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JUDGMENT Sundara Aiyar, J. 1. I see no reason to doubt that the decision of the lower Appellate Court is right. It has been found that the 1st defendant's husband was adopted by Venkatalakshamma to her husband, Pedda Kamayya. * * * 2. The next point raised is that, as it is found that Venkatalakshamma was in possession, the 1st defendant's husband's right to the property was extinguished and that the 1st defendant has, therefore, no right to retain possession now. An issue was raised in the Court of first instance with respect to the possession of the 1st defendant. The issue is in these terms: "Whether the suit lands were in the possession and enjoyment of the 1st defendant for over 12 years before the institution of the suit?" The wording of the issue is rather curious. If the object were to raise the question now argued before me, one could have expected it to be framed somewhat in these words: "Whether the possession of Venkatalakshamma was adverse to the 1st defendant, and whether the 1st defendant's right was extinguished by Venkatalakshamma's possession?" The issue as framed would have been appropriate to a suit in ejectment by the 1st, defendant against Venkatalakshamma or any one else who obtained possession from or through her. As it is, there was no question raised as to whether Venkatalakshamma's possession was on behalf of or adverse to the 1st defendant. The District Munsif did not deal with this issue at all. On appeal, the 8th ground in the memorandum of appeal was: The lower Court should have recorded findings on issues Nos. 4 and 5 and also decided the same in favour of the appellants." The Subordinate Judge merely finds that Venkatalakshamma obtained the land as the heiress of her husband and was in possession, and that she did not hold it as a maintenance grant from the plaintiff's grandfather. 3. In second appeal, Mr. Nagabhushanam, of course, perceived what was necessary to entitle his client to succeed, and took the point in his 4th ground of appeal that ' the 1st defendant's husband having died more than 12 years ago, and Venkatalakshamma been in possession prior, as well as subsequent, to his death, the right of the 1st defendant, if any, to the property in dispute has been extinguished." It is by no means clear to my mind that this point was really raised in either of the two lower Courts. If Venkatalakshamma was in possession adversely to (he 1st defendant, then, no doubt, the 1st defendant's claim to recover possession from Venkatalakshamma would be barred at the expiration of 12 years. But even this would not be sufficient to give the plaintiffs a right to succeed on the death of Venkatalaksharama. The question would be, assuming Vankatalakshamma's possession was adverse to the 1st defendant, what was her animus possidendi? Did she assert an absolute title in herself or did she claim to hold as the heiress 'of her son? The latter would be the ordinary presumption, in the absence of any evidence to the contrary; and if she held as heiress of her son, on her death, the person entitled to succeed would be her son's heir, that is, the 1st defendant, and the plaintiffs would have no title to recover. It was incumbent on the plaintiffs, in order to disclose a title to succeed to the property on the death of Venkatalakshamma, to state that Venkatalakshamma by prescription had acquired a title which would descend to the heirs to property held by her as stridhanam. 4. This they did not do. * * * 5. The point now put before me not having been raised in the Courts below, and it being one which would require an investigation of facts, I am bound to disallow it. I, therefore, dismiss this second appeal.

Author: S Aiyar

In Re: Prattipati Seshayya And ... vs Unknown on 26 January, 1912

Madras High Court

Court No. - 28 Case :- BAIL No. - 4497 of 2010 Petitioner :- Ved Prakash Verma Respondent :- State Of U.P. Petitioner Counsel :- Ravi Singh Sisodiya Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J. Heard the learned counsel for the applicant and the learned AGA and perused the record. The learned counsel for the applicant submitted that allegation of rape has been made against co-accused Raj Nandan Verma. According to the FIR the applicant was present at the scene of the occurrence and no overt act of the applicant has been alleged. It was also submitted that the applicant has been implicated due to enmity. There does not appear to be any reasonable ground to believe that the applicant will temper with the witnesses or abscond, if released on bail. Keeping in view the nature of the offence, evidence, complicity of the accused, the severity of the punishment and submissions of the learned counsel for the applicant and the learned AGA, I am of the view that the applicant has made out a case for bail. Let the applicant Ved Prakash Verma involved in case crime No. 358 of 2010 under sections 452 and 376 IPC, P.S. Tarun District Faizabad be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate Faizabad. Order Date :- 13.7.2010 MTA

Ved Prakash Verma vs State Of U.P. on 13 July, 2010

Allahabad High Court

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Punit And Others vs State Of U.P. & Others on 12 August, 2010

Allahabad High Court

Court No. - 49 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 301 of 2007 Petitioner :- Pradeep Respondent :- State Of U.P. & Another Petitioner Counsel :- G.C. Saxena Respondent Counsel :- Govt. Advocate,Deepak Rana Hon'ble Rajesh Dayal Khare,J. Recall application has been filed for recalling the order dated 7.10.2009 passed by Hon'ble Mr. Justice S.K. Jain. Let the records of this case be placed before His Lordship Hon'ble the Chief Justice for nomination of the Bench. Order Date :- 2.2.2010 Hasnain

Pradeep vs State Of U.P. & Another on 2 February, 2010

Allahabad High Court

JUDGMENT S. Ravindra Bhat, J. 1. Issue Rule. With consent, matter was finally heard. 2. In these proceedings under Article 226 of the Constitution, the petitioner seeks appropriate directions to the respondent (hereafter NDPL) to consider his case for two time bound promotions w.e.f. 01.10.92 and 13.03.99 respectively in terms of an order of the erstwhile DESU (subsequently succeded to by the DVB) dated 16.07.92 and the order dated 23.07.97 as amended later. Consequential directions to release arrears of salary and emoluments have also been sought. 3. The petitioner, a permanent employee working with the NDPL from the year 1968, was promoted to the post of Inspector; he was confirmed on 15.01.92. 4. A scheme was introduced on 16.07.1992 ('the 1992 scheme') to relieve the stagnation of employees. Those employees/officers in service, who had completed 11 years of services were allowed benefits and given scale of pay upon completion of requisiteperiod of service. It is averred that the petitioner had completed 11 years of service as on 13.03.92 and was therefore entitled to the financial upgradation under the scheme. This was apparently not given on account of the scheme having been kept inabeyance. 5. The DPC met on 22nd October 1997 to consider the cases of those eligible for the benefit of financial upgradation under the 1992 scheme. The petitioner, however, had been issued a charge sheet on 4th September 1997. The disciplinary authority droppeproceedings/charge sheet, in 2001. Subsequently, two Departmental Promotion Committees apparently met to consider the cases of eligible candidates, who were to be recommended for the higher grade/scale of pay under the scheme. The petitioner was issuewith two other charge sheets dated 18.12.98 and 21.07.2001. 6. The subsequent two charge sheets resulted in passing of certain minor penalties; the second charge sheet (dated 18.12.98) resulted in passing of a censure order on 31.05.2000. The last chargesheet dated 21.07.2001 resulted in findings that led to an oder of stoppage of increment without cumulative effect, being passed on 05.12.2001. 7. With the advent of the Delhi Electricity Reforms Act 2000 and formulation of the transfer scheme, which became effective on 01.07.2002, the petitioner's services were assigned to the NDPL where he is presently working. NDPL is a party to these proceeings. 8. The petitioner approached this Court in the year 2003 complaining of non-consideration of his case for financial upgradation under the 1992 scheme, which had been continued with its existing modifications and applied by the NDPL. After notice was issud, both the NDPL as well as Delhi Transco have filed counter affidavits. 9. During the course of the proceedings, the Delhi Transco Ltd. was asked to produce the records since the counsel for NDPL had submitted that all the relevant records were with that organisation. 10. Ms. Avnish Ahlawat, counsel for respondent No.1/Delhi Transco, has produced the records today. They reveal that the petitioner's case for grant of financial upgradation under the 1992 scheme was in fact not considered in the year 1997. The only reasogiven by the appropriate authority/Committee in that regard was that the petitioner was facing vigilance proceedings on account of the first charge sheet dated 4th September 1997. The latter years also reveal a similar if not worse picture. The Committee has not granted any ranking nor even indicated whether he is fit for financial upgradation. All the records were handed over to counsel for NDPL. 11. I have heard counsel for the parties. The decision of the Supreme Court in K.V. Janaka Raman's case outlining the sealed cover procedure, which was adopted by the erstwhile DVB through its policies, (and has been also applied by theNDPL) is to the effect that an officer facing a departmental proceeding will not be denied consideration of his case for promotion/financial upgradation by the appropriate authority/Departmental Committee. In such cases, the procedure is that the officers name and records would be considered and the result kept in a sealed cover which would be opened after the passing of the final order by the disciplinary authority. 12. Having regard to the above and considering the state of the record, I am of the view that the respondent have surely failed in their duties as per the scheme as well as in accordance with the law laid down by the Supreme Court. The record relating tthe DPC of the year 1997 indicates that the DPC did not even consider it fit to look into the records of the petitioner; it was kept aside on the ground that he was facing an inquiry. However, the subsequent DPC of the year 2001 is slightly better in te sense that the petitioner's record was apparently noticed but his case was neither recommended nor declined. 13. In view of the above, the respondent NDPL is directed to consider the case of the petitioner for financial upgradation, under the 1992 scheme as of the year 1997 and 2001, respectively within a period of six weeks from today. In the event of the petitoner being found fit and entitled, suitable orders shall be passed four weeks thereafter. 14. The petition is allowed to the extent indicated above. No costs.

Author: S R Bhat

B.K. Gaur vs Delhi Transco Ltd. And Anr. on 18 August, 2005

Delhi High Court

JUDGMENT Rajindar Sachar, J. (1) I had in exercise of my powers u/s 482, Cr.P.C. directed that the various files of cases pending u/s IPC. 309 (attempt to commit suicide) in the trial Courts in Delhi, be summoned and placed before me for disposal. The files have been called by the Registry and placed before me. From the statement, I find that there are 120 cases pending in various trial Courts in Delhi, some pending since 1972. (2) Mr. Saini, Advocate, is present in Court. I have asked him to assist me in these matters. He appears amices curiae. Notice had been issued to the State. Sodhi Teja Singh, Standing Counsel for the State, also appears for Delhi Administration. (3) A.D.B. of this Court in State v. Sanjay Kumar, 1985 Cri. L.J. 931, in dealing with a case u/s 309, Indian Penal Code . observed that the "continuance of Section 309 Indian Penal Code . is an anachronism unworthy of a humane society like ours." It also observed that there was no justification for a provision like Section 309 Indian Penal Code to be on the statute book. It seems paradoxical that a person who, if the prosecution is to be believed, is so unhappy that he makes an attempt to commit a suicide, should, if he fails in his attempt, instead of being attended to by the medical doctors and psychiatrists, be arrested and roughed through by the police and face criminal courts for all these years which will coarsen him further. The Bench in that case found that the law u/s 167, Criminal Procedure Code . had been wrongly applied, but did not send the case for retrial because it felt that there was no justification to subject the accused to any further misery at the hands of the Courts and, therefore, upheld the acquittal of the accused. That judgment was given on 29.3.85. It is true that Section 309, Indian Penal Code . still continues on the statute book and technically speakinp, the offence continues to be there and if the police send up a charge sheet u/s 308 Ipc, the Courts cannot per se hold that a case has been sent up for an offence which is not a part of the statute. But 1 see no reason why the delay in repealing this provision which no longer finds place in almost all the civilised nations of the world should be applied so as to continue to add the backlogs to the already over worked courts. As it is there is enough of criminality in the society which keep the police, the prosecution and the courts busy for all the time and there is no reason to put more stress on these institutions than is absolutely necessary. I can only hope that this provision is removed from the statute book at the earliest. Personally speaking, I see no justification for the police to send up a case u/s 309 IPC. I would, in the circumstances, be inclined, as I do here intend, to quash all such cases pending in the lower courts u/s 309 Ipc, without reference to any individual facts of each case. The reason is that there is a broad common pattern in all these prosecutions, namely, an unhappy person has tried to take his own life, even if the prosecution case is accepted in toto. I consider it perverse that such an unhappy person should be further dragged in courts and that his trauma should be lengthened. I am, however, mentioning facts of a few cases to show as to how there is not even a semblance of a justification for prosecution u/s 309 Indian Penal Code and yet the proceedings are dragging on for years just because neither the police nor, unfortunately, the trial courts seem to look at this matter with a humane eye. (4) One of the usual ways in which prosecution are launched u/s. 309 Indian Penal Code is that whenever a person and almost invariably a person belonging to the poorer section of the society or a woman is admitted in a hospital in a critical condition and it is suspected that he has taken some article, it is assumed that such a person has deliberately taken poison to commit suick'e. The constable attached to the hospital would send up a report to the police station indicating that a person had been admitted in a condition of having taken some poison and thereupon a case u/s 309 Ipc is registered against him A number of cases before me relate to an ordinary labourer who is engaged in earning his daily living by working as a helper in white washing work wherein it is alleged that he had taken copper sulphate, which as it is known, is a common ingredient and is mixed up with lime for purposes of white washing. In almost all these cases the accused denies his guilt and lakes the plea that it was by inadvertence that that copper sulphate was taken by him. Not only that, the prosecution witness, right from the first deposes total ignorance and does not implicate the accused. Yet the public prosecutor does not accept his statement but obtains permission, which the court gives very routinely and if I may say so, quite mechanically to cross-examine the witnesses and yet nothing comes out of it. The court nevertheless proceeds on to continue with the prosecution. Adjournments are given for months. Many a time the prosecution witnesses are absent or the presiding officer is on leave or there is not time enough for the prosecution to cross-examine the witnesses. The poor victim is naturally under a compulsion to attend courts on every hearing. If he has a lawyer, he has to incur expenses and in any case, being poor he has to forego his daily earnings. Years roll by but the courts and the prosecution donot even spend a few minutes to consider calmly whether it is in anybody's interest to prosecute such socially maladjusted victims. I would have thought that there was enough of strong crime in the society which needed to be looked after by the police, the prosecution and the courts rather than such like cases. But no attention is paid to this aspect and things continue in ttte same unsatisfactory manner. (5) As I said before, it is not necessary to detail facts in each case. I am taking a few instances just as an illustration to show how mindless this prosecution is. Thus, in Crl R. 253/85 the accused, a young boy of 17 years, was charged on 24.3.83 for having attempted to commit a suicide by taking some poisonous substances. Public Witness 1, Dr. Vipin Arora, of J.P.N. Hospital, was examined on 9.9.83. He stated in his cross-exam, that he could not say whether the accused could have died as it is not known as to how much the accused has consumed cop er sulphate. Public Witness 3 Sanjay stated that he did not know anything about the case. Similar was evidence of Public Witness 4, Vinod Kumar who also stated that he did not know anything about the case. The prosecution instead of asking the court so acquit the accused in the present case stubbornly proceeded with it so much so that on 9.9.83 the case was adjourned to 25.11.83. On that date, no witness was present in Court and the Court without applying its mind adjourned the matter to 9.5.84. Again the court took time to record evidence and the case was adjourned to 19.9.84. On that day, Public Witness 4 was examined, who stated that he did not know anything about the case. Now the matter has been adjourned to 7.1.86. (6) Another instance of gross indifference shown by everyone to this unfortunate lot is shown in Crl. R. 255 of 1985. In this case, it appears that the accused was doing a job of whitewashing and in course of that job possibly took some 'neela thotha'. He was admitted to the hospital and the constable posted there sent report to the police station that since a person has been admitted in a delicate condition and it was not known what he has taken, a case u/s 309, Indian Penal Code has arisen and that is how the challan has been filed. A total indifference is thus shown. On 18.2.84 the respondent is charged with having taken copper sulphate to commit suicide. Public Witness 3, Bal K-ishan, was examined on 26.2.85 who state that the accused complained of pain and he asked him to take some medicine and by mistake he took copper sulphate. One should have thought that that would have been the end of matter. But no, the A.P.P again wants to cross examine him as if getting conviction of a helpless victim was to br the crowning success of his career. After 26 2.1985, the court record shows that nothing has been done. The matter was adjourned to 22.3.85 when the court was absent. Then it was adjourned to 14.10.85 and now it has been adjourned to 20.1.8). Jfsome one wants to turn people against courts, such like indifference will surely do that. We cannot certainly permit that. To allow such proceedings to continue is a disservice to the majesty of law. It is a matter of regret that Presiding Officers should act mechanically and not even look into the evidence which was recorded before them where the prosecution evidence is not supporting the charge at all. It is more serious because the charge is u/s 309 Ipc and the biggest victim, if any, is the person concerned. (7) In Cri. R. 261 of 1985 the father of the accused is present in court and has stated that the accused is under treatment in a Tb hospital even now and sometimes gets lit. The accused is present in court anil looks to me in bad shape and needs urgent medical attention rather than being pushed through the criniinaL courts. (8) Another peculiar case is Cr R. 265 of 1985. Here also Public Witness 1 was declared hostile because he said that he saw nothing. The accused in his own statement has stated that lie was arrested in a false case, beaten by the polite and falsely implicated. Is it not incongruous that that in such a case the accused was being prosecuted u/s 309 IPC. (9) In Cri. R. 272 of 1985, the accused Radhey Shyam appeared in Court on 24.12.82 for an incidenfot July, 1982. Again none of the prosecution witnesses supported the prosecution. But the case is going on merrily, being adjourned without ;iny evidence having been recorded. The firsi witness was examined on 19.1.84 PWs 2, 3 and 4 were also examined on the said date and the case was adjourned to 3.12.1984. On 3.12.1954 it was adjourned to 15.1.1985 when statement of Public Witness 5 was recorded and the case adjourned to 3.6.1985 and on that dale Public Witness 6 was recorded and matter adjourned to 27.9.85 and on 27.9.85 the matter was adjourned to 14.1.86. What purpose the prosecution wants to achieve is beyond me to understand. (10) CR. R. No 235 of 1985 has strange facts. Evidence is given by the police to say that on 3.5.1983 Bhagat Singh and Jatpal Singh, constables were going on the road when latter saw the accused and told his colleague that he was a cylinder thief. The accused is then stated to have been taken to l.0.room for interrogation when the accused stated that he wants to go to latrine and was allowed and after sometime on hearing some noise they saw blood oozing out from the neck of the accused. The weapon of offence was not recovered. To say the least, the matter would have looked suspicious for the police because the accused is said to have cut his throat when in police custody. However, strange are the ways of police because instead of facing enquiry a case u/s 309 Indian Penal Code is started. I can only express my amazement that both the prosecution and the courts should permit such a matter to continue. The first witness was examined on 25.4.85. The next date was 19.9.85 and thereafter it has been adjourned with total indifference to 14 3.86. The case is pending with the court almost three years. How pitiable is the state of affairs. (11) From a brief resume of these cases, it is quite clear that there is a total non-application of mind when starting prosecution u/s. 309 IPC. A mindless mechanical procedure is continued in which neither the prosecution nor unfortunately, the trial courts, seem to apply their minds. To allow such prosecution to drag on for years when the victim has had enough of miserey and when the accused also belong to the poorer sections of the society is to add further insult to the injury and that too at the hands of the courts. In my view, the continuation of these prosecutions u/s. 309 Indian Penal Code will only result in bringing the image of courts into disrepute. No person who believes in rule of law and the role of courts as a vital instrument of social change as I do, can permit such a situation to continue. Even though S. 309 Indian Penal Code may be on the statute book, I feel it is time when courts must refuse to prosecute these victims of social circumstances. The backlog and the arrears in courts are already so much that the courts do not have to further get clogged up with such useless and unjusttified prosecutions u/s. 309 IPC. (12) I would in the cilcumstances, in exercise of my inherent powers u/s. 482 of Cr. P.C. and to secure the ends of justice, quash the pending prosecution in all these cases and direct acquittal of the accused with immediate effect in the said cases. The bail bonds given by them and also the surety bonds will stand discharged.

Author: R Sachar

Court On Own Motion vs Yogesh Sharma on 13 December, 1985

Delhi High Court

IN THE HIGH mum cw KARNATAKA Arr DATED ms Tm 1 1%» my 09 SEPTEMBER _ BEFORE THE HONBLE me. JUSTICE % g * T 74&1 Floor, Kmmiyafiiathfih - I (By Advs.) _____ COMPANY APPLICAT'IOIf¢«...1§038§.' % IN COMPANY PE*m1oN%ncj>.44%1 BETWEEN {: M/S.Samj minim j % H.ighOou1tof!€a;r'zm$nh,' .. _ A 4: ' *'i'his mpany appamfiou is filed mfim' sectian 2. R%'&g&m "Gi'Sect¥wn462(5)cfthcCoa=a.pamcsAct, 1956andet'::.

Author: Ajit J Gunjal

M/S Saroj Mining Ltd vs Nil on 11 September, 2008

Karnataka High Court

"On this point in initial presumption as to the subsisting incidence of the tenancy, we shall have to follow the ratio of Damadilal's case in preference to the decision in Anand Nivas case and shall have to proceed on the assumption that statutory tenant does ordinarily possess transferable interest in his tenancy. We shall have to find out from the provisions of the Bombay Rent Act, if anything, therefore in has the effect of destroying it". The Division Bench then considered the provisions of Section 12(1) of the Bombay Rent Act, as construed in the Anand Nivas case and then observed as follows in paragraph 17:-- "This decision as to the scope of Section 12(1) of the Bombay Rent Act based on its wording and the context, obviously runs counter to the assumed ordinary incidence of transferability of the statutory tenancy. This, in other words, is a clear provisions indication legislative intent to the contrary to rob the tenancy of this attribute or incidence in terms of the requirement of the ratio of Damadilal's case . Looking at from this point of view there is no conflict in decision of these two cases on this point. Ratio of Anand Nivas case holds good and binding". Thus the Division Bench in Vasant v. Dikkaya has on an analysis of the decision in Anand Nivas and Damadilal's cases come to the conclusion that there is no conflict between those decision and that the ratio of Anand Nivas case was still good and binding. JUDGMENT Chandurkar, J. 1. The appellant company is a sole proprietary concern of one Ashok Vadilal Shah who clams to be a tenant to room No. 23B, Lalsing Mansing Building at Lohar Chawl, Bombay (hereinafter referred to as the "suit premises"). Vadilal Shah and his another son Ajitlala Shah were adjudicated insolvents by an order dated 21st January, 1975. An appeal was filed against the order of adjudication by both the insolvents. During the pendency of the appeal, Vadilal Shsh died on 8th July, 1975. On 9th March 1978, Ajitlal Vadilal Shah withdrew the appeal and the appeal was dismissed for want for prosecution. The present proceeding arose Assignee for direction seeking an order for sale of the insolvent business known as Messrs. Vadilal R. Shah as Official Assignee going concern with furniture, fixtures, etc., together with goodwill and tenancy rights of the business premises, which are the said premises, as well as another room No. 24 with which we are not concerned in this appeal. An order of attachment was also levied by the Sheriff of Bombay in respect of the suit premises pursuant to the order of the Bombay City Civil Court in Suit No. 9512 of 1973, which was filed by the two attaching creditors. Mr. Dhotwala and Mrs. Dhotiwala. The Official Assignee had also sought an order directing the withdrawal of the said attachment. The claim of Ashok Vailal Shah was that the tenancy or the suit premises was transferred in his favour by the landlord with the consent of Vadilal on 31st march, 1973 and the Official Assignee had sought an order for setting aside the alleged transfer. 2. The proceeding before the landed Single Judge were contested only by Ashok Vadilal, though the report of the Official Assignee was served on the owner as well as on the petitioner creditors and Ajit Vadilal Shah. It is not in dispute that by Official Assignee notice dated 16th December, 1970. the tenancy in respect of the suit premises was terminated with effect from the end of the tenancy month of January. 1971. It was, however Official Assignee matter of dispute as to whether the tenancy was individually held by Vadilal personally or by the partnership firm of Messrs. Vadilal Rs. Shah. The landlord had also filed Official Assignee suit for ejectment, being suit No. 1014/5750 of 1971 in the Court of Small Causes at Bombay. According to the appellant, during the pendency of this suit, deceased Vadilal had given his consent to the landlord to make the appellant company as his tenant and the landlord had conferred Official Assignee direct tenancy upon the appellant company with effect from 1st April, 1975. It may be pointed out at this stage that while before the Official Assignee the surviving partner of Messrs. Vadilal R. Shah, namely, the insolvent Ajitlal Vaidlal Shah had made as statement that on 31st March 1973. the partnership business of Messrs. Vadilal R. Shah had transferred the partnership business in favour of the appeal company along with the tenancy rights, goodwill, fixtures, furniture, etc. for consideration of Rs. 5,000/- in the proceeding before the learned single Judge, Official Assignee writing alleged to have been given by deceased Vadilal the ejectment suit was produced, by which Vadilal purported to given his consent to the landlord to transfer the tenancy in favour of the appellant company, who, it is alleged, was already in occupation of the suit premises on leave and licence basis since 1972. On the basis of this document, the main point which was argued before the learned single Judge was that Vadilal Shah was Official Assignee statutory tenant on the date of the passing of the order of adjudication and hence, no tenancy right could passed to the Official Assignee and reliance was passed on as decision of this courting In respondent Pergrino Rodrigues, (1944) 46 Bom LR 916: (AIR 1945 Bom 173). In this decision, it was laid down that the statutory tenancy to which an insolvent becomes entitled under the Bombay Rent Restriction Act, 1939, is not his property within the meaning of Section 62 of the Presidency-towns Insolvency Act, 1909. and does not vest in the Official Assignee by the adjudication order. 3. The learned single Judge at the outset directed his attention to the question as to whether there was in fact any surrender of the suit premises by the deceased insolvent Vadilal Shah and whether there was a creation of direct tenancy in favour of the appellant company from 1st April, 1975. While dealing with this question, the learned Judge referred to the fact that on the very day on which a direct tenancy is alleged to have been created in favour of the appellant company, a partnership deed had come to be executed on a stamped paper of Rs. 100/- by which a new partnership was constituted considering of Vadilal and his sons Ajitlal Vadilal to continue the business of the partnership firm which had already four partners out of High whom two had retried. The learned Judge held that it was impossible that on the day on which the new partnership business in the same name and style and in the same premises, namely, High suit premises, there would be surrender of valuable tenancy rights in favour of the landlord. The learned Judge also considered the fact Ajitlal had initially put up a story that the entire going concern of Messrs. Vadilal Shah together with the tenancy right had been transferred in favour of Ashok Vadilal Shah with effect form 31st March, 1973 and that it was only on the next date of his examination that it was stated that there was no documents evidencing the alleged transfer and subsequently the story of a tenancy being created with effect from 1st April 1975 was put up. The learned Judge took the view that the declaration said to have been made by the deceased in the Small Causes Court was brought about in collusion with the landlord and he took the view that the story of creation of tenancy was sham and bogus, Having regard to this finding, the learned Judge took the view that on the date on the commencement of the insolvency proceeding or on the date of the order of adjudication. Vadilal and Aitlal were contesting the ejectment suit and the Official Assignee and a right of defend the ejectment suit which related to the business premises of the insolvent and further if the right to defend the ejectment was crippled and destroyed by the insolvent surrendering the possession of his premises. the creditors would be deprived of the valuable property which would otherwise be available for their benefit. The learned Judge further took the view that it could not be said that the tenancy right as they existed on the day to the order of ejectment were not property within the meaning of Section 17 of the Presidency Towns Insolvency Act, 1909. The learned Judge further took the view that the landlord who has notice of the order of adjudication, could not be permitted to divest the Official Assignee in whom the property had vested by operation of law. the learned Judge referred to the decision of the Supreme Court in Damadialal v. Prashram, , in which the Supreme Court has observed that it cannot be assumed that with the determination of the tenancy the estate of the tenant must necessarily disappear and the statute can only preserve his status up irremovability and not the estate he had in the premises in his occupation. Having regard to those observations, the learned Judge came to to the conclusion that the attachment order by the City Civil Court after the order of adjudication was illegal and further that was no transfer in favour of the appellant on 31st March, 1973, as alleged. He further held that the alleged declaration dated 26th March, 1975, was sham and bogus and consequently directed the Official Assignee to take possession of the business premises and thereafter to proceed with the sale of the insolvent business known as Messrs. Vadilal R. Shah as a going concern together with the furniture and fixtures, etc. along with the goodwill and tenancy rights of the suit premises as incidental thereto either by public auction or private treaty as the Official Assignee may deem fit and proper. This order is now challenged by the appellant company in this appeal. 4. Mr. Romer, the learned Counsel appearing for the appellant, who had appeared before the learned single Judge, said that the only question which was argued before the learned single Judge was that there are no right of a statutory tenant which could be said to vest in the Official Assignee and the learned Counsel made a grievance before us that the other question decided by the learned single Judge regarding the alleged transfer before 31st March, 1973 or the transfer of tenancy dated 1st April, 1975, were never argued before the learned single Judge and he was really not heard on those points at all. Assuming for a moment that the learned Counsel appearing for the appellant is right that he was not heard on these question, it is difficult for us to say that the question decided by the learned single Judge were wholly irrelevant for the purpose of decision of the matter before him. The claim of the appeal company was based on an alleged transfer of tenancy directly in favour of the Ashok Vadilal with effect from 1st April 75 by the landlord. The validity of this claim had to be adjudicated upon because it is only if this claim could be substantiated by the appellant that the further question as to whether he had any right of which he was being deprived by the Official Assignee or the question with regard to the effect of such a transfer as alleged would arise. We have, therefore, heard Mr. Romer at considerable length on the findings which, according to the learned counsel, were recorded by the learned single Judge without hearing him. 5. The first hurdle in the way of the appellant is the finding recorded by the leaned single Judge that the story of any transfer in his favour of the tenancy directly by the landlord is a sham and a bogus one. It may be mentioned that the story of the alleged transfer of the entire running business of the company with effect from 31st March 1973, which was given out before the Official Assignee by Ajitlal, has not been supported before us by the learned counsel for the appellant. Once again, the learned counsel has placed reliance on the writing which purports to be on a stamped paper of Rs. 3.50 (Ex. B) dated 26th March 1975. It is recited in this documents , which is signed by deceased Vadilal, that a suit has been filed against Vadilal for recovery of possession of room No. B 23 and B 24 on the first floor of Lalsing Mansing Building and that Vadilal had given room No. B 23 to Messrs Atlas Trading C. and room No. B 24 to Shri Dayal Gianchand undernomall on leave and licence as the respective licenses were in occupation of the respective rooms since 1972. It is recited that their licence were subsisted on 1st November 1973 and they were entitled to occupation and protection and Vadilal, therefore, did not desire to contest the suit "as it is of no benefit". The material sentence which is important is follows:-- "I therefore hereby given may consent to the respective occupant being accepted by the plaintiff as their direct tenant and I be relieved of liability of future rents". This declaration has been rejected by the learned single Judge as being as documents which has been brought about in collusion with the landlord. 6. Now, there are circumstance on record which throw a serious doubt on the genuineness of this documents. It is no doubt true that on the basis of this statement made by Vadilal, the appellant was entitled to contend that the appellant was a direct tender of the premises in question, but the validity of this contention would depend on whether this documents can be accepted as genuine. Admittedly there is no other evidence with regard to the grant of leave and licence in 1972. There is ample material on record to show that there averment could not be accepted as true. The partnership firm of Messrs. Vadilal R. Shah originally consisted of four partners, two of them being father and son, namely Vadilal and Ajitlal and the two others were Punamchand Shah and Mahendrakumar Shah. These two partners retired with effect from 1st April 1975 and a separated retirement deed was executed. The two remaining partners continued the business of the firm under a new documents of partnership (Ex. A) with specifically provides that the original partnership business was to be continued with effect from 1st April 1975 by the new partnership firm and that the partnership business was and would be carried on at 6, Lalji Mansing Buildings, 1st floor, Lohar Street. The books of account of the partnership firm were also to be kept in the same premises. This documents, therefore, shows that there was a continuing business of the partnership firm at the suit premises not only after 1st April 1975 but even prior to that. Now. if this was so, it is difficult to accept the story of a part of the premises having been granted on leave and licence basis to the appellant company and the remaining premises to Dayal Gianchand. Similarly the bringing about of a new partnership deed to evidence a partnership, which was to continue the business even after 1st April 1975 in the same premises, would be wholly inconsistent with the story that the two licensees should be granted direct tenancies by the landlord. If this was accepted, it would mean that the business of the firm Messrs Vadilal R. Shah had cased with effect from 1st April 1975 which could be inconsistent with the conduct of the two partners in bringing about a new partnership deed in order to continue the business of the old partnership. 7. Another important circumstance which adversely affects the story that the declaration of 26th March 1975 is a genuine declaration is that an attachment was levied on 27th March 1975 in the suit filed by Mr. Dhotiwala and Mrs. Dhotiwala against the partnership firm in the City Civil Court. If the appellant was really in possession of the suit premises as a direct tenant. then the appeal would have taken immediate steps to have this attachment lifted. However, no such step were taken by the appellant and the attachment continued till it was lifted consequent upon the order of the learned single Judge which is impugned in this appeal. It is clear that the dated 26th March 1975, which is chosen as the date on which the tenancy was made, is the day prior to the day on which the attachment was levied. The only irresistible inference that can be drawn from the facts as they appear on record is that the alleged declaration on 25th March 1975 is a bogus documents and with it the appellant was a direct tenant of the landlord with effect from 1st April 1975. 8. Once the story of the appellant that it was a tenant of the premises is rejected, appellant does not have any locus standi in these proceedings. There was no question of any right of the appellant being adversely affected by any steps taken by the Official Assignee. 9. Strictly speaking, this is sufficient to dispose of the appeal. However, since the question as to the nature of the rights of a statutory tenant has been argued before us by Mr. Romer, we shall briefly deal with that question. 10. We have already referred to the decision of this Court in Rodrigues' case (AIR 1945 Bom 173). Thereafter in the light of the provisions in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereafter referred to as the "Bombay Rent Act)" the nature of the rights of a statutory tenant, that is, a contractual tenant whose lease has been terminated but whose possession is protected by the provision of the Bombay Rent Act has been the subject-matter of some decision of the Supreme Court. In the well-known decision in Anand Nivas (P) Ltd. v. Anandji, , the majority view in the judgment of Shah, J. puts the position thus (at p. 422): "A person remaining in occupation of the premises let to hi after the determination of or expiry of the period of the tenancy is commonly though not accurately, called "a statutory tenant". Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be returned out so long as he pays the standard rent and permitted increased, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is persons; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lease from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over by acceptance of rent of by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the right of such a person remaining in possession are governed by the statute alone, Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined". Thus in the case of Anand Nivas (P) Ltd. , it was held a statutory tenant has no estate or interest in the premises occupied by him. It is relaying on this decision that Mr. Romer has contended that if Vadilal has no interest or estate in the premises, there was nothing which would vest in the Official Assignee. 11. Now, in Damadilal v. Parashram, , which was a case arising under the provisions of the Madhya Pradesh Accommodation Control Act, 1961 the nature of the rights of a statutory tenant in the light of the right of tenant governed by the Rent Restriction Act in England was considerated. In paragraph 11 of the judgment, it was observed as followed (Para 11):-- "We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his right are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived form the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statue. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy. and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his statute of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the 'sanctity' of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondent predecessors-in-interest retained a heritable interest in the disputed premised even after the termination of their tenancy". However, before making the above observations. the Supreme Court referred to the decision in the case of Anand Nivas (P) Ltd. and in the case of Jagdish Chandra Chatterjee v.Sri Kishna, , and observed that these decision proceeded on the basis that the tenant whose tenancy has been terminated, described as a statutory tenant, has no estate or interest in the premise but only a personal right to remain in occupation. It was then observed as follows:-- "It would seem as if there is a distinct category of tenant called statutory tenant having separate and fixed incident of tenancy. The terms 'statute tenancy' is borrowed from the English Rent Act. This may be a convenient expression for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, but courts in this country have sometime borrowed along with the expression certain notices regarding such tenancy from the decision of the English courts. In out opinions it has to be ascertained how for these notice are reconcilable with the provisions of the statute under consideration in any particular case". The Supreme Court thus took the view that the right of the statutory tenant have to be determined in the light of the relevant statutory provisions and with regard to the Madhya Pradesh Accommodation Control Act, it was pointed out that the incident of tenancy of the tenant defined in Section 2 (1) of the Madhya Pradesh Accommodation Control Act, 1961, and a contractual tenancy must be the same unless any provisions of the Act conveyed a contrary intention and it was expressly held that under the Madhya Pradesh Accommodation Control Act, the tenant retain an interest in the premises and not merely a personal right of occupation. 12. Prior to the decision in Damadilal's case , in another decision in Jai Singh Murarji v. Sovani (P) Ltd, , the Supreme Court was concerned with construction of Section 15(2) of the Bombay Rent Act and it was held in that case that the word "tenant" in Section 15 of the Bombay Rent Act meant a contractual tenant and not a statutory tenant and Section 15(2) protects only sub-leases or assignment or transfer by the tenant but does not effect subsequent assignment, or transfers by assignees of transferees,. Thus there was some conflicts to whether the right of a tenant was only a personal right to possession protected by statute or whether that right also include an interest or estate in the tenancy of the premises. This apparent conflict was considered by a Division Bench of this Court in Vasant v. Dikkaya, , to which one of us (Lentin J) was a party. I paragraph 12 of the judgment referring to the apparently divergent views, it was observed as followed (at p. 344):-- "It is difficult to escape the conclusion that the view expressed in Anand Nivas case as to the statutory tenant basically not having any interest, estate or property in the demised premises is irreconcilable with the view in Damadiala's case that heritability is the incidence of the tenancy and that a statutory tenant does not asses to hold such an estate, interest and property therein as such ordinary incidence of tenancy unless the statute protecting his such possession provides to the contrary". While proceeding to consider whether there is any infirmity in the decision in the case of Anand Nivas the Division Bench in paragraph 14 observed as follows:-- 13. Mr. Romer has invited out attention to an order of the Supreme Court dismissing of a petition for special leave against a decision of this Court arising out of the Bombay Rent Act. That order of the Supreme Court is reported in Ganapati v. Waman . We has sent for the original judgment to the learned single Judge against which the special leave petition was made before the Supreme Court. That decision is in Ganapati v. Waman, Special Civil application No. 2806 of 1976 dated 18th November 1980. by Kanade J. The question which fell for decision before the learned single Judge (Kanade J.) was whether after the termination of a contractual tenancy by a notice received from the landlord, it is permissible for the tenant to assign or transfer the tenancy rights. The learned Judge referred to the decision in Vasant v. Dikkaya, , and observed that it was held in that case that "though ordinarily a statutory tenant is assumed to possess a transferable interest in the tenancy in terms of the ratio in Damadilal's case , Section 12(1) 13, 14 and 15 of the Bombay Rent Act, as interpreted earlier in Anand Nivas case , indicate legislative intent to the contrary and the statutory tenancy thereunder not to be so transferable. The Division Bench decision being binding on the learned Judge, he held that the point raised, therefore, did not survive, Now, when special leave petitioner was filed from this decision and it was rejected, it must necessarily mean that the Division Bench decision of this Court in Vasant v. Dikkaya, which had held that the ratio of the decision in Anand Nivas case was not affected by the decision in Damadiala's case, must be held to have been approved by the Supreme Court. 14. Now, it is difficult for us to appreciate how this position of law is of any assistance to the appellant. So far as the appellant is concerned, he is not claiming directly though Vadiala. His claim is that he was granted a tenancy directly form Vadialal, Vadilal was incompetent to pass on any rights to the appellant company because the right of Vadilal were only rights to occupation protected by the statute. Secondly, the observations of another Division Bench of this Court in Zarina Umer v. Sati Lalchand , indicate that tenancy of a monthly tenant who has been adjudicated an insolvent and which is not alienable under Section 15(1) of the Bombay Rent Act cannot be regarded as property of the insolvent which must leave in the Official Assignee under Section 17 of the Presidency-towns Insolvency. Act, 1909. The Division Bench has further observed in that case "........ we find it impossible to hold that such a tenancy dissociated from a going business can be regarded as property which must vest in the Official Assignee. These are the observations relied upon by Mr. Makhija for contending that what is taken to have been vested in the Official Assignee is not merely a right of occupation but the entire business assets of the partnership firm consisting of the two partners and the right of occupation but the entire business assets of the partnership firm consisting of the two partnership firm consisting of the two partners and the right of occupation are intrinsically and closely connected with the business itself. Therefore, it is the whole bundle of rights in the running business including the right of occupation which must be taken to have vested in the Official Assignee. 15. In the view which we have taken, we find no infirmity in the order appealed against. The appeal must, therefore, fail and is dismissed. However, we make no order as to costs. The operation of the order is stayed for two weeks, Undertaking given on 24th April 1979 to continue until further orders. 16. Appeal dismissed.

