paragraph 18 of the writ petition have been replied in para 4 of the counter affidavit filed on behalf of the respondent No. 1 and 2. 15. The stand taken by respondents No. 1 and 2 in para-4 of the counter affidavit in nut shell are that although as per Office Memorandum dated 25.6.1999 the Public Sector Enterprises were to revise the pay scale of employees/executives of board level post, below board level post and non-unionized supervisors w.e.f. 1.1.1997 in consultation with their administrative Ministries but it is wrong to say that department of Public Enterprises with the approval of Secretary had issued the order of pay revision. The ultimate presidential directive for revision of pay scale had to be issued by administrative Ministries/Departments after getting it approved with their Minister-in-charge. The financial situation of B.Y.N.L. Group of companies underwent a substantial change during the period when salary/pay revision of B.Y.N.L. was being considered. One of its subsidiary Public Sector Undertaking, which had achieved a turnover of Rs. 234.09 crores and a profitability of Rs. 1.72 crores during the year 2001-02, experienced a sudden downfall in performance and it achieved a turnover of Rs. 147.50 crores and a loss of Rs. 187.63 crores during the year 2002-03. Similarly Tungbhadra Steel Projects Ltd. (TSPL) Karnataka, which had achieved a turnover of Rs. 15.60 crores and a loss of Rs. 66 lakhs also experienced sudden down fall in their performance. It achieved a turnover of Rs. 11.33 erores and a loss of Rs. 2.63 crores during the year 2002-03. During the year 2003-04 TSPL achieved a turnover of Rs. 12.90 crores and a staggering loss of Rs. 99.98 crores. These developments necessitated the administrative Ministry i.e. Department of Heavy Industry, respondent No. 1, to take a cautious look at the entire proposal and not to agree to the same. Bharat Yantra Nigam Limited (BYNL) as a holding company is not engaged in any manufacturing activity and running its expenses based on service charges it receives from its subsidiaries. The financial position of all the subsidiaries barring Bridge & Roof are precarious and none of them are in a position to pay the service charges to BYNL. The holding company BYNL is deducting the service charges from out of budgetary support which the Government of India extend to its subsidiaries. In such a back drop, it would not be proper for the head of a family i.e. BYNL to reap the benefits of pay revision and other members i.e. employees of subsidiaries Company remain deprived of it as they are not eligible for such pay revision. 16. Similarly in reply to the contents of para 23 to 29 of the writ petition in para 8 of the counter affidavit it is stated that the Department of Heavy Industry have tried to take a holistic view on the pay scale revision proposal of BYNL by keeping into consideration the financial position of subsidiaries/Public Sector Undertakings. It is fact that pay revision based on 1.1.1997 scale of pay has been implemented in one of the subsidiary/Public Sector Undertaking of BYNL i.e. Bridge & Roof, Kolkata. The said revision had taken place vide an order dated 10.8.2000 at a point of time when the company was making profit and a financial restructuring proposal of the company was under consideration of the Government, which would have cleaned the balance sheet of the company. The position today is that Bridge & Roof has ended the year 2004-05 with a loss of Rs. 29.80 crores (provisional) and till the date financial restructuring of the company is still to see the light of the day. One wrong done in the past cannot be used as a justification to do a further wrong by carrying out the revision of pay scale of employees of BYNL based on 1.1.1997 scale of pay. 17. Besides this, while deciding the representation of employees of respondent No. 3 dated 31.5.2004 in pursuance of directions issued by this Court dated 28.11.2004 in a writ petition No. 47174 of 2004 Sri P.C. Tiwari v. Union of India regarding revision of their pay scale w.e.f. 1.1.1997 vide impugned order dated 28.4.2005 the respondent No. 2 held as under: Bharat Yantra Nigam Ltd., is a holding company which has six subsidiary companies under its hold. These companies are (i) Bharat heavy Plate & Vessels Ltd. (BHPV); (ii) Bharat Pumps & Compressors Ltd. (BPCL); (in) Rechardson & Cruddas (1972) Ltd. (R&C); (iv) Bridge & Roof Co. (I) Ltd. (B&R); (v) Triveni Structural Ltd. (TSL); (vigilance inquiry) Tungabhadra Steel Products Ltd. (TSPL). Out of these six companies, five have been referred to Board for Industrial Finance & Reconstruction (BIFR) on complete erosion of their net worth. Out of these five, in case of two companies namely Triveni Structurals Ltd. (TSL) and Richardson & Cruddas Ltd. (R&C), BIFR has recommended winding up. Further, out of the above six subsidiary companies only Bridge & Roof Company Ltd., is in marginal profit and profit in 2003-04 was Rs. 3.15 crores rest of the five subsidiaries are incurring heavy losses. The pay scale of employees in Bridge & Roof Company Ltd. was revised to 1.1.1997 as the company is making profit and not taking budgetary support for discharging the dues of their employees, hence pay revision from 1.1.1997 has not been implemented in these subsidiaries. An amount of Rs. 81.06 crores was released to these five companies on 15.10.2004 for payment of salaries and statutory dues, which should normally be paid by the company itself from its surpluses. Besides the above, the BYNL has failed to repay the government loan and interest of Rs. 883.74 crores as on 31.1.2005 thereon till date. The claim of the petitioner that their company BYNL is in profit is not tenable as the paid up capital of the BYNL holding company is in reality the sum total of paid up capital of all the subsidiaries. Similarly, the profit or loss of BYNL holding company should be reckoned from the sum total of loss/profit of all the subsidiary companies, which is presently showing a huge accumulated loss of Rs. 953.73 crores. BYNL takes service charges from the subsidiaries and from this amount meets the salary requirements of its employees. As such, it cannot be said that BYNL, is in profit. Hence what BYNL, is showing as profit is not actually profit but basically a surplus of income from service charges over its expenditure. The revision of pay scale for employees holding company will clearly create an anomalous situation. Keeping in view the above, there is no justification in the proposal of revision of pay scale of employees of Bharat Yantra Nigam Ltd. (BYNL) from 1.1.1997. The representation dated 31.5.2004 is disposed off accordingly. 18. We have carefully examined the submissions of learned Counsel for the parties and assertions made in their respective affidavits inasmuch as statement of facts made in the impugned order. The statement of facts made in the counter affidavit clearly stipulates that financial position of BYNL Group of companies underwent a substantial change during the period when the salary/pay revision of employees of BYNL was being considered and except one almost all subsidiary companies are running in continuous loss and out of which two have been recommended for winding up and paid up capital of B.Y.N.L. holding company is in reality the sum total of paid capital of all subsidies and the profit or loss of B.Y.N.L. should be reckoned from the sum total of loss/profit of all the subsidiary companies and it is very difficult to accept that their company is earning profit. In this connection it is pertinent to mention here that it is not in dispute that the respondent No. 3 is holding company incorporated in the year 1986 as one of the Government company and holding company of aforesaid subsidiary companies, which were incorporated long back much earlier to the incorporation of holding company. The incorporation of holding company was made to coordinate, control and integrate the working of its subsidiary companies to secure optimism utilization of resources. As a matter of fact respondent No. 3 is a separate company registered under Companies Act 1956. The total paid up capital of all subsidiary companies have no direct relationship with profit and loss. In such facts and circumstances of the case, in absence of any material placed by the respondents it cannot be said at all that paid up capital of the B.Y.N.L. holding company is in reality the sum total of paid up capital of all the subsidiaries and it is correlated with its profit and loss. Similarly, the observations in the impugned order that the profit or loss of BYNL holding company should be reckoned from the sum total of loss/profit of all subsidiary companies, which are presently sustaining huge accumulated loss of Rs. 953.73 crores, appears to be wholly misconceived and perverse and cannot be sustained. 19. Further observations in the impugned order that BYNL is holding company and is not engaged in manufacturing activities rather it receives service charges from the subsidiaries and from this amount meets the salary requirement of its employees as such it cannot be said that the BYNL is in profit and what BYNL is showing as profit is not actually profit but basically a surplus of income from service charges over its expenditure. This finding also appears to be misconceived and perverse for simple reason that respondent No. 3 is separate company and admittedly does not involved in manufacturing activities. The services charges it receives from its subsidiary companies, no doubt meets the requirement of payment of salary to its employees and other statutory dues and expenditure, but these factors have no material bearing with the profit and loss of respondent No. 3. What is material for determination of such profit and loss is virtually profit and loss accounts of respondent No. 3. The accounts of respondent No. 3 company are audited by statutory auditors/ government auditors i.e. CAG which are then placed before the Board of Directors, Government and the Parliament. It is significant to point out that these profits have been arrived after taking into account of impact of pay revision of its employees and further that respondent No. 3 is also paying corporate income tax on the profit. The figures relating to cash profit, net profit, payment made towards corporate income tax for the period to 1996-97 till 2003-04 are demonstrated from the Photostat copy of profit and loss account of respondent No. 3 for the period from 1996-97 to 2003-04 are on record as Annexure-12 of the writ petition and Photostat copy of corporate income tax return/assessment for the period 1996-97 to 2003-04 are on record as Annexure-13 to the writ petition. These facts have also been clearly stated in para 28 of the writ petition which were neither disputed nor specifically denied by the respondents No. 1 and 2 in reply to the aforesaid averments made in para 8 of their counter affidavit. Therefore, this Court is left with no option but to draw adverse inference against the respondents No. 1 and 2 and can assume the uncontroverted facts of the writ petition as correct. Besides this, it is also not the case of contesting respondents that all the subsidiary companies are either recommended for winding up by B.I.F.R. or have been finally wound up and mere remains no scope for the holding company i.e. respondent No. 3 to receive any service charge from them and earn any money or profit thereby. Thus in view of these facts and circumstances of the case, we have no hesitation to hold that the respondent No. 3 is profit making government company and cannot be held to be sustaining continuous loss as observed in the impugned order. The observations made and findings recorded in this regard in the impugned order are wholly perverse and cannot be sustained. 20. So far as the observation made to the effect that BYNL has failed to repay the government loan and interest of Rs. 883.74 crores as on 31.1.2005 thereon till date is concerned, it is pertinent to be mentioned that the aforesaid amount of loan pertains to six subsidiary companies and in regard to Bharat Yantra Nigam the loan amount is Rs. 1.10 crores only and in para 26 of the writ petition it is stated that against Bridge and Roof Co. Ltd. the standing government loan and interest thereon amounting to Rs. 42.47 crores remains unpaid till date which was one of the subsidiary company of respondent No. 3, yet the respondent No. 2 has cleared the pay revision of Bridge and Roof Co. Ltd. w.e.f. 1.1.97 vide letter dated 10.8.2000. Thus a double standard has been adopted in respect of non-payment of government loan. In reply to the aforesaid paragraph of the writ petition the fact that the aforesaid amount of government loan pertains to subsidiary companies, has not been disputed in the counter affidavit filed on behalf of respondents No. 1 and 2. Therefore, in our opinion, failure to repay the government loan and interest of Rs. 883.74 crores as on 31.1.2005, which pertains to all the subsidiary companies and amount of loan of Rs. 1.10 crores pertaining to the respondent No. 3 cannot be taken into consideration while considering the revision of pay scale of the petitioners because of the simple reason that the Bridge and. Roof Co. has also not refunded its government loan but permitted to adopt pay revision w.e.f. 1.1.97 inspite of failure to repay government loan amounting Rs. 42.47 crores. Besides this, from close scrutiny of Office Memo of DPE dated 25.6.1999 there is nothing to indicate that failure to repay the government loan by Public Sector Undertakings would make the Public Sector Enterprises ineligible to adopt aforesaid pay revisions or employees of such enterprises would be debarred therefrom, therefore, in our considered opinion the failure to repay the government loan amounting to Rs. 1.10 crores by respondent No. 3 cannot be a justification to deny the petitioners' claim of revision of their pay scale w.e.f. 1.1.97 in view of Office Memo of DPE dated 25.6.1999. 21. Apart from it in the office Memo dated 25.6.99 itself, the provisions have been made to the effect that Public Sector Enterprises, which did not make profit during the last three years viz. 1996-97, 1997-98 and 1998-99, or had incurred net loss, during any of these financial years would also be allowed to adopt these scales of pay of their executives holding posts at and below the Board level and non-unionized supervisors with the approval of government, i.e. Administrative Ministry acting in consultation with the DPE provided they give an estimate as to how resources would be generated by them to meet the extra-expenditure. In respect to sick Enterprises, referred to BIFR revision of pay scale for all employees following I.D.A. pattern would be strictly in accordance with the rehabilitation packages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages. In this connection it is noteworthy to mention here that contesting respondents did neither bring any material before the court, contrary to the materials of profit and loss account of respondent No. 3 showing that holding company did not make any profit during last three years viz., 1996-97, 1997-98 and 1998-99 or had incurred net loss during any of these financial years, nor any such profit and loss account of holding company has been brought on record showing accumulated loss of Rs. 953.73 crores against holding company nor any provisions of law or Articles of company has been shown to us whereby accumulated losses collectively sustained by subsidiary companies would be computed or reckoned towards net loss of respondent No. 3. In such circumstances, it is very difficult for us to accept the submission of learned Counsel for respondents No. 1 and 2 that accumulated loss sustained by subsidiary companies should be computed towards profit and loss of respondent No. 3, thus the same has to be rejected. It is also not the case of respondents No. 1 and 2 that respondent No. 3 is sick company and has been referred to BIFR. Thus the submission of learned Counsel for respondents No. 1 and 2 in this regard is wholly misplaced and has to be rejected. 22. At this juncture it is also noteworthy to mention that on account of pay revision of Bridge and Roof Co., which was one of the subsidiary company of respondent No. 3 w.e.f. 1.1.97 an extreme anomaly has arisen between the officers working in the holding company and subsidiary companies. In this connection detail averments have been made in para 38 of the writ petition to the effect that the pay scale of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/- which was pay scale before 1.1.1997 and the pay scale of Managing Director of Bridge and Roof Company Ltd. (1) before 1.1.1997 was Rs. 12000-400-14000/- and after pay revision, the pay scale of Managing Director of Bridge and Roof has become Rs. 25750-650-30950/-. Thus the Managing Director of subsidiary company whose performance is appraised by Chairman and Managing Director of respondent No. 3 is drawing more salary than his reporting officer. Even salary of the below Board level officers of the Bridge and Roof Company is higher than Chairman and Managing Director of B.Y.N.L.. The scale of pay of General Manager of the Bridge and Roof Company is Rs. 18500-45-23900/- whereas at present scale of pay of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/-. The anomalous situation is so extreme as the salary of Chairman and Managing Director in B.Y.N.L. is in un-revised scale matches nine scale lower in Dy. Manager's scale in Bridge and Roof in revised scale of Rs. 13000-350-18250/-. Although respondents No. 1 and 2 have not denied and disputed the aforesaid facts in their counter affidavit, but a justification has been given that at the time when the revision of aforesaid subsidiary company was effected vide order dated 10th August 2000. At that point of time the aforesaid subsidiary company was making profit but subsequently there to the aforesaid company has under gone in loss, and any wrong committed in respect of the aforesaid subsidiary company cannot be a justification for doing another wrong by according the benefit of revision of pay scale to the employees of respondent No. 3. In our opinion, the aforesaid assertions of contesting respondents is wholly misconceived and misplaced for simple reason that respondents No. 1 and 2 did not commit any illegality in implementing the pay revision in respect of aforesaid company as the same was not running in loss during aforesaid relevant period, therefore, the assertion in the counter affidavit to the effect mat one wrong should not be remedied by another wrong also seems to have been made as pretext and secondly the view taken by contesting respondents in this regard cannot be looked into too simplistic way. The anomaly in revision of pay scale is very significant in service jurisprudence, which has far reaching consequence in administration of affairs of government or institutions. The holding company is controlling, coordinating and supervising the functioning of subsidiary companies. The officers of the holding company have to appraise the working and functioning of officers of subsidiary companies. In case the officers of holding company who have to appraise the working of officers of subsidiary companies are permitted less pay scale in their respective rank it would be a subversive to the discipline in hierarchy of administration inasmuch as such anomaly would also generate dissatisfaction and frustration among the employees resulting which the efficiency of administration of holding company respondent No. 3 would be adversely affected. 23. In this connection, it is to be pointed out that many ingredients go into shaping of wage structure of an organization. The economic viability or financial capacity of employer is an important factor which can not be ignored except in case of fixation of minimum wages of workmen, which the employer is bound to pay to its employees, irrespective of its financial condition. Similarly the salary structure of similarly placed persons working in other Public Sector Enterprises may also be one of the important factor to be considered in such exercise, but while deciding the representation of employees of respondent No. 3, the respondent No. 2 did not consider this relevant aspect of the matter in correct perspective rather contrary to it has held mat implementation of revision of pay of employees of respondent No. 3 would create anomalous situation without any factual and legal foundation therefor. In our considered opinion, such conclusion drawn by respondent No. 2 is based on irrelevant consideration and also perverse and cannot be sustainable in the eye of law. 24. Now further question arises for consideration mat as to which relief the petitioners are entitled? In this connection it is pointed out mat in a slightly different context of equal pay for equal works Hon'ble Apex Court in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association in para 10 of the decision observed, "that ordinarily Courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the Courts cannot entertain any proceeding against such administrative decision taken by the Government. The Courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the Court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The Court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same." But here in the case in hand we are not concern with fixation of any pay scale on the basis of job-evaluation of particular post as distinguished from the aforesaid case. The simple question under consideration before this Court is as to whether the respondent No. 3 is entitled to adopt revision of pay of its executives in accordance with the provisions of Office Memo dated 25.6.1999 in given facts and circumstances of the case or not? In this connection it is necessary to point out that in view of foregoing discussions and our finding that petitioners' company is not sustaining loss in the relevant years and till now inasmuch as uncontroverted assertions of petitioners in writ petition to the effect that the respondent No. 3 has already made provision of Rs. 136 lacs to take care of impact of pay revision of its employees w.e.f. 1.1.97 to 31.3.2004 and not seeking any budgetary or financial support from the government to meet the additional liability arising on account of pay revision of its employees and at presently there are only 31 employees in BYNL that includes 16 executives whose pay revision is due in line in consonance with DPE office Memorandum dated 25.6.99 and the petitioners are at stagnation for the last 13 years and on account of their stagnation in the pay scale their performance is adversely effected and their counterparts in other public undertakings and even in the subsidiary company Bridge and Roof have been granted pay revision from 1.1.97 inasmuch as the pay revision of petitioners have already been approved by competent authority of department of Public Enterprises on 22.7.2002, in such circumstances, we do not find any justification to uphold the view taken by the respondents No. 1 and 2 to deny the benefit of revision of pay scale to the petitioners w.e.f. 1.1.97 in view of office Memo dated 25.6.99 for the period often years. Thus in given facts and circumstances of the case, we are of the considered opinion that the view taken by respondents No. 1 and 2 while rejecting the representation of executives of respondent No. 3 and denying the revision of pay scale to the petitioners is wholly erroneous, illegal, arbitrary and can not be sustainable in the eye of law. Accordingly the impugned order dated 28.4.2005 (Annexure-10 to the writ petition) is hereby quashed. In the result, in our considered opinion, the respondent No. 3 is entitled to adopt pay revision of its executives in consonance of Office Memo dated 25.6.1999 and the petitioners are entitled for revision of their pay scale accordingly. 25. In view of aforesaid discussions and observations made herein before, a writ of mandamus is issued directing the respondents No. 1 and 2 to implement the revision of pay scale of petitioners and executives of respondent No. 3 i.e. Board level, below Board level and non-unionized supervisors w.e.f. 1.1.1997 for a period of ten years, strictly in accordance with the scheme underlying in Office memo of DPE dated 25.6.1999 and approval of DPE dated 22.7.2002 given in respect of aforesaid employees of respondent No. 3 within a period of three months from the date of production of certified copy of this order before respondents No. 1 and 2. 26. With the aforesaid observations and directions, the writ petition succeeds and allowed. 27. There shall be no order as to costs. The parties shall bear their own costs.