Author: Chandurkar

Atlas Trading Co. vs Official Assignee Of Bombay And ... on 13 October, 1982

Bombay High Court

ORDER S. Balasubramanian, Actg. Chairman 1. In this petition filed under Section 397/398 of the Companies Act, 1956, in the matter of G.R. Solvents and Allied Industries Limited, the respondents have filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 ("the Arbitration Act"), on the ground that most of the allegations in the petition relate to a sponsorship agreement entered into between the petitioner-company and the respondent-company and that the said agreement provides for arbitration in respect of any claim, dispute or differences between the parties in relation to the terms of the agreement and as such in terms of Section 8 of the said Act the Company Law Board should refer the parties to arbitration and should not proceed with the petition. 2. In view of the preliminary objection raised by the respondents, it was decided to hear this application first before considering the petition. Shri U.K. Chowdhary, advocate for the petitioner, taking us through the allegations in the petition submitted that the very foundation of the petition is on account of certain differences that have arisen in the implementation of the sponsorship agreement dated April 4, 1995, between the petitioner-company and the respondent-company. According to him, for the purpose of increasing the manufacturing capacity of the respondent-company, respondents Nos. 2 and 3, being the promoters of the company, sought the assistance of the petitioner-company, both for investment in the company as well as sponsoring the listing of the shares of the company in OTC Exchange of India, Accordingly, a tripartite agreement dated April 4, 1995, was entered into between the promoters, the petitioner-company and the respondent-company. This agreement conferred on the parties certain rights, obligations and liabilities. The main obligations on the part of the petitioner-company designated as sponsor in the agreement were that it was to subscribe to certain number of shares in the company and the petitioner-company was to sponsor the listing of the shares of the company on the OTC. Some of the obligations on the respondent-company were that the articles were to be amended in consonance with the sponsorship agreement, appoint a nominee of the sponsor on the board of the company, to furnish various information as may be required by the sponsor in the matter of the affairs of the company, etc. Since the petitioner-company had failed to comply with the terms of this agreement, the company also has not discharged its obligations as per the terms of this agreement. The sponsorship agreement at Clause 11.4 provides that any claims, disputes or differences between the parties arising out of or in relation to or under or in any manner connected with this agreement shall be referred to and decided by arbitration as provided in the rules, bye laws and regulations of the OTCEI. According to Shri Chowdhary, in para. 15 of the petition, the allegation is that the company has failed to amend the articles to conform to the partnership agreement, in para. 16, it is about failure to appoint the petitioners' nominee as a director in the company, in para. 20, it is about failure to provide requisite information. These three allegations directly arise out of the terms of the sponsorship agreement which is covered by the arbitration clause. Further, even the allegation relating to siphoning off of funds at paras 21 to 26, relates to certain alleged projections made before the sponsorship agreement was entered into on which basis the petitioner alleges that the sponsorship agreement was signed. According to the learned counsel, other than these major allegations, the petition does not disclose any other cause of action to initiate proceedings under Section 397/398. 3. In view of the above, Shri Chowdhary submitted that in terms of Section 8 of the Arbitration and Conciliation Act, 1996, this matter should be referred to arbitration as provided in the agreement and as a matter of fact he submitted that the petitioner-company has already initiated the arbitration proceedings which are pending. Since he submitted that the provisions of Section 8 of the Arbitration Act have been invoked by the respondents at the initial stage itself, the Company Law Board is bound to refer the matter to arbitration and should not proceed with the petition. In addition to this, he submitted that one of the co-investors of the petitioner-company has already filed a suit in the court of the Additional Chief Judicial Magistrate, Moradabad, with similar allegations and as such, the matter is sub-judice and the Company Law Board cannot take cognizance of the petition, Further, he also submitted that the petitioner is not an ordinary shareholder having the right to move this petition but it acquired the shares in the company only with a view to later on sell the shares at a premium. He further submitted that the petitioner-company had itself already initiated various actions in the matter like complaining to the Department of Company Affairs, SEBI, CBI. etc. Under these circumstances, he pleaded that this petition should be dismissed. Relying on the decision of the Company Law Board in Naveen Kedia v. Chennai Power Generation Ltd. [1998] 31 CLA 1 (CLB); [1999] 95 Comp Cas 640 he submitted that in a similar situation, the Company Law Board had referred the parties to arbitration and, therefore, the Company Law Board cannot decide this matter in any manner other than referring the parties to arbitration. 4. Shri Haksar, senior advocate, for the petitioner submitted that his client being a shareholder holding the requisite number of shares in terms of Section 399 has a right to file this petition. Even though, it is a fact that a sponsorship agreement was entered into and that it contained an arbitration clause, the petitioner-company, in this petition, has not sought for implementation of the sponsoring agreement but only for granting certain reliefs against the acts of oppression and mismanagement in the affairs of the company. Even though there are certain averments in the petition relating to the sponsorship agreement, yet, no reliefs in relation to the terms of agreement have been sought for in the petition. Further, he submitted that even though the petitioners have invoked arbitration proceedings in terms of the sponsorship agreement, the respondents have raised an objection that recourse to arbitration is not permissible in view of the currency of the agreement having come to an end. In other words, Shri Haksar submitted that the respondents are blowing hot and cold at the same time, namely, taking a stand that arbitration proceedings cannot be initiated on the ground that the agreement has come to an end and, on the other hand, in the present proceedings claiming that the matter should be referred to arbitration. He further submitted that this petition contains a large number of other allegations, like, non-receipt of notices for the annual general meeting and the annual report, siphoning off of funds, etc., which are clear acts of oppression and mismanagement on the part of the management of the company. He also stated that the various reliefs which would put an end to the matters complained of in the petition are incapable of being granted by an arbitrator. He also relied on Kare P. Ltd., In re [1977] 47 Comp Cas 276 (Delhi) wherein it was held that the statutory right to file a petition under Section 397/398 for relief against mismanagement and oppression cannot be taken away by a provision in the articles that differences between the company and any person should be referred to arbitration and stated that in the same way the mere provision for reference to arbitration as contained in the sponsorship agreement cannot take away the rights of the petitioner-company as a shareholder to move this petition. 5. We have considered the arguments of counsel. At the outset, we note that through the application the respondents have sought to invoke the provisions of Section 8 of the Arbitration Act and as such we shall be dealing in this order only this issue and not any other issue like parallel proceedings, motivation for the petition, etc., as alleged in the application. 6. It is on record that a tripartite agreement was entered into between the petitioner-company, respondent-company and respondents Nos. 2 and 3 by which the petitioner along with its co-investors was to invest Rs. 84 lakhs for 7 lakhs shares of the company at Rs. 10 with a premium of Rs. 2 and that the petitioner-company was to sponsor the shares of the company for listing in the OTC. It is not clear from the petition as to whether the entire 7 lakhs shares have been subscribed by the petitioners and co-investors as it is stated in the petition that the petitioner is holding 3.625 lakhs shares constituting 25.1 per cent. of the equity share capital of the company. This holding by the petitioner satisfies the requirements of Section 399 of the Act to file this petition. The limited issue before us is whether the allegations in the petition are matters of differences arising out of the sponsorship agreement which contains an arbitration clause. A perusal of the petition shows that the entire foundation of the petition is on the sponsorship agreement. The allegations relating to failure to amend the articles of association, failure to appoint the nominee of the petitioners on the board of the company, failure to provide requisite information as contained in the petition directly arise out of the sponsorship agreement. Even the allegations relating to siphoning off of funds are based on the actual performance of the company from what was projected at the time of entering into the sponsorship agreement and as such the petitioners' allegation that the deviation from the projection and the actuals is an indication of siphoning off of funds and mismanagement in the affairs of the company has also to be viewed as arising out of the sponsorship agreement. Other than these allegations which are all arising out of the sponsorship agreement, no other substantial acts of oppression or mismanagement have been alleged in the petition except that the petitioners have not received annual reports and notices of annual general meeting. Therefore, we find that there is substance in the arguments of learned counsel for the respondents that most of the allegations are in relation to the disputes and differences that have arisen between the parties in implementation of the sponsorship agreement which contains an arbitration clause. 7. Shri Haksar submitted that even though some of the allegations relate to the sponsorship agreement, yet the petitioners have sought various reliefs in matters not covered under the sponsorship agreement. He also pleaded that since the petitioner has come before the Company Law Board by virtue of the statutory rights vested by the Act to move the petition, the parties should not be referred to arbitration inasmuch as an arbitrator cannot grant the various reliefs sought for and on this proposition, he relied on some case laws. 8. Section 8 of the Arbitration and Conciliation Act, 1996, under which the respondents have moved this petition reads as follows (See [1996] 87 Comp Cas (St.) 60, 64) : "8. Power to refer parties to arbitration where there is an arbitration agreement--(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration ; (2) The application referred to in Sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof; . . .". 9. In the present case, the existence of the arbitration clause in the sponsorship agreement is not disputed and as a matter of fact, the petitioner has already invoked that clause. It itself has enclosed a copy of the sponsorship agreement along with the petition. Section 8 enjoins a judicial authority, which admittedly the Company Law Board is, to refer disputes which the parties have agreed for referring to arbitration to refer the same to arbitration. Even though Shri Haksar submitted that the reliefs sought for in the petition cannot be granted by an arbitrator, yet we find that the foundation for seeking the reliefs is based on the terms covered in the sponsorship agreement. Only when the disputes arising out of the sponsorship agreement are adjudicated, the question of grant of relief would arise. In view of the arbitration agreement, it is the arbitrator who has to adjudicate on the disputes arising out of this sponsorship agreement and not the Company Law Board in view of the provisions of Section 8 of the Arbitration Act which makes it obligatory for a judicial authority to refer such disputes to arbitration, unlike the Arbitration Act, 1940, according to which a judicial authority had the discretion to either refer the matter to arbitration or not. Therefore, we are of the view that the present disputes before us, being disputes arising out of or in connection with the sponsorship agreement which provides for arbitration at Clause 11.4, have to be referred to arbitration in terms of Section 8 of the Arbitration Act and accordingly we do so and thus dispose of this petition noting that the petitioner has already initiated arbitration proceedings.

Escorts Finance Ltd. vs G.R. Solvents And Allied ... on 12 January, 1999

Company Law Board

JUDGMENT Narula, J. 1. The short bout important question that arises for decision in this writ petition is whether it is necessary to give an opportunity to an allottee or lessee of acquired evacuee urban agricultural lands to show cause why the land in the occupation of the lessee may not be valued at any particular rate under R. 34-B of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 as amended in 1960 (hereinafter referred to as the Compensation Rules) either at the initial stage or at anyone subsequent stage; or whether the fixation of such value under the aforesaid R. 34-B for the purpose of deciding the rights of the allottee or occupant of the land under R. 34-C of the Compensation Rules is such an administrative matter, in the decision of which the allotte cannot claim a right to be associated with. (2) Shorn of all details, the admitted facts giving rise to this petition are these. (3) The petitioners, who are three real brothers, are displaced persons from what is now known as West Pakistan. Their father Sawan Singh, was a Claim-holder in respect of urban agricultural land. Some land in Basti Danishmandan within the urban area of Jullundur was leased out to Sawan Singh. After his death the lease was continued in the name of the three petitioners who are mow the claim-holders. (4) After the acquisition of the land in question by the Central Government under S. 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954 (hereinafter called the Act) the value of this land was fixed in 1958 at Rs. 300 per Kanal. At that time the rules for transfer of permanent rights in agricultural lands had not been framed. The procedure for doing so had been prescribed under various office orders and press communiques. In accordance with those orders and communiques the land in question had to be offered to the petitioners who were its lawful lessees. It is for this purpose that its value had been fixed after proper inquiry at Rs. 300 per Kanal and the land was offered to the petitioners at that rate. (5) In the meantime this Court held that the transfer of permanent rights in urban agricultural lands had to be made in accordance with rules properly framed under the Act and that departmental instructions or press communiqués could not be allowed to have the force of law. Consequently on 26-11-1960, Chapter V-A consisting of 8 rules, Nos. 34-A to 34-H, was added to the Compensation Rules, vide Central Government notification No. G. S. R. 1404/R/Amdt., dated 17-11-1960 published in the Gazette of India, Part II-Section 3(1). For facility of reference Rr. 34-A to 34-C and 34-F added to the Compensation Rules may be quoted verbatim:- "34-A. Application--The provisions of this chapter shall apply to evacuee agricultural lands situated in urban areas and acquired under S. 12 of the Act. 34-B Valuation--For the purposes of this Chapter, all lands to which this Chapter applies shall be valued obey an officer appointed in this behalf by the Regional Settlement Commissioner. 34-C Allotment of agricultural land of the value of Rs. 10,000 or less--Where any land to which this Chapter applies has been leased to a displaced person and such land consists of one or more Khasras and is valued at Rs. 10,000 or less, the land shall be allotted to the lessee: Provided that where any such land or any part thereof has been leased to a displaced person and the sub-lessee has been in occupation of such land of part thereof continuously from the 1st January, 1956, such land or part thereof, as the case may be, shall be allotted to such sub-lessee". "34-F. Certain provisions of Chapter V to apply--Where any land to which this Chapter applies is allotted under R. 34-C or R. 34-D, the provisions of Rr. 25 to 29 (both inclusive) of Chapter V shall, so far as may be, apply". (6) On the coming into force of these amended rules the Government offered to the petitioners the same land at Rs. 1,000 per Kanal by letter, dated 10-1-1962 of which copy has been filed in this Court as Annexure 'A' to the writ petition. This offer was made consequent upon the application of the petitioners, dated 4-9-1961 under R. 34-A of the Amended Compensation rules. In that communication, the petitioners were informed that they had been found eligible for allotment of the land in question but the same had been valued at Rs. 7,500. This was at the rate of Rs. 1, 000 Per Kanal. The petitioners were aggrieved by this valuation and preferred an appeal to the Settlement Officer who dismissed the same by his order, dated 19-4-1962, of which a copy has been filed by the petitioners as Annexure 'B' to the writ petition. The following passage in the appellate order is relevant:- "The appellants' contention is that this assessment of value is arbitrary and unreasonable and, therefore, should be reduced. From an examination of the record received from the District Rent and Managing Officer, Jullundur, I find that he has fixed the price at Rs. 1,000 to bear out the appellants' contention that it is unconscionable. (7) A further application for revision filed by the petitioners against the appellate order was also dismissed by the Deputy Chief Settlement Commissioner vide his order, dated 12-6-1962 of which a copy is Annexure 'C' to the writ petition. Once again it is convenient to reproduce the relevant part of the order of the revisional authority in his own words:-- "The petitioner's case is that the valuation of the land in question as fixed was excessive, that even the S.O. was of the view that the valuation was fixed in an unguided manner and that as such the valuation may not be allowed to stand. It is further urged that the S.O. offered to reduce that price of the land of Rs. 500 per Kanal subject to the condition that the petitioner would not file an appeal, but the petitioner was not prepared to do so. The land is not being thrust upon the petitioner. It is open to them to buy it or not. As such they had no judicial right to question the valuation of the plot. The remarks of the S.O. that the price of the plot was not fixed in a guided manner do not help the petitioners. If the plot is of low value, the petitioner has an option to bid for it at a public auction." (8) When in December, 1962 the petitioners approached this Court under Art. 226 of the Constitution notice of their petition was issued to the respondents and the petitioners' dispossession was stayed by the Motion Bench (Mehar Singh and Grover, JJ.). (9) In their written statement, dated 15-4-1968 the respondents have tried to support the impugned order on practically the same grounds as are contained in the revisional order of the Deputy Chief Settlement Commissioner, dated 12-6-1962. Fixation of the value of the land in question at Rs. 1,000 per Kanal has also been sought to be justified on merits, but I do not think that we are at all called upon to go into the merits of the fixation of the value of the land. (10) When the writ petition came up for hearing on 29-4-1965 before a learned Single Judge of this Court (Shamsher Bahadur, J.) it was pointed out that the solitary point arising in this writ petition had already been referred to larger Bench on 22-1-1965 in C.W. No. 1292 of 1962 at the instance of P. C Pandit, J. Shamsher Bahadur, J., therefore, directed that this petition may also be heard by the Bench hearing C. W. No. 1292 of 1962. That is how this petition has come up before us. (11) A similar question arose in the Court in some cases relating to the right of an occupant of urban acquired evacuee house or shop to be heard in the matter of fixation of its value for the purposes of determining the eligibility (liability of the property to be transferred to its occupant against the value for the same fixed by the department) under Rr. 25, 26, 30, or 31 of the Compensation Rules. (12) In Karam Singh v. Chief Settlement Commr., Ministry of Rehabilitation, New Delhi, Civil Writ No. 685 of 1960, dated 25-4-1961 (Punj.) by Mehar Singh, J., it was held as follows:-- "On the question of value, if property No. 77 is treated as residential property and its value does not exceed Rs. 10,000 then according to R. 22(a) it is ordinarily allotable and if it is an industrial establishment and its value does not exceed Rs. 50,000 it is also ordinarily allotable. The learned Deputy Advocate-General appearing for the respondent says that this rate merely gives discretionary power to the authority concerned to make an allotment of these types of properties. but R. 25(1) provides that when an applicant for payment of compensation is in sole occupation of an acquired property which is an allotable property, such property may be transferred to him in lieu of compensation payable to him under Act No. 44 of 195'. In this sub-rule the word that appears is 'may' and the learned Deputy Advocate-General argues that he use of this word means that the transfer of the property is discretionary and not as of right but in this context this word has been interpreted as 'shall' by Shamsher Bahadur, J. in Civil Write No. 40 of 1960, dated 10-11-1960 (Punj.), and I agree with the learned Judge in this respect. The is a displaced person and he has compensation claim. It means that if the property in question is allotable property he has right to its transfer to him under R. 25(I). The learned Deputy Advocate-General points out that in the matter of assessment of valuation of property it is the authority concerned as respondent No. 3 who has to do the assessment and a person in occupation of the property has no right to be heard when such assessment is made. But I should have thought it otherwise for the decision whether or not a particular property is allotable property depends upon what is its value and when deciding this character of the property in assessment of the value of the property rights of the person in possession are affected by the assessment which almost amounts to a decision as to the character of the property as allotable or not. No doubt there is no rule which specifically provides that in the matter of assessment of the value of property the person in occupation of the property should be heard. but, it appears to me that in the circumstances when the character of the property is to determine the right of the occupier to its transfer or not, the decision as to its valuation is at least a quasi-judicial matter and in all judicial or quasi-judicial matters a decision on the back of party affected cannot be admitted. So the decision of the respondents in regard to the value of the property at the back of the petitioner cannot stand against him". In short Mehar Singh,. J. held in that case:-- (i) that the decision as to valuation on which a decision as to rights of allotability depends is a quasi-judicial matter; (ii) that in the matter of assessment of valuation of property for the purposes of determining its transferability, the person of persons in occupation of the property have a right to be heard when such assessment is made as the decision whether or not a particular property is allotable depends upon what is its value and in deciding this character of the property, the rights of the person in possession are affected: (iii) that the occupant has such a right in law notwithstanding the fact that no specific provision in the Act or in the Compensation Rules requires that such an opportunity should be granted; and (iv) that the decision of Rehabilitation authorities in regard to the value of the property given behind the back of the occupant cannot be allowed to stand against him. (12a) An appeal under clause 10 of the Letters Patent of this Court--L. P. A. No. 202 of 1961 (Punj.)--was filed against the above-said judgment of Mehar Singh, J. in C. W. No. 685 of 1960 (Punj.), but the same was dismissed by a Division Bench (Khosla, C. J. and Sharma J.) on 30th August, 1961 in limine. (13) Shri Harnam Singh Wasu, the learned counsel for the petitioners then invited our attention to a judgment of my learned brother. Dua, J. in Kishan Chand v. Union of India. C. W. No. 1261 of 1962, dated 12-3-1963 (Punj.). After referring to the judgment of Mehar Singh, J. In Karam Singh's case. Civil Writ No. 685 of 1960, dated 25-4-1961 (Punj.)(ibid) my learned brother held as follows:-- "The rule of natural justice was urged in support of his claim to a hearing in regard to the question of valuation. In so far as the cancellation of allotment and the lease is concerned reliance was placed on S. 19 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954 and R. 102 of the Compensation Rules. The learned single Judge approving the earlier decision by Shamsher Bahadur, J. in Civil Writ No. 40 of 1960, dated 10-11-1960 (Punj.), upheld the claim to a hearing while determining the valuation, it being in accord with the rules of natural justice. Reference has also been made to Rr. 34-A to 34-D in chapter V-A added to the Compensation Rules and it has been emphasised that the matter is now governed by statute and that the view taken by the departmental authorities that the petitioner has no right to the transfer of the land is incorrect. The learned Advocate-General has in reply tried to distinguish the order passed in Civil Writ No. 685 of 1960 (Punj.), on the ground that in that case the question related to increase in the valuation made later and not the original fixation on allotment as is the case in hand. According to the learned Advocate-General, rule 34-B merely lays down that the officer appointed by the Regional Settlement Commissioner shall value all lands to which Chapter V-A applied. For the purposes of discharging this obligation, according to the counsel, an officer is not bound to hear all claimants who may be held entitled to have portions of land transferred to them. He, however, conceded that if any claimant felt aggrieved and lodged an appeal provided by statute then he must be given hearing and an opportunity of showing cause against the valuation. Shri Sikri also submitted that if the decision in Civil Writ No. 685 of 1960 (Punj.), is to be construed to lay down that every claimant is entitled to be heard even at the time of the original allotment then this decision requires reconsideration. Shri Wasu in reply also concedes that the initial fixation of valuation by the officer does not require that every claimant should be heard. He agrees that if hearing is given to his client and a proper opportunity afforded to ventilate his grievance then the rule of natural justice will be fully justified. In view of the position finally taken up by the two counsel in my opinion this writ petition must be allowed and the orders of the Settlement Officer (Appeals) with delegated powers of Settlement Commissioner dated 16th January, 1962 of the Deputy Chief Settlement Commissioner on revision, dated 7th May 1962 and of the Under Secretary to Government of India, dated 5th July 1962 under S. 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. must be quashed and under Art. 227 of the Constitution the matter remitted to the Settlement Officer (Appeals) to rehear the appeal after giving to the petitioner an opportunity of showing cause against the valuation and I order accordingly". (14) If could analyse the judgment of my learned brother, Dua, I. correctly I understand it to hold (keeping in view the concessions made before him):-- 1. that it is not necessary in all cases of original valuation to give notice to the occupant and to associate him in tentatively fixing the value of the property in question: 2. that if after fixation of such value any occupant of the property, who was a claimant, felt aggrieved by the value of the property fixed under R. 34-B of the Compensation Rules, he had a right to agitate the matter further and to claim that the value had not been correctly fixed; 3. that if in such proceedings in the nature of an appeal or otherwise an occupant questions or impugns the amount of the value of the property fixed by the authorities ex party, he is entitled as of right to claim a hearing and an adequate opportunity of showing cause against the ex parte fixation of the value; 4. that if in such an eventuality a proper and adequate opportunity is afforded to an occupant to ventilate his grievances by rebutting the material on which the ex parte value had been fixed or in any other legitimate manner point out errors in the same, the rule of natural justice would be fully satisfied; 5. that for the purposes of deciding the claim of an occupant under R. 34-C of the Compensation Rules it is the duty of the Rehabilitation authorities to allow a proper opportunity to the occupant to show the correct value of the property in question;. and 6. that if the Rehabilitation authorities do not give such an opportunity to an occupant, claimant or contestant who is interested in the property and who is entitled to get it in case its value is fixed at or below a particular figure, the order of the Rehabilitation authority declining the occupant such opportunity would be liable to be struck down under Art. 226 of the Constitution. (15) it is significant to note that C.W. No 1262 (Punj.) decided by my learned brother, Dua, J. directly involved the question of interpretation and application of R. 34-B of the Compensation Rules which is the rule in point in the instant case. (16) Mr. Wasu next relied on the judgment of another learned Single Judge of this Court (Shamsher Bahadur, J.) in Diwan Chand v. Deputy Chief Settlement Commr., C.W. No. 432 of 1963, dated 15-5-1963 (Punj.). This was also a case under Rr. 34-B and 34-C of the Compensation Rules. The counsel for the petitioner in that case (who happened to be Mr. H. S. Wasu again) relied before Shamsher Bahadur, J. on the earlier judgment of my learned brother, Dua, J. in Kishan chand's case C. W. No. 1261 of 1962, dated 12-3-1963 (Punj.) On behalf of other State an objection was taken to the effect that the judgment in Kishan Chand's case C.W. No. 1261 of 1962, dated 12-3-1963 (Punj.) was based on a concession. Adverting to this shamsher Bahadur, J. after referring to certain portions of the judgment of Mehar Singh, J. in Karam Singh;s case, Civil Writ No. 685 of 1960, dated 25-4-1961 (Punj.), proceeded to hold as follows:-- "I am in respectful agreement with the ratio decided of this authority judgment of Mehar Singh, J. in Karam Singh's case, Civil Writ No. 685 of 1960 dated 25-4-1961 (Punj.), and it may also be added that it has been followed in an unreported decision of Dua, J. in Civil Writ No. 1261 of 1962, dated 12-3-1963 (Punj). Mr. Sikri, who appears in that case for the State made some concession which is those referred to by Dua, J.:-- "He however, conceded that if any claimant felt aggrieved and lodged an appeal provided by statute then he must-be given hearing and an opportunity of showing cause against that valuation" Mr. Sikri points out that what he had conceded in Civil Writ No. 1261 of 1962, dated 12-3-1963 (Punj.), was that within the limits of the material which was available before the District Rent and Managing Officer as a Valuation Authority the person in occupation could present his point of view in the matter of valuation but he was not entitled to adduce any evidence in support of his valuation. Dua, J., though he mentioned the argument of Mr. Sikri that "if the decision in Civil Writ No. 685 of 1960 (Punj.)(decided by Mehar Singh, J.) is to be construed to lay down that every claimant is entitled to be heard even at the time of the original allotment then this decision requires reconsideration", no mention was made about the restricted sense in which the concession was made about the right of an aggrieved party to be heard when his appeal against valuation was being heard. In any event. I do not think that the integrity of the rule which has been laid down by Mehar Singh, J. and assented to by Dua, J. can be affected or restricted in other manner suggested by the Advocate-General. The District Rent and Managing Officer for the purpose of determining the valuation at which the property should be transferred to the occupier performs a quasi-judicial task when it is being re-determined to his detriment, and it would promote the interests of justice and fairplay if the person concerned is allowed a full opportunity of being heard. It is on this broad general consideration that I would allow this petition and remit the case to the appropriate authority for a re-decision". (17) Shamsher Bahadur, J. in Diwan Chand's case, C.W. No. l432 of 1963, dated 15-5-1963 (Punj.) therefore, held:-- (i) that the Managing Officer or other authority for the purpose of determining the valuation at which the property should be transferred to the occupier performs a quasi-judicial task; and (ii) that even in the absence of any specific rule it was necessary for the authorities concerned to allow the affected occupant of the property an opportunity of showing what the correct value of the property should be, as it would promote the interests of justice and fair play if the person concerned is allowed a full opportunity of being heard. (18) The last case to which the learned counsel for the petitioners has invited our attention is the judgment of Shamsher Bahadur, J. in Labha Ram Kapur v. Union of India, C. W. No. 515-D of 1961, dated 31-3-1964 (Punj.) digested in short note No. 8 of 1965 Punjab Law Reporter. The learned Single Judge followed the earlier judgments on the point and affirmed the same view again. This case, however, related to rules 22 and 25 of the Compensation Rules. (19) Mr. Wasu, the learned counsel for the petitioners who has argued this case fully and with great ability, then invited our attention in a very fair manner to various judgments of this Court which appeared to him to be against the contention raised by him. The first and basic authority, which has been construed against Mr. Wasu's viewpoint is the judgment of Bishan Narain, J., Jetha Nand Hotchand v. Chief Settlement Commr., Civil Writ No. 465-D of 1957, dated 16-12-1958 (Punj.). In that case Bishan Narain, J., held that an occupant had no right to be associated in the matter of fixation of the value of the property for the purpose of determining its allotability for three reasons, namely,-- (i) rule 25 of the Compensation Rules, which defined allotable property left it to the discretion of the authorities to put any property in the allotable list or not to put it in that list because of the use of the word "ordinarily'' in that rule;. (ii) there is no section in the Act nor any provision in the rules which may make it obligatory for the authorities to afford such a bearing to the occupant; (iii) after all, the Government is the owner of the property and it is, therefore, open to the Government to deal with it as it likes and it can sell, let or allot to any person whatsoever and the value, which is fixed by the Rehabilitation authorities is for the purposes of the Government itself only in order to-determine if the property is to be treated as allotable to the occupier or not. (20) With great respect to the learned Judge we are not able to agree with any of the three grounds on which he based the above-mentioned judgment. A Division Bench of this Court (Dulat and Pandit, JJ.) has already approved the dictum of various Single Bench judgments (referred to therein) in which it has been held that in spite of the use of the word "ordinarily" in R. 25, it is the absolute right of a displaced claimant, who is in occupation of acquired evacuee property, to have the same transferred to him under R. 25 of the Compensation Rules. Such a right has been denied to a displaced non-claimant under R. 26 of the Compensation Rules on entirely different grounds. This was so held in Harbaksh Singh v. Central Govt., 64 Pun LR 629 : (AIR 1964 Punj 137). (21) Regarding the second point which prevailed with Bishan Narain, J. it may be observed that if there was an express provision in the Act or the rules requiring a hearing, the matter would probably have never reached this Court. It is for the maintenance of the rule of law enshrined in Art. 14 of the Constitution and guaranteed to every citizen of this country that every Court, tribunal or statutory authority, who has to decide anything which affects or is likely to prejudicially affect the right of any citizen to acquire, hold or dispose of property etc., must strictly conform to the well-settled principle of natural justice laid down in the maxim audi alteram partem. (22) The third ground on which Bishan Narain, J. held that no hearing was necessary is, in our respectful opinion, again based on a slight misapprehension of the statutory position. No doubt the Government is the owner of the property and in certain set of circumstances it can even take it out of the compensation pool. But so long as the Government is dealing with the property as a part of the compensation pool under the Act, it is bound to mould its action within the fourcorners of the Act and not to outstep the statutory jurisdiction vested in the hierarchy of various officers of the Rehabilitation Department. On the analogy of R. 25 of the Compensation Rules we hold that under R. 34-C of the Compensation Rules it is the right of a displaced person to acquire by allotment any land to which Chapter V-A applies, if such person is a lessee of that land and such land consists of one or more Khasras and is valued at Rs. 10,000 or less. All other conditions of R. 34-C are admittedly satisfied in this case. The petitioners have admittedly not been a granted adequate opportunity to show cause against the value of land fixed in their absence. They are entitled to have such an opportunity in order to satisfy the principles of natural justice. (23) Mr. Wasu then states that a judgment of Grover, J. in Mana Singh v. Secy. Ministry of Rehabilitation, C.W. No. 29-D of 1958, dated 23-11-1956 (Punj), has also been relied in some cases against the view which Mr. Wasu is canvassing before us. I was my self appearing in that case for the petitioner. I have again gone through the judgment of Grover, J. in that case and I do not think that the said judgment can help us in deciding the question referred to us one way or the other. (24) A judgment of Bedi, J. in Dina Nath v. Union of India, C. W. No. 313-D of 1959, dated 28-12-1960 (Punj), is then referred to by Mr. Wasu as being against him. Bedi, J. merely relied on the judgment of Bishan Narain, J. and adopted the reasoning of the judgment in Jetha Nand Hotchand's case. Civil Writ No. 465-D of 1957, dated 16-12-1958 (Punj.). Whatever has been stated above in respect of that earlier judgment applies to the judgment in C.W. No. 313-D of 1959, dated 28-12-1960 (Punj.), also with the greatest respect to the learned Judge we are not able to agree with the reasoning of Bishan Narain, J. which was adopted by Bedi. J. The judgment of Bedi J. in Dina Nath's case, C.W. No. 313-D of 1959, dated 28-12-1960 (Punj.), was the subject-matter of L. P. A. No. 7-D of 1961 (Punj.), which was dismissed by Khosla, C.J. and Shamsher Bahadur. J. on 23-10-1961. The Division Bench did not at all advert to the question of the necessity to afford a hearing to an occupant in the matter of fixation of the value of an acquired evacuee property in view of their findings on the facts of that case. (25) Principally relying on the judgments of Bishan Narain, J. and Bedi, J. in the above mentioned cases another learned Single Judge of this Court (Jindra Lal J.) has in a comparatively recent judgment in Raj Rani Kapur v. Deputy secy. to Govt. of India, Ministry of Rehabilitation, C. W. No. 118 of 1963, dated 2-11-1964 (Punj.), held that it is not necessary for the Government to allow any person any opportunity to show that the value fixed by the Government for determining allotability of any acquired evacuee property is correct or not. After adopting the reasoning which found favour with Bahsan Narain J and Bedi J. in the two earlier case it has been held by Jindra Lal J. that the fixing of the value of acquired evacuee property belonging to the Government is within the slow jurisdiction of the Government and no hearing need be provided to anyone. The learned Single Judge has held that the right to question the valuation arise only if and after the property is held to be allotable. The view expressed by Jindra Lal, J. in the aforesaid case is that when the Government fixes the value of property for putting it on other list of allotable properties or non-allotable properties no one has a right to come into the picture. Even after the value is so fixed, according to the view expressed by Jindra Lal, J., no one can contest the fixation of the value for the purpose of determining allotability but if the property is held to be allotable on such an ex parte valuation, the person to whom it is to be transferred may have a right to agitate that the amount he has to pay for the property by adjustment of claim or otherwise should be different from the one fixed by the Government for the purposes of determining allotability. Even according to the judgment of Jindra Lal, J. It is not permissible for the department to tell the allottee in such a case that he must pay an arbitrary price and have his compensation adjusted against such a price. Attention of the learned Judge does not, however appear to have been drawn to the fact that a much more valuable right to acquire the property under the statute is determined at the time of including or excluding it in or from the list of allocable properties. There is no reason why this should he allowed to be done in an arbitrary manner ex parte, when it is recognised that in the matter of comparatively insignificant right of the exact amount payable by the transferee the allowing of an opportunity to the intended transferee is necessary. It appears that the earlier judgments of this Court holding that it is the statutory right of a displaced claimant who is an occupant of allotable property to obtain the same and that the Government has no discretion in the matter were not brought to the notice of Jindra Lal, J. The learned Judge has, therefore, observed that a displaced person has no right to the allotment of any particular property under the Act. With greatest respect to the learned Judge we are not able to agree with the law laid down in Raj Rani's case, C.W. No. 118 of 1963 dated 2-11-1964 (Punj.). (26) Mr. Wasu then cited various judgments including the judgments of the Supreme Court in Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta, AIR 1962 SC 1110 and Shankarlal Aggarwal v. Shankarlal Poddar. AIR 1965 SC 507, to show that the nature of the proceedings involved in fixing the value of the property under R. 34-B of the Compensation Rules is quasi-judicial and not administrative. It is not necessary to go into further details on that point as we have already held, following and approving the judgment of Mehar Singh, J. in Karam Singh's case, Civil Writ No. 685 of 1960, dated 25-4-1961 (Punj.) that these proceedings are quasi-judicial. Even if, however, the proceedings were not quasi-judicial, it would be necessary to give an opportunity to the person whose statutory rights in property are likely to be affected by the decision in those proceedings. (27) We, therefore, hold that the impugned orders of the District Rent and Managing Officer, Jullundur, fixing the value of the land ex parte and the order of the Settlement Commissioner (Appeals) refusing to allow the petitioner an opportunity to show that the value had not been correctly fixed and the order of the Deputy Chief Settlement Commissioner upholding the said orders are vitiated by an error apparent on their face and are, therefore, liable to be and are hereby set aside and quashed. We, however, want to make it clear that we may not be understood to hold that in every case of fixation of value under R. 34-B of the Compensation Rules it is necessary for the statutory authority to call the occupant at the initial stage in the very first instance before fixing other value. It would be open to the authority concerned to call the occupant if he has already been found to be eligible for allotment under R. 34-C or to fix the value without calling him and to intimate the same to the lessee. If, however, the lessee feels aggrieved by the ex parte fixation of value and questions or impugns the same before the same authority in appropriate proceedings or in an appeal against such an order, it would not be open to the authority concerned to refuse to the aggrieved party an adequate opportunity to show cause against such ex parte fixation of value. The nature of the opportunity to be given will depend upon the circumstances of each case. But the principles of natural justice would not be satisfied if the aggrieved party is not allowed to rebut the evidence on which the ex parte value has been fixed and/or is not allowed to plead his own evidence to show what the correct or the proper value should be. The aggrieved party should certainly be entitled to know the evidence on which the ex parte value has been fixed in order to be able to rebut it. (28) This writ petition is, therefore, granted, the impugned orders of respondents Nos. 1 to 3 are set aside and quashed. The eligibility of the petitioner under R. 34-C except for the question of valuation having already been determined, the authorities would now proceed according to law for determining the value of the property in question in accordance with the principles set forth above. In the peculiar circumstances of the case we make no order as to costs. I.D. Dua, J. (29) I agree. (30) Petition allowed.

Author: Narula

Balwant Singh And Ors. vs Deputy Chief Settlement ... on 19 May, 1965

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 7423 of 2010() 1. MANOJ @ MANU, AGED 27 YEARS, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.C.RAJENDRAN For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :19/11/2010 O R D E R V. RAMKUMAR, J. - - - - - - - - - - - - - - - - - Bail Application No. 7423 of 2010 - - - - - - - - - - - - - - - - DATE: 19th November, 2010 O R D E R In this Petition filed under Sec. 439 Cr.P.C., the petitioner, who is the 3rd accused in Crime No, 1008 of 2010 of Sakthikulangara Police Station, Kollam District for offences punishable under Sections 120 (b), 417 and 420 read with Sec. 34 of the I.P.C. seeks his enlargement on bail. The petitioner was arrested on 22-10-2010. 2. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Having regard to the nature of the offences, the duration of judicial custody undergone by the petitioner, the present stage of investigation of the case and the other circumstances of the case etc., I am inclined to grant bail to the petitioner with effect from a future date. Accordingly, the petitioner is directed to be released on bail w.e.f 27-11-2010 on his executing a bond for Rs. 15,000/- (Rupees fifteen thousand only) with two solvent sureties each for the like amount to the satisfaction of the Magistrate concerned and subject to the  Bail Application No. 7423 of 2010 -:2:- 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. Dated this the 19th day of November, 2010. V.RAMKUMAR, JUDGE.

Manoj @ Manu vs State Of Kerala on 19 November, 2010

Kerala High Court

1:: THE HIGH COURT or KARRATAIEA AT DATED THIS arm 24"' mm: 05' JUNE, 200$' THE THE EOE'BLE MR. PRESENT - JUSTICE AND ' _ _ TA acmssns ms. R.F.A..No.1,832 .2100:-.FA_ BE?WEER: 1 SRI occ _ R/93' smm; ¢ TQ AND may _,2 V " "aw/c:. j. T. §1_'or,_JsE.éIo:I;p womc TQ.__&mv.DIS}"T ; . 3 MASJBER _A ismmw * Jmzgn " ..»;;;_. '§«.«.v:§: srmsmmz mama rammma SAID MAJUR .v1 _ 6 LHEHER QHDAM MIEDR AE§ELLAfiEF3k$Di§ARE ii SI-IAYANNAVAR THE CHILDREN OF mnumaaxumz ALL R/AT SANTI EASTWAB TQ AND DIST BELGAUM APPELLANT 6, AGE MINOR, Ci£3C:HIL ' REF. BY NATURAL 2-sommz " sm nmxmx, * R/A3' SANTI [email protected]'IT-JAB 'i'Q AND DIST (By S121 ; c R V' " W/0 isxvmifim' mm _62. "¥R&_ " _ occ AGI;§ICL}LT0ER:EA'Afifl_b"HCUSEH0LD WORK R/AT HOU~$E-1~I0.~_1 _ vmaacn ..... " " RESPONDENT & c.v. LA , " . cc:>t::.~zsm.'* FOR ' Ci,/FLESPONDENT} 'ram Era. FILED U/SEC.96 02' cm A.GkI'NS'1' AND mama DT.21.3.200'? msszaan IN =_'=Q.Vs';Hc;3.456{2oo5 on 'rm FILE or Tim 1: ADDL. C'f.E.V'£L"--JUDGE (snnm, aanaauu, mcaszzua was ' $612302 spzcxmc r or coxmancrr. This apyeal coming on for adission this ~day, HENJUHATH, J, delivered the fallowing: 4. In View of the afor:e:f3ai«<1A the appellants have agreed ta dead on payment ef Rs.1V;.!'.3:;¢:ii~w,V{)>€30A_Q/*-.__ Executing Court, fai3._,;i. ng 1.529;'-_3 are at liberty to gxecuteci througlu the V' V 'V 5 . In arrived. at between i:.hr_ " is disposed of. refund half of the court _

Author: K.L.Manjunath & B.V.Nagarathna

Sri Abdul Rahim Magdum Husen ... vs Smt Chaya on 24 June, 2008

Karnataka High Court

> Title: Presentation of the 25th to 27th Reports of Committee on Personnel, Public Grievances, Law and Justice. श्री शैलेन्द्र कुमार (चायल)  : महोदय,  मैं कार्मिक, लोक शिकायत, विधि और न्याय संबंधी समिति निम्नलिखित प्रतिवेदन (हिन्दी तथा अंग्रेजी संस्करण) सभा पटल पर रखता हूं:-           (1) कार्मिक, लोक शिकायत और पेंशन मंत्रालय की अनुदानों की मांगों (2008-09) के संबंध में       25वां प्रतिवेदन;           (2) विधि और न्याय मंत्रालय की अनुदानों की मांगों (2008-09) के संबंध में 26वां प्रतिवेदन;           (3) न्याय मिलने में होने वाले विलंब: न्यायालयों में लंबित मामले के बारे में की गई कार्यवाही          उत्तर के संबंध में 27वां प्रतिवेदन।

Presentation Of The 25Th To 27Th Reports Of Committee On Personnel, ... on 29 April, 2008

Lok Sabha Debates

IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.949 of 2011 In Civil Writ Jurisdiction Case No. 13285 of 2005 ====================================================== Lal Babu Giri .... .... Appellant/s Versus The State of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Suresh Pd Singh No.1, Advocate. For the Respondent/s : Mr. Ajay, SC 11 and Mr. M.S. Parbat, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5 01-08-2011 At the request of the learned advocates, stand over to 8 th August 2011. (R.M. Doshit, CJ) (Birendra Prasad Verma, J) Dilip.

Lal Babu Giri vs The State Of Bihar & Ors on 1 August, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print COMP/43/2010 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 43 of 2010 In COMPANY APPLICATION No. 50 of 2010 With COMPANY PETITION No. 44 of 2010 In COMPANY APPLICATION No. 51 of 2010 ================================================= WILSON PRINTCITY PVT LTD - Petitioner(s) Versus . - Respondent(s) ================================================= Appearance : MRS SANGEETA N PAHWA for Petitioner(s) : 1, MR PS CHAMPANERI for Respondent(s) : 1, MR YV VAGHELA for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 14/03/2011 ORAL ORDER1. The present petitions are filed seeking sanction of Scheme of Amalgamation of Oriental Infrastructure Pvt. Ltd. with Wilson Printcity Pvt. Ltd. 2. Oriental Infrastructure Pvt. Ltd, the transferor company, filed Company Application No.51/2010 seeking dispensation of the meetings of shareholders and unsecured creditors on the ground that consents of all the shareholders and unsecured creditors are obtained. It was stated on behalf of the petitioner that the petitioner does not have any secured creditor. This Court vide order dated 26.02.2010 made in Company Application No.51/2010 ordered dispensation of meetings of the shareholders and unsecured creditors of the petitioner company. 3. Wilson Printcity Pvt. Ltd. the transferee company, filed Company Application No.50/2010 seeking dispensation of the meeting of shareholders on the ground that consents of all the shareholders are obtained. It was stated on behalf of the petitioner that this being the transferee company, meeting of creditors is not required to be held. This Court vide order dated 26.02.2010 made in Company Application No.50/2010 ordered dispensation of meeting of the shareholders of the petitioner company. This court further held that meeting of creditors is not required to be held. 4. The petitioners thereafter filed Company Petitions seeking sanction of the Scheme of Amalgamation. 5. This Court vide order dated 15.03.2010 made the order of admission in both the petitions and directed issuance of notice to the Regional Director in case of both the companies and notice to the Official Liquidator in case of the Transferor Company. This court also directed publication of notice of petition in Gujarati Daily 'Loksatta Jansatta' and English Daily 'Indian Express' both Ahmedabad Editions. 6. Pursuant to the order dated 15.03.2010 the petitioners have published the notice of petition in Gujarati Daily Gujarati Daily 'Loksatta Jansatta' and English Daily 'Indian Express' both Ahmedabad Editions on 08.04.2010. The Directors of the petitioner companies have filed the affidavits in support of publication of advertisements dated 11.10.2010. The affidavits also state that apropos to the advertisements, neither the petitioner companies nor the advocate for the petitioners have received any objection against the sanction of the scheme. 7. The petitioners at this stage invited attention of this Court to an oral order dated 06.08.2010 made by this Court in Company Application No. 218/2010 and allied matter permitting amendment of Scheme to the extent of modifying Clause 2A of the Scheme. A copy of the order is also placed on record along with affidavit filed by the respective petitioners in response to the report filed by the Regional Director. 8. Pursuant to the notice to the Official Liquidator in respect of the Company Petition No.44 of 2010, report dated 15.09.2010 is filed by the office of Official Liquidator. The report of the Official Liquidator confirms that the affairs of the transferor company have not been conducted in a manner prejudicial to the interest of its members or the public interest. The Official Liquidator however requested this Court to direct the transferor company to preserve its books, papers and records for a period of 8 years from the date of sanctioning of scheme of amalgamation and not to dispose of the records without the prior permission of Central Government u/s. 396 A of the Companies Act, 1956. 9. In response to the notice to the Regional Director, North-Western Region, Department of Company Affairs, Shri Pankaj Champaneri, Ld. Assistant Solicitor General of India, has appeared and has filed an affidavit of the Regional Director dated 23.2.2011. A perusal of this affidavit would disclose that the office of the Regional Director has made the observation only with respect to allotment of share exchange ratio with respect to the clause regarding ratio of exchange of shares. The Regional Director has also requested the matter with regard to the investments of the transferee company in the paid-up equity share capital of the transfer company. 10. In response to the aforesaid affidavit, the petitioner of Company Petition No. 43/2010 which is the transferee company, has filed an affidavit dated 26.02.2011. It is the case of the petitioner that the reference to clause 2A would show that the ratio of share exchange is reflected. It is further the case of the petitioner that this Court is empowered to permit the modification / amendment in the scheme in exercise of its inherent jurisdiction. This Court has already made an order dated 06.08.2010 permitting amendment of the scheme after hearing the parties. Accordingly, there is now no further requirement for taking any approval of the shareholders. Furthermore, in response to a specific query of the Regional Director, the petitioner had addressed a letter dated 7.2.2011 to the Regional Director which further clarifies the issue regarding the ratio of share exchange. The observation with regard to the extent of investment of the transferee company in the transferor company stands satisfied in view of what is contained in the order dated 6.8.2010 made by this Court in Company Application No. 218/2010. Mr. Pankaj Champaneri, the Ld. Assistant Solicitor General of India has accepted that in view of what is stated in the affidavit filed on behalf of the petitioner dated 26.2.2011 read with the reply dated 7.2.2011, the observations of the Regional Director stand satisfied and there is no objection to the sanction of the Scheme of Amalgamation. 11. There are no objections received on the record of the present petitions. There are no other adverse circumstances against sanction of the Scheme. 12. In the facts and circumstances, the Scheme of Amalgamation as annexed at Annexure `C' to the petitions is hereby sanctioned as allowed to be amended vide order dated 06.08.2010 made by this Court in Company Application No.218/2010. The petitioner is permitted to substitute Clause 2A the scheme as permitted by this Court pursuant to the aforesaid. It is however, observed that the transferor company will preserve its books, papers and records for a period of 8 years from the date of sanctioning of scheme of amalgamation and will not dispose of the records without the prior permission of Central Government u/s. 396A of the Companies Act, 1956. With these observations, the Company Petitions are accordingly allowed. 13. The cost of the Central Government is quantified at Rs.7,500/- per petition. Liberty is given to the Transferee Company to pay the amount of cost directly by drawing a Cheque in favour of Shri Pankaj Champaneri, Ld. Assistant Solicitor General of India. The cost of the office of Official Liquidator is quantified at Rs.5,000/- in respect of the transferor company. Liberty is given to the Transferee Company to pay the amount of cost directly by drawing a Cheque in favour of the Official Liquidator. [Anant S. Dave, J.] *pvv     Top

Author: Anant S. Dave,&Nbsp;

Wilson vs Unknown on 14 March, 2011

Gujarat High Court

JUDGMENT Ganga Nath, J. 1. This is a defendant's appeal arising out of a suit brought against him and Ram Charan Singh, defendant-respondent, defendant 2, by Sri Ram, respondent 1, to recover Rs. 200 for the price of the trees alleged to have been cut away by the defendants and for an injunction to restrain them from cutting away any more trees from plots Nos. 59, 60 and 62 of khewat No. 1. The plaintiff's case was that the trees were planted in these plots by the defendants' father Kalyan Singh, who was the sole proprietor of khewat No. 1, in which the plots are, that half of the share of the defendants in the zamindari, including the trees, was sold in an auction sale and purchased by the plaintiff in 1930 and that in May, June and July 1935, the defendants cut away some of the trees. The defendants contended that the trees did not pass to the plaintiff with the sale of the zamindari and that they still belonged to them. Both the Courts have concurrently found that the trees passed with the zamindari and they belonged to the plaintiff. The plaintiff claimed the price of all the trees which had been cut away by the defendants. The plaintiff's share was only half. Therefore the lower Courts awarded him a decree for Rs. 50 for half the share in the trees in dispute. It has been contended by learned Counsel for the appellant that the groves did not form part of the zamindari which was sold in execution sale and was purchased by the plaintiff. The trees in these groves remained the property of the defendants even after the plaintiff's purchase. He has relied on Umrao Singh v. Kacheru Singh (1939) 26 AIR All 415. This case deals with the question of proprietary interest of a cosharer of a zamindari in his residential house. It has no bearing on the present case. As a rule all the trees belong to the zamindar. In Khan Chand v. Mt. Chandun (1914) 1 AIR All 202 it was observed: I take it to be established by a number of rulings of this Court, of which the cases in Lachman Das v. Mohan Singh (1912) 9 ALJ 672 and in Ganga Dei v. Badam (1908) 30 All 134 may be taken as specimens that the trees planted by tenants on their holdings will be the property of the zamindar and the tenants will have no transferable rights therein. This will be presumed in the absence of evidence to the contrary. 2. There is no reason for making a distinction between the trees planted by the zamindar himself and by other persons, except a grove-holder to whom the land has been let out for the specific purpose of planting a grove. Where there are more than one cosharers, a cosharer may have inferior rights as a grove-holder if he has planted any grove. But in the case of a sole proprietor he cannot have inferior rights as a grove-holder as well as full proprietary rights as a zamindar in the land in which he has planted a grove. His rights in the groves or trees planted by him merge completely in his zamindari rights. The trees form part of the soil, and they pass with it. In Onkar Das v. Chote Lal (1911) 11 IC 192 it was held: The grove was clearly an appurtenant to the zamindari and in the absence of anything to the contrary the ownership thereof passed to the purchaser at the sale of October 1898. 3. The same view was taken in Hasan Ali Khan v. Azharul Hasan (1918) 5 AIR All 49. There the mortgagor had purchased shares in certain groves in an execution sale. He thereafter executed two mortgages hypothecating his entire sixteen anna zamindari together with all appurtenances without any exception or reservation. At the time of the mortgages he was the sole zamindar. The mortgagee brought a suit for sale on the basis of the mortgages, and in execution of the decree for sale she purchased the entire property herself. She then sold all her rights to the plaintiff, who brought a suit for possession of the groves. The plea raised in defence was that Ali Mazhar's rights as grove-holder were separate from his zamindari and were not comprised in the mortgages, and consequently had not passed by purchase to the plaintiff. It was observed: The argument put forward on behalf of the defendants is that this interest was an interest separate altogether from the zamindari and it did not form part of the mortgaged property, and consequently did not pass to the plaintiff when he purchased under the mortgage decree. It seems to us that this contention is not sound.... Ali Mazhar was the sole owner of the sixteen anna mahal. At that time there was no reason why it would in any way be for the benefit of Ali Mazhar to keep outstanding the interest of the grove-holders. It is absolutely clear under the circumstances of the present case that the interest of the grove-holders purchased and acquired by Ali Mazhar, merged in his estate as zamindar. 4. In a Full Bench case, Muhammad Sadiq v. Laute Ram (1901) 23 All 291, one of the questions was whether the trees standing on a land formed part thereof. It was observed: In the present case the application for partition distinctly shows that what was asked for was a partition both of the land and of 'everything appertaining to the above land', which would include trees. I think that when the Revenue authorities allotted to the defendants the land forming Nos. 143/2 and 143/3, they must be understood to have also awarded to them the trees standing on those lands as part thereof, and that they had jurisdiction to do so. 5. We therefore hold that the groves in dispute appertained to the zamindari half of which was purchased by the plaintiff. There is no force in the appeal. It is therefore ordered that it be dismissed with costs.

Author: G Nath

Bhoop Singh vs Sri Ram And Anr. on 8 May, 1940

Allahabad High Court

[Section 8] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30*" DAY OF OCTOBER, 2009 BEFORE THE HON'BLE MR. EUSTICE JAWAD RAHIM MISC CRL.NO 4456/O9 IN CRL.R.P. N0. 871 OF 2009 BETWEEN: SRI N S RAIASHEKAR I S/O SRINIVASACHAR, A/A 27'«YR'S_ R/A NAGADEVANAHALLI' ' " SRINIVASAPU RA TALUK KOLAR DISTRICT --- i: -I PETITIONER (BY SR1 M R NAN}~£JVIfi'JDA__GQVVD.AT..8{/ASSOCIATES.) AND : STATE OF I<ARA--NA'T_A'KA BY KOLAPff'OWN__ PO LICE ~ I RESPONDENT *>i<* 5I"HI$.V'i'-TISC. CRL. IS FILED 389(1) CR.P.C BY THE ADV'OCATE7j';_F.CJR THE PETITIONER PRAYING THAT THIS HON'_BLE"C®URT MAY BE PLEASED TO SUSPEND THE IVSENTENCE,ETC - _ '*-._Tl-TIS MISC. CRL. IS COMING ON FOR ADMISSION ON _ T_HIS.I'DAY, THE COURT MADE THE FOi_LOWING:-- / E; An" {;;':-J 3-») ORDER Heard the iearned counsel for petitioner on the application fiied under Section 389(1) Cr.P.C, by _wVh'i-ch~.._the suspension of sentence is sought. Perused»the""gj'ifo_ur:dTs, urged therein. 2. Considering the grounds ujrgeid in._s'up'port:"iof"t1ne appiication and other att'e:n'd~i.ing "£3 satisfied that the petitioner hgagsflrnade out Hence, the order regarding No.164/2002 passed by the Dvn.) & CJM, Kolar dated .3 the judgement in CrLA.JNo,i2d%2C{%i pegsaa by the learned {Nstnct and Sessionsé.'§..udge,' 03--~10-2009, be and the same is here'by. suspended bject to the following conditions: 1_')2l:The'«--._Vpetitioner shall deposit the fine amount on him within three weeks from now; petitioner shall execute a bond before the trial ecolurt for a sum of Rs.25,000/m with one surety for the Iikesum to the satisfaction of the trial court undertaking to appear before this Court or trial court as may be directed in case of failure of this if "x Q1. "3 5 flit' ,5.' 5 §,/ pefifion. 3. Accordingly, the MISC. CRL. NO. 4456/2009 is disposed of. VK

Author: Jawad Rahim

Sri N S Rajashekar vs State Of Karnataka on 30 October, 2009

Karnataka High Court

[Section 20] [Complete Act]

Central Government Act

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O. No. 245 of 1988 (O.&M.) Date of Decision: 2.12.2008 Jagmohan Kaur and others. ....... Appellants through Shri M.B.Singh, Advocate. Versus Yadvinder Singh and others. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. December 02,2008 ( Mahesh Grover ) "SCM" Judge This appeal is directed against common award dated 10.10.1987 passed by the Motor Accident Claims Tribunal, Patiala (for short, `the Tribunal') in Petition Nos. 39 of 21.10.1986 and Petition No. 4T/87 of 11.12.1986. The appellants are the widow and three minor children of late Shri Gurcharan Singh, aged about 38 years, who lost his life in a motor vehicular accident which took place on 7.9.1986. He was working as Black- smith with the Haryana Roadways at the time of his death. Two claim petitions were filed, one by the appellants and the other by the parents of the deceased, for grant of compensation. The Tribunal awarded a total sum of Rs.1,92,000/- to the F.A.O.No.245 of 1988 (O.&M.) -2- .... claimants along with interest at the rate of 12% per annum. The widow was allowed Rs.50,000/-, whereas the children were held entitled to receive Rs.30,000/- each and the parents were given Rs.26,000/- each. The income of the deceased was taken as Rs.1393.30 which he was getting as salary and the dependency was assessed at Rs.1000/- per month. A multiplier of `16' was adopted. Dis-satisfied with the amount of compensation awarded to them, the appellants have come up in appeal. Learned counsel for the appellants contended that the salary of the deceased had been revised with effect from 1.1.1986 and in support of this contention, he has moved an application for leading additional evidence. It was, thus, contended that since the salary of the deceased stood revised from January 1,1986, the compensation should be assessed by taking the enhanced salary into consideration. After hearing the learned counsel for the parties and perusing the record, I am of the opinion that the award of the Tribunal deserves to be modified. There is certainly evidence on record to show that the deceased was drawing salary of Rs.1393.30 per month, which for the purpose of assessing the compensation, is rounded off to Rs.1395/-. It is a settled principle of law that when a person is in regular employment, then, the future prospects have also to be taken into consideration. The deceased in the instant case would have certainly progressed in his career and would have earned corresponding increase in the salary had his life not been cut F.A.O.No.245 of 1988 (O.&M.) -3- .... short. Accordingly, even if the subsequent event of the increase in the salary is not taken into account, it would still be fair to consider the future prospects for the purpose of awarding compensation. The principle to take future prospects into consideration is to double the amount of salary and to this amount, add the monthly salary which the victim was drawing and then to take average of the two figures. In this manner, the monthly income of the deceased comes to Rs.2092/- (1395 +1395 =2790 + 1395 = 4185 divided by 2 = 2092). In my opinion, a cut of 1/4th should be applied to the income of the deceased on account of his personal expenses. Thus, the dependency of the claimants comes to Rs.1569/- per month, i.e., Rs.18828/- per annum. The deceased was 38 years of age and, therefore, the multiplier of `16' as applied by the Tribunal is just and appropriate. Accordingly, the compensation works out to Rs.3,01,248/-. A sum of Rs.20,000/- is allowed on account of funeral expenses and loss of estate etc. Therefore, the total compensation payable to the claimants comes to Rs.3,21,248/- to which they are held entitled to receive along with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realisation. The liability to pay the enhanced compensation and interest shall be the same as has been determined by the Tribunal. Learned counsel for the appellants contended that the liability of the insurance company to satisfy the award is unlimited. F.A.O.No.245 of 1988 (O.&M.) -4- .... In view of the above, it is directed that the insurance company shall make the payment as per the terms of the policy. The impugned award is modified to the above extent and the appeal is allowed in the aforementioned terms. The application for additional evidence also stands disposed of.

Jagmohan Kaur And Others vs Yadvinder Singh And Others on 2 December, 2008

Punjab-Haryana High Court

Gujarat High Court Case Information System Print SA/231/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 231 of 2010 ========================================================= KANTABEN WD/O BHAVANBHAI MANIBHAI SOLANKI - Appellant(s) Versus RATAJI CHUNTHAJI BARAIYA - Defendant(s) ========================================================= Appearance : MR SUNIL MEHTA FOR MR SK BUKHARI for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.3.1, 1.3.2,1.3.3 MR NK MAJMUDAR for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 25/01/2011 ORAL ORDER1. Heard learned advocate Mr.Sunil Mehta for learned advocate Mr.S.K.Bukhari on behalf of appellants and learned advocate Mr.N.K.Majmudar for respondent. 2. Considering the submissions made by both learned advocates appearing for respective parties, issue Notice returnable on 28.2.2011. [ H.K.RATHOD, J. ] (vipul)     Top

Author: H.K.Rathod,&Nbsp;

Kantaben vs Rataji on 25 January, 2011

Gujarat High Court

.$§?§;;§' i N IN THE HIGH comm oe KARNATAKA AT BANGALORE, omen THIS THE 25?" DAY 01:' MAY 2011 Q » BEFORE _ THE HONBLE l\/IRJUSTICEJ SUBHASH MISCELLANEOUS FIRST APPEAL~~NO.&1G_362/20'05 BETVVEEN: The New India Assurance Co.Lid., No/ll/2A, 2B, 13" Floor, Nithyanandanagar, Nayand-ahalli = Bangalore --~ 560 039 - ; WV " Represented by its Divisional lV_;'_ana~gr:3r:" _ Divisional Office IV, No.52, 1§i..F_lo.oI",._ 'l Vinay Complex, VE§.1fiiVll~E1S road', Basavanagudi, ._ V . _ Bangalore - 56Q"Of3«:l."=.v---';--_V V .. APPELLANT (By Sri. Aelv..__) AND: 1. Sri. Ramle:sh'~ V ._ Aged about 40 years" ~ $373 sari. Doddegowda 'A « liesiding _a't Bangle V Sulikere _PoSt,----.Kengeri Hobli . 'Bangalore S'or.;ith Taluk. Szfi. B_abu;~V'Major .V S/0.. Sri. Basha AA R/at-EX?o.298, 11"? Cross, Vinobanagar, K. G . Halli * «Bangalore -. 560 045. .. RESPONDENTS il3y_ Sint.Bhushani Kumar, Adv. for R1: ' "Service of notice to R2 held sufficient) *5} . "\':$~'" 4 ix') 2 This l\/i.F.A. is filed under Section. 173(1) of MV Act the judgment and award dated 3.8.05 passed~«~~---inV.___MX',C No.34?/O3 on the file of The I431 Addl. Judge 81 Merriher, i»i_A€"fi*;--~.e Court of Small Causes, Bangaiore, SCCH NQ_._lG~--,._ ax§farding"--« _ compensation of Rs.57,21lGO/' -- with inte_rest__@ 6% 1?¥';A..j frern' Athe V date of petition till deposit. This Appeal coming on for, ll€E1l'll'l.\§_§""£.l"1,lS dagasplthe GO.U'}"J[V.'~.h delivered the following: This appeal is by the itinsnrei:.l7q:ue_stilmsing the liability as ordered by the Tribfqhal in;_' dated 3.8.2005 on the file of M._A'.,T 2. Respondent';~ elairnan't.sGnght'v.i0rieenipensation of Rs.3 lakhs for thelnilad accident that occurred on 29.10.2lCO2.._ appreciation of the evidence has awarded lC'eInpensatiQn'<0:f Rs.57,400/-- with interest. As 'against:"3'«:. said" «-....award, the Claimant had filed Vl'.\":VA.l:T.xV':'?xV.'NQ.8»4l;'4;?'2(jC)5._ seeking enhancement of compensation. Thiseotlrt haaenhaneed the compensation, however, the same is subjelet ptdreslilt of this appeal. 3. li:VV__t3his ease, the insurer has questioned the award it «.insefar as the liahiiity of the insurer is concerned on the grennd --..that,lT?the driver of the auto rickshaw i.e., offending vehicle had licence tn drive light rnotor vehicle and he did net had the 6. Hawever ii is held Lhai thé if1SU.I'EfI' may pay and ésccover the compensatien including the enhanced c0mpen$a'iaiC:n"L:'frém the owner of the Vehicle in the sama proceédings. the appeal is allowed. . M The amount in deposit be transf§:rr¢<_:1Ath_c:- Tribunal. A' ~.__1'».; "«:£;§§g