U.B. Singh S/O Shri P.N. Singh, Sr. ... vs Union Of India (Uoi) Through Its ... on 4 May, 2006

Allahabad High Court

(1) X XX XX (2)xx xx xx (3) The Public Analyst shall, within a period of forty days from the date of receipt of any sample for analysis, send by Registered post or hand to the Local Health Authority a report of the result of such analysis in Form III. xx xx xx. JUDGMENT Pradip Mohanty, J. 1. This appeal is directed against the judgment and order dated 24.05.1989 passed by the learned Judicial Magistrate First Class, Titilagarh in 2(c) C.C. No. 37 of 1937/T.R. No. 95 of 1988 acquitting the respondent of the offence under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act (for short, 'the Act'). 2. The case of the prosecution is that the accused-respondent was running a retail grocery shop in the name and style of M/s Rajendra Stores at Hatpada, Saintala, in the district of Bolangir, where he used to store edible oils, cereals, pulses, sugar, spices, dust tea, etc., for sale. On 28.07.1987 at about 11.00 A.M., the Food Inspector of Titilagarh inspected the said shop in presence of the accused-respondent and witnesses. On demand, the accused-respondent could not produce the food licence, as required under the Act. While verifying the different food articles stored for sale for human consumption, the Food Inspector suspected the Mahua oil and mustard oil kept in open tins to be adulterated and served notice on the accused-respondent disclosing his intention to take sample of the Mahua oil and mustard oil. Thereafter, he purchased 375 grams of each of the oils and obtained money receipt from the accused-respondent. He divided the sample oils into three equal parts and kept each part in a clean dry glass bottle, closed the bottle with stopper and made it air tight with wax, wrapped up the mouth of the bottle with thick paper fastened with thread and sealed the same. On sample bottle of Mahua oil and one sample bottle of mustard oil were sent for chemical examination by the Public Analyst, who, on examination, opined that the sample Mahua oil was adulterated and the sample mustard oil conformed the standard prescribed under the Act. On 28.10.1987, the Food Inspector placed the notice copy, money receipt, memorandum, Public Analyst's report, etc., before the C.D.M.O., for launching prosecution report. The C.D.M.O. after going through the documents, issued written consent for launching prosecution and also sanctioned the prosecution. On 31.10.1987, the C.D.M.O., Bolangir, forwarded the Prosecution Report to the Court. 3. The plea of the respondent was complete denial of the allegations. 4. In order to prove its case, prosecution examined as many as four witnesses including the Food Inspector (P.W. 2) and the Vigilance inspector (P.W. 1) and proved sixteen exhibits. The defence did not choose to examine any witness. The learned Magistrate, after considering the evidence and materials available on record, by his judgment dated 24.05.1989 acquitted the accused-respondent of the offence under Section 16(1)(a)(ii) of the Act. 5. Mr. Behera, learned Addl. Govt. Advocate, contended that the trial Court ought not to have acquitted the respondent on the ground that the report of the Public Analyst was not received within the period of limitation prescribed by Rule 7(3) of the Prevention of Food Adulteration Rules, 1955, which, according to him, is not mandatory but directory. He also submitted that the trial Court committed an error in acquitting the respondent for non-compliance of Section 10 of the Act. In this connection, he relied upon the evidence of the Food Inspector (P.W. 2), who has clearly stated that he divided the sample of Mahua oil into three equal parts and kept each part in a clean and dry glass bottle. 6. Perused the prosecution report, evidence of witnesses and the impugned judgment. P.W. 1 in cross-examination stated that he was unable to say what procedure was followed by the Food Inspector in packing the bottles. He was also unable to say the name of the shop. In this case, the Public Analyst received the sample on 31.07.1987 and the same was examined on 03.09.1987 after lapse of 34 days. The report of the Public Analyst was received by the C.D.M.O. on 24.09.1987, i.e., much beyond the limit prescribed by Rule 7(3) of the Prevention of Food Adulteration Rules 1955. The said Rule is quoted hereunder: 7. Duties of Public Analyst.- 7. From a reading of the above Rule, it is clear that the Public Analyst must send his report within forty days. In the instant case, however, it was more than 50 days. Moreover, there was non-compliance Of the provisions of Section 13(2) of the Act. The prosecution has also failed to prove that after receipt of the Public Analyst's report, notice was served upon the respondent for making an application to the Court within ten days from the date of receipt of the report for further examination of the sample by the Central Laboratory. 8. Considering the above aspects, the trial Court has acquitted the respondent and this Court finds no illegality, irregularity or infirmity in the same warranting interference. The Government Appeal is devoid of any merit and the same is accordingly-dismissed.

Author: P Mohanty

State Of Orissa vs Munadhar Agrawala on 27 July, 2006

Orissa High Court

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Ravi Kumar vs State Of U.P. & Others on 6 September, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 266 of 2010() 1. I.N.T.U.C. MUNDAKKAYAM REPRESENTED BY ... Petitioner 2. THIRUKKOCHI THOTTAM THOZHILALI UNION 3. HEAD LOAD TIMBER GENERAL WORKERS Vs 1. V.S.MRAIAM BEEVI, W/O.LATE MUSTHAFA, ... Respondent 2. ALEYAMMA JOSEPH,W/O.LATE P.D.JOSEPH, 3. MARITTA JOSEPH, W/O.DINESH MURIKKAN, 4. MERRY JOSEPH, W/O.LATE JOSEPH SCARIA, 5. P.J.CHACKO, S/O.LATE P.D.JOSEPH, 6. P.J.DOMINIC, S/O.LATE P.D.JOSEPH, For Petitioner :SRI.RAJEEV V.KURUP For Respondent :SRI.K.A.HASSAN The Hon'ble MR. Justice PIUS C.KURIAKOSE The Hon'ble MR. Justice P.S.GOPINATHAN Dated :14/09/2010 O R D E R PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 266 OF 2010 ------------------------ Dated this the 14th day of September, 2010 O R D E R Pius C.Kuriakose, J. The learned counsel for the revision petitioners would very fairly bring to our notice the judgment of this Court in R.C.R. No.225/2010 and connected cases. He submitted that those judgments are in respect of similar orders passed in respect of other portions of the larger building, a part of which only is the building which is subject matter of the present RCR. He agreed that in the teeth of those judgments, it will be difficult for the revision petitioners to successfully assail the impugned judgment. He only requested that the time be granted till 15/11/2010, so that the revision petitioners can continue in possession till the Panchayat elections are over. 2. We feel that the request of the learned counsel for the revision petitioners is reasonable. In view of the various reasons  RCR.No.266/2010 2 stated by this Court in the common judgment in R.C.R. No.225/2010 & connected cases, we do not find any illegality, irregularity or impropriety, as envisaged by Section 20 of Act 2 of 1965, about the judgment of the Appellate Authority, which is impugned in this revision. 3. The RCR will stand dismissed. However, the Execution Court is directed not to order and effect delivery of the building in question till 15/11/2010 subject to the following conditions; RCR.No.266/2010 3 We make it clear that the revision petitioners will get benefit of time granted as above, only if the affidavit as directed above is filed on time. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk  RCR.No.266/2010 4 RCR.No.266/2010 5 RCR.No.266/2010 6 PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE  RCR.No.266/2010 7 dpk 

I.N.T.U.C. Mundakkayam ... vs V.S.Mraiam Beevi on 14 September, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 23027 of 2003(N) 1. RAJASREE P.K., W/O. KANAKA PARAMBIL ... Petitioner 2. GOPAN.K.S., KANAKAPARAMBIL HOUSE, Vs 1. THE STATE OF KERALA, REPRESENTED BY ... Respondent 2. DEPUTY TAHSILDAR (R.R), THRISSUR TALUK, 3. THE MANAGER, DHANALAKSHMI BANK LTD., 4. MR. DEVADAS.M., MANAGING PARTNER, For Petitioner :SRI.C.A.CHACKO For Respondent :SRI.C.K.KARUNAKARAN,SC,DHANALAKSHMI BAN The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR Dated :24/07/2008 O R D E R C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 23027 OF 2003 -------------------------------------------- Dated this the 24th day of July, 2008 JUDGMENT Petitioners are challenging recovery proceedings for recovery of loan availed by them from the third respondent under PMRY Scheme for starting an industry. The case of the petitioners is that the amount was directly paid by the third respondent to fourth respondent for supply of machinery for starting the industry. However, after collecting the amount, fourth respondent did snot supply machinery, is the case of the petitioners. The case of the fourth respondent is that repayment was made in instalments and Ext.R4(a) is produced which is receipt for repayment of Rs. 20,000/- to the second petitioner. However, second petitioner denied having received the amount from the fourth respondent. Counsel for the third respondent rightly submitted that borrower being petitioners, recovery is to be made from them. Even though DD was taken in the name of the fourth respondent at the request of petitioners, contract for purchase of machinery is between the petitioners and fourth respondent. Obviously there is no  2 privity of contract between third and fourth respondents and for contractual violation by the fourth respondent, the remedy is for the petitioners and not for third respondent. It is also conceded that petitioners have approached the Consumer Disputes Redressal Forum and obtained award against the fourth respondent, which they are free to execute. However, since recovery is permissible from petitioners and guarantors, W.P. is disposed of directing the second respondent to proceed for recovery against the petitioners if payment is not made. As already stated, petitioners are free to execute the award against the fourth respondent. It will be open to the petitioner to go for settlement with the Bank and if payment is offered within a reasonable time, bank will give incentives because petitioners could not start the industry. (C.N. RAMACHANDRAN NAIR) Judge kk  3

Rajasree P.K. vs The State Of Kerala on 24 July, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 1714 of 2008() 1. AKHIL PETER, S/O.PETER, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED ... Respondent For Petitioner :SRI.P.K.RAVISANKAR For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :18/03/2008 O R D E R R.BASANT, J. ---------------------- B.A.No.1714 of 2008 ---------------------------------------- Dated this the 18th day of March 2008 O R D E R (R.BASANT, JUDGE) jsr // True Copy// PA to Judge  B.A.No.1714/08 3  B.A.No.1714/08 4  R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007  Application for anticipatory bail. The petitioner faces allegations in a crime registered alleging offences punishable inter alia under Section 452 read with 149 I.P.C. The petitioner is a person who has not completed the age of 18 years and hence a child, to whom the provisions of the Juvenile Justice (Care and Protection) Act would apply, it is submitted. 2. According to the petitioner, he is absolutely innocent. He is willing to surrender before the Juvenile Justice Board/Principal Magistrate and seek regular bail. But the petitioner apprehends that he may be arrested before he so surrenders before the Juvenile Justice Board/Principal Magistrate. The petitioner submits that his examination is going on and if he were now arrested, that would upset his performance in the examination. The examinations go on till 27/3/2008. The petitioner shall surrender before the learned Magistrate thereafter and seek regular bail. He may be permitted to write his examination in peace and without any hindrance, it is submitted. B.A.No.1714/08 2 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the petitioner can surrender before the Juvenile Justice Board/Court/the Principal Magistrate and seek regular bail. In view of the very lenient provisions relating to grant of bail to a juvenile/child, it is not necessary for this court to invoke the jurisdiction under Section 438 Cr.P.C in favour of the petitioner. However, the learned Public Prosecutor fairly undertakes that the petitioner shall not be arrested till 31/3/2008. It is made clear that the petitioner must surrender before the learned Magistrate/Court/Board having jurisdiction on or before that date. 4. In the result, this petition is allowed in part. The undertaking of the learned Public Prosecutor that the petitioner shall not be arrested till 31/3/2008 is accepted. The petitioner is directed thereafter to surrender before the court/Magistrate/Board having jurisdiction and seek regular bail in the ordinary course.