Author: Subhash B.Adi

The New India Assurance Co Ltd vs Sri Ramesh S/O Doddegowda on 25 May, 2011

Karnataka High Court

JUDGMENT M. Katju, J. 1. This writ petition has been filed against the impugned order dated 31.1.1996 Annexure-14 to the writ petition by which the petitioner after an enquiry has been reverted from the post of Assistant Inspector General (Registration) to the post of Registrar. 2. Heard learned counsel for the parties. 3. The petitioner is a Class II officer in the employment of the State Government. He joined the service as Sub-Registrar from 13.2.1970 on probation and he was confirmed on 13.2.1972. He as promoted as Assistant Inspector General (Registration) on 3.8.1991 and was posted at Bulandshahr. It is alleged in paragraph 2 of the writ petition that the respondents 3 and 4 had some grudge against the petitioner and hence a preliminary enquiry was conducted in connection with the letter dated 16.3.1994 written by the Inspector General (Registration) to the petitioner vide Annexure-1 to the writ petition. By this letter the petitioner was asked to explain why the record of the order dated 18.10.1992 was not sent to the A.D.M. (Finance) and the details about the document No. 1608/93. Thereafter by letter dated 4.6.1994 Annexure-2 to the writ petition the petitioner was informed that an enquiry was being instituted against the petitioner on various charges and the petitioner was placed under suspension vide order dated 24.5.1994 Annexure-3 to the writ petition. The petitioner was also served a charge-sheet vide Annexure-5 to the writ petition. 4. A perusal of the said charge-sheet shows that the allegations against the petitioner are that the petitioner has grossly undervalued certain property at Rs. 5,42,633 although the A.D.M. (Finance) reported that the value of the property was about Rs. 15 lacs. The allegation was that the petitioner had not considered the evidence of the witnesses under Rules 347, 348 and 349 of the Stamp Rules and merely relied on the ex parte version of the witnesses and thus there was huge loss to the revenue. It was alleged that this was done deliberately by the petitioner for gaining some benefit. 5. Similarly charge No. 2 was regarding some other orders passed by the petitioner in which he has grossly undervalued the valuable property. The petitioner had valued the properties for a total of Rs. 4.23.000 while their value would be over Rs. 39 lacs. The other allegations are also similar and relate to gross undervaluation. 6. The petitioner submitted an explanation vide Annexure-6 to the writ petition and also filed a supplementary reply vide Annexure-7 to the writ petition. Thereafter an enquiry was held. 7. It is alleged in paragraph 6 of the writ petition that the enquiry was not conducted in a fair and proper manner and the petitioner was not given opportunity to produce his witnesses. The petitioner also applied for change of the enquiry officer. However, the petitioner was informed that the enquiry has been completed on 24.2.1995 and a report has been sent to the State Government. With this order dated 27.6.1995 vide Annexure-9 to the writ petition copy of the enquiry report was also annexed. The report also mentions the proposed punishment vide Annexure-10 to the writ petition. True copy of the enquiry report is Annexure-11 to the writ petition. Finally the impugned order dated 31.1.1996 was passed reverting the petitioner and withholding his integrity certificate of 1993-94 vide Annexure-14 to the writ petition. Aggrieved this writ petition has been filed in this Court. 8. A counter-affidavit has been filed and we have perused the same. In paragraph 5 it is denied that the petitioner was not supplied copies of the material papers mentioned in the charge-sheet. In paragraph 6 it is denied that the enquiry was not conducted in a proper and fair manner. It is also denied that the petitioner was not given opportunity to produce his witness or to cross-examine Babu Lal A.D.M. (Finance). In fact the enquiry report which is Annexure-11 to the writ petition makes it clear that the petitioner had cross-examined Babu Lal on 22.1.1994. The petitioner was also heard personally in the enquiry. In paragraph 7 it is stated that after giving reasonable opportunity of hearing to the petitioner the enquiry was completed on 24.2.1995. Hence his letter dated 26.2.1995 praying for change of the enquiry officer had no meaning. It is also stated that the petitioner should have approached the U. P. Public Service Tribunal as an alternative remedy. 9. As regards the allegation against the respondents 3 and 4, they have been denied as stated in paragraph 15 to 18 of the counter-affidavit and the comments of these officers are Annexures-C.A. 1 and C.A. 2 to the counter-affidavit. 10. In paragraph 19 it is stated that even a judicial officer has to act honestly and conscientiously. He cannot be pardoned if he conducted proceedings with ulterior motive causing huge loss to the State. A perusal of the enquiry report Annexure-11 to the writ petition shows that the petitioner decided cases in clear violation of Section 27 of the Indian Stamp Act and Rules 347, 348 and 349 of the Stamp Manual. These rules give guidelines regarding the way in which the proceedings of stamp cases should be conducted. The object of these rules is to ensure that all efforts are made for determining the real market value of the property. Under Rule 349 it is the duty of the officer concerned to thoroughly examine and analyse all the relevant evidence so as to reach a genuine and valid conclusion of the correct value of the property. A perusal of the enquiry report shows that the findings are that the petitioner did not conduct the proceedings in this manner. In paragraph 20 it is stated that an officer is expected to be honest and sincere. 11. Various other averments have been made but it is not necessary for us to go into the same. 12. The findings of the enquiry officer are findings of fact and we cannot go into the same in writ jurisdiction as it is not a Court of first appeal. 13. Learned counsel for the petitioner submitted that the petitioner was only acting in his judicial capacity and if he has passed a wrong order then that was subject to appeal/revision under Section 5 of the Stamp Act. Learned counsel has relied on the decision of the Supreme Court in P.C. Joshi v. State of U. P., 2000 (1) AWC 504: 2001 (91) FLR 105, in which the Supreme Court observed: "If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently of fearlessly." 14. The petitioner has also relied on a Division Bench decision of this Court in Vijendra Pal Singh v. State of U. P., 2001 (91) FLR 409. where the above decision of the Supreme Court has been followed. The petitioner has also relied on the decision of the Supreme Court in Union of India v. J. Ahmed, AIR 1979 SC 1022, where the Supreme Court observed that lack of efficiency and failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. 15. In our opinion the aforesaid decisions of the Supreme Court are wholly distinguishable. If it were a case of bona fide error, then of course it would not be a misconduct on the part of a judicial officer to pass such an order. Judges, like other human beings, can also make mistakes. As Lord Denning has said. "The Judge has not been born who has never made a mistake". However, there is difference between a bona fide mistake and a deliberate mistake for extraneous considerations. A copy of the enquiry report, Annexure-11 to the writ petition, shows that it was not a bona fide mistake committed by the petitioner but a deliberate one. As regards charge No. 1 the finding of the enquiry officer is that the petitioner did not make the enquiries as contemplated ,by Rule 379 of the Stamp Manual and instead he relied on the ex parte evidence of a party due to which there was a heavy loss to the revenue. The petitioner never made spot inspection in respect of this property as he made in the case of other properties. The petitioner did not issue any notice to the registering officer and hence the officer could not know that the case has been transferred to the petitioner. The petitioner did not also take into consideration the report of the A.D.M. (Finance) which was based on the spot inspection and he did not himself make any spot inspection. The petitioner relied on the valuation of a house which was 60 years old, whereas the house in question was 28 years old, and hence the exemplar was not relevant. 16. Similarly as regards charge No. 2 it has been found that the petitioner grossly violated Rules 347, 348 and 349 of the Stamp Rules in making his valuation and thus grossly undervalued the property in question. The enquiry officer has considered this charge which deals with four cases in great detail and has found that the petitioner caused a loss of Rs. 5,07,630 to the revenue. The petitioner did not give opportunity of hearing to the registration officer. It was observed by the enquiry officer that when the petitioner did not find the papers showing the correct market value. it was his duty under Section 47(3) to hold an enquiry for the correct valuation under that provision. He should have issued notice to the relevant parties under Rule 37 and should have held proceedings only 30 days thereafter, but he held proceeding on 9.6.1993 itself and same day held spot inspection which should have been held after 30 days after giving notice. Thus, Section 47(3) and Rule 43 were clearly violated. Rule 38 was also violated and no opportunity of hearing was given to the registering officer. Only one day after receiving certain papers in an ex parte manner the petitioner passed the order dated 10.6.1993. He also violated Rule 49. The report of the A.D.M. (Finance) shows that in the Khasra and Khatauni it was shown that the property in question was recorded in the name of Agarwal Cold Storage and Ram Klshan Das and Shanti Lal, registered firm. According to the Khasra the cold storage is recorded as abadi and old parti and no crops have been sown there. It was never mentioned that agriculture was done on the said plot. Thus, there was clear violation of Sections 27, 47(3) and Rule 347, 348 and 349 of the Rules causing heavy loss to the revenue. 17. Charge No. 3 against the petitioner was that by hts order dated 12.2.1993 he has shown the market value of certain properties at Rs. one lac per bigha, whereas it was really between Rs. 3.50 lacs to Rs. 4 lacs per blghas. Thus, the petitioner has caused a loss of Rs. 97,937.50 to the revenue. Similarly on charge No. 4 also the petitioner has been found guilty by the enquiry officer. This charge was that by his order dated 18.10.1992 the petitioner has undervalued the property and caused loss of Rs. 46,400 to the revenue. 18. Learned counsel for the petitioner submitted that the orders passed by the petitioner were quasi-judicial orders and hence if any one is aggrieved against the same he could file a revision under Section 50 of the Stamp Act but no disciplinary proceeding can be taken against the petitioner for passing such quasi- judicial order. We do not agree. It is well established by a catena of decisions of the Supreme Court that disciplinary proceedings can be initiated even for passing a judicial or quasi-judicial order vide Union of India v. K. K. Dhawan, 1993 (3) AWC 1738 (SC) : AIR 1993 SC 1478 ; S. Gouinda Menon v. Union of India. AIR 1967 SC 1274 ; Union of India v. Upendra Singh, 1994 (2) AWC 919 (SC) : (1994) 3 SCC 357 ; Union of India, v. A. N. Saxena. AIR 1992 SC 1233 ; Government of Tamil Nadu v. K. N. Ramamurthy. -AIR 1997 SC 3571 and Hart Singh v. Governor. U.P., 2003 (2) UPLBEC 1456 etc. 19. In State Bank of India v. T. J. Paul. AIR 1999 SC 1994, the Supreme Court held that even when mala fide and corrupt practice is not alleged against the employee, he may be held guilty of misconduct if he acts in a manner which jeopardises the interest of the employer. In that case the allegation was that the respondent granted a bank loan negligently and the bank suffered a serious loss. The Supreme Court held that even if this was not a case of insubordination or disobedience of orders of the superior officer it was an act prejudicial to the bank and there was gross negligence which involved serious loss to the bank, and hence it is a case of misconduct. 20. In the present case even though there may not be any specific allegation of corruption against the petitioner, in our opinion, he certainly acted in a manner causing serious loss to the Government exchequer by the manner he disposed of the stamp cases. As found by the enquiry officer the petitioner disposed of the stamp cases in utter violation of the provisions of the Stamp Act and Stamp Manual. From this a reasonable inference can be drawn that he passed such orders for extraneous considerations. 21. The findings recorded by the enquiry officer are findings of fact and we cannot interfere with them in writ jurisdiction. 22. The petition is dismissed.

Author: M Katju

Mukhtar Ahsan vs State Of U.P. And Ors. on 12 November, 2003

Allahabad High Court

In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/001393 Date  of Hearing :  August 30, 2011 Date of Decision :  August 30, 2011 Parties: Applicant Shri Dharmi Meena Railway Qtr.No.764 B Type Ii R.E. Colony Gangapur City Sawai Madhopur The Applicant was not present during the hearing Respondents West Central Railway General Manager's Office Indira Market Jabalpur Represented by : Shri Ajay Srivastava, PIO & DGM Shri S.D.Patidar, Dy.CPO ­NIC Studio, Jabalpur Information Commissioner :   Mrs. Annapurna Dixit ___________________________________________________________________ In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/001393 ORDER 1. The Present petition dt.30.5.11 emanates from the RTI application filed by the Applicant  on 18.2.11  on denial of  the answer sheets of two candidates  who had appeared for the OS­II exam sought by  the Appellant vide his RTI Application and his first appeal, by the PIO and the AA respectively. 2. During the hearing, the Respondents submitted that a copy of his own answer sheet has already  been provided to the Appellant and that copies of answer sheets of the other  two candidates  have  been denied  although inspection of the same had been allowed.  3. On   going   through   the   submissions  on  record  and  in   the  light  of   the    consistent  position  of   the  Commission  that  answer sheets  of  candidates other than those of the Applicant himself, cannot be  disclosed to the Applicant u/s8(1)(j) of the RTI Act,   I do not find any reason to interfere with the  decision of the Public Authority . The appeal  is rejected and the case closed at the Commission's  end. (Annapurna Dixit) Information Commissioner Authenticated true copy  (G.Subramanian) Deputy Registrar Cc: 1. Shri Dharmi Meena Railway Qtr.No.764 B Type Ii R.E. Colony Gangapur City Sawai Madhopur 2. The Public Information Officer West Central Railway General Manager's Office Indira Market Jabalpur 3. The Appellate Authority West Central Railway General Manager's Office Indira Market Jabalpur 4. Officer in charge, NIC

Mr.Dharmi Meena vs Ministry Of Railways on 30 August, 2011

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP No. 8158 of 1999(U) 1. SABU KARIKKASSERY ... Petitioner Vs 1. THE SECRETARY TO GOVT ... Respondent For Petitioner :SRI.GEORGE POONTHOTTAM For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :16/11/2007 O R D E R THOTTATHIL B. RADHAKRISHNAN , J. ========================== O.P. NO. 8158 OF 1998 ========================== Dated this the 16th day of November, 2007. JUDGMENT In view of the interim order passed on 29.03.1999 on C.M.P. No. 13658 of 1999, no further reliefs are called for. The said order is made absolute. The writ petition is disposed of accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. rv  THOTTATHIL B. RADHAKRISHNAN, J ----------------------------------------------

Sabu Karikkassery vs The Secretary To Govt on 16 November, 2007

Kerala High Court

JUDGMENT D.G. Karnik, J. 1. By this Writ Petition, the petitioner challenges the Notice dated 9th August 1987 issued by the Tahsildar, Beed, on the ground that the notice is issued without authority of law. 2. In the impugned Notice dated 9th August 1987 (which is signed on 10th August 1987), it is mentioned that the land bearing S.No.4, admeasuring 7 acres and 7 gunthas is held as Inam by Dargah Hurmen Shah, Beed. It is further mentioned that the land is presently under the supervision of the Government. It is alleged in the Notice that the petitioner has made encroachment on one acre ten gunthas in a portion of this land bearing S.No.4. The Notice, therefore, directs the petitioner to remove the encroachment, failing which, it is stated that the encroachment would be removed by the Government. 3. Section 50 of the Maharashtra Land Revenue Code confers power on the Collector to abate or remove any encroachment made on any land or property vested in the State Government. Thus, the necessary condition for exercising powers under Section 50 is that the land or property must vest in the State Government. Under Section 50, the Collector has no power to remove encroachment made on the private property of a private person. 4. The learned Assistant Government Pleader, appearing for the Government, could not specify any source of power for removal of the encroachment other than Section 50 of the Maharashtra Land Revenue Code. Section 50 is clearly not applicable as admittedly the land does not belong to the Government. 5. It is the contention of the petitioner that there is no encroachment made by him. Assuming, without admitting, that there is an encroachment, the said encroachment cannot be removed summarily in the manner it is sought to be done by the impugned notice because the encroachment is not on the Government land or property. In the circumstances, the order passed by the 1st respondent - Tahsildar on 9th August, 1987 at Exhibit-G to the petition has to be quashed. 6. Hence, the order of the 1st Respondent dated 9th August 1987 at Exhibit-G to the petition is quashed and set aside. Rule is made absolute accordingly. No order as to costs.

Author: D Karnik

Babamiya S/O Ahmed Shah Inamdar, ... vs Tahsildar, Beed, State Of ... on 6 March, 2002

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.41143 OF 2008 1. HALMA KHATOON, WIFE OF ALLAUDDIN 2. TETARI KHATOON, WIFE OF MD. AKBAR 3. MOST. SUMAIDA KHATOON, WIFE OF LATE FIDALI MIAN 4. MD. AKBAR, SON OF LATE FIDALI MIAN ALL RESIDENT OF VILLAGE MADHKAUL, POLICE STATION BELSAND, DISTRICT SITAMARHI ............................................................................................PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. MD. MOZIB ASLAM, SON OF LATE MD. IBRAHIM, RESIDENT OF VILLAGE POJHIAN, POLICE STATION TARIYANI, DISTRICT SHEOHAR .................................................................................OPPOSITE PARTIES ********** Anand (Sheema Ali Khan, J.) 2 28/07/2011 This application has been filed against the order dated 29.07.2008 passed in Complaint Case No. c-1/182 of 2006 (Trial No. 719 of 2008) by which the Judicial Magistrate, 1st Class, Sheohar has allowed the application filed on behalf of the Opposite Party No. 2 to prosecute the complaint case after the death of daughter, who was the original complainant of the case. In the opinion of this Court, there is no illegality in the order impugned and as such, this application is dismissed.

Halma Khatoon & Ors vs State Of Bihar & Anr on 28 July, 2011

Patna High Court - Orders

JUDGMENT Sunil Ambwani, J. 1. Heard Sri A.K. Misra for Official Liquidator. 2. M/s Himalayan Magnesite Ltd. (In Liq.) was ordered to be wound up by this Court on 22.9.1999, on the recommendation of BIFR and the Official Liquidator was appointed as Liquidator by virtue of Section 449 of the Companies Act 1956. The possession of the assets of the Company (In Liq.) situate at Pithoragarh were taken over by the Official Liquidator on 18.9.2002 in the presence of, among others, and the Deputy Manager, State Bank of India, Rudrapur, one of the secured creditor. The Official Liquidator reports in application No. 219961 of 2005 that at the time of taking over the possession, it was found that all the movable assets including plant and machinery was removed and nothing was found in the factory except scrap. The company has leases of land, mines and some scrap material was found on the spot. Sri Dayaloo Ram was appointed to take care of the security. It is now reported that the State Bank of India having full knowledge of the liquidation proceedings and the possession of the Official Liquidator initiated proceedings under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and obtained a decree in execution vide DRT No. 41 of 2003 State Bank of India versus M/s Himalayan Magnesite Ltd and others. The Recovery Officer, Debts Recovery Tribunal, Lucknow ordered for the auction sale which was conducted on 13.10.2005 with reserved price of Rs. 12 lakhs and the properties were sold on 13.10.2005. It is reported that all this took place with full knowledge that the assets of the Company are in possession of the High Court and that the Official Liquidator was appointed and is functioning as the Liquidator of the Company. 3. In Allahabad Bank v. Canara Bank and Anr. (2000) 2 Comp. L.J. 170 (SC) Supreme Court held that in view of the Recovery of Debts Act being a subsequent legislation and being a special law would prevail over general law i.e., the Company Act, 1956. In subsequent decision in Rajasthan Financial Corporation and Anr. v. the Official Liquidator and Anr. (2005) 6 Comp. L.J. 129 (SC] dated 5.10.2005, the Supreme Court field us follows: 17. Thus, on the authorities what emerges is that once a winding up proceeding has commenced and the liquidator is put in charge of the assets of the company being wound up, the distribution of the proceeds of the sale of the assets held at the instance of the financial institutions coming under the Recovery of Debts Act or of financial corporations coming under the SFC Act, can only be with the association of the Official Liquidator and under the supervision of the Company Court. The right of a financial institution or of the Recovery Tribunal or that of a financial corporation of the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529A of the Companies Act taken place. In the case on hand, admittedly, the appellants have not set in motion, any proceeding under the SFG Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the Company Court for permission to stand outside the winding up and to sell the properties of the company in liquidation. The Company Court has rightly directed that the sale he held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529A of the companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the view expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank v. Canara Bank and Anr. (2000) 2 Comp. LJ 170 (SC), supra, and in International Coach Builders Ltd. v. Karnalaka State Financial Corporation (2003) 2 Comp. LJ 166 (SC), supra, in respect of the applicability of Sections 529 and 529A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security and the distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529 read with Section 529 of the Companies Act. After all, the liquidator represents the entire body of creditors and " also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the. proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the Company Court, that a proper price is fetched for the assets of the company in liquidation. It was in that context that the rights of the Official liquidator were discussed in International Coach Builders Limited (2003) 2 Comp LJ 166 (SC), supra. The. Debt Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the liquidator and hear him before ordering a sale, as the representative of the creditors in general. 18. In the light of the discussion as above, we think it proper to sum up the legal position thus: (i) A Debt Recovery Tribunal acting under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 would be entitled to order the sale and to sell the properties of the debtor, even if a company in liquidation, through its Recovery Officer but only after notice to the Official Liquidator or the liquidator appointed by the Company Court and after hearing him. (ii) A District Court entertaining an application under Section 31 of the SFC Act will have the power to order sale of the assets of a borrower company in liquidation, but only after notice to the official Liquidator or the liquidator appointed by the Company Court and after hearing him. (iii) If a financial corporation acting under Section 29 of the SFC Act seeks to sell or otherwise transfer the assets of a debtor company in liquidation, the said power could be exercised by it only after obtaining the appropriate permission from the Company Court and acting in terms of the directions issued by that Court as regards associating the official Liquidator with the sale, the fixing of the up set price of the reserve price, confirmation of the sale, holding of the sale proceeds and the distribution thereof among the creditors in terms of Section 529A and Section 529 of the Companies Act. (iv) In a case where proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 or the SFC Act are not set in motion, the concerned creditor is to approach the Company Court for appropriate directions regarding the realisation of its securities consistent with the relevant provisions of the Companies Act regarding distribution of the assets of the company in liquidation. 4. The Official Liquidator as such represents the entire body of the creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and to discharge the duty for further distribution of the proceeds on the basis of preferences contained in Section 530 of the Company Act and the directions by the Company Court. To ensure the proper sale and distribution of the sale proceeds, it is necessary to associate the Official Liquidator with the process of sale after issuing notice and hearing him, so that he can ensure, in the light of the directions of the Company Court, that a proper price is fetched for the asset of the company (In Liq.) 5. The up shot of aforesaid decision is that when the company has been wound up and the assets are in possession of the Court through the Official Liquidator, the creditors of the company the Debt Recovery Tribunal or the recovery officer cannot, without informing the Court and associating the Official Liquidator proceed with the sale or disposal of the assets of the company or to distribute or appropriate the sale proceed, where the assets have been disposed of without assent of the Official Liquidator. There is likelihood of it being appropriated, without taking into account the rights of the workmen government dues and the dues of other creditors. Further it is also a question of propriety and fairness in sale of the assets. I, therefore, prima facie find that the State Bank of India as well as Recovery Officer, Debt Recovery Tribunal, Lucknow exceeded their authority to sell the assets of the company and that the sale made by them cannot be sustained. Sri A.K. Misra states that the Official Liquidator has not been informed about the details of the sale and the price fetched by the Recovery Officer. 6. Having regard to the facts and circumstances, let notices be issued to the State Bank of India, Rudrapur Branch, Rudrapur, and the Recovery Officer. Debts Recovery Tribunal, Lucknow, to disclose full facts giving details of the sale and further to show cause as to why the sale be not cancelled and they be not proceeded lor violating the provisions of the Company Act 1956 and the Company (Courts) Rules 1959. The notices shall be annexed a copy of this order and shall returnable by 19.12.2005. List on 19.12.2005. 7. Until further orders the parties and the purchasers shall maintain status quo with regard to assets of M/s Himalayan Magnesite Ltd. (In Liq.) including those assets which have been sold by the Recovery Officer, Debt Recovery Tribunal, Lucknow.