Akhil Peter vs State Of Kerala on 18 March, 2008

Kerala High Court

ORDER Walsh, J. 1. This is a petition to revise an order of the learned Sessions Judge of West Godaveri directing further inquiry into a complaint of kidnapping. This complaint of kidnapping had been originally made to the police on 15th March 1931. The police sent a referred charge sheet to the Subdivisional Magistrate who ordered the police to put in a charge sheet. In reply to this the police again put in a referred charge sheet; meanwhile the Subdivisional Magistrate who passed the order directing a charge sheet to be put in was succeeded by another. 2. The latter agreed with the police and by his order on 27th June 1931 directed the ease to be treated as one of a civil nature. An application to revise this order was made before the Sessions Judge who ordered further inquiry into the complaint and it is against this order that this revision petition has been filed. The matter really turns upon the question as to whether the Subdivisional Magistrate who directed the police to put in a charge sheet took cognizance of the case or not. The view of the learned Sessions Judge was that he took cognizance and that therefore the case could not be disposed of by the order of his successor accepting the referred charge sheet and remained pending. It is agreed both by Mr. Jayarama Ayyar who argued the case for the petitioner and by Mr. Bewes for the Crown--and it is quite obvious--that the order directing the police who had put in a referred charge sheet to put in a charge sheet was not a legal order. The police must be allowed to form their own opinion of a case when submitting their report and a Magistrate cannot ask them to change their opinion merely because he does not agree with them. In this case the police were quite entitled to do what they subsequently did, and I think they were right, when they still entertained their former opinion, to submit another referred charge sheet instead of a charge sheet. It is clear from the Code and is not disputed that there are only two matters which the Sessions Judge can revise; Under Section 436, Criminal P.C., he can direct further inquiry to be made into any complaint which has been dismissed Under Section 203 or Sub-section (3), Section 204, or into the case of any person accused of an offence who has been discharged. The first point urged for the petitioner is that there was no complaint before the Magistrate. With that contention I agree. There are only three ways in which a Magistrate can take cognizance of an offence and they are described in Section 190, Criminal P.C.; (a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer, or upon his own knowledge, or suspicion, that such offence has been committed. 3. Admittedly neither (a) nor (c) applies in this case. Turning to (b), the words, "such facts" have to be read with Clause (a), that is, as being facts which constitute such offence." A police referred charge sheet, where, as in this case, it is reported that there has been no offence committed cannot possibly be called a report on facts which constitute such offence. The learned Sessions Judge has relied on three rulings in 2. Weir--one case reported in Mallappa Reddy v. Emperor [1904] 27 Mad. 127 and two in L.M. Soares, In re [1904] 2 Weir 246. It may be noted that none of these cases decided the matter in question. In the first case what was actually decided was that a Magistrate who agreed with the view of a complaint taken by the police officers that there was no sufficient ground for launching an investigation need not send for and examine the complainant before dismissing the complaint. That is still good law, if we use "complaint" as meaning complaint to the police. But the remark relied on and which finds a place in the heading is that a police report (apparently of this sort) would give jurisdiction to a Magistrate to enter upon an inquiry. This decision however was under the Code of 1872. There is no definition there of "complaint" and the section which was being dealt with Section 141 ran: A Magistrate may entertain a complaint of an offence, whether preferred directly by the complaint, or on report of a police officer, and may issue process, in the manner hereinafter prescribed, to compel the appearance of persons accused of such offences. 4. In Section 4(a) of the Code of 1882 the word "complaint" was first defined and that definition stands also in the Code of 1898 as amended, Section 4(h), which runs: 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his; taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer. 5. Hence the obiter remarks in Mallappa Reddy v. Emperor [1904] 27 Mad. 127 are not applicable to cases under the present Code. The next case is L.M. Soares, In re [1904] 2 Weir 246, High Court proceedings dated 24th July 1875, No. 1552. What was held there was that a complaint made in the form of a police report may be dismissed without examining witnesses, if the facts stated in the report constitute no offence. That is still good law. This was again under the Code of 1872 and the obiter remarks are therefore no authority in the matter now under consideration. The next case is on the same page--Criminal Revision Case No. 162 of 1895. It follows the previous cases on the same point and says that if the complaint had been made by a police charge sheet it was unnecessary to examine the complainant. I think it is clear that the word "complaint" here is loosely used, particularly as the judgment is very brief and is rested upon the two cases quoted above. 6. The learned Public Prosecutor did not dispute that there was a referred charge sheet by the police which did not constitute a complaint; but he argued that though the Subdivisional Magistrate's order dated 25th April 1931 which directed a charge sheet to be filed was not correct, yet the force of the whole order amounted to the Court taking cognizance. As observed in Ananta Ram v. Altab Sarkar [1913] 14 Cr. L.J. 425, the expression "to take cognizance" has not been defined in the Criminal Procedure Code and it is difficult to ascertain at what precise stage of a case cognizance is said to be taken. The learned Sessions Judge relied on Emperor v. Sounindra Mohan [1910] 37 Cal. 412, where it is said that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. The facts of that case are different from those of the present case. In that case there had been a transfer of the case from the Subdivisional Magistrate to the Headquarters Magistrate That transfer necessarily implied taking cognizance of the offence. I will set out the order of the Subdivisional Magistrate in the present case dated 25th April 1931. It runs: The parties are Hindus. Under Hindu law the father is the lawful guardian of his children. A mother cannot claim right to the custody of her legitimate children adversely to the father. As matters stand two persons are alleged to have taken away the child without the consent of the guardian (father) in whose custody the child was on the date of the offence, What their defence is not the consideration. The general trend of the evidence recorded is also in favour of the prosecution story. There can be no question of civil dispute in a case of this sort. The S.H.O. is therefore directed to file a charge sheet in this case. 7. No doubt in the words of Emperor v. Sounindra Mohan [1910] 37 Cal. 412, the Magistrate applied his mind to the case to a certain extent, but what he really did may be interpreted in one of two ways; he either told the police: think again and see if you cannot come to a different conclusion; or else he meant, "I will take cognizance if you file a charge sheet." It does not appear to me that either of these actions of the Magistrate by which he referred the matter to the police for a fresh final report can be called taking cognizance." Although the terms "charge sheets" and referred charge sheets are in constant use, it is well known that no such terms are to be found in the Criminal Procedure Code and even when it was amended in 1923 nothing was done to bring the practice into closer contact with the Procedure Code itself. The Code does of course provide for one sort of referred charge sheet; that is where the police see no sufficient grounds for investigation. This falls Under Section 157(1)(b), which says: if it appear to the officer in charge of a police station that there is no sufficient ground for entering on an investigation he shall not investigate the case. 8. This is followed by a proviso that in each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, and in the case mentioned in Clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Local Government, the fact that he will not investigate the case or cause it to be investigated. 9. This obviously does not meet the contingency in which the police have investigated and find the complainant's case not made out or the offence undetectable. Although Section 173 which deals with the final report of the police, does not appear to contemplate anything, but a report which leads to trial if the Magistrate approves of it, nevertheless as the police must send a report after investigation in every case, there is no other section under which a referred charge sheet after investigation can be brought. I cannot, therefore agree with the argument of the petitioner that Section 173 does not apply to a referred charge sheet. It is well settled now that when the police refer a case as false and the Magistrate orders it to be so treated this is not a judicial act. A complaint by the Court is not required to prosecute a complainant for making such a false complaint to the police Under Section 211: vide Bhimaraja Venkateswarulu v. Moova Bapula [1912] 13 Cr. L.J. 480, which has been confirmed by a Full Bench and such an order is admittedly not revisable by the Sessions Judge Under Section 436. From this it is fair to argue that and order other than proceeding Under Section 203 by sending for the complainant or Under Section 204 by issuing process is also not a judicial act, and consequently not capable of revision Under Section 436. It is argued that the mere application of his mind by the Magistrate to the case amounted to taking cognizance. But even to accept a referred charge sheet the Magistrate must apply his mind to the case and this is certainly not taking cognizance. Mere application of his mind will not therefore amonnt to taking cognizance of the offence. In my opinion, therefore the order of the Subdivsional Magistrate dated 25th April 1931 did not amount to taking cognizance of the offence. His successor, therefore in dealing with the matter when the police again sent up a referred charge sheet, was in the same position as if he had been dealing with the original report of the police, and his order directing the case to be treated as one of civil nature was not subject to revision by the Sessions Court. The petition is therefore allowed and the order of the learned Sessions Judge is set aside

Author: Walsh

(Chigurupati) Venkata Subba Rao ... vs Naraharisetty Anjanayulu on 6 April, 1932

Madras High Court

-1- IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13"' DAY or AUGUST ;~,mT,,e _ BEFORE THE HON'BLE MR.JUsTIcERAM.M()ii'2g1$fR:3i)i§x? A WRIT PETITION No.£374}?3_o1Ao (l§DA)~ . M1sc.w.Nos.i72772,o10 A BETWEEN: Sri. Puttegowda», S/0. Subbego§_yda¥," . A' Aged about 5'7a"ygarsr,s, , No.6, Ganesha"N'fl._a_yVa 15' A Mairi 1'? 'Stage,' K. CoE'ony,'V 'BfasAaves'i:Wara' N agar, Bangalore -*~ ...Petitioner. (By,.Sr.i._ Sririixz,as '&."'Ba'<}riA Associates, Adv.) A Development Authority,'K;1rnara Park East, T. 'Chowdaiah Road, Bangalore, ' , Rep. by its Commissioner. Kemparaju, Son of Chowdaiah, No.95, 2"d Cross, BDA, Avalahalli Layout, Girinagar, Bangalore -~» 560 085. ...Respondents.M - 2 - (By Sri.C.R. Gopal Swamy & Associates, Advs. for R1, Sri.C.N. Keshav Murthy, Adv. for R2) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India with a prayer to direct the 15' respondent to allot the site No.287 in favour of the petitioner in exchange of Site No.280 situated in 2nd Block, Jnanabharathi (Valagerahalli Layout), Bangalore. " v Misc.W.No.2727/2010 is filed under Section '_1:S't::of.CP:C" as praying to vacate the interim order, Tforsthe ~:reaso1_1s_V'stateVd. therein. " ' ' This Writ Petition and Mis"c~..W. coming_on_for_:'orders this V it day, the Court made the followingu:s_¥' _ This petition though_Vlistedi.'ifdr v'aeati~rig. the interim order, with consentolif'tthec»learnled counsel for both the parties, it is finally heard andcdispo--$ed~~--iiof by this order. " ' Having regard to the averments set out in the counter l3.08.20l0 that the l" respondent ~-- The Eta-n_galore.i9i'evelopment Authority would allot to the petitioner siyte No;-2.84 in II Block, Gnana Bharathi Layout as an alternate _l '.si'te','i for which the petitioner's counsel has no objection, " "Tl§eTothing further survives for consideration in this petition and is accordingly disposed of. One month's time for compliance. M

Author: Ram Mohan Reddy

Sri Puttegowda vs The Bangalore Development ... on 13 August, 2010

Karnataka High Court

Court No. - 33 Case :- COMPANY PETITION No. - 44 of 2000 Petitioner :- In The Matter Of Dewan Rubber Industries Respondent :- S.I.D.B.I. Petitioner Counsel :- Satish Chaturvedi Respondent Counsel :- Vivek Chaudhary Hon'ble Panka° Mithal,J. For orders, see order of date kept on record of Company Petition No.58 of 1999. Order Date :- 13.7.2010 BK

In The Matter Of Dewan Rubber ... vs S.I.D.B.I. on 13 July, 2010

Allahabad High Court

JUDGMENT P.S. Sahay, J. 1. This is a reference under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as " the Act "), and in the statement of case submitted by the Tribunal the following questions have been referred for the opinion of the court : " (1) Whether, on the facts and in the circumstances of the case, the income received by the assessee-company in terms of the amalgamation agreement was income from business ? (2) If the answer to the above question is in the affirmative, whether the assessee is entitled to deduction for the expenses ? " 2. In order to appreciate the points involved in this application it is necessary to state some facts. The assessee, M/s. Selected Jharia Colliery Co, is a private limited company and derives income from colliery. Another private limited company, namely, M/s. East Bhugatdih Colliery (P.) Ltd. is situated contiguous to the assessee-company. By a deed dated March 5, 1963, the assessee-company and Bhugatdih Colliery were amalgamated for the sake of convenience and economic working and development of both the collieries. The amalgamated unit was to be known under the name and style of East Bhugatdih Colliery, and it was to carry on business operations in both the collieries. According to the agreement, the assessee was to get commission at the rate of Rs. 1.69 per ton of all coal raised from the collieries and an additional commission at the rate of 25 p. per ton of hard coke manufactured and despatched. During the assessment year 1968-69, the assessee received commission of Rs. 74,475. The ITO allowed deduction of Rs. 9,835 and assessed on the total income of Rs. 64,640. 3. On appeal, it was contended on behalf of the assessee-company that the income earned was business income and consequently all the deductions claimed by the company should have been allowed, but it was not accepted. Against the aforesaid order another appeal was taken before the Tribunal, which, by its order dated May 30, 1972, accepted the contention raised on behalf of the assessee and allowed the appeal on the basis of the earlier order of assessment passed by the Tribunal. On a consideration of the materials and after perusing the agreement it held that the amalgamation agreement did not create a relationship of lessor and lessee between the two companies. It further held that the sole purpose for executing the document was for good day-to-day working of the two units, and the assessee-company had appointed Bhugatdih Colliery as their agent and thus the relationship between them was that of principal and agent and it could not be treated as a lease, and the income was to be assessed as income from business. In that view of the matter, the case was remanded to the ITO for a fresh assessment in accordance with law, and the assessee-company was given full opportunity to file their papers in support of their case, relying on certain decisions which I will refer to later. 4. At the instance of the department, the Tribunal has stated a case which has been stated above. 5. Mr. B. P. Rajgarhia, learned counsel appearing on behalf of the department, has submitted that on reading the agreement it appears that it was a clear case of lease, because the entire management, control and administration of the company was transferred to Bhugatdih Colliery, and the Tribunal has, therefore, erred in law in accepting the case of the assessee. In support of his contention, reliance has been placed on the decision in New Savan Sugar and Gur Refining Co. Ltd. v. CIT [1969] 74 ITR 7 (SC), where a similar question arose for consideration under the provisions of the old Act of 1922. In order to appreciate the points it will be necessary to refer to some of the terms of the agreement : " As a result of the amalgamation agreement, East Bhugatdih Colliery Co. is empowered- (Clause 4 of the agreement :)--to carry on the colliery operations and be responsible for all costs, maintenance and repairs of the collieries of the assessee-company, (Clause 6) :--it has to bear all the expenditure on account of coal cutting, surface tramming and unloading, despatching, general surface machine maintenance, etc., (Clause 7) :--it is responsible for collection of provident fund subscription and for the proper accounting and disposal of employees' and employers' subscriptions and contributions thereto, (Clause 9) :--it is responsible for the proper maintenance of all railway siding and approach lines, wharf walls and carry out all directions of the railway administration, (Clause 11) :--it is in charge of the day-to-day management of the amalgamated unit and shall be responsible for compliance with the provisions of the Mines Act and Rules and regulations framed thereunder, (Clause 15):--it has to pay Rs. 1.69 per ton of all coal raised from the coal lands of the assessee-company and an additional 25p. per ton to all hard coke manufactured and despatched out of the coal raised from the coal land of the assessee-company subject to a minimum guaranteed profit of Rs. 7,000 per month. " 6. Reading the aforesaid terms and conditions of the agreement it is clear that the intention of the assessee was to part with the entire machinery and other units of the concern with the sole purpose of earning rental income, and it was never the intention of the assessee to treat the concern as a commercial concern during the period of the agreement. Thus, there was no direct nexus between the income of the assessee and the production of the colliery. The intention of the assessee, therefore, was clearly to go out of the business for a fixed term of years altogether so far as the colliery and its machinery were concerned and to use the income as the owner of the colliery. The Tribunal, while deciding the matter in favour of the assessee, relied on the case of G. R. Narasimier & Co, v. CIT [1969] 73 ITR 257 (Mad), where the assessee who was the owner of power-looms gave the premises under an agreement for payment of a fixed sum per month and he had absolutely no share in the profits. In that view of the matter, it was held that the document created a relationship of principal and agent and was not a lease. But in the instant case, as I have stated, there was a complete letting out of the premises along with the control and management and the assessee used to get commission on raisings and despatchings, with the sole intention of earning rental income. 7. A similar case came up for consideration before the Supreme Court iu CEPT v. Shri Lakshmi Silk Mills Ltd. [1951] 20 ITR 451 (SC) and Narain Swadeshi Weaving Mills v. CEPT [1954] 26 ITR 765 (SC). In both the cases, the premises were let out for a fixed period and a part of the machinery had been kept under the control of the assessee himself. Both the cases were considered in the case of New Savan Sugar & Gur Refining Co. Ltd. [1969] 74 ITR 7 (SC) and have been distinguished. The instant case is also clearly distinguishable from the aforesaid two cases, reported in [1951] 20 ITR 451 (SC) and [1954] 26 ITR 765 (SC) and also the Madras case. In the case of CIT v. S. K. Sakana and Sons Ltd. [1976] 102 ITR 437 (Pat) which was a case of a managing contractor, it was held by this court that the receipts thereof were business income, because there was a relationship of principal and agent between the assessee and the managing contractor, which is also clearly distinguished from the facts of this case because of the fact that when it was given for management to a third person the sole object was to have better management to earn more income. 8. Thus, on a careful consideration, I am of the opinion that the Tribunal has committed an error of law in accepting the contention of the assessee. The answer to the first question is in the negative, and, in view of this finding, the second question does not arise. The reference is, therefore, answered in favour of the department ; but since there is no appearance on behalf of the assessee, there will be no order as to costs. Sarwar Ali, J. 9. I agree.

Author: P Sahay

Commissioner Of Income-Tax vs Selected Jharia Colliery Co. (P.) ... on 8 April, 1980

Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7556 of 2011 BASANTU KUSHWAHA Versus THE STATE OF BIHAR ----------- Kanth ( Dharnidhar Jha, J.) 2. 28.2.2011 Heard. Regard being had to the statement of the girl recorded under Section 164 Cr. P.C., Annexure-2, as also considering her age as assessed in between 17 to 19 years, let the petitioner Basantu Kushawaha be directed to be released on furnishing a bond of Rs. 3,000/-( three thousand) with two sureties of the like amount each to the satisfaction of Ist Additional Sessions Judge, Kaimur(Bhabua) in Sessions Trial No. 11 of 2011 arising out of Chainpur P.S.Case No. 112 of 2010.

Basantu Kushwaha vs The State Of Bihar on 28 February, 2011

Patna High Court - Orders

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Author: N.Ananda And Rao

Syed Hussain Abid vs State Of Karnataka on 22 August, 2011

Karnataka High Court

[Section 37(1)] [Section 37] [Complete Act]