Author: S Ambwani

In Re: Himalayan Magnesite ... vs Unknown on 21 November, 2005

Allahabad High Court

Title: Further discussion on the Designs Bills, 2000 moved by Dr. Raman Singh on the 20th April, 2000 (Bill passed). 1435 hrs MR. CHAIRMAN: We will take up Item No. 13, further consideration of the motion moved by Dr. Raman Singh on the 20th April, 2000. Dr. Raghuvansh Prasad Singh – not present. SHRI VARKALA RADHAKRISHNAN (CHIRAYINKIL): Madam, I oppose the Bill. Superficially, it may appear to be a non-controversial Bill, but in reality, it is highly objectionable. Now, this legislation is primarily presented to consolidate and amend the law relating to protection of designs. This is the purpose for which this legislation has been brought. Now, the question is this. Is this Bill brought for the protection of Indian designs or foreign designs? That is the question to be answered when we deal with the provisions of this particular legislation. This Bill is the off-shoot of our policy of globalisation, liberalisation and privatisation. This is an extended form of it. In other words, it is a sale of our national interest to multinational companies. I am stating these things not in a figurative mood. *At 1410 hours quorum bell was rung. No quorum was made. At 1413 hours quorum bell was rung again and no quorum was made. At 1416 hours once again quorum bell was rung and no quorum was made. Thereafter, the Secretary-General informed the Members present as follows: "There is no quorum. The House, therefore, cannot meet; and we may not start the House till there is a quorum. Hon. Chairman has directed that the House will re-assemble at thirty-five minutes past Fourteen of the Clock." I want to draw the attention of those concerned to section 44 of the Bill. This section deals with the powers of the Central Government. This legislation is directly connected with foreign legislations. Section 44(1) says: "Any person who has applied for protection for any design in the United Kingdom or any of other convention countries or group of countries or countries which are members of inter-governmental organisations … " So, the registration in India is related to registration in the United Kingdom or inter-governmental organisations or nations belonging to the World Trade Organisation. That is made explicitly clear in the explanation 1 to section 44 which says: "For the purposes of this section, the expression "convention countries", "group of countries", or "inter-governmental organisation" means, respectively, such countries, group of countries or inter-governmental organisation to which the Paris Convention for Protection of Industrial Property, 1883 as revised at Stockholm in 1967 and as amended in 1979 or the final Act, embodying the results of the Uruguay Round of Multilateral Trade Negotiations, provided for the establishment of World Trade Organisation applies. " So, it is crystal clear that the provisions of this section are directly connected with the provisions contained in the World Trade Organisation. This statute has been introduced for the purposes of serving the interests of the World Trade Organisation. That is why, at the outset, I expressed my apprehension that this is a sell-out of our national interests to multinational companies. This is made clear by the reference to section 44 of this Bill. Moreover, I may further state: "Anybody, alone or jointly with any other person, be entitled to claim that registration in a foreign country. " That registration is applicable here also. Suppose, an Indian citizen has applied for registration of a design under section 3; now, his interest will be subservient to the interest of the person who has made registration in a foreign country. We are making statutes to the whims and fancies of the statutes of the foreign countries. A person who has applied for a registration, suppose, in the United Kingdom, he will get preference under section 44. Suppose, somebody has applied for a registration in the United States of America, that application will get the preference over the application that was subsequently submitted in the Indian State. So, the Indian citizen''s interest is not given priority, and priority is given to the foreign citizens'' registration, which was made in a foreign country. That is how section 44 is applied. That is why, we oppose this statute. It is there only to serve their purpose. Madam Chairperson, you may remember that there is a petition pending before the Supreme Court. An American company has applied for a patent right over basmati rice. Even the name itself is Indian, but the patent right will go to an American company. They have filed a petition before the Court. The Government of India has filed a counter-affidavit saying that we have the right for the patent. Why have we come to such a pitiable situation before the Supreme Court? Here is an American company claiming right over basmati rice in India, and the Indian Government is the defendant or the respondent in the petition. The Government has filed a counter-affidavit to the effect that basmati rice is Indian, and its patent right cannot be given to anybody else. All such things have been raised in the petition. We have come to such a miserable situation by passing the Patents Act. This is another sister legislation with regard to the Patents Act. Now, section 3 makes it clearer. I will read section 3. "The Controller-General of Patents, Designs and Trade Marks appointed under sub-section (1) of section 4 of the Trade and Merchandise Marks Act, 1958 shall be the Controller of Designs for the purposes of this Act." So, a person acting as the Controller-General of Patents and Trade Marks will have to act as the Controller of the Designs. He is given the double job -- he is administering the provisions of the Patents Act, and he has to act as the Controller of Designs. It is more or less a sister legislation to patents legislation. Manufacturers of Indian preparations in the country apprehend that their rights will be curtailed by this Act as well as by the Patents Act. I submit that this will lead to a sell out of our traditional preparations. We manufacture certain ayurvedic medicines in the country. I am sure that within a short time the patent rights on these ayurvedic medicines will be in the hands of multinational companies who would apply for registration in a foreign country, bring that registration to India and claim preference over Indian legislation. This is going to happen under the provisions of Section 44 of the Act. It will lead to very difficult position so far as our interests are concerned. Section 44 is crystal clear in this respect. I, therefore, have to oppose this legislation with all vehemence. I draw the attention of the House to the period of registration. The period of registration provided for in the Bill is ten years to start with which could be extended under certain conditions for a term of another five years. That makes the total period of registration fifteen years. Here, who is taking the vital decision on registration? The vital decision is taken by the Controller of Designs. The Controller is given wide powers and there is no curtailment of his powers. He can act in any way he chooses to. No other authority is given any discretionary power. On any action or on any order passed by the Controller, an appeal to the High Court is provided. The High Court is the authority to deal with such matters. The Controller can refuse registration to an applicant without stating reasons. This is highly arbitrary. A poor Indian citizen who is holding the secret of a preparation in India has to compete with an application from a foreign country. The foreign applicant would claim priority over the poor Indian, under Section 44 and he would say that he is competent to have that registration. Ultimately the poor Indian will be thrown out. The Controller can take a decision in favour of the foreign applicant for no reason because he need not state any reasons for the rejection of an application. Why should the Controller be invested with such enormous power? For whose interest is he given such unlimited powers? I respectfully ask the Government as to why the Controller is given such unlimited powers. Will it not create any suspicion and doubt in the administration of justice? That is why I wish to draw your attention to these matters. The powers of the Controller should be curtailed. Also there must be a periodical check over the Controller’s powers. The Controller is a person who has multifarious duties to perform. He is the Controller of Designs; he is the Controller of Patents; and he is the Controller of Trademarks. He has to deal with these many issues at the same time. He is put to great difficulty as he has to handle all these affairs himself. If a person holding all these posts is given such unlimited powers, misuse of power will be the ultimate result. In order to prevent misuse of powers, there must be some check over the powers vested in the Controller of Designs. I suggest that the Government bring in some amendments to curtail the Controller’s powers and to provide a periodical scrutiny of his powers. Otherwise, the purpose for which this statute is going to be enacted will not be served. We would like to serve the patent rights of Indian patents and not foreign citizens alone. So, I submit that the Act is defective in many respects. Another point which I would like to mention is about the publications. The Controller will have to publish a list of persons who have been given registration. We do not know where it is to be published. There is no provision. The Controller will have to delegate powers to some other people. India is a vast country. Hundreds of thousands of applications may come up for design registrations. As per the provisions of the Act, there is only one Authority and that Authority will have to delegate powers to many others. That is not provided. We may provide it in the rules. I do agree. But there is no specific provision and it is not known where it is to be published. The High Court is the only Authority which can look into the matter. There is no other Authority. There are cases wherein suo motu appeal will lie. Even the Controller can refer certain applications to the High Court on his own accord. In all other matters, the aggrieved party should prefer an appeal before the High Court and that too is a very very retrograde step, if I may put it so. That will not help the poor man and our applicant will be a poor man. He cannot compete with the multinational interest who is opposing his case. So, a very peculiar situation may arise and, that is why, I oppose this legislation. It is not in the interest of the State. So, I would request the hon. Minister either to change the Bill drastically or he may show courtesy of withdrawing the Bill in national interest. With these words, I conclude. SHRI E.M. SUDARSANA NATCHIAPPAN (SIVAGANGA):Respected Chairperson, I really want to appreciate the progressive legislation so that the Indian artisans who are living in the villages and who do not know about the intellectual property rights will register their inventions and new creations according to the expectation of the law. It will give more richness to them if they know about this law. There will not be any poverty for the poor artisans who are actually rich in their artisan works and who are enriching Indian culture. Section 44 is especially a very good provision which makes the Indian creations to compete throughout the world and also the Convention countries can get the benefit and they can get more money out of their inventions and creations. I would like to suggest that this provision can also further go to provide an Office just like in Switzerland to go for registration to cover up all the Convention countries. If a registration is made in India itself, automatically it should be covered throughout the Convention countries or the countries which are accepting our registration. Instead of going again to the International Office in Europe and register and then get the benefit, this type of arrangement wll give us more focus towards India so that the Asian countries can come to India and register their designs and inventions and get the benefit, instead of going to Europe for registration. I find the design is defined by just copying from Mozley & Whiteley’s Law Dictionary 10th Edition Butterworths 1988". We have to think about the future progress and make the definitions useful for future. The definition should not be restricted. I am just reading a portion of the `Definitions’ clause. I quote from clause 2(d): "`Design’ means only the features of shape, configuration, pattern, ornament or composition of lines or colour applied to any article whether in two dimensional or three dimensional or in both form, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye …" This might be a definition given by different countries. But why should we not have the progressive thinking to make it `judged by the five senses of the human beings’? I am making this suggestion because if you see a design made in a Madurai temple, it would only be a small stone pillar but if you touch it, it will give you all the saptaswaras. If you want to say that it should be `judged solely by the eye’, you cannot use the ear. There are many things that we can smell and that can give light. There are many things that can be felt by touch like the touch-screen system on computers. There are many architectural pieces in our country that will give more inspiration and more happiness through the use of all the five senses. So, a broad definition can be made on those lines because the poor sculptors in the villages are not identified. They are not given the recognition of their greatness. Their works are not shown to the world. According to the New Shorter Oxford Dictionary, the word `design’ is derived from the French desseign, which is, in turn, derived from the Latin designare and it gives the meaning: `a plan or scheme conceived in the mind’. The very important thing here is the human mind or how the human beings apply their minds to make inventions. It is not `eye’ alone that has to be taken into consideration. The latest Encarta World English Dictionary, 1999 MacMillan Edition gives the meaning: `invent, to contrive, devise’. These dictionaries give more meaning to the word `design’. Therefore, I would like to suggest that the framers of this clause might think about it and bring in a broader sense to the word. Let us be a country that gives more light to the definition rather than borrowing the definition from other countries or from other dictionaries. Clause 22 deals with piracy. But clause 4 actually helps the pirates to escape from the clutches of law. If they are very vigilant, when they are about to be prosecuted for piracy, they can go to the Controller and get their registration removed. The Controller will have to very carefully go through the application for removal of registration. If he finds that it is not a bona fide registration, that person should be prosecuted under clause 22. Finally, I would like to suggest that through this legislation India’s richness should be shown throughout the world. I would request the hon. Minister to make a separate provision to make known throughout the world all the artisans, blacksmiths, goldsmiths living in the remote corners of the country. They are doing their work without knowing that they are creating richness. If they register their designs, you should be able to say, here is the welfare Government that is ready to give the legal aid to register their inventions and designs and see to it they get the benefits out of it. There should be a real propagation and awareness of this throughout the nooks and corners of the country so that the villagers are benefited by this legislation. 1500 hours SHRI RAMESH CHENNITHALA (MAVELIKARA): Madam Chairperson, I rise to support the Bill. This Bill is a technical one. As we passed the Copyrights Bill, it is very necessary to pass this Bill also. It is connected with the World Trade Organisation and the Intellectual Property Rights. In 1911, we passed this legislation which needs more teeth and some modifications. Today our country is passing through the process of industrialisation. Changes are taking place all over the world. Whether we like it or not, we are in the process of liberalisation. More and more capital investments are coming from abroad and we have to streamline this. When the process of industrialisation is underway, this kind of legislation is very necessary. My colleague, Shri Radhakrishnan was mentioning that this Bill is brought forward to protect the multinational companies. I would not agree with that. This Bill is brought forward to protect the people of our country who are inventing their own designs and their own drawings. This Bill is giving a kind of protection which we are giving to our rural artisans and the rural people who are trying to invent new designs and new drawings and I do not know how this is going to help the multinational companies. Generally, the hon. Member Shri Radhakrishnan spoke in line with the Members belonging to CPM. Whenever they speak, they speak about the multinational companies and they would criticise everything under the Sun. That is their attitude. That is why, he criticised this Bill. I do not want to go into that aspect. The point that I want to mention is that when we are in the process of industrialisation, this type of legislation is a must to protect the interests of designers; and we do not have such a law today. So, this compels the Government to come forward with this piece of legislation. In this legislation, 48 clauses are incorporated. Due to the changed atmosphere and the new situation, re-defined clauses 43 and 45 are to be incorporated. I would like to mention two important points regarding this Bill. I do not want to take much time of the House. The first point is regarding the role of the Controller. The role of the Controller has to be viewed very seriously. According to this piece of legislation, the Government is giving more powers to the Controller. Too many legislative powers are given to the Controller. Naturally, when more powers are vested in the Controller, he would delegate the powers. When he is going to delegate his powers, extra care should be taken there. I do not know whether the Government will be able to monitor this aspect or not. I also do not know whether the Government will be able to scrutinise the nitty-gritty of this. The Government should be very careful when it gives more powers to the Controller. So, my request to the hon. Minister, through you, Madam, is that the Government should reconsider the status and the powers given to the Controller. Definitely this is going to create a kind of confusion and after some time, the Controller will become an authoritarian. So, this should be viewed separately and corrective measures have to be taken in this regard. In this legislation, 48 clauses are incorporated. Due to the changed atmosphere and the new situation, re-defined clauses 43 and 45 are to be incorporated. I would like to mention two important points regarding this Bill. I do not want to take much time of the House. The first point is regarding the role of the Controller. The role of the Controller has to be viewed very seriously. According to this piece of legislation, the Government is giving more powers to the Controller. Too many legislative powers are given to the Controller. Naturally, when more powers are vested in the Controller, he would delegate the powers. When he is going to delegate his powers, extra care should be taken there. I do not know whether the Government will be able to monitor this aspect or not. I also do not know whether the Government will be able to scrutinise the nitty-gritty of this. The Government should be very careful when it gives more powers to the Controller. So, my request to the hon. Minister, through you, Madam, is that the Government should reconsider the status and the powers given to the Controller. Definitely this is going to create a kind of confusion and after some time, the Controller will become an authoritarian. So, this should be viewed separately and corrective measures have to be taken in this regard. The second point is regarding the tendency to copy various designs. The general tendency of the human beings is to copy various designs. I am not saying that we do not do it. We are also doing it. We renew the old designs. Once we register them after renewal, definitely we get the protection. We must be very very careful in this regard. Once we are registering them, they will get the legal cover. After getting the legal cover, nobody will be able to trace them. So, we should be very very careful. Once a design is registered, nobody can change it. This is a technical Bill. This piece of legislation will definitely give protection to the own workers, designers and people engaged in designs. This Bill will definitely give more mileage to our rural artisans and people living in rural areas. वाणिज्य और उद्योग मंत्रालय में राज्य मंत्री (डा. रमण): सभापति महोदय, मैं डिजाइन बिल पर बहस में भाग लेने और अपने मूल्यवान सुझाव प्रस्तुत करने के लिए सम्माननीय सदस्यों को धन्यवाद देता हूं। सम्माननीय बनातवाला जी उपस्थित नहीं हैं। डा. रघुवंश प्रसाद सिंह जी, साहू जी, राधाकृष्णन जी, ई.एम. सुदर्शन नाचियप्पन, रमेश जी एवं अन्य सभी माननीय सदस्यों का मैं स्वागत करता हूं। जितने भी माननीय सांसदों ने मुद्दे उठाए हैं और सुझाव दिए हैं, उनके उत्तर मैं देने की कोशिश करूंगा। सभापति महोदय, मैंने इस विधेयक को प्रस्तुत करते समय ही इस बात का उल्लेख किया था कि डिजाइन अधनियम १९११ मे, इसके बनने के बाद से लेकर ९ दशकों में एक बार भी संशोधन नहीं किया गया है। इस अवधि के दौरान प्रौद्योगिक और नई तकनीक को लागू करने के बारे में यह बात उल्लेखनीय है कि डिजाइन के क्षेत्र में काफी परिवर्तन आ गया है। वर्तमान विधेयक को, वर्तमान प्रथाओं के अनुरूप आधुनिक किए जाने का प्रयास किया गया है और अन्य देशों के विधेयकों के इसी तरह के कानून के अनुरूप बनाए जाने के प्रयास किए गए हैं और इस प्रकार सभी को मिलाकर डिजाइन क्रियाकलापों को बढ़ाने के प्रयास किए गए हैं। विश्व व्यापार संगठन में भारत की सदस्यता और पेरिस सम्मेलन को द्ृष्टि में रखते हुए दिसंबर, १९९८ से ही हमने अपने राष्ट्रीय दायित्व को पूरा करने हेतु कुछ परिवर्तन सुनिश्चित किए जाने पर बल दिया है। यह आशा है कि इस कानून को बनाए जाने और इसके अन्तर्गत बनाए जाने वाले भारत के कानून के अन्तर्गत प्रशासन पद्धति अधिक पारदर्शी और उपभोक्तानुकूल बनेगी। अब मैं इस माननीय सदन के सम्मानित सदस्यों द्वारा उठाए गए प्रश्नों का उत्तर देने का प्रयास करूंगा। सबसे पहले माननीय बनातवाला जी ने काफी रचनात्मक द्ृष्टिकोण इस विधेयक के संबंध में अपनाया है। मैं उन्हें आश्वस्त करना चाहता हूं कि सरकार की मंशा ऐसा कोई कानून अधनियमित करने की नहीं है जिससे भारत की स्थिति किसी संगठन के अधीनस्थ होती हो। बल्कि सरकार का यह द्ृष्टिकोण है कि केवल मजबूत विधान ही विश्व में देश की हैसियत को सुधारने की दिशा में एक सक्रियात्मक पक्ष पेश कर सकता है। उक्त डिजाइन विधेयक, १९११ करीब ९ दशकों से अधिक समय से अस्तित्व में है। इसका आधुनिकीकरण डिजाइन के क्षेत्र में आर्थिक कार्यकलापों में सहायता करने और डिजाइनरों के अधिकारों को संरक्षण करने में मदद करने के लिए किया जा रहा है। हमारा द्ृष्टिकोण " टि्रप्स " करार के तहत न्यूनतम मानकों को पूरा करना और से उपभोक्ताओं के अनुकूल बनाना है। सभापति महोदय, मुझे विश्वास है कि मेरे इस स्पष्टीकरण को ध्यान में रखते हुए वे अपने संशोधन प्रस्तावों पर जोर नहीं डालेंगे। मैं संक्षेप में माननीय सदस्यों के प्रश्नों के जवाब देना चाहूंगा जिनमें उन्होंने काफी चिन्ता व्यक्त की है। विधेयक में उपबंध विश्व व्यापार संगठन के अधीन अपेक्षाओं से अधिक हैं। माननीय सदस्य ने चिन्ता व्यक्त की है कि व्यापार संगठन के करारों के तहत इंटैलैक्चुअल प्रापर्टी राइट्स टि्रप्स एग्रीमेंट, १९९४ के दायरे में शामिल हैं। इस करार में सदस्य देशों द्वारा केवल न्यूनतम मानकों को ही अपनाने की व्यवस्था है। डिजाइन अधनियम, १९११ पर विचार के लिए एक अंतर-मंत्रालयीन दल बना था जिसने इस परिवर्तनों की सिफारिश की है, और जिनका समावेश वर्तमान विधेयक में कर दिया गया है। इस विधेयक में किसी भी रुप में वे तत्व नहित हैं जो कि टि्रप्स अपेक्षाओं से परे हैं। बनातवाला जी ने दूसरा विषय उठाया कि वर्तमान विधेयक टि्रप्स करार की धारा ६१ का पालन स्वत: ही नहीं करता है। धारा ६१ में सदस्य देशों से व्यापार चिहन अथवा कापीराइट की चोरी के संबंध में जानबूझकर उल्लंघंन करने के संबंध में जो क्रमिनल प्रोसीजर और पैनल्टी के संबंध में प्रावधान की अपेक्षा की गई है, इस संबंध में मैं कहना चाहूंगा कि जिन मामलों में डिज़ाइन का उल्लंघन नहित रहता है उन वस्तुओं के अभिग्रहण अथवा जब्त करने पर वह लागू नहीं होता क्योंकि उक्त विधेयक टि्रप्स की अपेक्षाओं से परे नहीं है। इसलिए इसमें कोई अतरिक्त शक्ति का प्रावधान करना आवश्यक नहीं समझा गया है। तीसरा विषय पैनल्टी के संबंध में है - बिना कैद के २५,००० रुपये जुर्माने का पीनल प्रावधान जो अधिक से अधिक ५०.००० रुपये है, माननीय सदस्य ने पर्याप्त नहीं माना है। मैं सम्मानित सदस्य से निवेदन करना चाहूंगा कि पुराना जो १९११ का प्रावधान था, उसमें १००० रुपये की पैनल्टी का प्रावधान था, अब उन अधिकतम पैनल संबंधी उपबंधों को संशोधित किया गया है और यह पैनल्टी २५ गुणा से ५० गुणा तक बढ़ा दी गई है। चूंकि इंटलेक्चुअल प्रापर्टी राइट के सभी पहलुओं में इंडस्टि्रयल डिज़ाइन की कमर्शियल वेल्यू है, वह ट्रेडमार्क और पेटेंट के अनुरूप नहीं है। सम्मानित सदस्य इस विषय को बहुत अच्छी तरह से जानते हैं। इसमें व्यापार चिहन अथवा पेटेंट के स्तर के अनुरूप कैद अथवा हाई पैनल्टी का उपबंध इस स्तर पर समुचित नहीं समझा गया है। चौथा पाइंट न्यायालयों की शक्तियों को सीमित कर देने के विषय पर है। उच्चतम न्यायालय में अपील की व्यवस्था नहीं की गई है। माननीय बनातवाला जी, बौद्धिक संपदा अधिकार कानून का एक वशिष्ट क्षेत्र है। सम्मानित सदस्य ने स्वयं स्वीकार किया है कि भारत में न्यायपालिका को इस क्षेत्र में नवीनतम प्रगतियों के बारे में पर्याप्त रुप से सुविज्ञ होने की आवश्यकता है। तद्नुसार, उल्लंधन इत्यादि के मामलों में दायर करने की प्रक्रिया जिला न्यायालयों और उससे ऊपर के न्यायालयों तक ही सीमित है। इसी प्रकार सरकार का उच्च न्यायालय की शक्तियों को सीमित करने का कोई इरादा नहीं है। इस अधनियम के अंतर्गत उच्च न्यायालय में विशेष लीव याचिका के माध्यम से अपील की जा सकती है। पांचवा विषय विदेशी एप्लीकेशन के संबंध में है कि विदेशी आवेदक को प्राथमिकता भारतीय आवेदक के हित में नुकसानदेय होगी। मैं माननीय सदस्य को बताना चाहूंगा कि टेक्नोलॉजी में चेंज होने के बाद टि्रप्स समझौते में भारत की भागीदारी और औद्योगिक संपदा के संरक्षण के संबंध में पैरिस कन्वेंशन के कारण डिज़ाइन एक्ट १९११ में संशोधन करने की आवश्यकता है। पैरिस कन्वेंशन, जिसमें पेटेंट और डिज़ाइन कार्यालयों द्वारा अपनाये जाने वाले अंतर्राष्ट्रीय व्यवहार और प्रक्रियाओं के सामंजस्य के अंतर्गत अभिसमय देशों में आवेदन दायर करने की प्राथमिकता प्रदान करने की व्यवस्था है। जिस प्रकार भारतीय आवेदको को अन्य अभिसमय देशों में प्राथमिकता मिलेगी उसी प्रकार भारत को भी पारस्परिक प्राथमिकता प्रदान की जायेगी। तथापि, इस प्रणाली के पारस्परिक लाभ हैं जिन्हें नियमों के सेट द्वारा उपलब्ध कराया गया है। इसमें भारत को भी लाभ है कि हम अन्य देशों में जाकर अपने डिज़ाइन को रजिस्टर्ड करा सकते हैं और उनको भी प्राथमिकता है। इस तरह जो हिन्दुस्तान के डिजाइनर हैं, उनको भी इससे लाभ मिलेगा। एक विषय उन्होंने नियंत्रण की शक्तियों की शक्तियों को घटाने के संबंध में उठाया है। उन्होंने कहा है कि नियंत्रण की शक्तियों को घटाया जा रहा है और केन्द्र सरकार की शक्तियों में वृद्धि की जा रही है। इस विषय में बहुत सारी कंट्रोवर्सी हैं। श्री रामजीवन जी ने तो शक्तियों को बढ़ाने की बात कही है और माननीय बनातवाला जी ने कहा है कि नियंत्रण की शक्तियों को घटाया जा रहा है - यह सही नहीं है। वास्तव में नियंत्रण की शक्तियों में वृद्धि की गई है क्योंकि केन्द्र सरकार द्वारा अपनी कुछ शक्तियां नियंत्रक को हस्तांतरित की गई हैं। नियंत्रक द्वारा केन्द्र सरकार से निर्देश प्राप्त होने का संबंध मात्र प्रशासनिक मामलों से है। यह प्रशासन के और अधिक विकेन्द्रीकरण हेतु सरकार के समग्र द्ृष्टिकोण का एक भाग है। माननीय अनादि साहू जी यहां नहीं है। उन्होंने लैप्स्ड डिजाइन के बारे में अपनी बात रखी थी। लैप्स्ड डिजाइन की चोरी को साबित करना कठिन होगा। इस विषय में अधनियम में चौरी के संबंध में वशिष्ट उपबंधों की व्यवस्था की गयी है। चोरी के दावों के दायर में लैप्स्ड डिज़ाइन की भी अनुमति प्राप्त करके कानूनी जटिलताएं पैदा करने का इरादा नहीं है। प्रस्तावित अधनियम के तहत बनाये जाने वाले नियमों द्वारा ऐसे विशेष प्रकार के मामलों को बाहर रखकर उचित सुरक्षा प्रदान की जायेगी जिनमें समय आदि के आधार पर यह तय किया जायेगा कि नियमों को अंतिम रूप देने की अवस्था में आशंका पर पर्याप्त ध्यान दिया जा सके। दूसरा, सिंगल एडमनिस्ट्रेटिव हैड के संबंध में माननीय साहू जी ने विषय रखा था कि क्या इसमें एक ही एडमनिस्ट्रेटिव हैड रहेगा। इसमें कोई दिक्कत तो नहीं आयेगी। भारत में अनेक वर्षों से प्रशासनिक पदानुक्रम की एकीकृत प्रणाली अस्तित्व में रही है। इस प्रणाली के संदर्भ में ऐसे व्यक्तियों के पेटेण्ट अथवा डिजाइन तथा व्यापार चिन्ह प्रशासन के शीर्ष से सम्बन्ध बनाता है। मात्र महानियंत्रक पद ही, जो एक चयन पद है, प्रशासन शीर्ष है। प्रशासन प्रणाली को सरल रखने की द्ृष्टि से इन क्षेत्रों में अलग-अलग पदों पर विचार नहीं किया जा सकता। खंड चार में, खंड ३४ में अलग-अलग सुझाव माननीय अनादि साहू जी ने रखे हैं। इसके बाद अभी जो सुझाव माननीय श्री रामकृष्ण जी ने यूनाइटिड किंग़डम के सम्बन्ध में रखा है कि उनकी जो पहचान है, खंड ४४ में यूनाइटिड किंग़डम का विशेष रूप से उल्लेख किया है, चूंकि डिजाइन एक्ट १९११ का है। इस मामले में भारत और यू.के. के बीच में राष्ट्रमंडल संधि अभी भी विद्यमान है, किन्तु पेटेण्ट के मामले में १९वें संशोधन के दौरान उस संधि के प्रकार को संशोधित कर दिया गया है। अधनियम के सारे उपबन्धों में यू.के. और अन्य राष्ट्रमंडलीय देशों को समझौता राष्ट्र के बारे में अनुसूचित किया गया है। माननीय रामचन्द्र जी ने दूसरा विषय पूछा था कि इंडियन और फॉरेन हमारे…( व्यवधान) SHRI VARKALA RADHAKRISHNAN (CHIRAYINKIL): Who will get the priority? DR. RAMAN: We will get the priority. मैं आपके विषय पर ही आ रहा हूं। आपने एप्लीकेशन के सम्बन्ध में कहा था कि अभी हिन्दुस्तान के २३९५ डिजाइन पैंडिंग हैं और विदेश के सिर्फ ६९९ हैं। उनको यदि प्राथमिकता है तो हिन्दुस्तान के जो डिजाइनर हैं, उनको भी प्राथमिकता मिलेगी, यदि हम कहीं प्रायरटी में एप्लाई करते हैं। आज हमारे पास एप्लीकेशंस की संख्या ज्यादा है। आपने जो मूल विषय बासमती के विषय में कहा, आपकी शंका डिजाइन से सम्बन्धित नहीं है और यह पेटेण्ट का विषय है। बासमती के मामले में गवर्नमेंट ने जो पेटेण्ट है, उसको चेलेंज करने का निर्णय लिया है और सम्भवत: आज या कल में प्रतिवेदन यू.एस.ए. में फाइल हो जायेगा। डिजाइन और पेटेण्ट अलग-अलग विषय हैं। Recently we have passed the Geographical Indication Act to provide for the Darjeeling Tea, Basmati, etc. इसको प्रोटैक्ट करने के लिए इसमें साफ-साफ प्रावधान रख दिया गया है। यह डिजाइन के तहत तो नहीं आता, मगर ज्योग्राफिकल इंडीकेशन एक्ट जो हमारा आ गया है, इस एक्ट के तहत इन सब बातों को संरक्षण नहीं दिया जा सकता। इसमें कंट्रोलर एक ही रहेगा। आपने विशेष तौर से कंट्रोलर के लिए पूछा था, the report of the Controller General will be placed before Parliament annually. हर साल वहां पर यह विषय उठाया जायेगा। श्री रमेश चेन्नितला (मवेलीकारा) : कंट्रोलर को आपने इतना ज्यादा पावर दे दी है, इसके ऊपर आप विचार कर सकते हैं क्या ?…( व्यवधान) डॉ. रमण : आपने तो बहुत अच्छे ढंग से सारी बात रखी है। मैं आपके विषय में भी बात रखूंगा। High Court will bring expertise in deciding the disputed cases. माननीय सदस्यों ने अपने जो विचार रखे हैं और खास तौर से डैफिनीशन के सम्बन्ध में आपने जो शब्द रखे हैं, बहुत साहित्यिक ढंग से आपने उस विषय में डैफिनीशन को आपने प्रमाणित किया। जो-जो डैफिनीशन में हैं, the definition of the design is based on the original definition in the 1911 Act. मगर एक्सटर्नल फीचर्स में, जिसमें आपने परिभाषित किया। Seen by the eyes, ears because the design refers to the external features of the article. This is the globally followed definition. पूरी दुनिया में इस परिभाषा को लोग मानते हैं। इस परिभाषा के तहत और खास तौर से चोरी के सम्बन्ध में, we will apply the case with the current situation. आज जो तात्कालिक मामले हैं, जो विरासत के मामले हैं, उसमें यह मामला उठता होगा, not the lapsed design, लैप्स्ड डिजाइन पर यह सम्बन्धित नहीं होगा। मैं सारे सदस्यों को बताना चाहूंगा, चूंकि इस बिल में काफी लम्बे समय से और राज्य सभा में पास होने के बाद यहां भी लगातार दो महीनों से इस बिल पर काफी चर्चा हुई। माननीय बनातवाला जी ने बहुत दिन से इस विषय में काफी सुझाव दिये। मैं सब का सम्मान करते हुए सभी सदस्यों से निवेदन करना चाहूंगा कि चूंकि इस बिल के विषय में आप सब के सुझाव आ गये हैं, आपने जो मार्गदर्शन दिया है, जो विचार आपके आये हैं, उन विचारों को ध्यान में रखकर मैंने सारे विषय में आपको जानकारी दी है। मैं सबसे निवेदन करना चाहूंगा कि इस विधेयक को पास किया जाये। MR. CHAIRMAN : The question is: "That the Bill to consolidate and amend the law relating to protection of designs, as passed by Rajya Sabha, be taken into consideration". The motion was adopted. MR. CHAIRMAN: The House shall now take up clause by clause consideration of the Bill. The question is: "That clauses 2 and 3 stand part of the Bill." The motion was adopted. Clauses 2 and 3 were added to the Bill. Clause 4 Prohibitation of Registration of Certain designs   SHRI G.M. BANATWALLA (PONNANI): I beg to move: "Page 3— after line 14, insert— "(e) is dictated by inevitable or essential functional consideration." (4) MR. CHAIRMAN: I shall now put Amendment No.4 moved by Shri G.M. Banatwalla to the vote of the House. The amendment No. 4 was put and negatived. MR. CHAIRMAN: The question is: "That clause 4 stand part of the Bill." The motion was adopted. Clause 4 was added to the Bill. Clause 5 Application for Registration of Designs SHRI G.M. BANATWALLA (PONNANI): I beg to move: "Page 3, line 29,-- after "if he thinks fit" insert— "and for reasons recorded in writing" (5) MR. CHAIRMAN: I shall now put Amendment No.5 moved by Shri G.M. Banatwalla to the vote of the House. The amendment No. 5 was put and negatived. MR. CHAIRMAN: The question is: "That clause 5 stand part of the Bill." The motion was adopted. Clause 5 was added to the Bill. Clause 6 Registration to Be in respect of Particular article SHRI G.M. BANATWALLA (PONNANI): I beg to move: "Page 3, line 40,-- omit "whose decision in the matter shall be final" (6) MR. CHAIRMAN: I shall now put Amendment No.6 moved by Shri G.M. Banatwalla to the vote of the House. The amendment No. 6 was put and negatived. MR. CHAIRMAN: The question is: "That clause 6 stand part of the Bill." The motion was adopted. Clause 6 was added to the Bill. Clauses 7 to 21 were added to the Bill. Clause 22 Piracy of Registered design SHRI G.M. BANATWALLA : I beg to move : "Page 8, - after line 13, insert- "(2A) The registered proprietor of a design shall have the right to apply to the High Court for an order – to prevent any person not having his consent from making, selling or importing articles bearing or embodying a design which is a copy or substantially a copy of the registered design when such acts are undertaken for commercial purpose; (b) to prevent an infringement of any of his rights as a registered proprietor of a design; or (c) to preserve relevant evidence in regard to an alleged infringement of his rights as a registered proprietor of a design." (3) "Page 8, lines 5 and 6, -- for "twenty-five thousand rupees" substitute "fifty thousand rupees" (7) "Page 8,-- omit lines 10 and 11" (8) "Page 8,-- for lines 12 and 13, substitute— "Provided further that a suit or any other proceeding or relief under this sub-section shall be instituted in the High Court." (9) "Page 8, - after line 2, insert- "1(A) whoever is guilty of wilful contravention of this section, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 1(B) In any case of wilful contravention of this section, the High Court may order seizure, forfeiture and destruction of the infringing articles for sale and of any materials and implements the predominant use of which has been in commission of the offence." (12) MR. CHAIRMAN: I shall now put Amendment Nos.3, 7 ,8, 9 and 12 moved by Shri G.M. Banatwalla to the vote of the House. The amendments No. 3, 7 to 9 and 12 were put and negatived. MR. CHAIRMAN: The question is: "That clause 22 stand part of the Bill." The motion was adopted. Clause 22 was added to the Bill. Clauses 23 to 35 were added to the Bill. Clause 36 Appeals to the High Court SHRI G.M. BANATWALLA : I beg to move: "Page 10,-- after line 44, insert— "Provided that the High Court may, for reasons adequate and appropriate, admit an appeal made after the date under this sub-section." (10) MR. CHAIRMAN: I shall now put Amendment No.10 moved by Shri G.M. Banatwalla to the vote of the House. The amendment No. 10 was put and negatived. MR. CHAIRMAN: The question is: "That clause 36 stand part of the Bill." The motion was adopted. Clause 36 was added to the Bill. Clauses 37 to 43 were added to the Bill. Clause 44 Reciperocal arrangement With the United Kingdon and Other convention Countries or group of Countries or intergovernmental Organisation SHRI G.M. BANATWALLA : I beg to move: "Page 13, line 7,-- for "priority to other applicants" substitute "priority to such other applicants who may have made their application for registration after he had applied for protection in the United Kingdom or any such other convention countries or group of countries or countries which are members of inter-governmental organisations." (11) MR. CHAIRMAN: : I shall now put amendment No.11 moved by Shri G.M. Banatwalla to the vote of the House. The amendment No. 11 was put and negatived MR. CHAIRMAN: The question is: "That Clause 44 stand part of the Bill." The motion was adopted. Clause 44 was added to the Bill. Clauses 45 to 48 were added to the Bill. Clause 1 Short title, extent And commencement Amendment made: Page 1, line 5,-- for "1999" substitute "2000" (2) (Dr. Raman) MR. CHAIRMAN: The question is: "That clause 1, as amended, stand part of the Bill." The motion was adopted. Clause 1, as amended, was added to the Bill. Enacting Formula Amendment made: Page 1, line 1, -- for "Fiftieth Year" substitute "Fifty-first Year" (1) (Dr. Raman ) MR. CHAIRMAN: The question is: "That the Enacting Formula, as amended, stand part of the Bill." The motion was adopted. The Enacting Formula, as amended, was added to the Bill. The title was added to the Bill --- DR. RAMAN: I beg to move: "That the Bill, as amended, be passed." MR. CHAIRMAN: The question is: "That the Bill, as amended, be passed." The motion was adopted.

Further Discussion On The Designs Bills, 2000 Moved By Dr. Raman Singh ... on 28 April, 2000

Lok Sabha Debates

JUDGMENT Page 0161 1. This writ petition has been preferred by the petitioner - Management of Projects & Development India Limited against the Award dated 8th September 1995 pronounced on 19th November, 1995, passed by the Presiding Officer, Labour Court, Dhanbad, in Reference Case No. 7 of 1993, whereby and whereunder, the Presiding Officer, Labour Court, Dhanbad, while held that the Management failed to justify its action taken in regard to the dismissal of the concerned workman (2nd respondent herein), set aside the order of dismissal and reinstated the workman in service with full back wages and other consequential benefits. 2. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except relevant one as mentioned hereunder: Page 0162 The workman was preceded departmentally for charges of theft, fraud, dishonesty, deception, corrupt practices in connection with Company's business/property/ work of the Company and for misappropriating the Company's fund temporarily. Following charge was leveled against him: That you claimed L.T.C. amount of Rs. 5950.00 only in the year 1981 indicating the travel made by yourself and your family members from Nirsa to Trivendrum by Luxury Coach Bus no, WMH-6231 belonging to Dipti Travel a Traveling Agent having Govt. Regd. No. 1938, Nirsa, G.T. Road. You have shown your travel from 5.1.81 and return on 22.1.81. On enquiry it was observed that there was no Dipti Travels registered at any time having its registered office at Nirsa. The Regd. No. WMH-6231 was in favour of a Dumper and it is belonging to Eastern Coalfields Ltd. Santoria, Burdwan, P.O: Disergarh, Kustorea Area. Thus, you have submitted a false bill of having traveled through Dipti Travels Luxury Coach Bus No. WMH-6231 and submitted a forge documents for claiming the amount Rs. 5950/- against which you have received from the management an amount of Rs. 5432/- 3. In the departmental proceeding he was given opportunity and the Enquiry Officer on appreciation of evidence came to a definite finding that the workman produced forged document for claiming L.T.C. amount and received some amount from the Management. The decision was forwarded to the workman and after receipt of the reply, he was dismissed from service by the order dated 19th June 1992 (Ext. M-14). 4. At the instance of the workman, the Government of Bihar vide its notification No. III/D2-5017/92 L and E-1492 dt. 18th September, 1993 referred the following dispute for adjudication by the Labour Court, Dhanbad: Whether the termination of services of Sri P.V.P. Rao-Senior Technician, Project and Development India Ltd. Sindri Dhanbad is proper ? If not whether he should be reinstated on the job or/ and should be given compensation? 5. As stated above the reference was answered in favour of workman by the impugned Award dated 8th September 1995 pronounced on 19th November, 1995. 6. Learned Counsel appearing on behalf of the petitioner assailed the Award on the following grounds: (a) The Labour Court answered the award in favour of workman though the evidence is otherwise, not based on evidence; and (b) The quantum of punishment of dismissal from service can not be stated to be disproportionate to the gravity of charge as held by Labour Court. 7. On the other hand, according to the learned Counsel appearing on behalf of the 2nd respondent the Award of the Labour Court being based on appreciation of evidence, the High Court should not interfere with the same while exercising power under Article 226 of the Constitution of India. 8. In this case we are not inclined to go into the merit of the charges nor inclined to re-appreciate the evidence. We have noticed the finding of the Labour Court to find out whether it is perverse or not. From the impugned Award, it will be evident that the substantive charge that the workman produced forged document to claim L.T.C. amount has been proved by the Enquiry Officer, which has not been disputed nor altered by the Presiding Officer, Page 0163 Labour Court, Dhanbad,. From the charge and the Exhibits as discussed by the Labour Court, Dhanbad, it will be evident that the concerned workman produced a Ticket -cum-receipt no. 158 dated 30th January 1981 of one Dipti travel, a traveling agent, having Govt. Regd. No. 1938, Nirsa G.T. Road, Nirsa district Dhanbad as proof of traveling of his family members from Nirsa to Trivendrum and back and he claimed for L.T.C. reimbursement on the basis of the aforesaid Ticket-cum-receipt. The vehicle number was shown as WMH-6231, a luxury Deluxe bus Coach. The petitioner - management alleged that the ticket-cum- receipt as was submitted by the workman was forged and his family members had not traveled from Nirsa to Trivendrum and back and that the workman claimed and received L.T.C. reimbursement on the basis of such forged document. On the basis of evidence, the enquiry officer also held the charge proved. 9. Before the Presiding Officer, Labour Court, the petitioner-Management produced Ext. M-18, a. letter dated 10th December 1991, written by the Management to the District Transport Officer, Assansol (West Bengal ) to know whether any such vehicle No. WMH 6231 has been registered at his end as Luxury Deluxe Coach and whether it was plying for Dipti Travel in long routes. It was also requested to inform whether any bus permit No. 37204 STAW. B was issued for the said bus or not. In reply to the said letter, the Registering Authority, Burdwan at Assansol, vide letter dated 5th October 1994 (Ext. M-21) informed that the vehicle no. WMH 6231 was not allotted to any other vehicle prior to January 1981 that means there was no occasion for the workman to travel by such bus in the year 1981. It was also informed that the vehicle No. WMH 6231 was allotted to a Dumper as is evident from Ext.M-21. On the request of Management of the petitioner as was made vide letter No. 26th September 1991 (Ext. M-22), Officer Incharge, Nirsa Police station , Dhanbad, informed that there was no Agency named as Dipti Travels Govt. Regd. No. 1938 Nirsa G.T. Road, Nirsa, available in the year 1981 at Nirsa. 10. Those evidence were placed before the Presiding Officer, Labour Court, Dhanbad, who discussed all the evidence and after discussion and appreciation of such evidence while the Presiding Officer, Labour Court, Dhanbad, did not differ with the finding of the enquiry officer, it was accepted that the charge of preferring false L.T.C. claim was proved. This will be also evident from the following observations of the Presiding Officer, Labour Court, Dhanbad: In my opinion charge of preferring false L.T.C. claim cannot be said to be of that magnitude so as to impose punishment of economic death. The punishment of dismissal imposed on the workman is too harsh and interference of Labour Court is mist on this account alone . 11. Having so observed the Presiding Officer, Labour Court, Dhanbad, set aside the dismissal order and reinstated the workman with full back wages without altering the punishment of dismissal to any other lesser punishment. 12. Now only question arises for determination as to whether dismissal from service of an employee for making false L.T.C. claim can be said to be proportionate to the gravity of charge. 13. Similar issue fell for consideration before Punjab & Haryana High Court in the case of Rajpal v. Presiding Officer, Labour Court, Faridabad and Ors. reported in 2000, LLR 1030. In the said case, the employee claimed bogus Leave Travel Page 0164 Concession by producing forged document. In the domestic enquiry the Enquiry Officer held the charges proved, and the Management dismissed the workman, the Court held that the punishment was a proportionate to the gravity of charges. In that case also the charge of producing forged document to claim Leave Travel Concession has been proved. 14. It is not the question as to whether false claim of Rs. 5,000/- (Five thousand ) or Rs. 50,000/- (Fifty thousand) has been made by the employee or not, The question is as to whether the Management can trust on such employee/ workman for allowing him to continue in services of the Management. We are of the opinion that the employee, who produces forged documents before its employer and thus, played theft, fraud or dishonesty or deceived its employer, it is always open to the Management to dismiss such corrupt employee and the order of dismissal from service in such case-cannot be held to be disproportionate. On the other hand, if lower punishment is imposed for such alleged act of omission and commission that may be termed to be disproportionate to the gravity of the charge. 15. For the reasons and discussion as made above, and the grounds as shown, we have no other option but set aside the impugned Award dated 8th September 1995 pronounced on 19th November, 1995, passed by the Presiding Officer, Labour Court, Dhanbad, in Reference Case No. 7 of 1993. The said Award is, accordingly, set aside. This writ application is allowed, but there shall be no order as to the costs.

Projects And Development India ... vs The Presiding Officer, Labour ... on 26 July, 2006

Jharkhand High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 642 of 2001() 1. VELLERI MOOSA ... Petitioner Vs 1. NOTTANVEEDAN AYISHA BEEVI ... Respondent For Petitioner :SRI.K.M.SATHYANATHA MENON For Respondent :SRI.K.P.MUJEEB The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :29/09/2008 O R D E R THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.642 of 2001 -------------------------------------- Dated this the 29th day of September, 2008. ORDER Respondents 1 to 3 and counsel remained absent. Heard counsel for revision petitioner and the Public Prosecutor. 2. Case of revision petitioner is that he owned 4.85 acres of plantation in R.S.No.6/1 of Vettilappara Village. Adjacent property on the south belonged to first respondent. Second respondent is the husband of first respondent. Third respondent is their worker. It is alleged that as per instruction of respondents 1 and 2, third respondent set fire to the plantation in the property of revision petitioner on 2.2.1996 at about 11 a.m. causing loss of about Rs.7 lakhs to the revision petitioner. Police registered a case as Crime No.33 of 1996 in respect of the incident but referred it. Aggrieved, revision petitioner filed a private complaint in the court below against respondents 1 to 3 alleging offences punishable under Sections 435 and 109 read with Section 34 of Indian Penal Code. Case was taken on file as C.C.No.140 of 1998. Court below recorded the sworn statement of revision petitioner and his witnesses but found that no prima facie case is made out against respondents 1 to 3 and discharged them under Section 245(1) of Code of Criminal Procedure which is called in question in this proceedings. Learned counsel submitted that revision petitioner has made out a case which if unrebutted would warrant conviction and therefore court below was not justified in discharging respondents 1 to 3. Crl.R.P.No.642/2001 2 4. PWs 1 and 2, apart from stating about the incident in the property of revision petitioner did not say anything regarding the alleged involvement of respondents 1 to 3. According to PW2, second respondent had given him Rs.2,000/- since fire had spread into his property as well. PWs 3 and 4 claimed that they witnessed the alleged incident. According to PW3, third respondent set fire on the eastern portion of the plantation belonging to first respondent, fire spread into the plantation of revision petitioner also and caused loss. He stated that fire was carried into the plantation of revision petitioner in the wind. PW4 however, stated that respondent 1 and 3 trespassed into the plantation of revision petitioner and set fire at 11 a.m. on the day of incident. 5. Though PW3 has no case that third respondent was present at the spot and it is also not his case that respondents 1 and 3 trespassed into the plantation of revision petitioner and set fire, PW4 stated that respondents 1 and 3 trespassed into the plantation of revision petitioner and set fire. This material discrepancy was taken note of by the court below. Learned Chief Judicial Magistrate also observed from Ext.D1, copy of plaint preferred by revision petitioner for recovery of damages consequent to the loss caused to him that in Ext.D1 what is stated is that respondents 1 to 3 set fire in the plantation of first respondent, left the place, fire spread into the plantation of revision petitioner and caused damage. So, going by Ext.D1 it is not a case of any of respondents trespassing into the plantation of revision petitioner and instead, their allegedly setting fire in the plantation belonging to first respondent which  Crl.R.P.No.642/2001 3 spread to the plantation of revision petitioner also. Learned Chief Judicial Magistrate observed that materials on record are not sufficient to say that it was with any intention or with knowledge that the act is likely to cause damage to revision petitioner that respondents 1 to 3 allegedly set fire in the plantation belonging to the first respondent. 6. Even going by Ext.D1, copy of plaint preferred by revision petitioner it is difficult to say that respondents 1 to 3 intended to cause damage to revision petitioner. It is unlikely that they thought of setting fire to their own plantation and inviting loss, with the intention or even knowledge of fire spreading into the plantation of revision petitioner and causing loss. Assuming that the act of respondents 1 to 3 was negligent, that did not attract the offence punishable under Section 435 of Indian Penal Code. For the loss if any caused to revision petitioner, he has already gone before the civil court. In the facts and circumstances I do not consider it necessary to disturb the finding of learned Chief Judicial Magistrate that no prima facie case was made out against respondents 1 to 3. Revision Petition is therefore, dismissed. THOMAS P.JOSEPH, JUDGE. cks  Crl.R.P.No.642/2001 4 Thomas P.Joseph, J. Crl.R.P.No.642 of 2001 ORDER 29th September, 2008 

Velleri Moosa vs Nottanveedan Ayisha Beevi on 29 September, 2008

Kerala High Court

Gujarat High Court Case Information System Print OJCA/310/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 310 of 2011 In STAMP NUMBER No. 1728 of 2011 ========================================================= GANDEVI PEOPLES CO OPERATIVE BANK LTD - Applicant(s) Versus INCOME TAX OFFICER - Respondent(s) ========================================================= Appearance : MR CHIRAG B PATEL for Applicant DS AFF.NOT FILED (R) for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE Ms JUSTICE SONIA GOKANI 12th August 2011 ORAL ORDER (Per : HONOURABLE MR. JUSTICE AKIL KURESHI) Returnable date is extended to 24th August 2011. {Akil Kureshi, J.} {Ms. Sonia Gokani, J.} Prakash*     Top

Author: Akil Kureshi, Gokani,

Gandevi vs Income on 12 August, 2011

Gujarat High Court

[Section 32(1)] [Section 32] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM LA.App..No. 215 of 2007() 1. STATE OF KERALA ... Petitioner Vs 1. BHASKARAN AJAYAKUMAR ALIAS AJAYAKOSH, ... Respondent For Petitioner :GOVERNMENT PLEADER For Respondent :VARGHESE PREM(NO MEMO) The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice K.T.SANKARAN Dated :09/12/2008 O R D E R KURIAN JOSEPH & K.T.SANKARAN, JJ. ----------------------------------------- L.A.A.No.215 of 2007 ----------------------------------------- Dated this the 9th day of December, 2008 JUDGMENT Kurian Joseph,J. This is an appeal filed against the judgment and decree in L.A.R.No.122/1997 on the file of the Sub Court, Kollam. The acquisition is for the purpose of formation of National Highway Bye Pass. The extent involved is 4.82 Ares. Section 4 (1) notification is dated 11-11-1992. The Land Acquisition Officer, as per the award dated 7-11-1995, fixed land value at Rs.10,020/- and the reference court fixed it at Rs.22,450/-. Aggrieved the State has come up in appeal. 2. The reference court found that the property in Ext.A1 (judgment in L.A.R.No.64/1996) and the property under acquisition are for the same purpose and covered by the same notification. In Ext.A1 the Land Acquisition Officer awarded land value at Rs.11,022/- per Are, whereas in this case the Land Acquisition Officer awarded only Rs.10,020/- per Are. Therefore, following the same proportion the reference court fixed land value at Rs.22,450/- in the place of Rs.24,700/- fixed by the  L.A.A.No.215 of 2007 -:2:- reference court in Ext.A1 judgment in L.A.R.No.64/1996. There is no evidence for the respondent. Since the fixation made by the reference court was based on the available evidence, particularly Ext.A1 which has become final, there is no merit in the appeal. It is accordingly dismissed. (KURIAN JOSEPH, JUDGE) (K.T.SANKARAN, JUDGE) ahg. KURIAN JOSEPH & K.T.SANKARAN, JJ. --------------------------- L.A.A.No.215 of 2007 ---------------------------- JUDGMENT 4th December 2008 

State Of Kerala vs Bhaskaran Ajayakumar Alias ... on 9 December, 2008

Kerala High Court

ORDER Abdur Rahim, J. 1. The petitioner, who is a Pleader practising in the District Munsif's Court of Shiyali and senior member of the profession, was party to a suit in which he was the plaintiff. He obtained a decree and the defendants deposited the amount of costs in Court. The petitioner for the purpose of drawing this amount from Court made an affidavit, and in that affidavit he stated that the property which he gave as security according to the order of the Court was subject only to one encumbrance and was not subject to a mortgage in favour of one Vaidynatha Aiyar. This apparently was not correct. When an amin was deputed to enquire whether the mortgage in favour of Vaidyanatha Aiyar did actually subsist, the petitioner admitted that he had made a mistake and that, as a matter of fact, there was this encumbrance also on the property. The learned District Munsif who heard the application made by one of the unsuccessful defendants in the suit for sanction for the prosecution of the Pleader, considered all the circumstances and came to the conclusion that it was not a proper case for prosecution. Having regard to the position and character of the petitioner and the nature of the statement made by him and the fact that, when the amin was sent, he admitted the mistake the District Munsif was of opinion that it was not a proper case for prosecution for making a false declaration under Section 199 of the Indian Penal Code. The learned District Judge has reversed that order, holding that since there was a prima facie case of making a false statement, all the other circumstances must be left for consideration at the trial. This, in my opinion, is a wrong view of the law. When sanction is asked for, for the prosecution of a person for making a false statement in the course of a judicial proceeding or for any other offence of a like nature, it is the duty of the Court to which the application is made, not only to see that there is a prima facie ease, but also to decide whether it is a fit case for prosecution in the interests of justice. The Court ought not to forget that statements which in fact are false are often made by men through the merest inadvertence or slip of memory. It is, no doubt, true that when a person makes an affidavit, he ought to be extremely careful to see that every statement that is made there, is strictly accurate. At the same time Section 199, Indian Penal Code, contemplates that a statement, in order to come within the purview of the section, must be one which is either false to the defendant's knowledge or which he ought to have known to be false or could not have believed to be true. Here there were facts upon which the District Munsif was justified in saying that although the statement in question was made in a rather reckless manner, it was not a fit case for prosecution. The position and character of the petitioner, the fact that the property even with both the mortgages was sufficient security and that other circumstances in which the statement was made, were matters which the District Munsif was entitled to take into consideration in coming to a conclusion whether there ought to be a prosecution or not. I am of opinion that the order of the learned District Judge granting sanction should be set aside. Napier, J. 2. I agree. The learned District Judge in his order states as follows: 3. "His pleas and his previous character are matters which would be more relevantly taken into consideration by the trying Court." This statement of the law I consider to be incorrect. Section 195 of the Criminal Procedure Code states that no Court should take cognizance of certain offences except with the previous sanction of Court, but does not state on what materials that sanction is to be based. Speaking for myself, I have always held that the view largely prevailing in this Court that the important matter to which Court should direct its attention is whether there was a prima facie case, is incorrect. To my mind, that is not the function of the Court granting sanction. That is the function of the Magistrate who hears the case. It is the function of the Court which grants sanction to consider the whole of the circumstances of the case and decide whether it is in the interests of justice and purity of judicial proceedings, that the person who has made the statement should be prosecuted. The Munsif has come to the conclusion that this statement was made not deliberately and intentionally to gain a benefit, but, as he puts it, in a reckless and haphazard manner that makes the petitioner liable to blame of a reprehensible character. That seems to be exactly the right manner in which to view the action of the Vakil in this case. It is further pointed out by the Munsif that he is a gentleman of respectability and position and he obviously thinks that although he has been grossly reckless and may shave brought himself within the mischief of Section 199, Indian Penal Code, he cannot have intended deliberately to mislead. That being so, I think the District Munsif very properly refused sanction and I would set aside the order of the District Judge.