Central Government Act

>14.32 hrs. Title: Discussion on the Countess of Dufferin’s Fund (Repeal) Bill, 2002. (Bill passed) MR. CHAIRMAN: The House shall now take up Item No. 13 -- Countess of Dufferin’s Fund (Repeal) Bill, 2002. The time allotted for this Bill is half an hour. THE MINISTER OF STATE IN THE MINISTRY OF HEALTH AND FAMILY WELFARE (SHRI A. RAJA): Sir, in 1885, more than 100 years ago, the then National Association for Supplying Medical Aid to Women, raised a Fund known as Countess of Dufferin’s Fund through public subscription. The objective of the Fund was to train women as doctor, nurses and midwives; establish hospitals for women and children and open female wards under female superintendents in existing hospitals and dispensaries. After Independence, the corpus of this Fund was taken over by the Central Government by enacting the Countess of Dufferin’s Fund Act, 1957. The National Association for Supplying Medical Aid to Women was dissolved with the enactment of this Act. Under the Fund, a number of scholarships and medals were awarded to women, medical and nursing students belonging to economically weaker sections. In 1988, the corpus of the Fund amounting to Rs. 16.60 lakhs was deposited in the Consolidated Fund of India. The nomenclature of the scholarships was also changed to the Government of India scholarships for women medical and nursing students and 63 such scholarships were being given. The expenditure on the award of the scholarships was being met by the Budget of the Government of India. Since the Fund had been taken over by the Government of India, the Countess of Dufferin Act, 1957 has become obsolete in the present context. The Jain Commission on Review of Administrative Laws, set up by the Government has, therefore, recommended repeal of the Act. In this context, the proposal is mooted to repeal the Countess of Dufferin Act, 1957. Therefore, Sir, I beg to move: "That the Bill to repeal the Countess of Dufferin’s Fund Act, 1957, as passed by Rajya Sabha, be taken into consideration. "  MR. CHAIRMAN: Motion moved: "That the Bill to repeal the Countess of Dufferin’s Fund Act, 1957, as passed by Rajya Sabha, be taken into consideration. " SHRI PRIYA RANJAN DASMUNSI (RAIGANJ): Mr. Chairman, Sir, we are in agreement to support this Bill as it is a Repeal Bill. But when we go through the Objects and Reasons of the Bill, as has been stated by the hon. Minister, there is an area where the Health Ministry, which is accountable to the Lok Sabha, has to explain a few things. The very date and the year of the foundation of this Fund relates to the foundation of our own party – Indian National Congress,i.e.,1885. In those days such a vision was to be treated as Nightingale Vision. There is a hospital in my State in Kolkata called Dufferin’s Hospital. They were training or motivating women, providing health services, educating women, midwives and nurses in medical education, etc. Of course, free India provided enough opportunities to people of India as well as men and women in the medical stream. I rise to speak on behalf of my Party about accountability. In the Statement of Objects and Reasons, the hon. Minister has just now stated that since the Fund is now diverted to the Consolidated Fund of India, the entire scholarship arrangements are being looked after by the Health Ministry, and therefore obviously, the continuance of this Bill does not arise. So, they are repealing it and we all share it. Now, in India, there is this question of children. There are hundreds of Government hospitals where there are no incubators. Just last month, the entire nation witnessed what happened in the City of Kolkata. Within a fortnight, in several hospitals in Kolkata, dozens of children died. It was later on observed that not only in West Bengal, but also in many parts of India, child care gets the least priority in any health administration. I do not like to score any political point here. I do ask the hon. Health Minister what special emphasis that the Government is going to give in the Tenth Plan from the Health Ministry, taking the State Governments into consideration for treatment of children. Take the case of Delhi, which is the capital of India. Excepting the AIIMS and the Safdarjung Hospitals, in other hospitals, the paediatrics units are very small and ill-equipped that children cannot expect even a normal treatment that their parents desire. How many children die because of this? Did the hon. Minister prepare a note quoting figures as to how many hospitals in India – the district hospitals and State hospitals – are not having incubators? If such a figure is given to the House, the House will be shocked. We are living in modern India, in the age of IT revolution; yet we cannot arrange incubators in the paediatric units in the State hospitals. I now come to scholarship plan. I would like to know from the hon. Minister what is the basic criteria to give scholarships to the economically weaker sections. In the Statement of Objects and Reasons, he said that the Fund was changed to the Government of India Scholarship for women, medical and nursing students belonging to economically weaker sections. Is he ready to give us the break-up – I think, he is not ready with it – showing that in the Ninth Plan Period what is the total number of scholarships that they have given to the economically weaker sections, for medical education and nurses training? If it is not available for the entire Ninth Plan, at least let him give the figure for the last year of the Ninth Plan. Can he give us the break-up? The House wants to know that. If he is ready with the figure, he could give it now or he could lay it on the Table of the House later. We would like to know that. Now, let me come to nurses’ training. Indian nurses have earned reputation not only to look after our patients in India, but also to look after patients in the entire Middle East or in the entire Gulf countries. If there is any demand by their Health Administration, it is only for the Indian trained nurses. Mostly the qualified nurses from the South are catering to more than 60 per cent of the requirement of the Nursing Administration in the entire Gulf countries. In this regard, if the economically weaker sections are protected by the Government by increasing the scholarship, it will be a great help to the nation. My last question to the hon. Minister is this. May I know whether in the Tenth Plan document, he is giving any special priority or emphasis to provide more amount to women’s medical education scheme and nurses’ training scheme, which will be confined to the economically weaker sections of India? If that is so, kindly say it. The House would like to know. If you think that since this is only a Repeal Bill and the Opposition will just sit and give consent to it, you are wrong. You are accountable to the House and you have got to comply with the accountability by providing us with an answer in this House. विदेश मंत्रालय में राज्य मंत्री (श्री दिग्विजय सिंह) : +ÉÉ{ÉBÉEÉÒ {ÉÉ]ÉÔ àÉå +ÉÉè® BÉEÉä<Ç xÉcÉÓ cè, ºÉ¤É +ÉÉ{É cÉÒ cé? डॉ. रघुवंश प्रसाद सिंह (वैशाली):सभापति महोदय, चार-पांच पार्टियों के बदले हम बोल रहे हैं। जो लोग नहीं हैं, उन सब के बदले हम बोल रहे हैं। जिन पार्टियों के लोग मौजूद हैं और जो नहीं हैं, उन चार-पांच पार्टियों के, आपकी पार्टी के भी हम ही हैं। The National Association for Supplying Medical Aid by Women to Women of India. १९८५ में इस संस्था का गठन हुआ। उसका उद्देश्य था कि जो महिलाएं हैं, उनको मेडीकल की पढ़ाई, नर्सिंग की पढ़ाई और जो दाई, मिडवाइफ गांवों में महिलाएं रहती हैं, क्योंकि अभी भी देहात में महिलाएं प्रिगनेंसी में अस्पताल नहीं जा पातीं, गांव में ही मिडवाइफ दाई होती है, उन सभी के प्रशिक्षण के लिए इस संस्था का गठन हुआ था। उसमें राशि एकत्रित थी। १९५७ में Countess of Dufferin’s Fund अधनियम बना, जिससे उसमें रुपया देकर पहले की संस्था को खत्म किया गया।The National Association for Supplying Medical Aid by Women to Women of Indiaको विघटित कर दिया गया और १९८८ में १६.६० लाख रुपये की जो राशि एकत्रित थी, उसे सरकार की संचित नधि में शामिल कर दिया गया। अब सरकार ने दावा किया है कि चूंकि शामिल कर लिया गया और नधि का नाम परिवर्तित कर ‘आर्थिक रूप से कमजोर वर्गों के महिला चकित्सा और नर्सिंग विद्यार्थियों के लिए भारत सरकार की छात्रवृत्त’कर दिया गया। यह तो ठीक बात है कि महिला चकित्सा और नर्सिंग के लिए इन्होंने इन्तजाम कर दिया। लेकिन बालकों के उपचार के लिए चकित्सकीय राहत और विद्यमान अस्पतालों और औषधालयों में महिला अधीक्षण के अधीन महिला वार्ड खोलना, उस समय यह भी उद्देश्य था। अभी दासमुंशी जी ने सवाल उठाया, अभी उत्तर प्रदेश में १०० से ज्यादा छोटे-छोटे लड़कों का अजूबा बीमारी से देहान्त हो गया तो त्राहि-त्राहि मच गई। गांवों में पता नहीं चल रहा है कि कौन सी बीमारी है। बच्चों की चकित्सा के लिए व्यवस्था करनी थी, फिर महिलाओं के लिए वार्ड खोलना था, महिला के अधीक्षण में खोलना था। इसके लिए सरकार ने कौन सी कार्रवाई की है, यह स्पष्ट करें। पुराने कानून को कमीशन की रिपोर्ट पर ये खारिज कर रहे हैं, लेकिन उस कानून के चलते जो सब काम हो रहे थे, उन सब कार्यों के लिए ये अलग-अलग स्पष्ट करें, सदन को बतायें कि महिलाओं के स्कालरशिप के लिए जो ये कहते हैं कि हमने छात्रवृत्ति का उपाय किया है, उसका क्या इन्तजाम किया है, कितना इन्तजाम किया है? बच्चों की बीमारी के लिए, महिलाओं की बीमारी के लिए, महिलाओं के लिए अलग से वार्ड के लिए, इनमें से कौन सा काम किया है, यह सब सरकार स्पष्ट करे। इस कानून को तो खत्म होना ही है, लेकिन इसका जो उद्देश्य था, उसकी आपूर्ति करने में सरकार कहां तक सक्षम है, इस सदन को स्पष्ट करे और साफ बताये और तब कानून को खत्म करे। SHRI RAMESH CHENNITHALA (MAVELIKARA): Mr. Chairman, Sir, the whole House will welcome the Countess of Dufferin;s Repeal Bill. The earlier Bill has got two definitions. One of the definitions is that of Association, which means, the National Association for Supplying Medical Aid by Women to Women of India by societies registered under the Societies Registration Act. The principal Act has got a very limited purpose. This fund has been created to motivate and encourage women to look after the women and children in our country. This Bill was enacted in the year 1885. At that time, in our society the women were not coming forward for this kind of service. They were very reluctant. This Fund was created to encourage and motivate them. The scholarships were given to the women associations for taking part in this kind of activity. As has rightly been pointed out by our Chief Whip, Shri Priya Ranjan Dasmunsi, service is the motto of all the people who are involved in the nursing profession. They are following the path of Florence Nightingale. Definitely, this is a service-oriented job. They are rendering service to the deserving and needy people of our country. We are proud that the largest number of nurses belonging to Kerala are working inside as well as outside the country. Out of the total number of nurses working in the Gulf countries and the European countries, the maximum number of nurses are from Kerala. We have enough institutions. We are training women. Actually speaking, there is a rush for the B.Sc. Nursing and General Nursing courses in our State. The students are going outside the State to places like Tamil Nadu, Karnataka, and Andhra Pradesh to get an opportunity for study. My request to the hon. Minister is that enough institutions should be opened. The Nursing Council is coming in the way of opening new schools and educational institutions for General Nursing and B.Sc. Nursing. Moreover, giving recognition to such institutions is also a big issue. Shri Suresh is here. He is a member of the Nursing Council from Parliament. It hardly meets. The Nursing Council is not putting serious efforts for giving proper recognition to the schools and the institutions which are established in our country. The State Government of Kerala has brought to the notice of the Minister of Health and Family Welfare a very important issue. It is regarding an examination centre in Colombo. Those persons, who want to work in USA, they have to undergo a test and examination in Colombo. But because of the law and order problem in Colombo, it is very difficult for Indian students to appear in this examination. So, a centre should be opened in India so that Indian students can appear in this test here itself and get an opportunity to go abroad for employment. I do not want to go into much of details because it is a very limited Bill. More efforts are required on the part of the Department of Family Welfare for taking care of children and women. In the remotest parts of our country, the paediatric wards are not available. No medical facilities are given to the children by the State Governments and other institutions. So, I think, concerted efforts should be there in this regard. DR. V. SAROJA (RASIPURAM): Hon. Chairman, Sir, I thank you very much for giving me this opportunity to place my views on record.

Discussion On The Countess Of Dufferin’S Fund (Repeal) Bill, 2002. ... on 5 December, 2002

Lok Sabha Debates

W.P.17282[2005 C/W. W.P.2 I4 14/2005 1 IN THE HIGH COURT OF KARNATAKA. BANGALORE DATED T HIS THE 15"' DAY OF SEPTEMBER, 2609 BEFORE THE I-ION'BLE MR. JUSTICE H.G. RAMESI-I WRIT PETITION No.17282 OF 2805 (L-RES) CZW. WRIT PETITION NO.21414 OF 2005 [L-TERI In W.P. 17282 (2005: BETWEEN: DENA BANK. REGIONAL OFFICE, SONA TOWERS. 1ST FLOOR, 71, MILLARS ROAD. BANGALORE660 052. REPRESENTED BY ITS REGIONAL AUTHORITY. PETITIONER. (BY SRI. RAMESH UPADHYAYA, ADV.) AND: D.N. NARSEGOWDA, AGED ABOUT 57 YEARS. RESIDING AT NO.1I/1, 15"? CROSS, 151"" MAIN, SRINAGAR, BANGALORE--560 O50. RESPONDENT. (BY SR1. PRASANNA, ADV. FOR M/S. P.S. RAJAGOPAL ASSOCIATES, ADVS.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 81 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED AWARD DATED 29-11-2004 PASSED IN C . R. NO . 7 / 2002 BY THE CENTRAL W.P.1 7282 g 2005 C/W. W.P.21414/2005 2 GOVERNMENT INDUSTRIAL TRIBUNALwCUM--LABOUR COURT, BANGALORE. IN W.P.2 1414/2005: BETWEEN: D.N. NARASEGOWDA. S / O. NARASAPPA. AGED ABOUT 55 YEARS. EARLIER WORKING AS CLERK AT DENA BANK, NAGASHETTIHALLY, BANGALORE--56O O94, SINCE ILLEGALLY DISMISSED AND RESIDING AT NO. 1 1/ 1, 157" CROSS, 157" MAIN, SRINAGAR. BANGALORE--560 050. PETITIONER [BY SR1. PRASANNA, ADV. FOR M/S. RS. MAGOPAL ASSOCIATES. ADVS.) AND: DENA BANK, A BODY CONSTITUTED UNDER THE BANKING COMPANIES {ACQUISITION & TRANSFER OF UNDERTAKINGS] ACT, 1970, REPRESENTED BY ITS REGIONAL AUTHORITY. REGIONAL OFFICE: SONA TOWERS, I FLOOR, 71, MILLERS ROAD. BANGALORE~58O O52. RESPONDENT (BY SR1. RAMESH UPADHYAYA, ADV.} THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22--O7w1998 VIDE ANNEXUREG BY THE DISCIPLINARY AUTHORITY, ORDER DATED 27-02- ZOOI VIDE ANNEXURE--H BY THE APPELLATE AUTHORETY AND SET ASIDE THE ORDER DATED 29~11~200-4 BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM W.P.17282[2005 C/W. W.P.21414/2005 3 LABOUR COURT IN C.R.NO.7/2002 VIDE ANNEXURE--M INSOFAR AS IT IS CONCERNED TO PETITIONER AND ALLOW THE REFERENCE ANSWERING IT IN FAVOUR OF THE PETITIONER AND DIRECT THE RESPONDENT BANK TO REINSTATE THE PETITIONER INTO THE SERVICES OF THE BANK 'WITH ALL CONSEQUENTIAL BENEFITS INCLUDING BACKWAGES AS IF THE IMPUGNED ORDER OF DISMISSAL WAS NEVER IN EXISTENCE. THESE WRIT PETITIONS, COMING ON FOR HEARING. THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R These two Writ petitions by the employer--Bank and the workman are directed against the award dated 29- 11»~2004 passed by the Central Government Industrial Tribunal--Cum--Labour Court, Bangalore in CR.No.7/ 2002. By the impugned award, the Industrial Tribunal has modified the punishment of dismissal to one of removal from service with superannuation benefits such as Pension, Provident Fund, Gratuity, etc. 2. I have heard the learned counsel appearing for the parties, perused the impugned award and the LCR. \ kl},/,.. W.P.17282g2005 C/W. W.P.2l414/2005 4 3. Facts in brief are that the petitioner while working as a clerk in the employer ---- Dena Bank was subjected to a disciplinary enquiry on the allegation that he had stolen and fraudulently encashed four cheques aggregating Rs.l4,565/-. The enquiry resulted in his dismissal from service by order dated 22-07 -1998 which also came to be confirmed by the Appellate Authority. Before the Industrial Tribunal, the workman conceded the fairness of the domestic enquiry. The Industrial Tribunal has upheld the finding of misconduct on the ground it was based on a proper consideration of the evidence. However, the Industrial Tribunal by the impugned award has modified the punishment as stated above. ' 4. Learned counsel appearing for the employer -- Bank submits that on the facts of the case, the Labour Court had erred in modifying the punishment of dismissal to that of removal from service. Further, according to the counsel, it had proceeded on an erroneous assumption Sm/r W.P.17282g2005 C/W. W.P.21414/2005 5 that the workman had an unblemished service record. He referred to the previous disciplinary cases, the record of which is at Page 51 of the LCR. Learned counsel appearing for the workman could not dispute this fact. Hence, 1 find force in the contention of the learned counsel for the employer -- Bank, that the Industrial Tribunal examined the aspect of 'punishment' on an erroneous assumption relating to the previous service record of the Workman. Accordingly, the impugned award insofar as it relates to modification of the punishment requires to be set--aside and the matter requires to be reconsidered by the Industrial Tribunal insofar as it relates to modification of the punishment. 5. So far as the writ petition of the Workman in W.P.2l414/ 2005 is concerned, the finding of misconduct is based on a proper consideration of the evidence and hence is not liable to be interfered with by this Court as held by the I-Ion'b1e Supreme Court in MGMT., MADURANTAKAM CO-OP. SUGAR MILLS LTD. vs. S. 3&9 W.P.17282[2005 C/W. W.P.21414/2005 6 VISWANATIIAN (AIR 2005 SC 1954). So far as the punishment is concerned, learned counsel appearing for the workman rightly submits that if the impugned award insofar as it relates to modification of the punishment is set aside, the Writ petition filed by the workman does not survive for consideration. 6. In View of the above, I make the following order: [1] the impugned award. insofar as it relates to modification of the punishment is set--aside; - the matter insofar as it relates to punishment is remitted to the Industrial Tribunal for reconsideration in accordance with law; contentions of both the parties relating to the punishment are kept open. [ii] Registry to return the LCR forthwith. Petitions disposed of. sd/~ }UDGE KS /Ata

Author: H.G.Ramesh

Dena Bank vs D N Narsegowda on 15 September, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 774 of 2007() 1. MUHAMMED MUNEER V.V., S/O. ASHRAF, ... Petitioner Vs 1. S.H.O. IRIKKUR POLICE STATION, ... Respondent For Petitioner :SRI.C.K.SREEJITH For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :09/02/2007 O R D E R V. RAMKUMAR, J. ```````````````````````````````````````````````````` B.A. No. 774 OF 2007 B ```````````````````````````````````````````````````` Dated this the 9th day of February, 2007 O R D E R In this Petition filed under Sec. 438 Cr.P.C. the petitioner, who is the accused in Crime No.9/2007 of Irrikur Police Station for offences punishable under Section 292 I.P.C. and Section 52A read with section 68A of the Indian Copyright Act, 1957, seeks anticipatory bail. 2. The case of the prosecution is that on 6.1.2007 four pirated CDs were seized by the police party from the shop of the petitioner. 3. Eventhough the learned Public Prosecutor opposed the application in as much as this court has granted bail in similar matters, I see no reason why the petitioner should be treated differently. 4. Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above case on his executing a bond for Rs. 10,000/- (Rupees ten thousand only) with two solvent sureties each for the like amount to the satisfaction to the said officer and subject to the following conditions: BA.774/07 2 b. The petitioner shall make himself available for interrogation as and when required by the Investigating Officer. c. The petitioner shall not influence or intimidate the prosecution witnesses nor shall he attempt to tamper with the evidence for the prosecution. d. Petitioner shall not commit any offence while on bail. e. Petitioner shall surrender before the Magistrate concerned and seek regular bail in the meanwhile. If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above. (V. RAMKUMAR, JUDGE) aks 