Author: A Rahim

Aiyasami Iyer vs Aiyasami Iyer on 22 March, 1917

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 33 of 2009() 1. STATE OF KERALA, REPRESENTED BY ... Petitioner 2. THE DIRECTOR OF COLLEGIATE EDUCATION, 3. THE PRINCIPAL, R.L.V COLLEGE OF MUSIC 4. THE SECRETARY, Vs 1. ANTONY P.K., PANAKKAL HOUSE, ... Respondent For Petitioner :GOVERNMENT PLEADER For Respondent : No Appearance The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice P.BHAVADASAN Dated :17/12/2009 O R D E R K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A. No.33 of 2009 ------------------------------ Dated this, the 17th day of December, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in Writ Petition (C) No.18930 of 2008, who are the petitioners in Review Petition No.1298 of 2008 are the appellants. The respondent herein was the writ petitioner. The brief facts of the case are the following:- The petitioner was a physically challenged person. He was appointed under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, (for short, 'the K.S. & S.S.R.) as Art Instructor in R.L.V. College of Music and Institute of Fine Arts, Thripunithura from 8.1.1999 to 31.3.1999. The Government decided to regularise the physically challenged persons appointed under Rule 9(a)(i) of K.S. & S.S.R. between 15.8.1998 and 15.8.1999. The petitioner was a beneficiary of that order. When the Government published the list of such persons as per Ext.P2 order dated 30.11.2007, he was also included in it. He was serial No.18 in Ernakulam District, in the list annexed to Ext.P2. Claiming appointment on the strength  W.A. No.33 of 2009 - 2 - of Ext.P2, the Writ Petition was filed. In the meantime, the R.L.V.College of Music and Institute of Fine Arts was upgraded as a College and the post of Art Inspector was converted to Junior Lecturer. The qualification prescribed for the post of Junior Lecturer was degree in the subject concerned. The petitioner was a diploma holder. Therefore, he was ineligible for appointment. But, as no counter affidavit was filed in the Writ Petition, the Writ Petition was allowed. The appellants filed the review petition. The learned Single Judge took the view that, if the writ petitioner was appointed in time, he would have got appointment before the new Special Rules prescribing higher qualification were introduced on 19.3.2008. If he was appointed before that date, he would have got sufficient time to acquire the higher qualification. Based on that finding, the review petition was also dismissed. Aggrieved, the respondents in the writ petition have preferred this Writ Appeal. During the pendency of the Writ Appeal, pursuant to an interim order of this Court, the writ petitioner was appointed as Art Instructor (Junior Lecturer) by order dated 1.4.2009 by the Director of Collegiate Education. W.A. No.33 of 2009 - 3 - In view of the above position, we think that the Writ Appeal can be closed directing the Government to decide within what time limit, the writ petitioner should acquire the higher qualification, prescribed for the post as per the Special Rules. Since the writ petitioner has already been appointed and as a matter of fact, he was eligible to get appointment, we are not interfering with the judgment and the order impugned in this appeal. But, the Government will be free to fix the time limit within which the respondent should acquire the higher qualification in terms of the Special Rules. The Government shall also inform the petitioner what will be his fate, in case he does not acquire the qualification within the time so fixed. The Writ Appeal is disposed of accordingly. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy) 

State Of Kerala vs Antony P.K. on 17 December, 2009

Kerala High Court

JUDGMENT P. Venugopal, J. 1. The writ petitioner is the appellant before this Court. A number of disciplinary proceedings were initiated against the writ petitioner by the Income-tax Department, and the writ petitioner, in turn, filed a number of writ petitions and writ appeals in this Court, with the result, there has been a tortuous and prolonged litigation between the parties lasting over a period of nearly 21 years. 2. The writ petitioner was appointed as Officiating Power Division Clerk in the Income-tax Department, by an order of the Inspecting Assistant Commissioner, Central Range, Madras on 15th January, 1947. He joined duty on 8th February, 1947. He was appointed as Officiating Steno-Typist on 11th January, 1950, by the Inspecting Assistant Commissioner, Central Range and he was then confirmed as Lower Division Clerk with effect from 1st October, 1951, by an order of the Commissioner of Income-tax, dated 28th December, 1951. Later he was confirmed as Steno-typist with effect from 1st October, 1951, by an order of the Commissioner, Income-tax, dated 27th December, 1956. Subsequently the petitioner was promoted as Officiating Upper Division Clerk and was posted to the Income-tax Office, Salem, where he joined duty on 25th November, 1957. In May, 1959 the petitioner was transferred from Salem to Ooty. He did not join duty at Ooty and went on applying for leave on one ground or other. All his representations against his transfer were rejected. The petitioner, without joining duty at Ooty went on applying for lease for long period. This leave was refused. Even then the petitioner failed to report for duty at Ooty. Then the first disciplinary proceedings were initiated by the Inspecting Assistant Commissioner of Coimbatore, on a charge that he wilfully absented himself from duty. A show cause notice was issued to the petitioner on 5th April, 1960, proposing to revert him as Steno-typist for a period of one year and to treat the period of his absence without leave as extraordinary leave. The petitioner submitted his representation on 8th April, 1960, to the show cause notice issued to him. The Inspecting Assistant Commissioner then passed an order reverting the petitioner to the substantive post of Steno-typist and posted him to the Income-tax Office, Ooty. Then the second disciplinary proceedings were initiated against the petitioner by the Inspecting Assistant Commissioner, Coimbatore, for various1 irregularities in his work and charges were framed at various stages and ultimately the petitioner was compulsorily retired from service by the order of the Inspecting Assistant Commissioner, dated 31st March, 1963. As the petitioner's appeal to the Commissioner of Income-tax failed, he filed a Writ Petition No. 301 of 1963 challenging the order of compulsory retirement. The petition was allowed on the ground that the petitioner was confirmed in the category of Steno-typist by the Commissioner of Income-tax and the Inspecting Assistant Commissioner was not, therefore, competent authority for imposing a major penalty like compulsory retirement. The Income-tax Department filed Writ Appeal No. 44 of 1965 against the order passed in the writ petition. During the pendency of the writ appeal, the Commissioner of Income-tax initiated the third disciplinary proceedings against the petitioner on the same charges on which the punishment of compulsory retirement was originally imposed on the petitioner. On 22nd December, 1964, the Commissioner of Income-tax issued a show cause notice invoking Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter to be referred to as CCS (CCA) Rules, 1957), and passed the interim suspension order with retrospective effect from 31st March, 1.962. On 6th May, 1965, the Commission framed the following further three charges against the petitioner: Charge No. 1.--That the said Shri R. Copal Rao while functionings Steno-Typist, Income-tax Office, Ootacamund during the period of April and May, 1961, addressed the Commissioner of Income-tax, Madras, personally in his letter, dated 29th April, 1961, though the contents of the letter were purely official and also couched the letter in offensive and objectionable language and thereby committed acts of indiscipline and insubordination. Charge No. 2.--That during the above period and while functioning in the aforesaid office, the said Shri R. Gopal Rao refused to go to the Income-tax Officer's room when called to do so. Charge No. 3.--That during the above period and while functioning in the aforesaid office, the said Shri Gopal Rao refused to take delivery of official communications intended for him, and thereby committed acts of indiscipline and insubordination. The said charges were communicated to the petitioner asking him to submit his representations before 1.5th June, 1965. The Appellate Assistant Commissioner, Coimbatore, was appointed as Inquiry Officer. As the petitioner did not appear before the Appellate Assistant Commissioner, he proceeded with the enquiry ex parte and submitted his report to the Commissioner of Income-tax the disciplinary authority. The disciplinary authority, after consideration of the report of the inquiry officer, came to be provisional conclusion that the petitioner should be compulsorily retired from service. The said provisional decision was communicated to the petitioner by a show cause notice, dated 27th February, 1970, which was served on the petitioner on 2nd March, 1970. The petitioner filed two writ petitions, W.P. Nos. 710 of 1970 and 711 of 1970, one for quashing the above show cause notice dated 27th February, 1970, and the other to restore him to the post of Upper Division Clerk, with effect from 13th October, 1959. The two writ petitions were dismissed at the admission stage on 17th March, 1970. The petitioner filed two appeals against the order dismissing the writ petitions at the admission stage and requested the Court to stay the disciplinary proceedings. The petition for stay was dismissed on 14th December, 1970. The Commissioner of Income-tax thereafter issued another memo., dated 22nd December, 1970, requiring the petitioner to show cause against the proposed penalty of compulsory retirement. The petitioner did not file his reply to the show cause notice. The writ appeals filed by the petitioner came to be dismissed on 22nd April, 1971. On the same day, another memo was issued to the petitioner by the Commissioner of Income-tax to file his representations within a week. The petitioner ultimately submitted his representations on 2nd July, 1971 and 3rd July, 1971. After considering the representations, the Commissioner passed the final orders on 26th October, 1972, reducing the petitioner from his substantive post of steno-typist to the rank of Class IV, with a direction to join duty as Class IV employee in the Income-tax Office at Ooty. The order further stated that the petitioner shall not be eligible for promotion to any higher post for a period of three years. The petitioner filed Writ Petition No. 2079 of 1972 against the show cause dated 22nd December, 1964, issued to him. Writ Petition No. 3749 of 1983 was filed challenging the final order passed by the Commissioner on 26th October, 1972, reducing him to the rank of Class IV employee with direction to join duty as Class IV employee at Ooty. 3. The main contentions of the petitioner in both the writ petitions are: 1. The disciplinary authority who decides to hold a further enquiry against the petitioner on the allegations on which the penalty of compulsory retirement was originally imposed, should be the same authority, and the Commissioner's decision to hold further enquiry in this case is without jurisdiction and will not attract the deeming provision in the second limb of Rule 12(4) of the CCS. (CCA.) Rules. 2. The charges which were inquired into-by the Commissioner were based on the same allegations which were the subject-matter of the disciplinary inquiry at the earlier stage, as a result of which the petitioner was reverted from the post of Upper Division Clerk to his substantive post of steno-typist, and this order of reversion was by way of punishment, and offends Rule 14(4)(a) of the C.C.S. (C.C.A.) Rules. 3. He was holding a Class III post and the reduction in rank from Class III to Class IV is illegal and the direction to serve in a lower post which the petitioner never held, is unsustainable in law. 4. The learned single Judge of this Court who heard the writ petitions, rejected all the contentions by holding. (1) Rule 12(4) of C.C.S. (CCA.) Rules uses the word 'disciplinary authority' which means an authority competent to initiate disciplinary proceedings, the disciplinary proceedings originally initiated by the Inspecting Assistant Commissioner is by an authority who is not competent to do so and is a nullity and hence fresh proceedings can be taken only by the Commissioner who is the competent disciplinary authority. Rule 12(4) cannot contemplate that an authority who was found to be incompetent to initiate proceedings and to have no jurisdiction to initiate proceedings should again initiate fresh proceedings under that Rule. The proceedings initiated by the Commissioner under Rule 12(4) and the retrospective order of suspension passed by him, are both valid. (2) A perusal of the relevant files showed that the petitioner was reverted to his substantive post as there was no vacancy in the post of Upper Division Clerk, in which he was officiating before he went on leave, and the order of reversion was for administrative reasons and not by way of punishment. The same contention was raised by the petition in Writ Petition No. 201 of 1963 and this Court held that the order of reversion was not by way of punishment and this has also been confirmed in appeal. It is, therefore, no longer open to the petitioner; to raise the contention that the order of reversion was by way of punishment. Even if the order of reversion dated 23rd April, 1960, is held to be by way of punishment that will not prevent the disciplinary authority from punishing him in relation to other charges which are not the subject-matter of the earlier enquiry. The impugned order reducing the petitioner to Class IV is based on the inquiry conducted in relation to different charges and not on the same charges on the basis of which the petitioner was retired from the post of Upper Division Clerk to his substantive post of Steno-typist, and the impugned order, cannot, therefore be challenged. (3) The word "reversion" connotes 'return to the original post or place' and the word "reduction" has no such connotation, and, therefore, reduction in rank extends even to a rank which the officer concerned never held. Rule 13 of the C.C.S. (C.C.A.) Rules, enables the disciplinary authority to impose a penalty or reduction in rank not only to a lower post which the concerned civil servant held earlier, but even to a lower post which he did not hold at any point of time. 5. On these findings the learned single Judge dismissed the Writ Petition No. 3743 of 1973. As Writ Petition No. 3079 of 1972 was filed against the show cause notice dated 22nd December, 1960, the learned single Judge held that the writ petition has become infructuous in view of the fact that final order imposing the punishment has been passed on 26th October, 1972, and it has been upheld in Writ Petition No. 3949 of 1973. Against this order of the learned single Judge, dismissing both the writ petitions the petitioner has filed the present two writ appeals. 6. When the Inspecting Assistant Commissioner, Coimbatore, passed orders on 31st March, 1962, compulsorily retiring the appellant from service, the appellant filed Writ Petition No. 210 of 1963 and this Court allowed the writ petition holding that the appellant was confirmed in the category of Steno typist by the Commissioner and the Inspecting Assistant Commissioner is not, therefore, the competent authority for imposing the punishment of compulsory retirement. There was an appeal to this Court. During the pendency of the appeal, the Commissioner of Income-tax initiated fresh enquiry against the appellant on the same charges on which the punishment of compulsory retirement was imposed earlier by the Inspecting Assistant Commissioner and passed an order of suspension under Rule 12(4) of C.C.S. (C.C.A.) Rules, 1957, by which the appellant was deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal. 7. The appellant, appearing in person, strenuously contended that the deemed order of suspension passed by the Commissioner on 28th December, 1964, to take effect from the date of original order of compulsory retirement on 31st March, 1962, can be passed under Rule 12(4) of the C.C.S. (C.C.A.) Rules, only by the Inspecting Assistant Commissioner who originally initiated the disciplinary proceedings and not by the Commissioner who initiated fresh disciplinary proceedings on the same charges consequent to the order passed by this Court in Writ Petition No. 201 of 1963 setting aside the order of compulsory retirement, dated 31st March, 1963. The contention has to be rejected for the following three reasons: 1. Rule 12(4) of the C.C.S. (C.C.A.) Rules 1957, is as follows: Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further enquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further order. 8. While interpreting Rule 10(4) of the C.C.S. (C.C.A.) Rules, 1965. which corresponds to Rule 12(4) of C.C.S. (C.C.A.) Rules 1957, the Supreme Court in H.L. Mehra v. Union of India and Ors. , held that the two conditions to be satisfied for passing the deeming order of suspension with retrospective effect are: (a) the order of dismissal must be set aside in consequence of a decision of a Court of law; (b) The disciplinary authority must decide to hold a fresh enquiry on the allegations on which the order of dismissal was originally passed. 9. In the instant case, the order of compulsory retirement passed by the Inspecting Assistant Commissioner, Coimbatore was set aside by this Court in Writ Petition No. 201 of 1963 and was confirmed in appeal. The enquiry initiated by the Commissioner consequent to the order passed by this Court in Writ Petition No. 201 of 1963 is in respect of the same charges on which the order of compulsory retirement was passed by the Inspecting Assistant Commissioner, Coimbatore. As the two conditions required to be fulfilled for passing the order of suspension under Rule 12(4) are satisfied in the instant case, the deemed order of suspension passed by the Commissioner on 23rd December, 1964 with retrospective effect, is perfectly valid. (2) Courts generally set aside the order of dismissal if it is not passed by the competent authority, or there is violation of the principles of natural justice; or the procedure followed is not in accordance with the prescribed Rules. It is to meet such contingencies that Rule 12(4) provides that if the competent authority initiates fresh enquiry proceedings on the charges, the order of suspension should be deemed to take effect from the date of the original order of compulsory retirement, which was set aside by the Court. This is precisely what has happened in the present case, and the deemed order of suspension passed by the Commissioner on 23rd December, 1964, under Rule 12(4) has to be, therefore upheld. 3. The very same contentions were raised by the appellant in Writ Petition Nos. 710 and 711 of 1970, and they were rejected by this Court and confirmed in appeals. The appellant is, therefore, barred by the principles; of res judicata from raising the very same contention in these appeals. 10. The next contention urged by the appellant is that the reversion order reverting him from the post of Upper Division Clerk to his substantive post of Steno-Typist is by way of punishment and offends Rule 14(4) of the C.C.S. (C.C.A.), Rules, 1957. A learned single Judge of this Court, after factual verification from the relevant files, had come to the conclusion that the appellant was reverted to his substantive post as there was no vacancy in the post of Upper Division Clerk in which he was officiating before he went on leave, and the order of reversion was for administrative reasons, and not by way of punishment. Secondly, the very same contention was raised by the appellant in Writ Petition No. 201 of 1963 and this Court held that the order of reversion was not by way of punishment and this was confirmed in appeal. The appellant is, therefore, barred by the principles of res judicata from raising the very same contention in these appeals. Thirdly, the impugned order reducing the rank of the appellant to Class IV is based on the enquiry conducted in relation to different charges and not on the same charges on the basis of which the appellant was reverted from the post of Upper Division Clerk to his substantive post of Steno-typist. So, even if for any reason the order of reversion is to be held to be by way of punishment, that will not prevent the disciplinary authority from passing the impugned order in relation to other charges which are not the subject-matter of the earlier enquiry. Thus on any view of the matter, the contention urged by the appellant has to be rejected. 11. The last contention urged by the appellant is that he was holding a Class III post and the reduction in rank from Class III to Class IV is illegal. In the decision reported in S.K. Srivastava, v. Union of India and Ors. (1971) 2 S.L.R. 453, the Delhi High Court has held: The word 'rank' as used in Article 311(2) of the Constitution has not been defined. But it is well-established that the words 'dismissal, removal and reduction in rank' have a technical significance due to the special meanings attached to them historically from the very beginning. The meaning so attached to the word 'rank' is that it is a class or a grade of service... This is why the Central Civil Services (Classification, Control and Appeal) Rules, 1965 classified all the Central Civil Services and the Central Civil posts into four classes one below the other as Class I, Class II, Class III and Class IV. Reduction in rank means the degradation in rank or status of the officer, directed by way of penalty. It thus involves two elements: (a) a reduction in the physical sense, relating to his classification as a Government servant; (i) such degradation or demotion must be by way of penalty. 12. In enumerating the major punishments to be imposed on Government employees, Rule 13(iv) of the C.C.S. (C.C.A.) Rules, 1957 provides for reduction to a lower service grade, or post or to a lower time-scale, or to a lower stage in a time-scale. The reference to punishment by way of reduction to a lower service or grade in Rule 13(iv) is a clear indication to show that reduction in rank by way of penalty can certainly take within its ambit reduction from Class III post to Class IV post. It cannot be stated that the reduction in rank should be only to a post held by the appellant at some point of time. The plea that the appellant never held a Class IV post at any point of time and hence there can be no reduction in rank to a Class IV post by way of penalty, unduly restricts the scope of Rule 13(iv) not warranted by a plain reading of the Rule. The plea of the appellant equates 'reduction in rank' to 'reversion'. Reduction in rank and reversion are not synonymous. A reversion of a civil servant shall be to a post held by him earlier. But reduction in rank of a civil servant by way of penalty need not necessarily be to a post held by him earlier. Hence the plea of the appellant that the reduction in rank to Class IV post not held by him at any time is illegal, cannot be accepted. 13. Writ Appeal No. 281 of 1981, is against the order passed in Writ Petition No. 2079 of 1972, which was filed against the show cause notice, dated 23rd December, 1964. As the show cause notice has become infructuous in view of the fact that final orders have been passed and confirmed by this Court, this appeal has to he dismissed as having become infructuous. 14. In the result, both the appeals are dismissed, in the circumstances, without costs.

Author: P Venugopal

R. Gopal Rao vs The Commissioner Of Income-Tax on 27 January, 1983

Madras High Court

Gujarat High Court Case Information System Print SCA/114/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 114 of 2010 ================================================= MADHYA GUJARAT VIJ COMPANY LIMITED - Petitioner Versus SOMABHAI NANABHAI CHAUHAN - Respondent ================================================= Appearance : MR PREMAL R JOSHI for Petitioner: None for Respondent: ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/01/2010 ORAL ORDER Notice pending admission returnable on 5/2/2010. In the meantime and till the returnable date there shall be ad-interim relief staying the execution, implementation and operation of the impugned award. [ S.R. BRAHMBHATT, J ] /vgn     Top

Author: S.R.Brahmbhatt,&Nbsp;

Madhya vs Somabhai on 11 January, 2010

Gujarat High Court

"2. In this Act, unless the context otherwise requires,-- ***** (b) 'appointed day' means the 1st day of November, 1966; ***** (g) 'law' includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Punjab; ***** (m) 'successor State', in relation to the existing State of Punjab, means the State of Punjab or Haryana, and includes also the Union in relation to the Union territory of Chandigarh and the transferred territory; ***** 7. Amendment of the first Schedule to the Constitution. -- On and from the appointed day, in the first Schedule to the Constitution.- ***** (b) under the heading 'II. THE UNION TERRITORIES'- ***** (ii) after entry 9, the following entry shall be inserted, namely:-- '10. Chandigarh. The territories specified in Section 4 of the Punjab Reorganisation Act, 1966.' ***** "48. Land and goods. -- (1) Subject to the other provisions of this Part, all land and all stores, articles and other goods belonging to the existing State of Punjab shall,-- (a) If within that State, pass to the successor State in whose territories they are situated; ***** (6) In this section, the expression 'land' includes immovable property of every kind and any rights in or over such property, and the expression 'goods' does not include coins, bank notes and currency notes. ORDER 1. Tilak Raj petitioner took on lease a tea-stall located at bus-stand in Sector 17, Chandigarh, vide registered lease-deed for two years effective from 14-3-1972 to 13-3-1974 at the rate of Rs. 4,800/- per mensem. The lease-deed envisaged the extension of the lease period by one year in the event of the satisfaction of the Chandigarh Administration about the performance and conduct of the petitioner, hereinafter referred to as the lessee. Before the expiry of his aforesaid lease period, he applied to the Chandigarh Administration for the extension of the lease which request was declined vide order dated 6-3-1974. The lessee, on the strength of a clause in the lease-deed for reference of any dispute arising thereunder to the arbitrator, got a reference made to the arbitrator to decide the dispute regarding the extension of the lease period. The Home Secretary, Chandigarh Administration, vide his award dated 22-6-1974, held that the lessee was not entitled to the extension of the lease. When the aforesaid award was sought to be made rule of the Court by the Chandigarh Administration, respondent No. 1, the lessee raised objections thereto. His objections were still pending decision in the Civil Court when on 28-5-1975 respondent No. 3, Estate Officer. Union Territory, Chandigarh, served upon the lessee a notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, hereinafter referred to as the Central Act, requiring him to vacate the premises. The lessee has impugned the aforesaid notice and the action of the Chandigarh Administration in the present writ petition, primarily, on four grounds: (1) that the lessee cannot be considered an unauthorised occupant in terms of Section 4 of the Act; (2) that since the Estate Officer, respondent No. 3, prior to the issuance of the Impugned notice had participated in a meeting in which a decision had been taken to issue the impugned notice to the lessee, so he was incompetent to issue the impugned notice as in doing so he acted in violation of principles of natural justice; (3) that action of the respondent Chandigarh Administration in evicting the lessee was discriminatory being violative of the provisions of Article 14 of the Constitution of India in that in regard to the other lessees of Chandigarh Administration the lease period was extended from time to time on raising of the rent by twenty per cent after every 5 years; and (4) that since the Union Territory of Chandigarh is an entity distinct and separate from the Central Government, so no Central Act, including the Act in question, would become applicable to the Union Territory of Chandigarh unless they are validly extended to it by a competent authority, and the impugned Act having not been so extended to the Union Territory of Chandigarh by any competent Authority, the action taken thereunder by the respondents in issuing the notice of eviction is clearly illegal. Taking Mr. N.L. Dhingra's (learned counsel for the petitioner) last submission first, the argument advanced by him is that by virtue of the provisions of Section 88 of the Punjab Reorganisation Act, 1966, hereinafter referred to as the Reorganisation Act, all laws, as denned in Section 2(g) of the Reorganisation Act, that were in force in the erstwhile State of Punjab prior to the appointed day viz., 1-11-1966, continued to apply to the Union Territory of Chandigarh and, therefore, it is the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, hereinafter referred to as the Punjab Act, that was to govern the eviction of persons from the premises belonging to the Union Territory of Chandigarh. 2. The relevant provisions in the Punjab Act at this stage deserve to be noticed. They read: "2. In this Act, unless the context otherwise requires:-- ***** (d) 'public premises' means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the State Government, or requisitioned by the competent authority under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953, and includes any premises belonging to any district board, municipal committee, notified area committee or panchayat; ***** (3) For purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises- ***** (b) where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or *****." 3. Referring to the expression 'belonging to ..... the State Government' occurring in the definition of the term 'Public Premises', Mr. Dhingra urged that by virtue of the provision of Sections 4 and 7 of the Reorganisation Act, read with the definition of 'State', in Section 3, Clause (58), of the General Clauses Act, 1897, the Union Territory of Chandigarh for the purposes of the application of the Punjab Act shall have to be construed as 'State' in the event of the necessary adaptation to the Punjab Act having not been carried out by the authority competent as envisaged in Section 89 of the Reorganisation Act. The learned counsel stressed that the provision of Section 90 of the Reorganisation Act authorises the Court to so read the said Act as if the requisite adaptations had been carried out in order to apply the laws made applicable by the provision of Section 88 of the Reorganisation Act. 4. Mr. Anand Swaroop, learned counsel for the respondents, on the contrary, has contended that by virtue of the definition of 'successor State' as defined by Section 2, Clause (m), of the Reorganisation Act, combined with the provisions of Section 48 of the Reorganisation Act, all such properties and premises that belonged to the erstwhile State of Punjab prior to 1-11-1966, vested in and belonged to the Union i.e., the Central Government, with the result that the Central Act which envisages eviction from the premises belonging to the Central Government governed the eviction of the unauthorised persons from such premises jn the Union Territory of Chandigarh and, therefore, the Punjab Act, despite the provision of Section 88 of the Reorganisation Act would no longer be applicable to the territory comprising the Union Territory of Chandigarh after 1-11-1966. 5. At this stage, the relevant provisions of the Reorganisation Act, for facility of reference, be noticed: 88. The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. 89. For the purpose of facilitating the application in relation to the State of Punjab or Haryana or to the Union territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. -- In this section, the expression 'appropriate Government' means- (a) as respects any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law,-- (i) in its application to a State, the State Government, and (ii) in its application to a Union territory, the Central Government. 90. (1) Notwithstanding that no provision or sufficient provision has been made under Section 89 for the adaptation of a law made before the .appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Punjab or Haryana, or to the Union Territory of Himachal Pradesh or Chandigarh construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority. (2) Any reference to the High Court of Punjab in any law shall, unless the context otherwise requires, be construed, on and from the appointed day, as a reference to the High Court of Punjab and Haryana." Section 3, Clause (58), of the General Clauses Act, 1897, is reproduced below for ready reference; "3. In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,-- ***** (58) 'State'- (a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory:" 6. Mr. Dhingra, learned counsel for the petitioner, for his submission that the Union Territory of Chandigarh is a 'State', sought support from Satya Dev Bushari v. Padam Dev, AIR 1954 SC 587; Prafulla Kumar Ghosh v. State, AIR 1959 Tripura 49; State of Vindhya Pradesh v. Moula Bux, AIR 1962 SC 145; Management of Advance Insurance Co. Ltd v. Shri Gurudasmal, AIR 1970 SC 1126; and a Single Bench decision of this Court rendered in unreported Criminal Revn. No. 32-M of 1970 (Jarnail Singh v. Union Territory of Chandigarh) decided on 27-7-1970 = (reported in AIR 1971 Punj 181). 7. In Satya Dev Bushari's case, (AIR 1954 SC 587) the question for decision was as to whether contract entered into with the Himachal Pradesh Government was a contract with the Central Government. It was held that the Union Territory of Himachal Pradesh was an entity distinct and separate from the Central Government and a contract entered into with the Government of Union Territory of Himachal Pradesh could not be considered to be a contract entered into with the Central Government. 8. In Moula Bux case (AIR 1962 SC 145) the question arose as to whether the Government of erstwhile State of Vindhya Pradesh had to be sued through the Lt. Governor or through the Union Government. There also, it was held that the aforesaid State of Vindhya Pradesh could only be sued through the Lt. Governor and not through the Union Government. 9. In the case of Management of Advance Insurance Co. Ltd. (AIR 1970 SC 1126), the question involved was as to whether the Union Territory of Delhi was a 'State' in the eye of law for the purpose of Entry 80 in List I, Schedule VII, of the Constitution. It was held that the Union Territory of Delhi was a 'State'. 10. In Prafulla Kumar Ghosh's case' (AIR 1959 Tripura 49), the question involved was as to whether the local administration of the Union Territory of Tripura was competent to present an application for the liquidation of the Tripura State Bank. Submission therein was that after the merger of the erstwhile Tripura State into the Union, all its shares etc. in the said Bank belonged to the Union Government and it was the Union Government alone that was competent to move the application of the kind in question. It was held that the local administration of the Union Territory of Tripura was an entity distinct from the Union Government and therefore it was competent to present the application in question. 11. In Shrl Jarnail Singh's case (AIR 1971 Pun] 181) (supra), the question for determination was as to whether for the purpose of Sub-section (3) of Section 7 of the Essential Services Act, the Union Territory of Chandigarh was a 'State'. Following the decision of the Supreme Court in the Management of Advance Insurance Co. Ltd. (AIR 1970 SC 1126) (supra), it was held by me that the Union Territory of Chandigarh was a 'State'. 12. So far as the question as to 'whether a Union Territory is or is not a 'State' in the eye of law, there exists no doubt that by virtue of the provision of the General Clauses Act, aforementioned, the Union Territory is a 'State' and their Lordships of the Supreme Court in Satya Dev Bushari's case (AIR 1954 SC 587), after referring to the aforesaid provision of the General Clauses Act, had clearly held that the Union Territory of Hima-chal Pradesh was a legal entity distinct from the Union Government and that merely from the fact that its administration had to be carried on in the name of the President it could not be considered as a part of the Central Government, for the President was its Chief Head not because the President is the Chief Head of the Union Government but because of the fact that the Constitution recognised the President under Article 239 of the Constitution as the executive head of the Union Territory as well, but any finding that the Union Territory of Chandigarh is a 'State' does not help solve the vexing question regarding the application of the "Central Act'. 13. So far as the Central Act is concerned, even prior to the reorganisation of the Punjab State it was applicable to the entire territory of the erstwhile State of Punjab in regard to such premises as belonged to the Central Government. So the primary question that falls for determination is as to whether the land or the premises in question belong to the Central Government or not. 14. This takes us back to the provisions of the Reorganisation Act. There is no dispute that the Governmental property located in Chandigarh, more particularly the property now in dispute, earlier belonged to the Punjab State. So now one has to see as to in whom such Punjab Government property vested after the reorganisation of the Punjab State and that in turn takes us to the query as to who is the 'successor Stete' in regard to the territory, that is now comprised in the Union Territory of Chandigarh. 15. The 'successor State' has been defined in Clause (m) of Section 2 of the Reorganisation Act. The perusal of the provision in question (already reproduced earlier) would reveal that in relation to the Union Territory of Chandigarh and the transferred territory, by a legal fiction, the Union has been made the 'successor State'. 16. Mr. Dhingra, learned counsel for the petitioner, however, urged that the use of the expression 'and includes also the Union' occurring in Clause (m) of Section 2 of the Reorganisation Act would militate against the construction that in relation to the Union Territory of Chandigarh and the transferred territory the "successor State" was exclusively the 'Union'. According to him, the aforesaid explanation would make the Union the 'successor State' in addition and not in derogation to the Union Territory of Chandigarh which in its own right by virtue of the General Clauses Act has the status of a State and is, therefore, the 'successor State' to the territory comprised within the Union Territory of Chandigarh, Mr. Dhingra referred us to A.C. Patel v. Vishwanath Chada, AIR 1954 Bom 204; Darbari Lal v. Smt. Dhram-wati, AIR 1957 All 541 (FB); State v. Jamnadas Gordhandas, AIR 1955 NUC (Bom) 2319; Sambasivaraju v. Chandraayya Chetty, AIR 1967 Andh Pra 87; and Ahmadellah v. Mafizuddin, AIR 1973 Gauhati 56, in order to comprehend the true import of the aforesaid expression in Clause (m) of Section 2 of the Reorganisation Act. 17. The ratio of the aforesaid de cisions, in its pith and substance, is that the expression 'include' IB very generally used in the interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute. When these words are used, then the term defined must be considered as comprehending not only such things as they signify according to the natural import but also those things which the interpretation clause declares that they shall include. 18. We do not think there is any merit in the contention advanced by the learned counsel. There is no dispute with the interpretative enunciation of the expression 'include' made in the aforesaid decisions relied upon by Mr. Dhingra, but the context in which the expression 'include' has been used cannot be lost sight of. In the present case, the. expression 'includes' does not stand alone. It is followed by the expression 'also the Union'. 'Union', neither in the common parlance nor in the constitutional sense, is a 'State'. The political entity 'Bharat', in its comprehensive sense, is Union of States and since the Parliament in relation to the Union Territory of Chandigarh and the transferred territory intended to make Union as the 'successor State', so it had to employ the legal fiction to term it so by using the expression 'and includes also'. So the context, in which the expression 'includes' has been used in Section 2(m) of the Reorganisation Act would show that the Union would alone be a 'successor State' hi relation to the territories comprised in the Union Territory of Chandigarh and the transferred territory. 19. That the Union was intended exclusively to be the 'successor State' in relation to the Union Territory of Chandigarh and the transferred territory is substantiated by the provisions of Section 2(i) of the Reorganisation Act which defines the population ratio of the 'successor States'. In it the population of the Union is fixed as 7.78, that of Haryana 37.38 and of Punjab 54.84. If the Union Territory of Chandigarh and the transferred territory had been the 'successor States' in their own rights, then their population ratio would have been fixed separately. The definition of 'population ratio' not only fixed the number of 'successor States' as being only three, but in clear-cut language mentions the Union as the third 'successor State'. That the Union is the 'successor State' in relation to the Union Territory of Chandigarh is further substantiated by the provisions of Section 29(2) of the Reorganisation Act which deals with the allocation of the expenditure incurred in respect of the salaries and allowances of the Judges of the common High Court amongst the 'successor States'. Here too, three successor States' are made liable to share such expenditure in such proportion as determined by an order of the President of India and the three 'successor States' mentioned are the Punjab, Haryana and the Union. 20. According to the provisions of Section 48 of the Reorganisation Act, all 'lands' -- which expression by virtue of Section 48(6) of the Reorganisation Act includes 'immovable property of every kind and any rights hi or over such property' -- belonging to the existing State of Punjab, if located within that State were to pass to the 'successor State' in whose territories they were situated. That means that the 'successor State', in relation to the Union Territory of Chandigarh i.e., the Union, became owner of all that goes by the expression 'land'. That being the position, then it irresistibly follows that to any premises, which stands included in the expression 'land' and belonged to the 'Union' which is governed by the Central Government, it is the Act of the Central Government that would be applicable and not the Act which prior to the 'appointed day' was applicable to it. Accordingly, we hold that it is the Central Act and not the Punjab Act that would govern the eviction of the unauthorised persons from the premises in question. 21. The second submission of the learned counsel for the petitioner, that was founded on Article 14 of the Constitution, became untenable by virtue of the order passed by the President under Article 359 of the Constitution which withheld from the citizens, Court-redress for violation of 'the provisions of Article 14 and, therefore, he was not allowed to advance that contention. Even otherwise, the contention has no merit. The stand taken by the petitioner in this regard was that the Chandigarh Administration had been extending the lease periods of other tenants by enhancing rent by twenty per cent, or so after every five years. The Government being the owner of the lease-property, it is open to it to extend the tenancy period in one case and not to do so in the other case if it, in a given case, finds that a particular tenant's conduct and performance was not to their satisfaction and so no discrimination whatsoever is involved if the tenancy period of 'such a tenant is not extended. 22. Contention No. (2), which has been pressed with some vehemence, is that notice served upon the petitioner by the Estate Officer, respondent No. 3, was in violation of the principles of natural justice inasmuch as he was biased against the petitioner, for prior to the issuance of the impugned notice he had participated in the official meeting in which it had been decided that the eviction notice under Section 4 of the Central Act be served upon the petitioner. While elaborating his submission the learned counsel for the petitioner urged that inasmuch as the Estate Officer was a party to the dispute with the petitioner, so if he was to serve notice and decide as to whether the petitioner was to be evicted from the premises in question or not, he became judge of his own cause, which act was violative of the principles of natural justice. For this proposition, the learned counsel drew sustenance from the Allahabad High Court judgment reported in Ram Gopal Gupta v. Assistant Housing Commr., AIR 1969 All 278 (FB). 23. The facts involved therein were that an employee in the Central Ordnance Department, Kanpur, who was an industrial worker, was allotted one house in the Industrial Colony, Babspurwa, Kanpur. He received from the Housing Commissioner a notice demanding excess water charges. His representation was rejected and thereafter the Assistant Housing Commissioner issued a notice to the petitioner demanding certain amount on account of rent and excess water charges and the same day the Assistant Housing Commissioner issued another notice to the petitioner cancelling the allotment in his favour and ordering him to vacate the house within one month from the service of the notice and by letter dated 10-10-1960, the Assistant Housing Commissioner authorised the use of force for the eviction of the petitioner from the house. The case was decided by a Full Bench. M. H, Beg, J., wrote a separate opinion though concurring in the opinion of the other Judges of the Bench regarding the final result but gave its separate reasons. While the Chief Justice, V.G. Oke and B. Dayal, J., rested their decision on the following opinion of Shelat, J., in the Northern India Caterers (P.) Ltd. v. State of Punjab, AIR 1967 SC 1581, who delivered the majority opinion therein: "The principle which emerges from these decisions is that discrimination would result if there are two available procedures one more drastic or prejudicial to the party concerned than the other and which can be applied at the arbitrary will of the authority. ..... In this view Section 5 must be declared to be void." It may be mentioned here that Section 5 of the Punjab Act empowered the Collector to evict occupiers of land summarily." Beg, J., additionally adverted to the fact that the position of the Assistant Housing Commissioner in any eviction proceedings is evidently that of a party and prosecutor as, it was this very officer who could file a suit and figure as the plaintiff in a Civil Court, and this very officer was given the power to fix rates of rent and to determine what 'other charges' or their extent should be. The learned Judge, following the observations of their Lordships of the Supreme Court in G.N. Rao v. A.P.S.R.T. Corporation, AIR 1959 SC 308, as given below- "The aforesaid decisions accept the fundamental principle of natural justice that in the case of quasi-judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute;'' held that the action of the Assistant Housing Commissioner offended against the principles of natural justice, as he could be biased in favour of particular view that he may have already taken on a ground for eviction even before taking proceedings under Section 21(1) of the Uttar Pradesh Industrial Housing Act, 1955. 24. We do not think the ratio of this decision or that of G.N. Rao's case (AIR 1959 SC 308) is applicable to the facts of the present case. In the case before their Lordships of the Supreme Court, the dispute was between the private transport operators and the Government Roadways. The authority that was envisaged in the Act to determine their dispute was the Government. However, it was the Secretary though he was the Head of the Transport Department which ran the public roadways, who decided the dispute between the parties and it was in this background that it was held that the Secretary, who himself was interested for getting the particular road permit for the public transport run by his own department, was not expected to take an unbiased decision. In the same manner, the Housing Commissioner, who himself was invested with the powers of fixing the rent and the water charges etc., was not expected to take a view different from the one which he had already taken while issuing the notice demanding excess water charges, for it was he who had already determined as to what the water charges were to be. 25. The same does not apply to an authority which is empowered by an Act to see whether the statutory provision has been complied with or not by those to whom it is applied. The Estate Officer in the present case is not personally interested in the matter and so there is no question of his acting as a judge in his own cause when he tries to administer the various provisions of the Act. The matter is not res integra. In fact, a Full Bench of this Court, which was confronted with such a question in a case under the Punjab Act held as follows; (see Northern India Caterers (P) Ltd. v. State of Punjab, AIR 1963 Punj 290 (FB)): "The argument raised on imputation of bias on the part of the Collector when he is acting in his official capacity under Section 4, Punjab Act (31 of 1959) is not sustainable. In the absence of proof showing bias, a decision cannot be called in question simply because an officer has acted in his official capacity or occupies important position in Government hierarchy. A presumption cannot be raised that persons required to perform statutory functions will not be able to bring to bear their impartial mind to the consideration of the various matters in dispute: H. C. Narayanappa v. State of Mysore, AIR 1960 SC 1073, Ref." TO the same effect is the ratio of M.S. Oberoi v. Union of India, AIR 1970 Punj 407 and M.L. Joshi v. Director of Estates, Govt. of India, New Delhi, AIR 1967 Delhi 86. 26. For the reasons stated the contention advanced by the learned counsel being devoid of merit is repelled. 27. Now coming to his last contention that the petitioner, whose dispute regarding his right to the extension of the tenancy period by one year as envisaged in the lease-deed is pending decision in the Civil Court, cannot be considered an unauthorised occupant of the premises in question, one may, in this regard, do well to remind oneself of a few relevant dates. The premises in question were leased out to the lessee from 14-3-1972 to 14-3-1974. The clause in the lease-deed envisaged extension of the lease period by one year i.e. upto 13-3-1975 if the Government was satisfied by the conduct and performance of the tenant (the petitioner). His application dated 31-1-1974 for extension of the lease period was declined by the Home Secretary vide his order dated 6-3-1974. On 7-3-1974, he made an application that the dispute be referred to the arbitrator. On this application, the dispute was referred to the arbitration of the Home Secretary, who gave his award against the petitioner on 22-6-1974. When that award was filed in the Court for being made the rule of the Court, the petitioner filed objections against the same being made the rule of the Court. Those objections were pending when on 28-5-1975 the impugned notice was served upon him. The dispute that is pending decision in the Civil Court was only this, as to whether the petitioner was entitled for the extension of the lease period by one year i.e., upto 13-3-1975 or not. The impugned notice was given to him after the expiry of that period and so it cannot be said that even after the expiry of the dispute period of one year, the lessee had any semblance of right to hold on to the premises in question. After 13-3-1975, he, in our opinion, was definitely an unauthorised occupant of the premises in question. 28. Mr. Dhingra, learned counsel for the petitioner, then contended that the impugned notice was, in any case, bad, for therein it has been mentioned that the petitioner was an unauthorised occupant of the premises in question with effect from 13-3-1974. 29. We do not think there is any merit in the contention advanced by the learned counsel. The Estate Officer, in any case, had to fix the period from which the petitioner was in an unauthorised occupation. Since he had not extended the lease period of the petitioner, so, according to the Estate Officer, the petitioner was in an unauthorised occupation of the premises with effect from 13-3-1974. If he was to treat the petitioner in an unauthorised occupation of the premises not from 14-3-1974 but only from 13-3-1975, then no dispute would have survived to be tried either by the arbitrator or by the Civil Court. That would have tantamounted to the giving up of his (Estate Officer's) claim. So in the impugned notice, in our opinion, he has rightly described the petitioner as being in an unauthorised occupation of the premises with effect from 14-3-1974. 30. The question as to whether the petitioner is deemed to be in an unauthorised occupation of the premises from 14-3-1974 or 13-3-1975 is relevant only for- the purposes of calculating the compensation for the use and occupation of the premises in question by the petitioner. In case he finally succeeds in getting a verdict that he was entitled to one year's extension, then for the aforesaid period he would be liable only at the rate of Rs. 4,800/- per month, but if he fails, then he would be liable to pay such compensation as may be determined by the competent authority after hearing him. 31. Since the dispute regarding the period between 14-3-1974 and 13-3-1975 is pending decision before the Civil Court, we, therefore, direct that for this period the petitioner shall forthwith provisionally pay to the Estate Officer at the rate of Rs. 4,800/- per month along with interest on arrear, if any, if he has not already paid; while regarding the period after 13-3-1975 he shall be liable to pay such compensation as may be determined in accordance with law by the authority competent in this regard. In the event of his failing to establish his right to the extension of the lease period by one year, he shall additionally pay the difference between the lease amount calculated at the rate of Rs. 4,800/- per month and the compensation amount determined by the competent authority. 32. For the reasons stated, the writ petition is dismissed. However, in the circumstances of the case, we make no order as to costs. 33. In Civil Miscellaneous Application No. 2058 of 1975, the petitioner has claimed modification of this Court's order dated 17-7-1975 whereby this Court had directed him to deposit a sum of Rs. 82,450/- as arrears of compensation for use and occupation of the premises in question and charges towards electricity and water consumption from 13-3-1974 to the date of filing of the return by the respondents. The modification sought was that he had paid certain amounts to the Chandigarh Administration and that the same be adjusted. In this regard it is ordered that while working out the amount of compensation for use and occupation and water and electric charges of the premises in question by the petitioner, the respondent shall give credit up to any amount that may have been received from the petitioner in this behalf. In view of this, the Civil Miscellaneous stands disposed of accordingly.