Muhammed Muneer V.V. vs S.H.O. Irikkur Police Station on 9 February, 2007

Kerala High Court

JUDGMENT M. C. Jain, J 1. The petitioner Rajan Upadhyay Is aggrieved by an order dated 29.9.1998 passed by respondent No. 1 under Section 33C(2) of the Industrial Disputes Act and seeks its quashing in so far as it relates to refusal to pay to him the salary as per the pay scale applicable to the regularly appointed class IV employees and directs for the adjustment of the payment already made to him. Mandamus is also sought against the respondents to pay salary/wages to him like similarly situated persons as regularly appointed class IV employees and not to terminate his services treating him as temporary employee. 2. A brief resume of the relevant facts may be set forth The petitioner was a daily wager as Class IV employee of respondent Nos. 2 to 4 and worked as such from 10.10.1986 to 25.11.1989. He was a handicapped person and was demanding pay scale according to Government Orders as well as also payment for holidays and over time together with bonus. He was illegally terminated on 26.11.1989. The conciliation proceedings failed and the dispute was referred by the State Government under the U. P. Industrial Disputes Act to the labour court. There he [petitioner) also filed an application in the form of written statement on 2.3.1995. The respondents did not appear there despite notice and an ex parte award was made in his favour by the labour court on 1.5.1995. The employer/respondents made a belated restoration application before the labour court which was rejected on 5.11.1996. Thereafter the Deputy Labour Commissioner in order to implement the award passed an order on 10.12.1996. The petitioner was allowed to Join after much persuasion and under the order of the Chief Engineer payment was also made of some arrears regarding wages of the petitioner. However, further payment of Rs. 21,708 specially of bonus and the arrears of wages from 1.1.1996 along with other allowances was not made wherefor the petitioner filed an application under Section 33C(2) of the Industrial Disputes Act before the labour court on 4.9.1996 which was registered as Misc. Case No. 73 of 1996. Thereon the labour court passed the impugned order which is Annexure-7 to the writ petition that he would be entitled to gel payment as daily wager according to the rates prescribed by the Government orders for the relevant period and that the over-payment made to him could be adjusted towards the actual payment due to him as daily wager. This, according to the labour court, was the real purport of the award earlier given in favour of the petitioner which had been wrongly interpreted by the Deputy Labour Commissioner while executing it. resulting in over payment to the petitioner. 3. The contention of the petitioner is that the labour court has wrongly interpreted its earlier award by denying to him the salary and allowances of a regular Class IV employee to which he is entitled. It is also his case that similarly situated persons have been directed to be paid the same pay scale as is applicable to regular Class IV employees, by the Lucknow Bench of the High Court in Writ Petition No. 1219 (SS) of 1997, Jai Narain v. State of U. P., by order dated 13.10.1997 and another order dated 6.11.1996 passed in Writ Petition No. 6851 (SS) of 1996, Ramesh Chand and others v. State of U.P. and others, copies of which are Annexures-8 and 9 to the writ petition. 4. Respondent Nos. 2 to 4 did not file any counter-affidavit despite time having been given in this behalf. With the agreement of the learned counsel for the petitioner and learned standing counsel appearing for the respondents, the matter has finally been heard at the admission stage itself. 5. The own case of the petitioner before the labour court in the form of his written statement was that he was a daily wager and had served from 10.10.1986 to 25.11.1989 and that he had illegally been terminated on 26.11.1989 as he was demanding salary and allowances as applicable to regular employees. The question for decision before the labour court was as to whether the termination of the petitioner was legal or otherwise and to what relief he was entitled. Indeed, the award was made in his favour and his termination with effect from 26.11.1989 was set aside, meaning thereby that he was to be deemed in service as before and became entitled for payment of his dues in the similar way as he was getting earlier to his termination. 6. The legal position is settled that if a claim, in the nature of an execution application relating to an industrial award or settlement, is made, then Section 33C(2) of the Industrial Disputes Act is available. Under Section 33C(2) of the Industrial Disputes Act, the labour court was legally empowered and duty-bound to decide the question as to what payments the petitioner was entitled consequent to the passing of award in his favour, as a controversy had arisen between the employer and the employee regarding the computation of the same in terms of the award. The labour court rightly accepted the plea of the employer that under the award, the petitioner could only be paid as daily wager according to the rates amended from time to time. If any overpayment had been made to the petitioner on the wrong interretation of the award, he could not claim the benefit of the same. 7. The orders passed by the Lucknow Bench of the High Court in other matters (Annexures-7 and 8 to the writ petition) also do not advance the case of the petitioner any farther. Annexure-7 only indicates that proposals were in process in the Government for payment of minimum of pay scale to Class IV dally wagers. Annexure-8 was an interim order 'in personam' in respect of certain others and the present petitioner was not a party in that writ petition. Here in this writ petition, the controversy centres around the interpretation of the award given by the labour court in favour of the petitioner. 8. Therefore, the situation boils down to this that the petitioner can only be paid as daily wager according to the rates prescribed from time to time till he is absorbed as a regular Class IV employee according to service rules. Nor can a mandamus be issued against his termination, which again has to be governed by service rules and his service conditions. 9. The writ petition is wholly unmerited and is hereby dismissed.

Author: M. C. Jain

Rajan Upadhyaya vs Labour Court, Varanasi And Others on 21 December, 1999

Allahabad High Court

Chief Justice's Court Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 9 of 2010 Petitioner :- M/S Satya Associate (Contractor) And Another Respondent :- State Of U.P. Thru Principal Secy. And AnotherPetitioner Counsel :- Om Prakash Lohia Respondent Counsel :- Sc Hon'ble Ferdino Inacio Rebello,Chief Justice Await service on behalf of respondent no.2. As prayed for, list it after two weeks. Order Date :- 30.7.2010 VMA (F.I. Rebello, C.J.)

M/S Satya Associate (Contractor) ... vs State Of U.P. Thru Principal Secy. ... on 30 July, 2010

Allahabad High Court

JUDGMENT Kuldip Singh, J. 1. This appeal has been filed by Amro Devi and Kashmir Singh, parents of deceased, Sanjay Kumar, for enhancement against the award, dated 1.6.2001, passed by learned Motor Accident Claims Tribunal, Hamirpur, in MAC Petition No. 41 of 1998, awarding Rs. 2,16,000/- compensation to the claimants-petitioners to be paid by respondents No. 2 and 4, equally with interest at the rate of 9% per annum, w.e.f. 5.11.1999. The parties are referred in the same manner, as in the impugned award. 2. The facts in brief, as pleaded, are that Sanjay Kumar, aged 21 years, was additional driver employed by respondent No. 1 to drive truck on Rs. 2,500/- salary, per month and Rs. 100/- per day daily allowance. On 4.3.1998, truck No. DL-IG-A-3567, owned by respondent No. 1 and insured with respondent No. 2 was being driven by driver Yashpal and Sanjay Kumar was in the said truck as co-driver. The truck was proceeding from Delhi to Bombay and it had head on collision with another truck bearing registration No. UP-07-C-5770. The accident took place due to rash and negligent driving on the part of Yashpal, driver of truck No. DL-IG-A-3567. Yashpal and driver of truck No. UP-07-C-5770, died on the spot alongwith Sanjay Kumar. 3. The respondent No. 3, is the owner of truck No. UP-07-C-5770, which was insured with respondent No. 4 New India Assurance Company. The accident took place due to negligent driving by the drivers of the respective trucks, therefore, respondents are jointly and severally liable to pay the compensation to the petitioners. The petitioners No. 1 and 2, are the parents. There were two more petitioners before the Tribunal, namely Amin Chand and Smt. Indri Devi, but they did not press their claim. 4. The respondents No. 1 and 3, did not contest the petition. The respondent No. 2 National Insurance Company filed reply and took the objections that deceased was sitting in the truck in the capacity of workman and the liability of the insurance company to pay the compensation is under the Workmen's Compensation Act. The truck No. DL-IG-A-3567 was being driven by the driver at the time of accident without valid registration certificate, route permit and worthiness certificate. The driver did not have a valid driving licence to drive the said truck. It was not being driven negligently by the driver. 5. Respondent No. 4, also contested the petition by filing the reply and has submitted that in view of policy, the insurance company is not liable to indemnify the amount of compensation. The claim petition has been filed by the claimants in collusion with owners. The respondent No. 4 has no liability to pay the compensation. The truck No. UP-07- X-5770, was not insured with respondent No. 4. 6. The learned Tribunal returned the finding that Sanjay Kumar Nired as a result of rash and negligent driving of the trucks by their respective drivers. The income of the deceased was assessed Rs. 1,500/- per month and ultimately an award of Rs. 2,16,000/- was passed in favour of the claimants, which was made payable by respondents No. 2 and 4 insurers of both the trucks alongwith interest, as noticed above. 7. The petitioners are thus in appeal. 8. I have heard the learned Counsel for the parties and have also gone through the record. 9. The learned Counsel for the petitioners-claimants, who are appellants, I rub submitted that Tribunal has assessed income of deceased Sanjay Kumar, on the lower side. According to him, Sanjay Kumar was being paid Rs. 2,500/-, per month salary and Rs. 100/- per day, on account of daily expenses, by his employer. PW 1 Kashmir Singh, father of the deceased, deposed that deceased was paying Rs. 4,000/-, per month, to him. The learned Counsel for the appellants has urged that deceased was 21 years of age, and, therefore, keeping in view the dependency of the claimants-petitioners, they are entitled to compensation, as prayed in the petition. 10. On the contrary, learned Counsel for respondents No. 3 and 4 have submitted that the claimants petitioners are not entitled to any enhancement of compensation, the Tribunal has already awarded compensation to the claimants petitioners on the higher side. The learned Counsel for respondent No. 4 has further submitted that the Tribunal has not taken into consideration that deceased was young man of 21 years of age. He was to be married shortly. Petitioner No 1, the mother of the deceased was 45 years of age and petitioner No. 2, the father was 52 years of age, as per statement of PW 1 Kashmir Singh. Therefore, after assessing the dependency of the claimants petitioners, multiplier is to be applied keeping in view the age of the parents of the deceased and thereafter, one-third deduction is to be made from the compensation so assessed. He has relied a Division Bench judgment of this Court rendered in CWP No. 541 of 2005, titled New India Assurance Company Ltd. v. Prem Chand and Ors. decided on 17.5.2007. 11. In that case, the deceased was 30 years of age and petition was fieled by his parents where the father was about 52 years of age and mother a few years younger. The Division Bench in that case has held as follows: It is by now well settled and it has been repeatedly held by this Court that in normal circumstances when the parents are the claimants, their dependency is to be assessed at 1/3rd of the total income. This is because the child would in normal course get married in near future. After the marriage, the deceased would have had his own spouse and family to look after and would not contribute that much amount to the parents. The normal rule is that the dependency of the parents should not be taken at more than 1/3rd of the income. However, this is not a cast iron proposition of law. Each case has to be decided on its own facts. There may be cases where the parents are not earning at all when the dependency may be assessed by the Tribunal at more than 1/3rd by giving reasons. There may be cases where there are a number of children and the parents cannot be held to be dependent only on one child or where the income of the parents is also substantial, the dependency of the parents can be reduced to below 1/3rd but in the absence of any special circumstances, this Court in a number of decisions including 2006 ACJ 1248, Himachal Road Transport Corporation and others v. Krishna Devi and Ors. has held that the parents dependency should be taken to be 1/3rd of the income of the deceased. The Division Bench in New India Assurance Company Ltd. v. Prem Chand's case (supra), has allowed multiplier of 12. 12. The learned Counsel for the claimants-petitioners has submitted that claimants-petitioners would be put to loss in case their dependency is assessed at 1/3rd of the total income of the deceased and not the actual dependency and then multiplier is applied keeping in view their age and not the age of the deceased. The dependency of the claimants-petitioners with the passage of time in normal course was to increase on the deceased and not to decrease. The claimants-petitioners are expected to live atleast for about twenty years more. There was no certainty about the marriage of the deceased. In these circumstances, the suitable multiplier for assessing the loss in the present case should be atleast 18. 13. The claimants-petitioners are entitled to just compensation. In xsketan v. Himachal Road Transport Corporation and Ors. , a learned Single Judge of this Court in para-5 of the judgement, has held as follows: ...The Court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by him. Such compensation is what is termed as just compensation. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation.... 14. PW 1 Kashmir Singh, father of the deceased, has nowhere stated in his statement that claimants-petitioners were totally dependant upon the deceased, rather he has stated that he is engaged in agriculture work. The claimants-petitioners have not placed special circumstances so as to assess their dependency more than 1/3rd of the total income of the deceased. The submission of learned Counsel for claimants-petitioners has no force and in view of New India Assurance Company Ltd. v. Prem Chand's case (supra), the claimants-petitioners are entitled to 1/3rd of the total income of the deceased and multiplier of 12 is applicable in their case. 15. The claimants-petitioners have been awarded Rs. 2,16,000/-x&mpensation alorigwith 9% interest per annum with effect from 5.11.1999, to be paid equally by both the insurance companies. In view of law laid down in New India Assurance Company Ltd. v. Prem Chand's case (supra) and the pleaded case of the claimants-petitioners, it appears the Tribunal has awarded compensation to the claimants-petitioners on the higher side, but the respondents have accepted the award and, therefore, whatever amount has been awarded to the claimants-petitioners that cannot be reduced. The Tribunal has awarded interest on the award amount at the rate of 9% from 5.11.1999, whereas the petition was filed on 21.5.1998. 16. It is now well settled that interest is to be awarded from the date of filing of the petition, therefore, on the award amount of Rs. 2,16,000/- to the extent of their shares the respondent No. 2 National Insurance Company and respondent No. 4 New India Assurance Company are liable to pay interest at the rate of 9% per annum from the date of filing the petition, i.e. 21.5.1998. 17. In view of above, the impugned award is modified. The claimants- petitioners are awarded Rs. 2,16,000/- alongwith 9% interest per annum from the date of filing of the petition, i.e. 21.5.1998, the compensation amount alongwith. interest is to be paid by respondent No. 2 National Insurance Company Limited and respondent No. 4 New India Assurance Company Limited equally to the claimants-petitioners. 18. With the above modification in the impugned award, the appeal stands disposed of, no costs.

Author: K Singh

Smt. Amro Devi And Anr. vs Montgomery Transport Company And ... on 9 July, 2007

Himachal Pradesh High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 32183 of 2010(W) 1. M/S.FALCON INFRASTRUCTURE LTD., ... Petitioner Vs 1. UNION OF INDIA, REPRESENTED BY ITS ... Respondent 2. CENTRAL BOARD OF EXCISE AND CUSTOMS, 3. THE COMMISSIONER OF CUSTOMS, 4. THE ASSISTANT COMMISSIONER OF CUSTOMS, For Petitioner :SRI.A.A.ZIYAD RAHMAN For Respondent :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS The Hon'ble MR. Justice ANTONY DOMINIC Dated :21/10/2010 O R D E R ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 32183 of 2010 W ``````````````````````````````````````````````````````` Dated this the 21st day of October, 2010 J U D G M E N T Petitioner is a company which has established a Container Freight Station. By virtue of Ext.P1, Container Freight Stations, which have attained the bench mark specified therein, are entitled to waiver of Cost Recovery Charges. 2. According to the petitioner, they are eligible for waiver as contemplated in Ext.P1. It is stated that, by Ext.P3 dated 21-04-2010, they have submitted their application to the first respondent, requesting for the benefit of Ext.P1. Petitioner submits that Ext.P3 application was recommended by the third respondent, as per Ext.P6. It is stated that, their application is still pending consideration of the first respondent. It is complained that despite the recommendation and the pendency of their application, by Exts.P7 and P8, the fourth respondent has demanded that the petitioner shall remit an amount of Rs.28,43,802/- towards  W.P.(C) No.32183/10 : 2 : Cost Recovery Charges for the period from 01-04-2010 to 31- 12-2010. It is challenging Exts.P7 and P8, this writ petition is filed. 3. I heard the senior Standing Counsel for the Central Board of Excise and Customs, who pointed out that, even going by Ext.P1 scheme, the benefit is only the prospective and that since orders have not been passed on the application so far, petitioner cannot avoid the liability. 4. However, it is a fact that the petitioner submitted Ext.P3 application dated 21-04-2010, which is pending consideration before the first respondent. Therefore, it is for the first respondent to decide, the effective date from which the petitioner is entitled to the benefit of Ext.P1, if ultimately the decision is to extend the benefit of Ext.P1 to the petitioner. Having regard to the pendency of the application before the first respondent, which is also duly recommended by the third respondent, I feel that the matter needs an expeditious consideration by the first respondent. 5. In that view of the matter, the writ petition is  W.P.(C) No.32183/10 : 3 : disposed of, directing that the first respondent, before whom Ext.P3 is pending, shall consider the said application in the light of Ext.P6 recommendation made by the third respondent. Orders on Ext.P3 shall be passed, as expeditiously as possible, at any rate, within two months of production of a copy of this judgment along with a copy of this writ petition. In the meanwhile, petitioner shall remit an amount of Rs.8,95,526/- being the Cost Recovery Charges indicated to be due for the period from 01-04-2010 to 30-06-2010 and furnish bank guarantee for the balance amount indicated in Ext.P8. The amount shall be remitted within one week from today and the bank guarantee shall be furnished, at any rate, within two weeks from today. Subject to the remittance of the amount and furnishing of bank guarantee as above, further proceedings for recovery pursuant to Exts.P7 and P8 will stand stayed until orders are passed by the first respondent. (ANTONY DOMINIC, JUDGE) aks 