Tilak Raj vs The Chandigarh Administration ... on 22 September, 1975

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 4789 of 2001(T) 1. SHAJI KURUVILLA ... Petitioner Vs 1. THE DISTRICT COLLECTOR ... Respondent For Petitioner :SRI.M.C.JOHN For Respondent :SPL.GOVERNMENT PLEADER The Hon'ble MR. Justice S.SIRI JAGAN Dated :05/03/2009 O R D E R S. SIRI JAGAN, J. ------------------------------------ O.P.No. 4789 OF 2001 ---------------------------------------- Dated this the 5th day of March, 2009 JUDGMENT The petitioners are father, mother and minor son. They together own 29.72 acres of land being part of a larger extent of about 190 acres, which originally belonged to M/s. Malayalam Plantations Ltd, out of which 29.72 acres were purchased by the petitioners. Forest authorities initiated proceedings under the Private Forest (Vesting and Assignment) Act for vesting of the land in the Government as provided forest. O.A. filed before the Forest Tribunal by the petitioners was allowed and the said area was exempted from vesting as a cardamom plantation. Subsequently, the petitioners converted a portion of the said land namely, 9.97 acres, as a coffee estate. When they applied for registration as a coffee estate, by Ext.P4 series, registration was reused on the ground that the land has been notified under the Kerala Preservation of Trees Act. It is under the above circumstances, the petitioners have filed this original petition  O.P.No.4789/01 2 seeking the following reliefs: 2. A counter affidavit has been filed producing copy of the notification issued under the Kerala Preservation of Trees Act. Having notified the same under the Act, cutting of trees is prohibited and therefore, the land could not have been converted into coffee estate, is the contention raised by the State. 3. The learned counsel for the petitioner submits that as per that notification, only 14.1640 hectors have been declared notified under the Act and there is no indication in that notification that the same includes the petitioners' property. It is further contended that since the Kerala Preservation of Trees Act prohibits only cutting of trees in  O.P.No.4789/01 3 cardamom plantations, cardamom hill reserve etc and since the property in question now is a coffee estate to which the prohibition under the Preservation of Trees Act cannot apply. 4. The contention of the respondents is that 14.1640 hectares notified under the Kerala Preservation of Tees Act includes the petitioners' property. The petitioners have not been able to controvert that contention. Therefore, I am not inclined to countenance that contention of the petitioners. Regarding the second contention, if such a contention is accepted, then any person can defeat the Kerala Preservation of Trees Act with impunity. The owner of a cardamom estate cannot convert into a coffee plantation and then claim that now that it is only a coffee plantation, the Act would not apply. Admittedly, the property in question was exempted from the purview of the Kerala Private Forest Vesting and Assignment Act only as a cardamom estate. Once that land is notified under the Kerala Preservation of Trees Act, cutting of trees is prohibited. The petitioners have converted the same by cutting trees. In any case since the land was exempted from vesting under the Kerala Private Forests (Vesting and Assignment) Act, it could not have been converted into any  O.P.No.4789/01 4 other land. In the above circumstances, the second contention also fails. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd 

Shaji Kuruvilla vs The District Collector on 5 March, 2009

Kerala High Court

Central Information Commission File No.CIC/SM/A/2009/001937  Right to Information Act­2005­Under Section  (19) Dated: 3 September 2010 Name of the Appellant  : Shri Suraj Prakash D­181, Defence Colony, New Delhi - 110 024. Name of the Public Authority   : CPIO, Canara Bank, Circle Office Delhi, 7th Floor, Ansal Tower, 38, Nehru Place, New Delhi - 19. The Appellant was present in person. On behalf of the Respondent, the following were present:­ (i) Shri C.G.Nair, CPIO, (ii) Shri Prabhat Rajvanshi, Manager   2. Both   the   parties   were   present   during   the   hearing   and   made   their  submissions. The Appellant had wanted a copy of the due diligence report on a  specific property which had been mortgaged to the bank in a particular loan  case   and  which  property  the   bank  had  since  taken   possession  of   for  non­ payment  of   the   loan  and  had   proposed  to   sale   by  auction.  The   CPIO  had  denied the information claiming exemption under Section 8(1) (e) and (j) of the  Right   to   Information   (RTI)   Act.   The   Appellate   Authority   had   endorsed   the  decision of the CPIO. CIC/SM/A/2009/001937 3. After hearing both the parties and after carefully considering the facts of  the case, we do not find any merit in the decision of the CPIO nor that of the  Appellate Authority. The due diligence report for a property the possession of  which has already been taken over by the bank for non­payment of the loan  and put on auction, cannot be any longer denied as personal information or as  an information held in commercial confidence. On the contrary, the bank must  place the due diligence report in the public domain so that the intending bidders  satisfy themselves about the status of the property before participating on the  auction. 4. In the light of the above, we direct the CPIO to provide to the Appellant  within 10 working days from the receipt of this order a photocopy of the due  diligence report for this particular property. 5. With the above direction, the appeal is disposed off. 6. Copies of this order be given free of cost to the parties. (Satyananda Mishra) Information Commissioner Authenticated true copy.  Additional copies of orders shall be supplied against  application and payment of the charges prescribed under the Act to the CPIO of this  Commission. (Vijay Bhalla) Assistant Registrar CIC/SM/A/2009/001937

Mr. Suraj Prakash vs Canara Bank on 3 September, 2010

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM Con.Case(C).No. 403 of 2010(S) 1. MINI JOSEPH, AGED ABOUT 42 YEARS, ... Petitioner Vs 1. JAMES VARGHESE, AGED ABOUT 54, ... Respondent 2. C.P.CHITRA, AGED ABOUT 55, 3. REJENDRAN, AGED ABOUOT 53, For Petitioner :SRI.BENOY THOMAS For Respondent : No Appearance The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :14/06/2010 O R D E R T.R.RAMACHANDRAN NAIR,J. ------------------------------------- Contempt Case(C)Nos.403 & 438 of 2010 ------------------------------------------------------------- DATED THIS THE 14th DAY OF JUNE, 2010 JUDGMENT The learned counsel appearing for the petitioner and the learned Government Pleader submitted that the directions have been complied with and orders have been passed also. Recording the same, these Contempt of Court Cases are closed. T.R.RAMACHANDRAN NAIR, JUDGE. dsn 

Mini Joseph vs James Varghese on 14 June, 2010

Kerala High Court

JUDGMENT Somnath Iyer, J. 1. We are concerned in this reference which is made by the Commissioner of Agricultural Income-tax under section 55 of the Mysore Agricultural Income-tax Act, 1957, as it stood before its amendment, with an assessment of agricultural income for the assessment year 1957-58. 2. A notice was issued to the assessee on July 15, 1958, under section 18(2) after the expiry of the relevant financial year, but the assessee did, however, produce his return before the assessment was made. The Agricultural Income-tax Officer made an assessment thereafter under section 19(3). That assessment was affirmed by the Deputy Commissioner in appeal, and under section 55(2), as it then stood, the assessee applied to the Commissioner for a reference to this court of the questions of law arising out of the order made by the Deputy Commissioner, and the Commissioner made a reference accordingly. But, by an order of his court made on July 15, 1963, the Commissioner was directed to make a proper reference, and in obedience to that order we have now before us a statement of the case prepared by the Commissioner. 3. It appears from the statement of the case that, in the year 1956, there was a partition between the assessee, his wife, Indirabai, and his son, and that at that partition there was an allotment of a property to the wife. The assessee who was assessed as an individual contended that the income of that property should be excluded from his income. But the Agricultural Income-tax Officer and the Deputy Commissioner were of the view that the allotment of the property to the wife was a transfer otherwise than for adequate consideration or in connection with an agreement to live apart within the meaning of section 11(2)(a)(iii) of the Agricultural Income-tax Act, and that the income therefrom should be regarded as the income of the assessee. 4. The other ground on which the assessee resisted the assessment was that the notice under section 18(2) issued by the Agricultural Income-tax Officer for the production of the return was served after the expiry of the relevant financial year. Although the Income-tax Officer said nothing about it, the Deputy Commissioner was of the view that the provision for service of notice contained in section 18(2) was an enabling provision and that the service of notice after the expiry of the financial year had therefore no relevance. 5. The two questions referred to us read : "1. Whether the lands allotted to Smt. Indira Bai, the wife of the assessee, at the time of the partition of the properties between the assessee and his son amounted to a transfer of assets directly or indirectly within the meaning of section 11(2)(iii) of the Act ? 2. Whether the notice issued in this case on July 15, 1958, and served on July 31, 1958, is illegal and as such the assessment based on such notice is liable to be quashed ?" 6. We shall first address ourselves to the first question, which, it should be mentioned, is not accurately framed. The statutory provision mentioned is section 11(2)(iii), which should be 11(2)(a)(iii), which reads : "In computing the total agricultural income of the an individual, there shall be included - (a) so much of the agricultural income of a wife or minor child of an individual as arises directly or indirectly - ..... (iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with and agreement to live apart." 7. The Income-tax Officer was of the view that, although there was an allotment of a property to the assessee's wife at the partition of the year 1956, the income therefrom was the income of the assessee, since the assesses and his wife resided together.He, therefore, thought that the computation had to be made in the manner provided by section 11(2)(a)(iii). The Deputy Commissioner shared that view, and in the statement of the case, the Commissioner, who made a more elaborate discussion of the matter, states that Indirabai was not under the Hindu law entitled to a share at a partition between her husband and her sons, and that, since, the assessee and his wife lived together without there being any separation between them, it was not difficult to conclude that there was a transfer of the property by the husband to the wife without there being any intention of the income being enjoyed separately. 8. In taking the view that Indirabai was not entitled to a share at the partition between her husband and her son, the Commissioner made an incorrect assumption. The family which made a partition in the year 1956 was governed by the Bombay Mitakshara School of Hindu law, and, as pointed out by the Full Bench of the High Court of Bombay In Parappa Ningappa Khaded v. Mallappa Kallappa, one of the basic principles of that school of Hindu law is that, at a partition between her husband and sons, the wife is entitled to share equal to that of her son. Chagla C.J. said this in that context : "Although it may be true that a Hindu wife has no interest in joint family property and she has no right to challenge the alienation, it is equally true that on a partition between her husband and her sons she is entitled to a share equal to that of her son. It is the basic principle of Hindu law that a Hindu wife is protected and safeguarded on a partition taking place between her husband and her sons, and although she is not recognised as a coparcener on a partition taking place, she is given almost the same right as that of a coparcener because she receives a share equal to that of her son." 9. So, it becomes clear that the postulate upon which the Commissioner depended falls to the ground. 10. But the more material question is whether the allotment of a share to the assessee's wife amounted to a direct or indirect transfer of an asset of the assessee to his wife. If we could say that there was such transfer, then alone could we say that the income from the property allotted would become, for the purpose of the assessment, the income of the assessee. 11. There are two enunciations made by the Supreme Court in Commissioner of Income-tax v. Keshavlal Lallubhai Patel and Sarin v. Ajit Kumar which negative the view that a partition of property belonging to a Hindu joint family results in a transfer of the property so partitioned, to any one. It was explained in those two cases that the partition really means that the initial subsisting title to the totality of the property becomes transformed by partition to several titles of the individual coparceners, and that being the true nature of a partition there is no transfer of the property to the individual coparceners. 12. Mr. Narayana Rao, the learned Government Pleader, however, asked us to say that the rule so enunciated becomes inapplicable to a case where the partition is not exclusively amongst the coparceners but makes an allotment to a female member of the family who is not really a coparcener. We do not agree. If under the Bombay Mitakshara School of Hindu law the wife is entitled to claim a share at a partition between her husband and her sons, what follows is that the property which is allotted to her at such partition is property which she acqires in the exercise of her right to claim a partition in the property partitioned and it would not therefore be correct to take that partition outside the rule propounded by the Supreme Court. The High Court of Bombay in Parappa Ningappa Khaded v. Mallappa Kallappa made it clear that it could be said that the wife has an inchoate right in the joint family property and that that inchoate right materialises when the partition is made and she becomes entitled to a share equal to that to her son. So, even in case where a wife is allotted a share at a partition between her husband and her sons, such allotment results in a transformation of the initial title to the totality of the property into separate titles of the individuals between whom the partition is made within the meaning of the decision in Sarin v. Ajit Kumar. 13. That being the true position, it could not be said that there was any transfer of any property to Indirabai on the occasion of the partition between her husband and her son. Moreover, a case falls within section 11(2)(a)(iii) of the Act only when an asset is transferred by the husband to his wife and such transfer is made for no adequate consideration and without there being an agreement to live apart. There could be no such transfer by the husband to the wife when at a partition, to which the husband, the wife the son are parties, a property is allotted to the wife. The transaction which results in such allotment is one to which the son is also a party and it could not, therefore, be right to think that that transaction involves any transfer of any property by the husband to the wife. 14. The discussion made so far demonstrates that our answer to the first question referred to us should be in favour of the assessee if nothing else could be said about it. 15. But Mr. Narayana Rao, the learned Government Pleader, urges that we should decline to answer the question on the ground that there are no sufficient material on the basis of which we could answer it. He asked attention to section 30 of the Agricultural Income-tax Act under the provisions of which an Agricultural Income-tax Officer has the power to record a finding that there was partition between members of a Hindu joint family finding by metes and bounds. He also depends upon sub-section (3) of that section which provides that, where no such finding is recorded, the family shall be deemed for the purpose of the Act to continue to be an undivided family. Mr. Narayana Rao suggested that no finding was recorded by the Agricultural Income-tax Officer at any stage that there was any partition by metes and bounds amongst the members of the family and that, therefore, the Income-tax Officer should have proceeded upon the basis that the family was an undivided family. 16. Although the assessee contended that there was a partition by metes and bounds, the Commissioner says nothing about it in the statement of the case. On the contrary, the question referred to us proceeds upon the assumption that there was a partition such as the one to which we have referred, and that at such partition there was an allotment of the property to the wife. We were asked by Mr. Government Pleader to say that in this situation the income from the property allotted to the wife has to be assessed as the income of a Hindu joint family and not as the income of an individual. 17. We do not think that we can do so. The assessee was assessed as an individual and there was no assessment of any joint family income in the case before us. It is seen from the statement of the case that the income of the assessee which was assessed was the income which he derived from the property which was allotted to him at the partition and that from the property which allotted to the wife. It is undisputed that the income from the property which fell to the share of the son was not assessed as the income of the assessee. In a case like this where the assessee was assessed as an individual and the Income-tax Officer assessed the income from the property allotted to his wife as his own income under section 11(2)(a)(iii) of the Act, the only question which can arise and which indeed has been referred to us, is, whether the property allotted to the wife could be said to have been transferred by the husband to her within the meaning of section 11(2)(a)(iii). No other question such as the one suggested by Mr. Government Pleader can properly arise or be answered. 18. So we should answer the first question in favour of the assessee. 19. The second question consists of the two parts. The first part concerns itself with the legality of the notice issued under section 18(2) of the Act on July 15, 1958. That sub-section provides that in the case to which it refers the Agricultural Income-tax Officer may serve, in the relevant financial year, a notice requiring the production of a return. It reads : "In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial year, he may serve in that year a notice in the prescribed form requiring such person to furnish within such period not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) his total agricultural income during the previous year." 20. The previous year in this case was the year ending on March, 31, 1957, and the financial year in which the Agricultural Income-tax Officer could have served a notice under the provisions of this sub-section was the year commencing on April 1, 1957, and ending on March, 31, 1958. The clear meaning of section 18(2) is that the Agricultural Income-tax Officer, if he thought that the total agricultural income of the assessee was liable to payment of agricultural income-tax, had the power to serve during that financial year a notice requiring the production of a return. So, what the Income-tax Officer could have done was to serve before the expiry of the financial year which expired on March, 31, 1958, that notice on the assessee. But that notice was issued to the assessee only on July, 15, 1958, and served on him on July 31, 1958. While the Income-tax Officer said nothing about the legality of this notice, the Deputy Commissioner was of the view that the word "may" occurring in section 18(2) demonstrated that the issue of the notice was optional and not obligatory, and so no question of the legality of the services of the noticed beyond the financial year could arise. The Commissioner of Agricultural Income-tax, however, thought that the notice issued under section 18(2) could be understood as a notice under section 36 which provides for the assessment of escaped income, and that, so understood, it could be held to have been issued within the time prescribed. 21. It is of course impossible to regard the notice as one served under section 36 since it was not proposed by that notice to assessee any escaped income. By that notice, the assessee was called upon to furnish a return under section 18(2), and that notice could have been issued only during the relevant financial year. The words "in that year" occurring after the words "he may serve" in section 18(2) made it clear that the notice has to be served in the financial year to which that sub-section refers earlier. Since that was not done and the notice was served beyond that year, our answer to the first part of the second question should be in favour of the assessee. 22. The second part of the second question is somewhat awkwardly worded. It asks us to decide whether the assessment "based" on the notice, which was issued late, is liable to be quashed. It was suggested that if the notice, as decided by us, is an illegal notice, since it was not issued within the time allowed, the assessment made consequent on the issue of such notice must necessarily be pronounced illegal. The question is whether we should say so. 23. Although the notice was issued beyond the relevant financial year, the assessee, nevertheless, produced a return. On the production of that return, the Income-tax Officer proceeded to make an assessment under section 19(3) of the Act. Mr. Narayana Rao, the Government Pleader, urged that the production of the return by the assessee was made under section 18(3), and that if the assessment was based upon the production of the return made in that way, the assessment could not be called in question notwithstanding the delay in issuing the notice under section 18(2). He depended upon section 18(1) which imposes a statutory duty upon every person, upon whose total agricultural income during the previous year agricultural income-tax is charged, to produce return before the concerned Agricultural Income-tax Officer which should reach him before 1st of June of every year. Mr. Rao made the further submission that the power to issue a notice under section 18(2) was an independent power which did not affect to any extent the statutory duty imposed by sectoin 18(1). Our attention was next asked to sub-section (3) which authorises the production of a return by an assessee even beyond the period prescribed by section 18(1) or allowed by section 18(2), provided the return is furnished before the assessment is made. 24. The argument constructed was that although the assessee could have ignored the notice issued under section 18(2) as a notice beyond the competence of the Agricultural Income-tax Officer who issued it after the expiry of the relevant financial year, the assessee did not do so, but produced a return nevertheless. That return, it was contended, has to be regarded as return produced under section 18(3) after the expiry of the period prescribed by section 18(1). It was further maintained that, since that return was produced before the assessment was made, the Income-tax Officer had the competence under section 19(3) to make an assessment on a consideration of the material which he had before him. 25. Sub-sections (1), (2) and (3) of section 18 read : "18. (1) Every person whose total agricultural income during the previous year exceeded the maximum amount which is not chargeable to agricultural income-tax shall furnish to the Agricultural Income-tax Officer so as to reach him before the 1st June every year a return in the prescribed form and verified in the prescribed manner, setting forth his total agricultural income during the previous year. (2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial year, he may serve in that year a notice in the prescribed form requiring such person to furnish within such period not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) has total agricultural income during the previous year. (3) If any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2), or, having furnished a return under any of those sub-sections discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made." 26. Section 19 prescribes the procedure for the assessment of income. Sub-section (1) provides for an assessment on the basis of a return which the Income-tax Officer accepts. Sub-section (2) empowers the Agricultural Income-tax Officer, if he is not satisfied that the return is complete or correct, to require the assessee to produce evidence in support of the return. Sub-section (3) reads : "19. (3) On the day specified in the notice under sub-section (2) or as soon afterwards as may be, the Agricultural Income-tax Officer, after considering such evidence as such person may produce and such other evidence as that officer may require on specified points, shall, by an order in writing, assess the total agricultural income of the assessee and determine the sum payable by him on the basis of such assessment." 27. It is undisputed that the assessment which is called in question in the matter before us is an assessment made under section 19(3) after the service of a notice under section 19(2) on the assessee for the production of the evidence in support of the return. 28. But it was suggested on behalf of the assessee that if the return was produced in response to the illegal notice issued under section 18(2), that return could not be the basis of an assessment under section 19(3) and it was said that no assessment could be made under section 19 unless there was a return properly furnished to the Income-tax Officer. 29. We lean to the view suggested by Mr. Narayana Rao, the learned Government Pleader, that we should exclude from consideration the late notice issued under section 18(2) in deciding the legality of the assessment made in this case. Under section 18(1), the assessee was under a duty to produce his return before June 1, 1957. But, nevertheless, under section 18(3), it was open to him to produce his return even thereafter. If he did produce one after June 1, 1957, there is no reason why we should think that that return produced by him is no return at all by reason of the fact that, in the meanwhile, the Income-tax Officer had issued a notice under section 18(2) after the expiry of the financial year to which it refers. There can be no doubt that the assessee intended to produce it after June 1, 1957. It may be that what prompted him to produce the return was the notice issued under section 18(2). But even so, what cannot be overlooked is the fact that he did produce a return after June 1, 1957, and that it was permissible of him to do so under section 18(3). So, the return produced by the assessee has to be regarded as one produced under section 18(3), whatever might have been the antecedent circumstances surrounding the production of the return. That is the true position even if the production of the return was a sequel to the service of notice under section 18(2). 30. The view that we take receives support from the decision in Commissioner of Income-tax v. Ranchhoddas Karsondas, in which the Supreme Court pointed out that a return after the expiry of the period specified in the general notice under section 22(1) of the Income-tax Act is a perfectly good return provided it is produced before the assessment is made and that for the production of that return there was no bar of limitation. 31. The same is the position emerging from section 18(3) read with section 18(1). Under section 18(3), a return could be produced at any time before the assessment, even after the time allowed by the notice under section 18(2) has expired. 32. So, an assessee, in whose case no assessment has yet been made, has the option to produce his return, whether or not a notice under section 18(2) has been served, and even if that notice was served after the expiry of the relevant financial year. If he desists from doing so,he invites a best judgment assessment under section 19(4), the provisions of which are not similar to the corresponding provisions of the Indian Income-tax Act, 1922. But, if he does produce a return and even if the production is preceded by a late notice under section 18(2) which could have been ignored, the return has the status of one produced under section 18(3). The act of production, whatever might have prompted it, is what confers that status. The Income-tax Officer had thus the competence to make an assessment under section 19(3). So, the impugned assessment would be entirely above reproach. 33. But we were asked to say that the form of the question referred to us precludes our taking that view and that what that question asks us to decide is whether the assessment "based" on the notice issued under section 18(2) is a good assessment. The argument was that all that we have to decide is whether an assessment which has for its foundation an illegal notice does not also become tainted with illegality and we were asked to say that an assessment based on an illegal notice can never be legal and falls obviously to be quashed. 34. If the question arises in that way, and, if the validity of the assessment depended upon the validity of the notice, the view pressed on us may appear substantial. But we are clearly of the opinion that on the assessment in the case before us, the illegality of the notice has no impact. 35. Now, the question reads : "Whether the notice issued in this case on July 15, 1958, and served on July 31, 1958, is illegal and as such the assessment based on such notice is liable to be quashed ? 36. The word "based" in the question upon which the argument was based does not involve the assumption that the assessment was founded on the notice. It is obvious that the assessment came into being on the production of a return and on the observance of the procedure prescribed by section 19. That return when produced under section 18(3) becomes the basis of such assessment even in a case in which a notice under section 18(2) is issued during the relevant financial year, and not the notice so issued. In the case before us, that notice constituted a basis in the sense that it was after the service of that notice that the assessee produced his return. So, we should also understand the word "based" occurring in the question referred to us in that way, and, so understood, the question means whether the assessment, if it is otherwise above reproach, is contaminated by the illegality of the notice. There can be no such contamination if the return is one produced properly under section 18(3), and it was so in this case. So, the word "based" in the question has reference only to the sequence in which the assessment was made and so the real question before us is whether, by reason of the fact that an illegal notice was issued before the assessment was made under section 19(3), the assessment has to be quashed. We do not feel justified in attaching any importance in this case to the fact that the service of the notice under section 18(2) was not effected during the relevant financial year, since what infuses the assessment with efficacy and legality is the voluntary production of the return by the assessee under section 18(3) and the observance of the procedure prescribed by section 19. 37. In that view of the matter, our answer to the second part of the second question should be in favour of the Commissioner and against the assessee. 38. So, our answer to the first question is that the allotment of the lands to Smt. Indirabai, the wife of the assessee, at the time of the partition of the properties between the assessee and his son, does not amount to a transfer of an asset directly or indirectly within the meaning of section 11(2)(a)(iii) of the Act. 39. Our answer to the second question is that the notice served on the assessee on July 31, 1958, under section 18(2) is an illegal notice, but that the assessment made under section 19(3) after the issue of such notice is not liable to be quashed on the ground that the notice issued under section 18(2) is an illegal notice. 40. We should however make it clear, although it is not really necessary for us to do so, that by reason of our answer to the first question the income of the property allotted to Smt. Indirabai cannot be assessed as the income of the assessee. 41. No costs.