M/S.Falcon Infrastructure Ltd vs Union Of India on 21 October, 2010

Kerala High Court

JUDGMENT B.K. Behera, J. 1. The appellants and seven other co-accused persons, namely, Gaya Dehury, Mayadhar Denary, Gangadhar Dehury, Narahari Dehury, Madan Dehury, Rama Dehury and Binu Dehury. stood trial in the court of Mr. N.P. Mohapatra, Additional Sessions Judge, Cuttack, in Sessions Trial Case No. 121-C of 1976. The appellant Kailash Chandra Sahu stood charged under Section 302 of the Penal Code (the 'Code', for short) with having committed the murder of Bhima Behera (hereinafter referred to as the 'deceased') at village Nalida on July 6, 1975 and the appellant Sulochana Dei described as Suli Dei in. the evidence stood charged under Section 302 read with Section 109 of the Code for abetting the commission of the said offence. The appellants and the co-accused persons stood charged under Section 148 of the Code for having formed an unlawful assembly being armed with deadly weapons, such as, Bhalas, Tentas and lathis, in prosecution of the common object to kill the deceased and his sons and all of them also stood charged under Section 302 read with Section 140 of the Code for having committed the murder of the deceased as members of the unlawful assembly one of whom, namely, Kailash Chandra Sahu, had committed the murder of the deceased. The appellant Siba Sahu stood charged under Section 323 of the Code Cor having voluntarily caused hurt to the deceased Bhima Behera. The appellant Baban Denary stood charged under S, 323 of the Code for voluntarily causing hurt to Narahari Behera (P. W. 1) and Nabakishorc Behera (P. W. 4). The plea of the appellants and the co-accused persons was one of denial and false implication. The prosecution had come out with a story that when the deceased and his three sons, namely, Narahari Behera (P. W. 1), Bhagaban Behera (P. W. 3) and Nabakishore Behera (P. W. 4), were on the land purchased by them for the purpose of dosing the flow of water, .six of the appellants, namely Kailash Chandra Sahu, Siba Sahu, Bharal Sahu, Kangali Ghadei, Sulochana Dei and Brundaban Sahu came in a group being armed with lathis, two of them, namely, Suli Dei and Bharat, having each a Tenta also called Bhala in the locality, in addition and after an exchange of words between Siba on the the hand and the deceased on the other with regard to possession of the land which was also being claimed by the appellants' party, the appellant. Siba dealt a lathi blow on the waist of the deceased as a result of which he fell down. When P. W. 1 came running and started lifting his father, the appellant Suli Dei handed over a Tenta to the appellant Kailash and the latter pierced it into the chest of the deceased. The appellant Siba came near the deceased and saying that he had not died, extricated the Tenta from the body of the deceased and threw it nearby. Thereafter, it was alleged, on the call of the appellant Brundaban to come and kill the sons of the deceased and make his family extinct, the appellant Baban Dehury and six others came armed with lathis. The lathi in the hands of Suli Dei was snatched away by P. W. 3 who whirled it in order to protect himself and his brothers. The appellant Baban assaulted P. W.s. 1 and 4 by the lathi he had. When P. W. l called aloud saying that his father died, the appellants and the co-accused persons left the place, On the basis of the first information report (Ext. l/l) lodged by P. W. 1, investigation was first taken up by the Officer-in-charge (P. W. 13) of the Barachana Police Station and later by PW 14, the successor Officer-in-charge of the same police station who completed it and placed a charge-sheet against the appellants and the co-accused persons. 2. To bring home the charges to the appellants and the co-accused persons, the prosecution had examined fourteen witnesses. The appellants had examined four witnesses in their defence. The appellant Brundaban Sahu and two other co-accused persons namely. Gaya Dehury and Bina Dehury had taken the plea of alibi. The appellants also wanted to show that the land in question was in the possession of the appellant Brundaban Sahu. 3. On a consideration of the evidence, the learned Additional Sessions Judge found the appellants other than the appellant Baban Dehury guilty of the charges under Sections 148 and 302 read with Section 149 of the Code and convicted them thereunder. The appellant Kailash was found to be guilty of the charge of murder and convicted under Section 302 of the Code. The appellant Suli Dei was found to be guilty of the charge of abefting the commission of the offence of murder and convicted under Section 302 read with Section 109 of the Code. The appellant Siba was found to be guilty of the charge of causing hurt to the deceased and convicted under Section 323 of the Code. The appellant Baban Dehirry was found to be guilty of causing hurt to p. Ws. 1' and 4 and convicted under Section 323 of the Code. Six of the appellants were sentenced to undergo imprisonment for life for their conviction under Section 302 read with Section 149 of the Code. No separate sentence was passed against them for the other offences for which thev were convicted. The appellant Baban Dehury was sentenced to undergo rigorous imprisonment for a period of six months under Section 323 of the Code. The other co-accused persons were found to be not guilty of the charges and acauitted. Durinp the pendency of this appeal, the annellant Brundaban died and the appeal has abated in respect of that appellant in pursuance of the order No. 6 passed by this Court on June 21, 1982. 4. Miss P. Mohanty, appearing for the appellants, has taken us through the evidence and submitted that the evidence on which reliance had been placed by the prosecution was false and untrustworthy and no order of conviction against any of the appellants could be passed thereon. Mr. A. Rath, the learned Additional Standing Counsel, has submitted that the order of conviction is based on clear and cogent evidence of the witnesses to the occurrence besides the medical evidence and other circumstances and there is no reason to take a view different from the one taken by the trial Court. 5. It is clear from the evidence that for assault on the party of the appellants, a counter case had been started on the basis of the F.I.R. lodged by the appellant Kailash and P. Ws. 1, 3 and 4 who are the sons of the deceased and Gajendra Sahu (P. W. 5) and Babaji Charan Sahu (P. W. 6) who had figured as witnesses to the occurrence, were the accused persons in the counter case. Besides, P. Ws. 5 and 6 are the sons of P. W. 2 who had strained relationship with the appellant Brundaban (since dead). On his own showing, P. W. 9 had been examined a month after the occurrence by the Investigating Officer and he had admitted that before he was examined in the course of investigation, he had not disclosed the occurrence to any one. We also notice that his evidence was inconsistent in material particulars with the statements made to the Investigating Officer. No reliance can be placed on the evidence of a witness who claims to have seen the commission of the offence of murder and has not disclosed the occurrence to any one and has been examined in the course of investigation after considerable delay without any explanation for the delay, 6. As for the other witnesses to the occurrence, namely, p. Ws. l and 3 to 6, they did belong to a hostile faction in that they had been involved in the counter case. There had been a case and a counter case and there had been counter versions as to what had happened. P. Ws. l and 3 to 6 were thus partisan witnesses and would be highly interested for a successful termination of the trial against the appellants. The evidence of such witnesses is not to be discarded on the ground of partisanship or interested-ness as the mechanical rejection of such evidence in a case of this nature on the sole ground that it is partisan evidence would lead to failure of justice. The Court has to appreciate such evidence carefully and find out whether there are discrepancies in the evidence, whether the evidence strikes the Court as genuine and whether the story disclosed by the evidence is probable. After all, interested evidence is not necessarily unreliable evidence. Partisanship, by itself, is not a valid ground for discarding or rejecting the sworn testimony of a witness. Such evidence should be subjected to careful scrutiny and accepted with caution. The Court is to find out as to whether the presence of the witness at the scene of the crime is probable and if so, as to whether the substratum of the story narrated by him is such that it would carry conviction with a prudent person. If the evidence of the witness appears to the Court to be flawless and free from suspicions, it may accept it without cor-roboration from any other source. The evidence of such a witness is generally fringed with embellishments, improvements and exaggerations, however true the evidence may be in the main and the Court may look for some assurance the nature and extent of which may vary according to the circumstances of the particular case from independent , evidence, direct or circumstantial, before the accused is found guilty on the basis of interested testimony. In this connection, reference may be made to the principles laid down in , Masalti v. State of Uttar Pradesh , Sarwan Singh v. State of Punjab , Hari Obula Reddi v. State of Andhra Pradesh . Ram Ashrit v. State of Bihar , Sevi v. State of Tamil Nadu and AIR 1931 SC 2073 : 1981 Cri LJ 1701, State of U. P. v. Manoharlal. The evidence of PWs 1 and 3 to 6 is to be approached and scanned keeping in mind these principles with regard to the appreciation of such evidence. 7. On going through the evidence adduced from both the sides, we are not at one with the trial Court that the deceased party had been able to establish that the land in question was in the possession of the deceased and his sons. No doubt, their case was that the land had been purchased by the deceased from Dwari Barik, Swari Barik and Kamali Nibya four to five months prior to the occurrence by means of a registered deed of sale (Ext. 2) and the vendor had delivered possession of the- land, but none of the vendors had been examined art a witness of the prosecition, P. W. 2, who had been examined to prove the possession of the deceased in respect of the land in question, was undoubtedly a highly interested witness as two of his sons, P. Ws. 5 and 6 and his Samudhi Krushna were the accused persons in the counter case. Besides, as would appear from his statement to the Investigating Officer which was disowned by him at the trial, the appellant Brundaban had claimed the land purchased by the deceased and had applied to the Tahsildar for identification. P. W. 10 had been examined for the prosecution in this regard and according to him, he had sold some lands to the Barik family and had delivered possession thereof. He had proved a number of documents. His evidence, however, would not conclusively estabilish that the deceased had been in cultivating possession of the land in question. Although on the basis of the reports made by Brundaban Sahu with regard to his claim of possession, station diary entries (Exts. G, G/a and G/b) had been made, the evidence from the side of the defence with regard to the possession of the land by the appellant Brundaban was also not satisfactory. It had not clearly been established that he was in cultivating possession of the land. There was thus a scramble for possession between both the parties. 8. The learned Additional Sessions Judge did not accept that part of case of the prosecution that the accused persons having the surname 'Dehury' who had allegedly come to the scene after the assault on the person of the deceased had shared the common object of committing the murder of the deceased. The. essence of the object of an unlawful assembly is common object of the accused persons forming it. It is necessary that the object should be common to the persons and they should all be aware of it and concur in it, Mere presence of a person at the time of the commission of rioting is not sufficient to show that he was a member of the unlawful, assembly which committed the offence. The primary question for consideration is as to whether the object of the assembly of the accused persons was unlawful (see 1932 Cri LJ 1585(Orissa) Anam Pradhan v. State). The appellant Baban Dehury has been convicted for his individual assault on P. Ws. 1 and 4 by a lathi. It is now to be seen as to whether the other appellants could be convicted under Sections 148 and 302 read with Section 149 of the Code and as to whether the order of conviction recorded against the appellant Kai-lash under Section 302 of the Code was legal and justified. It is also to be seen as to whether the appellant Siba could be convicted under Section 323 of the Code of causing hurt to the deceased and the appellant Baban Dehury could be convicted under Section 323 of the Code for causing hurt to P. Ws. 1 and 4. 9. The evidence of P. W. 1 Narahari was that while the deceased, he and his brothers were closing the flow of water on their land, the appellants Siba, Kailash, Brundaban, Bharat, Suli and Kan-gali came armed in a group, each of them. having a lathi and the appellants challenged the deceased as to why the flow of water was being closed for which the deceased retorted saying that he had purchased the land. Then the appellant Siba dealt a lathi blow on the right side of the waist of the deceased as a result of which he fell down and when he (P. W. 1) was trying to lift him up, the appellant Kailash came armed with a Tenta and dealt a blow to his father by the Tenta on the right side of his chest. P. W. 1 could not say wherefrom the appellant Siba brought the Tenta. Immediately thereafter, the appellant Siba came near his father and saying that he had not died, removed the Tenta from the person of the deceased and threw it near him. Thereafter, according to PW ], the appellant Brundaban shouted calling the other persons to come and directed the persons who came to the spot to kill the deceased and his sons. Bhagaban (P. W. 3), according to this witness, snatched away the lathi from Suli and brandished it to ward off the assault by the accused persons. The appellant Baban dealt a lathi blow on his head and a lathi blow on the right hand of P. W. 4, as testified by P. W. 1. He had identified M. O. I (Tenta) as the weapon of attack by which the deceased was killed by the appellant Kailash. 10. It is important to note that in the first information report, P. W. 1 had stated that only four persons, namely, Brundaban, Kailash, Bhagaban and Suli first came to the spot with Badis, understood at common parlance as small sticks, and not with lathis, as deposed to by him in the Court. While in his evidence, P. W. 1 had testified that after the assault on the deceased, Brundaban instigated others to come and finish the deceased and his sons, it had been stated in the F.I.R. that the instigation had been made by this appellant to kill the deceased before the murderous assault was made on him. Although according to P. W. 1, the appellant Siba dealt a lathi blow on the waist of his father, no such injury had been noticed by the doctor who conducted the autopsy. Even if the evidence of P. W. 1 and that of the other eye-witnesses to the effect that the appellant Siba Sahu, after the murderous assault on the deceased by means of M.O.I, came and gave out that the deceased had not died and removed M.O.I, from the person of the deceased and threw it nearby is accepted, it could not be said from this alone that he had shared the common object to commit the murder of the deceased. As narrated in the F.I.R., he had not accompanied the others to the place of occurrence and if he had shared the common object of others to kill the deceased, he would have further pierced the Tenta (M. O. I.I into the chest of the deceased instead of removing it and throwing it outside. Thus the only consistent statement made by PW 1 with regard to the occurrence with the statement made in the F. I. R. was with regard to the assault on the person of the deceased by the appellant Kailash by piercing M.O.I, into his chest which, as the evidence of the doctor would clearly indicate, had resulted in the death of the deceased. 11. PW 1 had not stated in the first information report that his brother Bhagaban (PW 3) snatched away the lathi from the hands of appellant Suli and brandished it in self-defence, which, as the prosecution witnesses wanted to show, might have caused injuries to some persons from the side of the appellants. It was at that stage of the occurrence that the appellant Baban had allegedly assaulted PWs l and 4, as deposed to by the eye-witnesses. 12. PWs 3 to 6 and 9 had stated that the appellant Suli Dei handed over a Tenta to the appellant Kailash with which the latter assaulted the deceased and pierced it into his chest which had ultimately resulted in the death of the deceased. This fact, however, was conspicuous by its absence in the first information report. These witnesses had also testified that after the deceased was assaulted by means of a Tenta, the appellant Brundaban called out the persons to come and finish the deceased and his sons. This had not been stated in the F. I. R. either. On the other hand, it had been stated therein that when the four persons, namely, Brundaban, Kailash, Bhagaban alias Bharat and Suli came to the scene, each having a Badi, the appellant Brundaban instigated them to make the dynasty of the deceased extinct by piercing into them (Bhusidio). This was not the evidence of the eyewitnesses at the trial. These statements made at the trial by the eye-witnesses in their evidence to connect the two appellants Suli Dei and Brundaban with the crime of murder to show that they had shared the common object and had instigated others including Kailash to commit the murder could not be said to be inconsequential statements and the non-mention of these facts in the first information report would seriously affect the bona fides of the prosecution case. As has been laid down by the Supreme Court in , Ram Kumar Pande v. State of Madhya Pradesh, a first information report is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case, 13. It has been stated by PW 1 in his cross-examination that the appellant Siba had no weapon or lathi in his hand when he came to the deceased and took out the Tenta from his person. He could not say what Siba did with the lathi with which he had assaulted his father earlier. In order to get over the inconsistencies by presenting a story in the court substantially different from the one given in the F. I. R., PW 1 had gone to the length of disowning the statements made by him in the F. I. R. and had stated that the contents of it had not been read over and explained to him before he signed it. PW 1 had given inconsistent and materially divergent versions in his F.I.R. and in his evidence except with regard to the assault by means of M.O.I. on the person of the deceased by the appellant Kailash which had resulted in his death. As earlier indicated, he had not presented a true picture as to how a number of persons from the side of the appellants received injuries during the occurrence and his story that P.W 3 whirled a lathi in self-defence after snatching it. from the hands of appellant Suli Dei could not be accepted. He had thus not presented a true and complete picture of the occurrence before the court during the course of which he and his brother (PW 4) had allegedly been assaulted by 'he appellant Baban and the persons from the other side had sustained injuries. 14. The evidence of P. Ws. 3 to 6 was that the appellants Kailash, Siba, Bharat Brundaban, Kangali and Suli came in a group, each of them holding a lathi and in addition, the appellant Suli and the. appellant Bharat each holding Bhala, also called a Tenta in the locality, in addition. This evidence was not consistent with that of PW 1. Besides, the story presented by PW 1 in the first information report was substantially different in this regard. Each of these witnesses, namely, PWs 3 to 6, had given out. that the appellant Siba dealt a blow on the person of the deceased and the evidence was that this blow fell on the waist. The evidence of these highly interested persons in this regard had not found assurance from that of the doctor. They had, however, given a clear and consistent version about the assault on the person of the deceased by the appellant Kailash by means of a Tenta by piercing it into his. chest which had resulted in his death, 15. In his statement to the Investigating Officer, PW 3 had not even staled about the presence of the appellant Brundaban on the spot till the assault on PWs 1 and 4 by the appellant Baban and he had not slated about the presence or participation of the appellants Suli and Bharat alias Bhagaban. As deposed to by him in the Court, the whirling of the lathi had struck the head of the appellant Kailash and the leg of the appellant Kangali and that some of them fell down and sustained injuries. He had not stated so in the course of investigation. 16. If as stated by PW 4 in his cross-examination, they had no ill-feeling with the appellant Brundaban prior to the occurrence, it was highly unlikely that this appellant would instigate others to make the dynasty of the deceased extinct. He could not say how some of the appellants had sustained injuries during the occurrence. He had not stated about the presence and participation of the appellant Suli Dei in the crime to the Investigating Officer. He had testified that he had not noticed if any of the accused persons had sustained injuries by the lathi whirled by PW 3. 17. In his statement to the Investigating Officer, PW 5 had not stated that PW 4 had sustained any injury on his fore-arm as a result of the assault by the appellant, Baban and he had not even named the appellants Suli Dei, Brundaban. Bharat. and Kangali and he had not implicated them with regard to the occurrence, although he had attributed specific acts of commission and instigation against those appellants in the Court. 18. PW 6 had not stated to the Investigating Officer that the appellant Siba came near the deceased and challenged him as to why he was closing the flow of water although he had stated against this appellant in this regard in his evidence. He had not, stated to the Investigating Officer about the presence arid partition of the appellants Suli Dei and Bharat alias Bhagaban. He had not stated to him that the appellant Suli handed over a Bhala to the appellant Kailash. 19. We have indicated as to why the evidence of PW 9, examined long after the occurrence, in the course of investigation should not he accepted. Apart, from that consideration, his evidence was a bundle of contradictions. Although he had stated in his evidence about the assault by the appellant Baban on Narahari (PW 1) and about the presence and participation of the appellants Bharat alias Bhagaban, he had not stated so during the investigation. He had not stated to the Investigating Officer that the Bhala with which the appellant Kailash stabbed the deceased had been handed over to him by the appellant, Suli, as stated by him in the Court. He had also not stated to the Investigating Officer that the appellant Siba came and removed the Bhala from the body of the deceased saying that he was not yet dead, although he had asserted about this in his evidence in the Court. He had not stated in the course of investigation that the appellant Brundaban instigated the accused persons to kill the three sons of the deceased and make his family extinct, as deposed to by him in the Court, 20. We find that the witnesses to the occurrence (PWs 1 and 3 to 6) had given a clear, cogent and consistent version about the stabbing on the person of the deceased by the appellant Kail ash by means of a Tenta which had resulted in his death and their evidence in this regard would find support in the evidence of the doctor (PW 11) who had conducted the autopsy. This fact had also found a place in the F. I. R. lodged by PW 1 soon after the occurrence and this would corroborate the evidence of PW 1. We are, however, not prepared to place reliance on the testimony of the eye-witnesses with regard to the other parts of the occurrence, viz., participation of the other appellants and regarding the assault on the person of the deceased by means of a lathi by the appellant Siba and the assault on the persons of PWs 1 and 4 by the appellant Baban. 21. For the reasons aforesaid we are of the view that the prosecution had not presented a true and complete picture as to what happened on the spot after the appellant Kailash stabbed the deceased by means of a Tenta. The doctor (PW 11) had noticed a swelling with simple fracture of the upper thumb of the appellant Kangali, six bruises and a swelling on the person of the appellant Siba. two contusions on the person of the appellant Bharat, two lacerated injuries and three bruises on the person of the appellant Kailash and three lacerated injuries and two bruises, one of the bruises having caused fracture on the left palm, on the person of the appellant Suli Dei. The presence of the injuries on these appellants would indicate their presence on the spot at some stage or the other, But the prosecution witnesses, instead of explaining clearly as to how they came by the injuries, had suppressed this part of the occurrence and it may be kept in mind that it is at this stage that the appellant Baban had allegedly caused hurt to PWs 1 and 4, When the prosecution had not given a clear and full picture of the occurrence after the assault on the person of the deceased by the appellant Kailash by means of a Tenta, it would not be safe, reasonable and proper on our part to accept the evidence with regard to the assault by the appellant Baban on the person of PWs 1 and 4. 22. We have already discussed the evidence with regard to the presence and participation of the appellant Suli Dei. No doubt, injuries on her person would show her presence at the spot at some stage and some broken glass bangles had been seen at the spot and seized, but her defence that while she had taken her goats for grazing, she saw assault on some of the persons of the appellants' party by the other side and when she tried to protect the appellant Kangah (her husband) from assault by Gajendra (PW 5), she had received an injury on her left arm and her glass bangles were broken and she had been further assaulted by Gajendra and Rushia would appear to be a reasonable and probable one. 23. On a consideration of the evidence and after an examination of the contentions raised at the Bar, we find that the charges under Sees. 148 and 149 of the Code against the appellants could not be sustained. As a matter of fact, we have indicated earlier and we may state at the cost of repetition that in the first information report lodged by PW 1, it was stated that only four persons had gone to the spot when the deceased was attacked and killed and the others came later. We have also found, for the reasons indicated by us, that the charges against the appellants Siba and Baban under Section 323 of the Code had not been brought home to them. The charge of instigation against the appellant Brunda-ban must also fail. While rejecting the evidence with regard to the other parts of the occurrence, we have accepted the evidence of the prosecution witnesses (PWs 1 and 3 to 6) with regard to the assault on the person of the deceased by the appellant Kailash by means of a Tenta. The eye-witnesses other than PW 1 had, no doubt, testified that the appellant Kailash had used the Tenta in the assault on the person of the deceased which had been handed over to him by the appellant Suli Dei and this part of the evidence against the appellant Suli Dei had not been accepted by us. But it clearly appears from the evidence that the earliest version given by PW 1 in the F. I. R. that the appellant Kailash brought the Tenta from somewhere and assaulted the deceased and his evidence in the Court to the same effect would represent the truthful version and that the other witnesses had made this allegation evidently with the purpose of strengthening the case of the prosecution against the appellant Suli that, she had abetted the commission of the offence of murder, 24. The evidence on which the prosecution sought to build its case was of a partisan character. We have, however, taken care to scan their evidence before accepting the same with regard to the assault on the deceased by the appellant Kailash. The doctrine falsus in uno, falsus in omnibus is not accepted by the Courts in India. It is the duty of the Court to sift the grain from the chaff and truth from falsehood. We find, for the reasons already recorded by us, that the evidence of PWs l and 3 to 6 that the appellant Kailash had pierced a Tenta into the chest of the deceased is true and reliable. This appellant had chosen a vital part and had pierced the Tenta into the chest of the deceased. The evidence of PW 11 would undoubtedly show that the death of the deceased was homicidal in nature, PW 1 had found a penetrating injury into the chest cavity on the right side of the deceased which had caused internal injuries, ante-mortem in nature, sufficient in the ordinary course of nature to cause death which was due to shock and haemorrhage, as testified by him and recorded in the post-mortem report. (Ext. 16). We would, therefore, accept the finding recorded by the trial Court that the appellant Kailash had the intention to cause the death of the deceased and that with that intention, he had assaulted the deceased by a dangerous instrument resulting in his death. His conviction under Section 302 of the Code was legal and justified. 25. In the result, the appeal is allowed in part. The order of conviction passed against the appellant Kailash under Section 302 of the penal Code is maintained and he is sentenced to undergo imprisonment for life. The orders of conviction and sentences passed against the other appellants are set aside. Their bail bonds be cancelled. P.K. Mohanti, J. 26. I agree

Author: B Behera

Kailash Chandra Sahu And Ors. vs The State on 11 February, 1983

Orissa High Court

IN THE HIGH coum' or KARNATAKA AT BA§¢G.§LtiIéE k DATED THIS THE 13TH DAYOF' uIA1wAIz3' THE HOBPBLE MR;J§E§FICf5iV.N,.§HA§§D}i;,V:4'V CRIMINAL PET:T1oN§{gt;. 1800 o*i?2o0j7 BETWEEN: %% 7% 1. SMT BHAV&'fiI,_W/O' V' AGEI3A£goU3?_49vL2AIes-V'* - S'I'AF'F l,f\_1'L',RS$ _rm:sr_ . R ATURV5;=S'I'C:RES"=.ff'-V, V- ANGA15OR_E»'_ '. {By%'Sfi.': TA:é§é;§;uz%;7'§Vz%*c1§: S:;i .K M_~NATARAJ, ADVOCATE) PETITIONER 11* U SMT LATER KUMAQ wio SR1 RAMA $"FAF53' NURSEVIN E531 HOSPITAL .. «E3/A'? ESI QURRTER3 " RKADRI ..... .. t--d MAN-G£:L{>RE-2 _ .. RESPONDENT (By. bsvmasa RAO, ADVOCATE} DISMISSING THE REVISION PE'I'§'I'§ON A!%§§""'vv£;fs§fAi"{.[j' APPROPRIATE COMPENSATION. This petition, coming on Vfof adzni-.$si_§>fi, ' the Court, madethcfollowing: " onnag Agmeved by :nadeqpa§y o£%.?fine ' and compensation ordered' « petitioner was consideratjezi, the findings .. I a learned counsel for peti::ione§~;%_ A % _'_j1'11cVv:-f' was convicted under Section Instruments Act. She was directed to fiIi§é:".jQfA':=.I§s.15,0O0/- with interest at 6% fmm V snout of the same a 81111} of Rs.1,000/~ is , 'A Vwtso be appropriated towards fine and remaimh g has to be paid as compensation to the V A % % % iféompzaixxant. N , 4. passed by the courts below. interfere with the same, dismissed at the stage of aditiifision. V Sd/-:1 Judge I do nut see any legal . _ Acfcofd-ingly, V 3 is L.

Author: N.Ananda

Smt Bhavani W/O Gopinath vs Smt Latha Kumari W/O Sri Rama on 13 January, 2009

Karnataka High Court

* * * * * JUDGMENT Jagat Narayan, J. 1. This is a decree-holder's appeal against an order of the Senior Civil Judge Ajmer passed in execution proceedings. 2. A decree for Rs. 10,600/- was passed in favour of the decree-holder against the Maharaja Kishangarh Mills Ltd. on 13-7-56 by the Senior Civil Judge Kishangarh. The decree-holder filed his first execution application on 10-8-56 in which the decretal amount was shown as Rs. 10,000/-. It was pointed out by the office that the amount was not correctly shown. He was directed to amend the application. He presented an amended application on 4-9-56 on which execution case No. 239/56 was registered. In column No. 10 of the application it was prayed that moveable and immoveable properties of the judgment-debtor may be proceeded against. 3. On 31-10-56 on the application of the judgment-debtor three months time was granted to it to bring a stay order from the Supreme Court on furnishing adequate security to the satisfaction of the executing court. Trilok Chand respondent No. 1 filed a surety bond on the same day, which runs as follows: U;k;ky; flfoy tt egksn; fd'kux< Jh ujflagnkl yknwyky enuxat --------------------- fMfØnkj cuke nh egkjktk fdlux<+ feYl enuxat --------- en;wu :- 10600½ :- djhcu tekur ukek mijksä fo"k; esa en;wu egkjktk fd'kux<+ feYl fyfeVsM dh vkSj ls tekur ryc gS blds fy;s eSa fryksd pUn oYn ukuwyky lkfdu enuxat ;g tekur 10600 :- vad nl gtkj NS lks :i;s dh tekur is'k dj bdjkj djrk gwa fd ;fn en;wu egkjktk fd'kux<+ feYl fyfeVsM us 3 ekg esa mijksäs fMØh dh vihy lqizhe dksVZ esa ugha dh o bl U;k;ky; }kjk bl mä btjk; dh lohy vkjEHk gqbZ rks mDr en;wu egkjktk fd'kux<+ fyfeVsM dh tk;nkn ls fMØh dh jde olwy ugha gks ldsxh rks eSa tkehu frykspan oYn ukuqyky fuoklh enuxat mijksä btjk; dh jde Lo;a vius ?kjk?k: vnk d:axk o ;fn vnk ugha d:axk rks bl U;k;ky; dks vf/kdkj gksxk fd mijksä jde esjs eky eudwyk rFkk xSj eudwyk ls olwy dj ysosA ;g tekur ukek fy[k fn;k gS lks izekf.kr jgsA fouhr     fryksdpan ikiMhoky- 4. This bond was accepted by the Court and execution proceedings were stayed on 5-1-57. Trilok Chand applied for further extension of time which was granted upto 16-2-57. No appeal was however filed in the Supreme Court even within this extended time. On 21-2-57 the court issued notice to the surety requiring him to deposit the decretal amount in court by 13-3-57. On 13-3-57 which was fixed as a date of hearing in the execution proceedings all the parties appeared in court. The surety filed an objection that under the terras of the bond he was only entitled to be proceeded against if the decree-holder was unable to recover the money from the properties of the judgment-debtor and that the money should first be recovered from the judgment-debtor. On the same date an application was filed on behalf of the judgment-debtor offering to pay a sum of Rs. 1000/- forthwith and praying that the rest may be recovered from it in instalments payable during the next 12 months for which it was prepared to offer adequate security. This offer was not accepted by the decree-holder. The two-applications were posted for orders on 2-4-57. On that date the decree-holder filed a receipt showing that he had received a sum of Rs. 1000/- from the judgment-debtor and prayed that the execution proceedings be consigned to the record room. The court passed the following order: D. H. present J. D.'s pleader present, D. H. filed a receipt for Rs. 1000/- and did not wish to proceed further with the execution. It is ordered that the execution proceedings be consigned to the record room in part satisfaction of the decretal amount. J. D. shall pay costs. The amount remaining due is reduced by Rs. 1000/- and is now Rs. 9,620/1/-." On 18-4-57 the decree-bolder filed a fresh execution application against the judgment-debtor and the surety. It was registered as Execution Case No. 139/57. (The proceedings were subsequently transferred to the court of Senior Civil Judge Aimer where it was registered as Execution Case No. 131/58.) Relief was only sought against the judgment-debtor in this application. On 16-5-57 an application was filed by the decree-holder praying that the property of the surety should be attached to realise the money. On 17-7-57 the surety appeared and filed an objection. He referred to his objection filed on 13-3-57 and further stated that he was discharged on 2-4-57 when the decree-holder accepted Rs. 1000/- from the judgment-debtor and did not wish to proceed further with the execution. The arguments of the parties were heard on the objections raised by the surety, but before a decision was given by the executing court the decree-holder made a statement on 27-7-57 that he did not want to proceed against the surety. He proceeded against the properties of the judgment-debtor some of which were attached on 30-7-57. 5. On 25-3-58 he filed an application in which he stated that it was not possible to recover the money from the judgment-debtor as it was indebted to the extent of rupees twenty-five lacs and all the old machinery and buildings belong to Maharaja Kishengarh Somyog Mills Ltd, and there was no property owned by the judgment-debtor from which the money remaining due could be recovered. He accordingly prayed that the money should be recovered from the surety. On this application notice was issued to the, surety to show cause why the money should not be recovered from him. This notice does not appear to have been served on the surety. 26th April 1958 was fixed for hearing the surety if he had any objection to the decree being executed against him. As no objection was filed on his behalf an order of attachment of his property was passed in execution of which his property was attached on 29-5-58. The surety then appeared and filed an objection supported by an affidavit on 2-7-58- Thereafter the surety moved for a transfer of the execution proceedings to some other court. The proceedings were then transferred to the court of the Senior Civil Judge Ajmer on 29-9-58. On 12-1-59 the decree-holder filed a reply to the objections. The objections were heard by the learned Senior Civil Judge who held that the liability of the surety came to an end on 2-4-57 when execution case No. 239/56 was consigned to the record room on part satisfaction of the decree. He also held that according to the terms of the surety bond the money could only be recovered from the surety after all attempts had been made to recover it from the properties of the judgment-debtor and it could not be so recovered. 6. The first question to be determined in the present appeal is as to whether the liability of the surety under the bond is not co-extensive with that of the judgment-debtor. Section 128 of the Contract Act runs as follows: "The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract." 7. Under Section 126 a 'contract of guarantee is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The surety bond provides that if the decretal amount cannot be recovered from the properties of the Maharaja Kishangarh Mills Ltd. then the surety would be liable to pay it. 8. On behalf of the appellant it was contended that the learned Senior Civil Judge erred in holding that the bond contained a contract to the contrary within the meaning of Section 128. Reliance was placed on a Division Bench decision of the Lahore High. Court in Kuckreja Ltd. v. Said Alam, AIR 1941 Lah 16 which followed the decision of the Madras High Court in Swaminatha v. Lakshmana, AIR 1935 Mad 748. The wordings of the surety bond in the Lahore case were as follows: "Please note that if you supply any goods to the Civil and Military Sports Works, Sialkot, on credit or on hundi and are unable to realize the price thereof from the Civil and Military Sports Works I and my property will be responsible for that amount." 9. It was held that these words did not contain any express or implied provision to the effect that the liability of the surety would not be coextensive with that of the principal debtor. The terms of the surety bond in the Madras case which was relied upon were: "If there be default in payment of the said amount and if money be due to you and in case you are not able to recover the amount so due from them, I agree to pay the same to you." 10. Madhavan Nair, J. held that the language o£ the bond did not imply a contract contrary to the general principle that a surety's liability was coextensive with that of the principal debtor. 11. The decision of the Calcutta High Court in Md. Yusaf v. Ram Govinda, AIR 1928 Cal 177 (2) which was relied upon by the learned Civil Judge was distinguished in the above case on the ground that the language used in the surety bond was not specified in the judgment. 12. I may mention here that the surety is regarded as a favoured debtor who is entitled to insist upon a rigid adherence to the terms of his obligation by the creditor and cannot be made liable for more than he has undertaken. His contract is one strictissimi juris. (See Halsbury's Laws of England, Volume 16, Hailsham Edition, Part V, Article 52 page 59) With all respect to the learned Judges who decided the above cases I do not see why words to the effect "if you are unable to realize the price thereof from the Civil and Military Sports Works I and my property will be responsible for that amount" as used in the bond in the Lahore case, AIR 1941 Lah 16 and the words "in case you are not able to recover the amount so due from them, I agree to pay the same to you" as used in the Madras case, AIR 1935 Mad 748 should not be given their natural meaning. They clearly imply that the surety would become liable only in case all remedies against the principal debtor failed. No doubt a contract of guarantee can only be enforced if there is a default on the part of the principal debtor. The words to the effect "if there be a default in the repayment of the loan you may look to me for repayment1 as used in Sreenath Roy v. Peary Mohan, AIR 1917 Cal 154 or to the effect "if he should fail to pay, any amount so payable shall be realised from me" as used in Form No. 2 of the Security bond given in Appendix G of the Code of Civil Procedure Code no doubt do not indicate any contract to the contrary within the meaning of Section 128. 13. On behalf of the respondent my attention-was drawn to Dialoo Mal v. Firm Nandu Shah Jai Lal, AIR 1927 Lah 846 in which according to the terms of the decree the decretal amount was payable by the surety if it were not realised from the principal debtors it was held that before the surety becomes liable all remedies should be exhausted against the principal debtors, 14. I accordingly hold that in the present case the decretal amount can be recovered from the surety only when the decree-holder is unable to recover it from the property of the judgment-debtor. No evidence was produced on behalf of the decree-holder to show that he was unable to realise the money from the property of the judgment-debtor.

Author: J Narayan

Firm Narsingh Das Ladu Mal vs Trilokchand Paddiwal And Anr. on 10 February, 1961

Rajasthan High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 18507 of 2008(C) 1. K.BULBENDRAN, S/O.T.R.KESAVAN, ... Petitioner Vs 1. THE KERALA STATE ROAD TRANSPORT ... Respondent 2. THE EXECUTIVE DIRECTOR (VIGILANCE), 3. THE ASSISTANT TRANSPORT OFFICER, For Petitioner :SRI.N.UNNIKRISHNAN For Respondent : No Appearance The Hon'ble MR. Justice K.M.JOSEPH Dated :14/08/2008 O R D E R K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 18507 OF 2008 C ```````````````````````````````````````````````````` Dated this the 14th day of August, 2008 J U D G M E N T Petitioner seeks a direction to implement Ext.P1 within a reasonable time. Petitioner has preferred Ext.P2. Ext.P1 is the order passed in the revision petition filed by the petitioner. The Appellate Tribunal had allowed the revision petition and also declared that the petitioner is entitled to all the benefits in service. 2. I heard learned counsel for the petitioner and learned standing counsel. The learned standing counsel submits that a decision has been taken and a direction has been given to implement Ext.P1 and that Ext.P1 will be implemented within two weeks by the 3rd respondent. I record the submission of the learned standing counsel and direct that Ext.P1 will be implemented at any rate, within the maximum period of three weeks from today. Writ petition is disposed of as above. Sd/- (K.M.JOSEPH, JUDGE) aks 

K.Bulbendran vs The Kerala State Road Transport on 14 August, 2008

Kerala High Court

JUDGMENT P. JAGANMOHAN REDDY C.J. - This court had directed the Income-tax Tribunal to state a case on the following question, viz. : "Whether, on the facts and in the circumstances of the case, the amount of Rs. 26,251 is not a permissible deduction under section 10(1) or 10(2)(xi) of the Indian Income-tax Act ?" The answer to this question depends on whether the sum of Rs. 26,251 has been established to represent bad debts. The assessee is a firm of three partners and the partnership was registered under section 26A of the Income-tax Act. For the assessment year 1955-56, for which the relevant accounting period was the year ended October 24, 1954, the assessee had written off certain items of debts owing from seven persons. These debts arose out of speculative transactions with the above seven persons in oil seeds, which were prohibited under law. The transactions entered into by the assessee resulted in profits, and since the method of accounting of the assessee was based on mercantile system, he had, on accrual basis, shown these amounts as income from speculative business, and, it is not denied, they were assessed and made liable to income-tax. These facts are not in dispute, and both sides as well as the statement of the case assume them to be correct. The assessee, however, claimed these amounts as bad and doubtful debts, when they were not paid and became irrecoverable. The Income-tax Officer wrote to the seven debtors enquiring whether they are intending to pay the amount; but except in the case of one person, Srikishan Narayanadas, in respect of a sum of Rs. 3,164, no reply was received from the others. Srikishan Narayanadas stated that he was unable to pay the debt. The Income-tax Officer disallowed all these debts including that of Srikishan Narayanadas, on the ground that the assessee on whom the primary responsibility of proving the claim rests, has not discharged the burden of proof. In respect of the reply received from Srikishan Narayanadas also the Income-tax Officer stated that the version given by him and the assessee were contradictory, inasmuch as while the assessee stated that Narayanadas had refused to pay, Narayanadas stated he was unable to pay. In appeal, the Appellate Assistant Commissioner frankly stated that so far as Srikishan Narayanadas is concerned, it was a clear case of bad debt; and whether he refused to pay the amount or whether he was unable to pay the amount, the fact remains that the debt of Rs. 3,164 due from him could not be recovered. He had, therefore, allowed it as a bad debt. In so far as the other debtors are concerned, as the Income-tax Officer did not receive a reply and since the assessee did not produce any letter of confirmation from them, he held that those amounts were not proved to be bad debts and were rightly disallowed by the Income-tax Officer. The Tribunal also rejected the claim of the assessee, on the grounds, firstly, that although the Income-tax Officer himself wrote to those parties, they refused to confirm or deny their liability or unwillingness to pay evidence to show that, apart from the unenforceability of the claims against the parties, either the parties were unable to pay the amounts or had even refused to pay the amounts. The Tribunal further observed that there is no proof that the debts are trading debts, which alone can be allowed as a deduction under section 10(1) or section 10(2)(xi) of the Act. In this view, the Tribunal also rejected the claim of the assessee. It appears to us that the basic assumption made by all the three income-tax authorities is that there is no proof of the existence of the debts themselves. This appears to us to be contrary to the nature of the debts which were accrued. They are not debts due on any borrowings; they are debts due on certain transactions and that too, business transactions of a speculative nature. The Income-tax Officer, in his order, has described the business of the assessee as "commission, trade in rice, etc., and speculation business". It may also be pointed out that a sum of Rs. 13,239 has been claimed by the assessee as speculation trade loss. The Income-tax Officer also treated this speculation as business and dealt with the matter as such, so that the question of the speculative transactions being in the nature of business was nowhere contested. The Appellate Assistant Commissioner also has treated one of the debts as a bad debt which can only be on the basis that it was incurred as a trading debt. The Tribunal also in its order stated that the assessee had entered into certain speculative transactions in oil seeds which were prohibited under the law, with certain parties. In a mercantile system of accounting, as is well known, the accounts are maintained on the basis of accrual. If goods are sold but the amount is not received, it is deemed to have been received on the date when the goods were sold, and the amount entered as if received, i.e., a credit will be shown of this amount in the books of the firm or individual, while a corresponding debit will be shown in the ledger of the person to whom the goods have been sold. In other words, the buyer becomes a debtor to the company in respect of that transaction as soon as the goods are sold. It is difficult to support the assumption of the income-tax authorities that there were no debts and that the entries made in respect of each of the debtors in the books of the assessee are not proof of those debts. There is little doubt that the debts due from the 7 persons were incurred in the course of their business or trade. It is only on that assumption that the Income-tax Officer addressed letters to all the debtors. But, as the Tribunal has pointed out, since these debts are speculation debts incurred in transactions prohibited by law, which presumably contravene the Forward Contracts Regulation Act, and in some instances if they come under section 15 of that Act are even punishable under section 20(2) thereof, the non-receipt of replies from the debtors to the letters of the Income-tax Officer is understandable. the absence of replies itself shows that the debtors were not prepared to admit the debts or payment thereof. Even the Tribunal has stated that the debts due from the several debtors are "unrealised profits". Whether you call them unrealised profits or debts, it means no more than that what has been shown as a notional accrual and subjected to income-tax, has been treated as a debt and is liable to be deducted as a business debt if it is not paid. The provisions under which the deductions are claimed are section 10(1) and section 10(2)(xi) which read as follows : "10. (1) The tax shall be payable by an assessee under the head Profits and gains of business, profession or vocation in respect of the profits and gains of any business, profession or vocation carried on by him. (2) Such profits or gains shall be computed after making the following allowances, namely :-........ (xi) when the assessees accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, such sum in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, and in the case of an assessee carrying on a banking or money-lending business, such sum in respect of loans made in the ordinary course of such business as the Income-tax Officer may estimate to be irrecoverable but not exceeding the amounts actually written off as irrecoverable in the books of the assessee : Provided that if the amount ultimately recovered on any such debt or loan is greater than the difference between the whole debt or loan and the amount so allowed, the excess shall be deemed to be a profit of the year in which it is recovered and if less, the deficiency shall be deemed to be a business expense of that year." A reading of these two provisions would show that the deductions are permissible when the assessees accounts in respect of any part of the business, vocation or profession are maintained on any basis other than cash basis. Mercantile accounting is one such basis. Section 10(2)(xi) clearly envisages debts arising out of transactions of the nature which we are considering. It is not denied that debts arising in a speculation business prohibited under law are unenforceable. No suit can be filed for the recovery thereof, though it cannot be said in all cases that they are irrecoverable. It a debtor under moral obligation or to maintain his good name, pays off the debt, it is a recoverable debt. Mr. Srinivasa Rao contends that every unenforceable debt must be treated as a bad debt, - a proposition which we cannot accept without the further qualification that there must be some proof that that debt, notwithstanding the fact that it is unenforceable, was, in fact, not realisable. In support of his proposition, Mr. Srinivasa Rao has cited Commissioner of Income-tax v. Pranlal Kesurdas and Mr. Venkatappa, appearing for Sri Kondaiah on behalf of the department, cited several decisions in support of the proposition that there must be proof that the debts are not recoverable. We may, before examining some of these cases, observe that each of those cases was decided upon the particular facts and circumstances of that case, and cannot help in a decision on the facts and circumstances of this case. The proposition which these cases establish is that, in order that a debt may be allowed as a bad debt, two conditions are to be satisfied, viz., that there is a debt which is a business or a trade debt, and secondly, that before it is allowed to be written off, there must be proof that it has become irrecoverable. The mere fact that the assessee has written off these debts in his books is not sufficient to warrant a claim for treating them as bad debts. In Commissioner of Income-tax v. Pranlal Kesurdas the assessee carried on the business of adatia and speculation, and one of the assessees constituents incurred a loss of Rs. 14,960 in certain forward transactions in turmeric which the assessee had put through. The constituent was unable to pay the loss suffered by him, and the loss fell on the assessee. Subsequently, the constituent paid Rs. 4,000 to the assessee in full settlement of the debt and the assessee wrote off the balance of Rs. 10,960 as a bad debt. The assessee claimed this amount as a bad debt, but was disallowed. A Bench of the Bombay High Court held that the circumstances that the debt owing to the assessee from the constituent was not capable of being enforced in a court of law did not prevent the debt from being considered as irrecoverable or bad; and that on the particular facts and circumstances of the case, the inability of the assessee to recover the dues from the constituent or their becoming bad was not as a consequence of the decision of the Supreme Court but by reason of the inability of the constituent to fulfill the obligation to pay, and, therefore, the sum of Rs. 10,960 became bad and the assessee was entitled to deduct it in the computation of his business profits. Alternatively, it was held, as at the time when the forward transactions were entered into, they were entered into in the belief that the transactions were legal and the dues owing to the assessee in these transactions were considered by him as good and recoverable until it was decided by the Supreme Court that the transactions were illegal, with a consequence that the dues could not be recovered. If the constituent was either unable to pay the dues or refused to pay them because of the legal disability on the part of the assessee to recover them, the loss resulting from the transactions could be said to have fallen on the assessee at the point of time when the inability of the constituent or his refusal to pay occurred. It would be observed from this finding that the point of time at which the inability of the constituent or his refusal to pay occurred, is again a question of fact, the onus of which is upon the assessee to establish. In the result, the Bench held that the assessee was entitled to have the amount allowed as deduction. Desai J. at page 938, while considering the arguments of the departmental representative, that inasmuch as losses have arisen out of transactions which were forbidden by law and rendered illegal by providing a penalty for persons entering into such transactions in breach of the prohibition order, the losses could not get the character of debts at all, and consequently, there would be no question of their becoming bad or irrecoverable at a subsequent stage, observed : "For one thing, if a specific head is provided under section 10(2) and an item is not allowable under that head, it could not be allowed either under the residuary head or even under section 10(1). Secondly, even if the losses in the present case were capable of being regarded as commercial losses, they obviously could not be allowed in the years of assessment because they did not pertain to those years, but to earlier years on the assessees own case, which was that the debts became bad in the years of account." The further argument of Mr. Joshi that a liability in order to constitute a debt has to be legally enforceable, was considered and rejected. At page 939, the learned judge said : "Moreover, it is also well-settled that subject to the special requirements of the Act, the computation of the profits for the purposes of section 10 will have to be arrived at in a commercial manner by deducting such expenses as in a commercial sense can be regarded as expenses of the business though not specifically provided for under any of the specific heads under section 10(2). The computation of profits under section 10(2) permits the deduction of dues or debts due to the businessman in the course of the business which have become bad or irrecoverable. The circumstances that the business is illegal so that neither the profits earned nor the losses suffered would be enforceable in law is not a circumstance which detracts from the profits being taxed. Equally so it should not be a circumstance which should detract from the losses being allowed." This decision was followed in Commissioner of Income-tax v. R.B. Rungta & Co. by the same Bench. In that case also, in the course of its business as commission agents, the assessee put through certain transactions on behalf of its constituents in forward business, in commodities which were found to be prohibited under the Spices Forward Contract Prohibition Order, 1944. Some of the constituents did not pay their losses, and when the assessee attempted to recover the amounts they refused to pay on the ground that the transactions, being in essential commodities, were forbidden by law, and the assessee had no enforceable claim against them. The assessee had, however, to pay to the association the amount of the constituents losses, because as a condition of its business as adatias, it had given an indemnity to the association that if the losses were not paid by the constituents, they would be paid by the assessee. The amounts so paid were claimed by the assessee as amounts which had become bad and irrecoverable, but the claim was disallowed by the Income-tax Officer on the ground that since the debts were not enforceable under law they could not be considered to have become bad and were, therefore, not allowable for income-tax purpose. The Appellate Tribunal, however, took the view that the assessees claim for deduction of this amount could be allowed either under section 10(2)(xi) of the Indian Income-tax Act, 1922, or on general principles governing the computation of profits under section 10(1). The Bench held that the Tribunal was entitled to grant relief to the assessee not merely under the head under which the assessee had made its claim, but even in the alternative under another head, namely, by way of commercial losses under section 10(1) of the Act. It also observed that the legal unenforceability of the assessees claim did not prevent the amounts from being bad and irrecoverable debts for the purposes of the computation of the taxable income of the assessee, and, therefore, the amounts could also be allowed as bad and irrecoverable debts under section 10(2)(xi). These two cases are an authority for the proposition that the debts to be written off, must be trade or business debts and that there should be proof that they are bad and irrecoverable debts. None of these propositions can be doubted. In the present case, it is clearly established, and even admitted by the department, that the debts are business debts, and in respect of one of which, at any rate, the debtor had expressed his inability to pay the debt, and it was accordingly written off. It is only in respect of the other debts the question arises whether there is any proof that those debts have become unrealisable. Two circumstances can be taken into consideration in coming to the conclusion that the debts had become irrecoverable. Firstly, the very fact that the Income-tax Officer took the statement of the assessee that the debts have become irrecoverable at its face value, and went out of his way to obtain confirmation of it by writing to the debtors, would show that the statement of the assessee was, prima facie, convincing. Secondly, the refusal of the debtors to reply to the Income-tax Officers letters would show that they did not want to commit themselves and, consequently, an inference would arise that they did not want to pay. The Tribunal itself has stated that these debts were "unrealised profits". Whether you described them as unrealised profits or unrealised debts, nonetheless they are unrealised. Nothing has been stated to show that subsequently at any rate, they were realised. In some of the cases, subsequent realisations have been taken as indicating that the debts were realisable. In this case, nothing has been stated as to whether these debts were realisable or realised. On the facts set out in the statement of the case, we have no hesitation in accepting the contention of the learned advocate for the assessee that the assessee could not do more than what he had done to recover these debts (short of filing a suit, which in law he cannot do) and that he had every reason to write them off as debts which are not recoverable. The attempt by the Income-tax Officer to get confirmation of the existence of the debts and their irrecoverability supports the case of the assessee. Our answer to the question, therefore, is in the affirmative and in favour of the assessee, with costs. Advocates fee Rs. 250. Question answered in the affirmative.

Badrinarayan Balakishan vs Commissioner Of Income-Tax, A.P. on 23 June, 1967

Andhra High Court

JUDGMENT G.C. Garg, J. 1. Sikattar Singh filed a suit for declaration against his brother Charanjit Singh in October, 1991. During the pendency of the suit, defendant moved an application for appointment of a Local Commissioner. The trial Court on a consideration of the matter, dismissed the application by Order dated 24.11.1993. It is this order, which is under challenge in this revision petition. 2. Learned Counsel for the respondent placing reliance in the case of Smt. Harvinder Kaur and Anr. v. Godha Ram and Anr., A.I.R. 1979 Punjab 76 submitted that the order passed by the trial Court on an application for the appointment of a Local Commissioner is not revisable especially when the trial court has refused to appoint a Local Commissioner. In the present case, as already noticed above, the trial Court on a consideration of the matter and by observing that the plaintiff has shown the whole of the house in dispute as his ownership whereas the defendant has shown about half portion of the house in dispute as his own and the remaining half, pertaining to the plaintiff. A Commissioner cannot be appointed to report as to which of the party is in possession of the house in dispute because it would amount to delegate the power of the court to determine the real issue in this case, has dismissed the application for the appointment of a Local Commissioner. 3. In view of the Division Bench judgment of this Court, I see no ground to interfere with the order of the trial Court. The Civil revision is consequently dismissed. No Costs. 4. Since passing of the final order had been stayed, parties through their counsel are directed to appear before the trial court for disposal of the suit in accordance with law at a very early date and not later than 30.4.1999.

Author: G Garg

Charanjit Singh vs Sikattar Singh on 11 December, 1998

Punjab-Haryana High Court