Author: S Iyer

Keshav Laxman Sangoram vs State Of Mysore on 6 March, 1966

Karnataka High Court

JUDGMENT 1. This is an application of the State of Orissa under Section 24(2)(b) of the Orissa Sales Tax Act for a direction to the Sales Tax Tribunal to state a case and refer the following questions for opinion of the court: (1) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, is legally justified in accepting the claim of the opponent under Section 5(2)(A)(a)(ii) of the Orissa Sales Tax Act when the declarations are not in conformity with the rules laid down under Rule 27(2) of the Orissa Sales Tax Rules ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified to entertain the claim for deductions and direct the assessing officer to entertain the claim for the purpose of determining the taxable turnover of the dealer ? 2. The assessee is a registered dealer and one Mangulu Sahu and Co., a registered dealer carrying on business at Berhampur, functions as its commission agent. During the year 1971-72, in respect of a sum of Rs. 17,571.54, deduction from the gross turnover was claimed for fixation of the taxable turnover of the assessee on the plea that it was a sale to a registered dealer. Rule 27 of the Orissa Sales Tax Rules provides that a dealer who wishes to deduct from his gross turnover the amount of sale on the ground that he is entitled to make such deduction under item (ii) of Sub-clause (a) of Clause (A) of Sub-section (2) of Section 5 of the Act shall on demand, produce a copy of the relevant cash receipt or bill according as the sale is a cash sale or a sale on credit and a declaration in form XXXIV duly filled in and signed by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by the purchasing dealer. The Tribunal found that there was a formal declaration as provided in form XXXIV, but there was no sale bill and in lieu thereof a sale patti from the authorised agent was forthcoming. Looking at the details contained in the sale patti and what would ordinarily appear in a bill, the Tribunal came to hold that there was compliance of Rule 27(2) of the Rules and accordingly allowed the deduction of the turnover of Rs. 17,571.54 for determining the assessee's taxable turnover. 3. According to the learned standing counsel, the sale patti should not have been accepted as a substitute of the cash receipt or the sale bill, inasmuch as the sale patti is not in fact a real substitute of the other. We would agree with the learned standing counsel that the Tribunal generalised the position in too wide a term when it stated that the sale patti would be a substitute of a cash receipt or a sale bill. In the given case, however, the learned standing counsel is not in a position to point out as to in what manner, the sale patti was not satisfying the requirements of the rule by either being a cash receipt or a sale bill. It is not the case of the learned standing counsel that the patti in question lacked in any particulars which in ordinary course, a sale bill or a cash receipt would contain. To a pointed question, the learned standing counsel's answer is that in the sale patti in hand, the commission agent's commission probably was reflected. At any rate, that would be an additional material and not that there was any deficiency in the sale patti which would not provide the adequate information contained in a sale bill or a cash receipt. In the circumstances, we find it difficult to accept the submission advanced by the learned standing counsel that the Tribunal acted contrary to law in accepting the sale patti and the declaration read together as compliance of Rule 27(2) of the Orissa Sales Tax Rules, so as to allow the deduction to the assessee as representing the sale to a registered dealer. In the circumstances, we are inclined to hold that no question of law arises and the finding of the Tribunal is essentially one that has borne out by fact. 4. The application is accordingly rejected.

State Of Orissa vs Basudev Das And Anr. on 10 January, 1979

Orissa High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 624 of 2008() 1. DR.S.SREEKUMAR, VETERINARY OFFICER (CMP) ... Petitioner 2. DR.SREEKALA V., VETERINARY OFFICER(CMP) 3. DR.SATHEESH K.N., MANAGER (P & I), 4. DR.P.MURALI, VETERINARY OFFICER (CMP) 5. DR.GEE GEORGE, VETERINARY OFFICER (P&I) 6. DR.VENUGOPAL V.S., VETERINARY OFFICER, 7. DR.SHIBU SHANKAR, VETERINARY OFFICER 8. DR.RAJKUMAR SAMUEL, VETERINARY Vs 1. STATE OF KERALA, ... Respondent 2. THE SECRETARY TO GOVERNMENT, 3. BOARD OF DIRECTORS OF THIRUVANANTHAPURAM 4. THE DIRECTOR, For Petitioner :SRI.P.SANKARANKUTTY NAIR For Respondent :SRI.K.ANAND (A.201) The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice P.N.RAVINDRAN Dated :18/03/2010 O R D E R K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.624 of 2008 ---------------------------------------------- Dated 18th March, 2010. J U D G M E N T Balakrishnan Nair, J. The appellants are some of the writ petitioners. They are Veterinary Doctors working under the third respondent. When the third respondent discontinued the payment of non- practising allowance to them, they approached this Court and as per the direction of this Court in Ext.P5 judgment, the Government considered the matter and issued Ext.P6 order, directing that the non-practising allowance could be withdrawn, if only there is a change in the nature of duty, or the incumbents concerned are promoted to higher posts. In the light of that, the third respondent took the consequential decision, Ext.P8. Challenging Ext.P8 and praying for restoration of non-practising allowance, the Writ Petition was filed. 2. At the time of hearing of the Writ Petition, we notice that only one contention was pressed by the writ petitioners. They submitted that the nature of their duty has not changed and therefore, the discontinuance of non-practising allowance was unjustified. Since it was a dispute between a Cooperative Society and its employees, the learned Single Judge  WA NO.624/08 2 directed the writ petitioners to move the 4th respondent, Director of Dairy Development, who is vested with the powers of the Registrar, under the Kerala Cooperative Societies Act. Challenging the said judgment, this Writ Appeal is preferred. 3. We heard the learned counsel on both sides. We notice that Ext.P6 order was not specifically challenged in the Writ Petition, though some grounds, attacking the same have been pleaded. As long as Ext.P6 remains in force, there is nothing wrong with Ext.P8, which is only a consequential decision taken by the 4th respondent. Further, even assuming Ext.P6 was under challenge in the Writ Petition, only one point was canvassed before the learned Single Judge and the learned Judge dealt with it appropriately. The point canvassed, being a disputed question, the appellants were directed to move the officer, exercising the powers of the Registrar. So, we find no reason to interfere with the said direction in the judgment under appeal. The Writ Appeal is, accordingly, dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs  WA NO.624/08 3 K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.624 of 2008 ----------------------------------------------

Dr.S.Sreekumar vs State Of Kerala on 18 March, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4334 of 2008 Ram Krishna Rai Versus The State Of Bihar & Ors ---------------------------------- 02 19-08-2011 On call, none appeared either on behalf of the petitioner or the State. Put up this case on 23.08.2011. ( Rakesh Kumar, J.) NKS/-

Ram Krishna Rai vs The State Of Bihar & Ors on 19 August, 2011

Patna High Court - Orders

PETITIONER: GENERAL MANAGER, NORTH EAST FRONTIERRAILWAY Vs. RESPONDENT: SACHINDRA NATH SEN DATE OF JUDGMENT: 22/08/1969 BENCH: ACT: Indian Railway Establishment Code, Rules 148 and 149 held invalid by Supreme Court as violative of Art. 311 (2) of the Constitution of India-Railway Board deciding that only employees whose services were terminated under said Rules within a period of six years before Supreme Court judgment would be reinstated-Validity of limit of six years. HEADNOTE: The, services of the respondent as an Assistant Traffic Superintendent on the North East Frontier Railway were terminated after one month's notice under Rule 148 of the Indian Railway Establishment Code with effect from December 2, 1957. An appeal to the General Manager was held not to be competent. On being offered a lower post the respondent accepted it. By letter dated December 31, 1959 he was informed that his representation to the Railway Board had been rejected. On December 5, 1963 this Court in Moti Ram Deka's case held that Rules 148(3) and 149(3) of the Indian Railway Establishment Code were invalid being violative of Art. 311(2) of the Constitution. The respondent made a representation in 1964 to the General Manager for reconsideration of his case in the light of the said judgment. The representation was turned down on the ground that the Railway Board had decided to instate only those employees whose services had been terminated in terms of Rules 148/149 within a period of six years prior to the date of the Supreme Court's judgment. The respondent filed a petition under Art. 226 of the Constitution which was allowed by the High Court. The General Manager appealed. HELD: The fixing of a period of six years was on the face of it arbitrary and there was no valid or reasonable explanation as to why this limit was fixed by the railway authorities. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void because of violation of Art. 311(2) of the Constitution, his reinstatement should have followed as a matter of course. The contention that the railway authorities would have found a lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed was devoid of merit and could not be accepted. [67 F--G] Moti Ram Deka etc. v. General Manager, N.E.F. Railway etc. [1964] 5 S.C.R. 683, applied. JUDGMENT: G.C. Appeal dismissed. (1) [1964] 5 S.C.R. 683. 68 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1839 of 1967. Appeal by special leave from the judgment and decree dated February 16, 1967 of the Assam and Nagaland High Court in Civil Rule 2 of 1965. V.A. Seyid Muhammad and S.P. Nayar, for the 'appellants. A.K. Sen and D.N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Assam & Nagaland High Court by which a petition under Art, 226 of the Constitution filed by the respondent challenging the termination of his service was allowed. The respondent was serving the railways as an Assistant Traffic Superintendent prior to December 2, 1957. His services were terminated by serving on him one month's notice under Rule 148 contained in the Indian Railways Establishment Code. The respondent filed an appeal to the General Manager but he was informed by means of a letter dated February 3, 1959 that no appeal was competent. In June 1959 he was offered reemployment as a Statistical Inspector in the scale of Rs. 200 to Rs. 300 plus the usual allowances on terms and conditions applicable to temporary employees. It appears that the respondent accepted the offer and was appointed to the post. He was finally informed by means of a letter dated December 31, 1959 that his representation had been considered by the Railway Board relating to the termination of his services as Assistant Traffic Superintendent but the same had been rejected. On December 5, 1963 this Court decided by majority in Moti Ram Deka etc. v. General Manager. N.E.F. Railways etc.(1) that Rules 148 (3) and 149(3) of the Indian Railway Establishment Code were invalid. The respondent made a representation thereafter in 1964 to the General Manager to reconsider the case of the termination of his services in the light of the law declared by this Court. The; General Manager sent a reply dated June 3, 1964 saying that the question of the respondents reinstatement could not be considered as it was not covered 'by limits of law, i.e. it does not fail within a period of six years from the date of your termination of service". This was followed by another letter dated December 7, 1964 in which it was stated: Thereupon the respondent filed a petition under Art. 226 of the Constitution in the. High Court. As stated before the petition (1) [1964] 5 S.C.R. 683. was allowed principally on the ground that the railway authorities were not legally justified in making a distinction between officers whose services had been terminated within six years prior to the judgment of this. Court in Moti Ram Deka's(1) case and the cases of those whose services had been terminated earlier. As pointed out in the judgment of the High Court that respondents services were terminated on December 2, 1957, he was behind time by 3 days only. It was found that such an artificial demarcation between the two kinds of cases was hit by Art. 14 of the Constitution. The other point that the respondent had accepted reemployment and must be deemed to have waived his rights to reinstatement to his original office was also repelled. In Moti Ram Deka's(1) case this Court held that the termination of the services. of a permanent servant authorised by Rules 148(3) and 149(3) of the Railway Establishment Code was inconsistent with the provisions of Art. 311 (2) of the Constitution. The termination of the services of a permanent servant authorised by those Rules was no more and no less than removal from service and Art. 311(2) was at once attracted. In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated. The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Art. 311 (2) of the Constitution his reinstatement should have followed as a matter of course. The submission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed is devoid of any merit and cannot be accepted. The appeal fails and it is dismissed with costs.

General Manager, North East ... vs Sachindra Nath Sen on 22 August, 1969

Supreme Court of India

Gujarat High Court Case Information System Print CR.RA/99/2006 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 99 of 2006 ==================================================== RAMESHBHAI HARGOVINDBHAI JOSHI Versus STATE OF GUJARAT & ANR ==================================================== Appearance : MR ND NANAVATI FOR MR BC DAVE for Applicant MR KC SHAH APP for Respondent No.1 None for Respondents No.2-8 ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 13/02/2006 ORAL ORDERHeard learned senior counsel Mr.N.D.Nanvati for the applicant. RULE returnable on 2nd March, 2006. Learned APP Mr.K.C.Shah waives service of rule on behalf of the respondent No.1 ? State of Gujarat. Though some of the accused i.e. respondents No.2, 3 and 7 of this Criminal Revision Application are under trial prisoners, it would be in the interest of justice that the trial Court in both the sessions case may not proceed and this matter be heard peremptorily. In view of the above, the learned Sessions Judge i.e. Fast Track Court, Surat before whom the Sessions Case No.135 of 2005, Sessions Case No.203 of 2005 and Sessions Case No.22 of 2005 are pending, is directed not to proceed in this three Sessions Cases till 2nd March, 2006. Direct service to the trial Court is permitted. [J. R. VORA,J.] vijay     Top

Author: J.R.Vora,

State vs Mr Kc Shah App For on 5 September, 2011

Gujarat High Court

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Ganesh Chandra Maurya vs State Of U.P. & Another on 30 August, 2010

Allahabad High Court

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Author: N.K.Patil

M/S Devatha Saree Emporium vs The Authorized Officer Union Bank ... on 23 June, 2009

Karnataka High Court

Court No. - 7 Case :- RENT CONTROL No. - 135 of 2008 Petitioner :- Dr. Anzar Hussain Respondent :- Additional District Judge UnnaoPetitioner Counsel :- Adnan Ahmad Respondent Counsel :- C.S.C. Hon'ble Dr. Satish Chandra J. Sri Adnan Ahmad, learned counsel for the petitioner informs that he has informed the counsel for the opposite party in writing. But the opposite party is out of station till 19.7.2010. List in the next cause list. Order Date :- 15.7.2010 KS/

Dr. Anzar Hussain vs Additional District Judge Unnao on 15 July, 2010

Allahabad High Court

JUDGMENT Vepa Ramesam, Kt., Officiating C.J. 1. The facts out of which these appeals, arise may be thus stated. A Nattukottai Chetti firm, vis., T.S.N. Firm, was adjudicated insolvent by the Rangoon High Court on the 10th March, 1930. On the 15th July, the Official Assignee of Rangoon applied to that Court that a letter of request be issued to the High Court, Madras, directing the Official Assignee of Madras to act in aid of the High Court of Rangoon in the matter of the insolvency of this firm. This was ordered by the Registrar of the Rangoon High Court on the same day. The order runs thus: "Write letter as usual for such request," The Official Assignee of Madras applied to this Court for an order directing him to act in aid of the Official Assignee of Rangoon in pursuance of the above letter of request and obtained such an order from our brother Waller, )., on the 19th January, 1931. But this order was passed ex parte,, i.e., without notice to the insolvents. The Official Assignee of Madras then took out a notice of motion on the 28th January, praying for further directions to the insolvents in respect of filing schedules, delivering properties and executing documents in respect of certain other properties. Waller, J., passed an order on the 18th February, 1931. In the statement filed by the insolvents in reply to the notice of motion objection was taken to the jurisdiction of this Court. In paragraph 4 it was contended that the alleged letter of request is ineffective and inoperative and cannot confer any jurisdiction on this Court or on the Official Assignee of Madras as it does not deal with any particular matter and the same is. not in conformity with law. In paragraph 5 it is alleged that the High Court of Rangoon cannot hand over business within its jurisdiction which can properly be dealt with by that Court to another Court. When the matter came on for argument before Waller, J., the objection to jurisdiction seems to have been pressed in a somewhat slightly different form, viz., that no copy of the order required by Section 122 of the English Bankruptcy Act has been produced; but Waller, J., observed: "I infer from the terms of the letter of request that such an order was passed." He further observed that there is a presumption that official acts have been properly performed. He also referred to In re Firbank (1887) 4 Mor. 50 to show that the Registrar could pass such orders without reference to the Judge. Finally he held that he had jurisdiction and passed an order directing the insolvents, (1) to deliver to the Official Assignee all their moveable properties in Pudukottah State, (2) to execute in his favour transfers of their immovable properties in that State, (3) to deliver possession to him of their properties, and (4) to file their schedules in two weeks. He observed theat in default warrants will be issued and the insolvents will be committed for contempt. O.S.A. No. 13 is against this order. 2. Later on the matter came on for further hearing before our brother Stone, J., in April last. Objection to jurisdiction was then taken in ;a new form. It was contended that as the letter of request did not deal with any specific matter, this Court had no jurisdiction. Stone, J., seems to have thought that there was something in this but he did not express any opinion on that date. The Official Assignee intimated that he would get a clearer letter of request and would produce the order of the Rangoon High Court. On his communication with the Official Assignee of Rangoon a formal order (in the nature of a decree) was drafted on the 22nd April, 1931, the original order of the 15th July, 1930, being in the nature of a judgment. The order of the 22nd April directs the issue of a letter of request to the High Court of Madras and its officers to act in aid of the Rangoon High Court in realising, reducing to possession, managing, selling, bringing, defending suits, applications, etc., and otherwise dealing with the movables assets of the insolvent firm and its partners in the District Court of South Arcot, Tanjore and elsewhere in the Presidency of Madras, etc. This order also declares that the order of the Registrar, dated 15th July, 1930 and the letter of request, dated 17th July, 1930, were in accordance with the practice of the Rangoon High Court, that the formalities prescribed by law were followed and that the intention of the order and the letter of request was to empower the Official Assignee of Madras to do everything that was necessary in regard to the properties of the insolvents. When this order was produced before Stone, J., he passed an order on the 28th April. In that order he observed that the first letter of request received from the Rangoon High Court was useless and did not confer any jurisdiction on him. Any jurisdiction he could have related to matters directed by the order of that Court and that order to be effective must be an order directing something specific to be done. He was of opinion that it did not refer to anything specific to be done except that it merely referred to a letter of request. He therefore ordered that the Official Assignee should pay the taxed costs of the application to the insolvents. He further held that the order since received was an effective order. At this stage it may be observed that there was no new order passed by the Registrar of the Rangoon High Court after the 22nd April, 1931. The order directing the issue of the second letter of request is still the same old order, namely that which was passed on the 15th July, 1930. The difference was only in the formal order (corresponding to a decree) that was drawn up in pursuance of that order. It does not appear that any formal order was drawn up in the beginning, but now a formal order, dated 22nd April, 1931, has been drawn up which explains the intention of the order of the 15th July, 1930. O.S.A, No. 67 of 1931 is against this last order of Stone, J. 3. Now, coming to the merits of these appeals, the first point argued by the learned Advocate for the appellant--Mr. T.M. Krishnaswamy Aiyar--is that under Section 126 of the Presidency Towns Insolvency Act one Court in British India cannot send a letter of request to another Court in British India. Now, Section 126 provides that all Courts having jurisdiction under this Act shall make such orders and do such things as may be necessary to give effect to Section 118 of the Bankruptcy Act, 1883. Section 118 of the Bankruptcy Act, 1883, is the same as Section 74 of the Bankruptcy Act of 1869 and Section 122 of the Bankruptcy Act of 1914. Under these Acts not only the Bankruptcy Courts in the United Kingdom but also every British Court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of those Courts respectively, shall severally act in aid of and be auxiliary to each other We are of opinion that Section 122 applies to all the Insolvency Courts in the British Empire, and that it not only authorises one Court in the United Kingdom to aid and get aid from British Courts outside the United Kingdom but also enables two British Courts outside the United Kingdom to aid each other. Therefore it authorises one High Court in British India to aid another High Court in British India, or a High Court in British India to help a Provincial Insolvency Court in British India. And because its main object was this, that Section 126 has been enacted in the Presidency Towns Insolvency Act directing all Courts having jurisdiction under the Act to make such orders and do such things as may be necessary to give effect to Section 118 of the Bankruptcy Act, 1883, and also Section 77 of the Provincial Insolvency Act. We therefore overrule this contention. 4. The next point argued before us is that even if according to the second letter of request this Court has jurisdiction, that jurisdiction begins only from the 28th April, 1931, when the said letter of request was produced, that all acts done prior to that date were done without jurisdiction and that therefore the order of Waller, J., was null and void. It is also contended that all interim orders must be regarded as invalid. Now when we remember that only one order was, passed by the Registrar, namely, the one dated the 15th July, 1930 and that the first letter of request and the second letter of request were issued in pursuance of that order, it is clear that the proper view to take of the first letter of request is that it was somewhat ineffective to inform this High Court of the intentions of the Rangoon High Court. It is perhaps permissible for a Judge here to hold that it was not enough to confer jurisdiction. When the only objection that was pressed before Waller, J., was that the main order itself was not produced, the learned Judge inferred that there must have been such an order. We now know that his inference was right. As a matter of fact there was an order and seeing that this was the only objection pressed before him, his order was perfectly right. When the objection was repeated in a different form before Stone, J., perhaps there was a reasonable doubt as to whether this Court had jurisdiction on the, 13th April. But when the formal order of the 22nd April, 1931, based on the order of the 15th July, 1930, was produced on the 28th April, 1931, before Stone, J., all grounds for doubting the jurisdiction of this Court disappeared. 5. We do not think that there is any substance in the objection that either the order or the letter of request should refer to specific matters. All that Section 122 of the Bankruptcy Act, 1914, says is that an order of the Court seeking aid, with a request to another Court, shall be deemed sufficient to enable the latter Court to exercise, "in regard to the matters directed by the order, such jurisdiction, etc." This shows that there must be some matters directed by the order. Now, the judgment of the 15th July did not specifically refer to any matter but it has now been made clear to us by the formal order of the 22nd April, 1931, that the practice of the Rangoon High Court was to pass the order in that form and that it was always taken to mean that the letter of request should relate" to realising, reducing to possession, managing, selling, bringing, defending suits, applications, etc., in respect of the assets of the insolvents. When once the scope of the original order is made clear by the later order, the. requirements of Section 122 of the Bankruptcy Act, 1914, are satisfied because there is some matter referred to in the later order. Even in the first letter of request there is a reference to the "proprietors of the abovenamed insolvent firm." By a liberal construction it is possible to say that there was some matter directed in the order. However it is not necessary for us to say that the construction of Stone, J., put on the first letter of request is incorrect. When the later order was produced, all doubts vanished, and there was no question of any specific matter that should have been referred to in the letter of request or in the order. As the order of the 22nd April, 1931 and the letter of request rest upon the order passed on the 15th July, 1930, which as we now understand is a perfectly good order, not only is the order of Waller, J., right but it must be held that this Court had jurisdiction from the very beginning, though it must be said that the matter was cleared up only after the production of the order of the 22nd April, 1931. In this view the final order of Stone, J., holding that this Court has jurisdiction is perfectly correct. It is unnecessary to say anything about the first part of the order as there is no appeal against it. 6. It is suggested that the order of Waller, J., will cause some inconvenience to the insolvents as they have since been adjudicated insolvents in the Pudukottah State and that they are unable to execute conveyances in respect of their immovable properties or to deliver possession. It is perhaps safe to delete that portion, i.e., items (b) and (c) of Waller, J.'s order directing the insolvents to execute transfers in respect of their immovable properties in favour of the Official Assignee and to deliver possession. 7. As regards the movable properties Waller, J., was perfectly right in passing the order. It is now said that some of the properties were destroyed in the recent riots and fire in the Pudukottah State. It is for the insolvents to prove to the satisfaction of the Court that the properties were so destroyed and therefore that there was no default on their part. If any complaint is made about the insolvent's conduct alleging default on their part, the matter must be made the subject of an enquiry and then only it can be found whether they are guilty of contempt so understood. The last part of Waller, J.'s order will be allowed to remain. It is also suggested that it is very inconvenient if the enquiry as to the Cuddalore properties is held in Madras; we leave it to the discretion of the Judge either to refer the Official Assignee to the Cuddalore Court or, while retaining the matter in this Court, to issue commission for examining the 8. Cuddalore witnesses--so as not to cause hardship to the insolvent. 9. The result is that both the appeals are dismissed with taxed costs. Cornish, J. 10. I entirely agree and only wish to add a few words on the question of jurisdiction which has been argued. I think that Section 126 of the Presidency Towns Insolvency Act enabled the Rangoon High Court to call upon the Madras High Court and its officers to act in aid of it and of the Official Assignee of Rangoon in this insolvency. Section 126 provides that all Courts having jurisdiction under the Act shall make such orders and do such things as may be necessary to give effect to Section 122 of the Bankruptcy Act, 1914, which has replaced Section 118 of the Bankruptcy Act, 1883, referred to in Section 126. Now Section 122 says that the High Court, the County Court, the Courts having jurisdiction in bankruptcy in Scotland and Ireland and every British Court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of those Courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy. I think the natural meaning of this provision is that not only is a British Court outside the United Kingdom to act in aid of a Court within the United Kingdom, but that it is to act in aid of another British Court elsewhere. To hold that the section only intends reciprocal aid between a Court in the United Kingdom and a British Court elsewhere would be, in my opinion, to put a wholly unreasonable construction on the words in the section. But in order to give the Court whose aid is sought by another Court jurisdiction to act, Section 122 requires that there must be an order of the Court seeking such aid together with a request There was both an order and a letter of request in this case. I think that Stone, J., was justified in his view that the request as at first presented did not sufficiently show what were the matters directed by the order in respect of which the Madras Court was required to act in aid. But the subsequent order and letter of request of the Rangoon High Court made clear what was intended by the first letter of request, and also that the order as originally issued was a valid order. The second letter of request, in fact, merely implemented the first request; and as it was made in pursuance of a valid order, the Madras Court must be regarded as having had jurisdiction from the receipt of the first letter of request to give directions to the Official Assignee to act in aid.

Author: Cornish

R.M. Ramaswamy Chettiar And Ors. vs The Official Assignee Of Madras on 1 September, 1931

Madras High Court

Gujarat High Court Case Information System Print COMA/441/2008 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY APPLICATION No. 441 of 2008 ========================================================= CORE EMBALLAGE 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 : 08/08/2008 ORAL ORDERHeard Mrs.Swati Soparkar, learned counsel appearing for the applicant. Leave to amend as prayed for. Necessary amendment be carried out forthwith. Upon the application of the abovenamed Company by summons dated 08th August 2008, upon hearing Mrs.Swati Soparkar, learned counsel appearing for the applicant, and upon reading the affidavit filed on 08th August 2008 in support of Judges' summons for direction and other relevant annexures attached in support of the contents of the affidavit filed by the deponent (Exhibit 'C' being a copy of the proposed scheme of amalgamation). So far as separate meetings of the Equity Shareholders, secured creditors and unsecured creditors are concerned, it is ordered : That in view of the consent letters in writing having been obtained from the sole Preference Shareholder and the Unsecured Creditors of the company and the same being produced on record, and considering the certificate given by a Chartered Accountant in this regard, the meetings of the Preference Shareholder and the and the Unsecured Loan Creditors, as required to be held under provisions of Section 391(2) of the Companies Act, 1956, are not necessary to be held and the same are hereby dispensed with. That a meeting of the Secured Creditors of the applicant-Company be convened and held at the registered office of the company at ?SCore House??, Off. C.G. Road, Near Parimal Garden, Ellisbridge, Ahmedabad-380 006 in the State of Gujarat, on Thursday, the 25th day of September 2008 at 03-30 p.m., for the purpose of considering and if thought fit, approving, with or without modifications, the Scheme of Arrangement in the nature of de-merger and transfer of Manufacturing Division of Core Emballage Limited to CEL Packaging Private Limited. That separate meetings of the Unsecured Trade Creditors and Equity Shareholders of the applicant-Company be convened and held at the ?SConference Hall??, Ahmedabad Textile Mills' Association (ATMA), Opp. National Chamber, Ashram Road, Ahmedabad-380 009, on Friday, the 03rd day of October 2008 at 11-30 a.m., or at the conclusion of the previous meeting whichever is later, for the purpose of considering and if thought fit, approving with or without modifications, the Scheme of Arrangement in the nature of de-merger and transfer of Manufacturing Division of Core Emballage Limited to CEL Packaging Private Limited, as proposed between the applicant-Company and the Equity Shareholders and Creditors of the applicant-Company. That at least 21 clear days before the meetings to be held as aforesaid, a notice convening the said meetings, indicating the day, the date, the place and the time as aforesaid, together with a copy of the Scheme of Arrangement, copy of the Explanatory Statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed Form of Proxy, shall be sent by pre-paid letter posted under Certificate of Posting, addressed to each of the Equity Shareholders, Secured Creditor and Unsecured Trade Creditor of the applicant-Company at their last known addresses. That at least 21 clear days before meetings to be held as aforesaid, a Notice convening the said meetings, indicating the day, the date, the place and the time as aforesaid be published, stating that copies of the Scheme of Arrangement, the Explanatory Statement required to be furnished pursuant to Section 393 of the Companies Act, 1956 and Form of Proxy, can be sent obtained free of charge at the Registered Office of the applicant-Company and/or at its Advocate's Office i.e. 204, Akanksha, Opposite Vadilal House, Mithakhali, Navrangpura, Ahmedabad-380 009, once each in 'Indian Express', English Daily (Ahmedabad Edition) and 'Sandesh', Gujarati Daily (Ahmedabad Edition). That Shri Rajiv S. Mehta, the Executive Director of the applicant-Company, and failing him Shri Akshay Chandan, the Chief Financial Officer of the applicant-Company shall be the Chairman of the aforesaid meetings to be held respectively on 25th September 2008 and 03rd October 2008 and in respect of any adjournment or adjournments thereof. Shri Aditya Mehta, learned advocate practicing in the High Court, shall attend the meetings as an observer on the day of meetings of the Company. That the Chairman appointed for the aforesaid meetings do issue the advertisements and send out notices of the said meetings referred to above. It is further directed that the Chairman of the meetings shall have all powers under the Articles of Association of the applicant-Company and under the Companies (Court) Rules, 1959 in relation to conduct of meetings including an amendment to the Scheme or resolution, if any, proposed at the meetings by any person(s) and to ascertain the decision of the meetings on a poll. That the quorum for the meetings of the Equity Shareholders and Unsecured Creditors shall be 10(Ten) members present in person or through proxy. And quorum for the meetings of Secured Creditors shall be 2(Two) members present through the authorized representatives. That voting by proxy be permitted provided that the proxy in the prescribed form duly signed by the person entitled to attend and vote at the aforesaid meetings, or by his authorised representative, is filed with the applicant-Company at its registered office at Ahmedabad, not later than 48 hours before the said meetings. That the value of each Shareholder and Creditor of the applicant-Company shall be as per the records/ registers of the applicant-Company and where the entries in the records are disputed, the Chairman of the meetings shall determine the value or number for the purposes of the meetings and his decision in that behalf would be final. That the Chairman shall report to this Court, the result of the said meetings within 14 days of the conclusion of the meetings and the said report shall be verified by his affidavit. In view of aforesaid, the present application is disposed of accordingly. (C.K. Buch, J) Aakar     Top

Author: C.K.Buch,&Nbsp;

Core vs Unknown on 8 August, 2008

Gujarat High Court

Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 1014 of 1987 Petitioner :- Kanhaiya Respondent :- State Petitioner Counsel :- V.S. Singh Respondent Counsel :- A.G.A. Hon'ble Ravindra Singh,J. List on 19.8.2010 showing the name of the learned counsel for the appellant Sri Saket Agarwal, Order Date :- 11.8.2010 N.A.

Kanhaiya vs State on 11 August, 2010

Allahabad High Court

JUDGMENT T.C. Raghavan, C.J. 1. The question we have to decide in this case is, whether the gunny bags, in the case of a sale of copra packed in gunny bags, can be treated as a commodity on which the parties had a different contract. The principle laid down by the Supreme Court in such cases is found in Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd. [1967] 19 S.T.C. 84 (S.C.) and M. A. Razack & Company v. The State of Madras [1967] 19 S.T.C. 135 (S.C.). We are of opinion that in the case before us the price of the bags in which the copra was packed and sold is insignificant compared to the price of the copra itself. Therefore, the principle laid down by the Supreme Court applies to the case. 2. The result is that the revision case is allowed. The Sales Tax Officer will be entitled to collect only 2 per cent, as tax on the value of the gunny bags-the same rate of tax he can collect on the copra. In the circumstances, we do not pass any order regarding costs.

Author: T Raghavan

Mulji Ratanshi And Company vs State Of Kerala on 13 September, 1972

Kerala High Court

[Section 5B] [Complete Act]

Central Government Act

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Author: Subhash B.Adi

M Somashekhar vs State By Mandya on 29 May, 2009

Karnataka High Court

R.S.A. No. 2009 of 1985. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2009 of 1985. Date of Decision: 01st December, 2008. Suraj Bhan & Ors. ....Appellants. through Mr. Akshay Bhan, Advocate with Mr. Santoshi Sharma, Advocate. Versus Jagdish & Ors. ...Respondents December 01, 2008. ( SURYA KANT ) dinesh JUDGE through None. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 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? SURYA KANT, J. [ORAL) This order shall dispose of Regular Second Appeals No. 2009, 2201, 2211 and 2215 of 1985 as the same have been directed against the common judgments and decrees passed by the Courts below. The appellants are aggrieved at the judgment and decree dated 9th April, 1983 passed by the learned Sub Judge Ist Class, Mohindergarh whereby their declaratory suit was dismissed, as well as the judgment and decree dated 4th March, 1985 passed by the first Appellate Court, Narnaul affirming the judgment and decree of the trial Court. The facts giving rise to these appeals, in short, may be noticed as follows. One Padma had two sons, namely, Rati Ram and Tek Chand. Tek Chand had four sons, namely, Tula, Man Singh, Kesar R.S.A. No. 2009 of 1985. ::-2-:: and Gokal. While Gokal died issueless, Man Singh was statedly adopted by Rati Ram - the elder brother of his father. The pleadings and evidence on record reveal that Gokal son of Tek Chand died issue-less in Samwat-1989 BK, i.e., in the year 1921 and his share in the joint property was mutated in favour of his three brothers, namely, Tula, Man Singh and Kesar in the year 1931. Tek Chand had died even prior thereto and his share was mutated in favour of his four sons, as noticed above [including Gokal, who died issue-less]. It further appears that there continued to be a joint-holding amongst not only the sons of Tek Chand but also amongst the legal heirs of Tula, Man Singh and Kesar. An application for partition of the joint holding, however, was moved by Daulat Ram and others - sons/legal heirs of Man Singh but the partition was declined by the Assistant Collector, Mohindergarh vide order dated 15th July, 1965 on the ground that question of title was involved and the parties were directed to approach the Civil Court to get the same decided. It further appears that later on Jagdish Parshad and others, sons of Man Singh moved another partition application No. 270-RT dated 2nd February, 1977 before the Assistant Collector Ist Grade, Mohindergarh in which the present plaintiff-appellants did not appear despite service on the presumed plea that the second application was barred by res-judicata. Resultantly, the ex-parte order dated 7th April, 1978 [Ex.D7] was passed whereby the joint Khewat was partitioned and separate parcels of land were allotted to various co- sharers. It is thereafter that the grand sons of Tula and Kesar, R.S.A. No. 2009 of 1985. ::-3-:: namely, two deceased brothers of Man Singh, filed the present suit for declaration on 30th January, 1980 seeking a declaration to the effect that since Man Singh had been adopted by Rati Ram, he could not have inherited any share in the share of his natural father - Tek Chand or his brother Gokal, who died issue-less in the year 1921. The afore-stated suit having been dismissed by the Courts below, that the plaintiffs are in these Regular Second Appeals. I have heard learned counsel for the appellants at some length and perused the record. It is urged on behalf of the appellants that since the parties were governed by the Hindu Law, Man Singh who had been adopted by Rati Ram could not have inherited the property of his natural father - Tek Chand or the issue-less brother Gokal. He relies upon the decisions in [i] Kanshi Ram & Anr. V Situ & Anr., AIR 1934 Lahore, 781, [ii] Rahmat v Ziledar & Anr. AIR [32] 1945 Lahore, 229 and [iii]Salig Ram v Munshi Ram & Anr., AIR 1961 SC, 1374. There can hardly be any quarrel that when the parties are governed by the Hindu Law, a son who had gone in adoption can not inherit the property of his natural father. The question as to whether the parties are governed by Hindu Law or that there is no supervening custom are, however, pure questions of facts, to be determined by the courts below. The predecessors-in-interest of the appellants could have, at the time when their father Tek Chand's estate was mutated jointly in their favour along with Man Singh or when Man Singh jointly succeeded along with them to the estate of R.S.A. No. 2009 of 1985. ::-4-:: their issue-less brother Gokal, raised this issue. There are no pleadings or any evidence led by the appellants to that effect. In fact, no such plea against the sanctioning of the mutation in favour of Man Singh or his legal heirs was ever raised by the sons of Tula and Kesar, namely, the predecessors-in-interest of the present appellants. Even at the time of instituting the present suit, the appellants were apparently uncertain to plead the Hindu Law or the Customary law to support their plea that Man Singh lost his right to inherit the estate of his natural father [Tek Chand] or his brother Gokal, after his adoption by Rati Ram. While the plaint is totally silent, in their re-joinder the appellants have pressed into aid some "custom" prevalent in their area. Unfortunately, no such specific custom has been pleaded or proved as no evidence to that effect has been led by them. Learned counsel for the appellants relies upon an admission made by Jagdish [DW2], who, in his cross-examination, admits the fact that their predecessor-in-interest - Man Singh was adopted by Rati Ram. The said evidence, however, is incomplete and wholly insufficient to divest Man Singh from the estate of Tek Chand and Gokal as it was imperative upon the plaintiffs to prove that Man Singh had actually succeeded to the estate of Rati Ram or that in the matter of succession the parties were governed by Hindu Law. Similarly, if the appellants wanted to oust the legal heirs of Man Singh from their share in the properties of Tek Chand or Gokal on the strength of a 'custom' referred to by them in the replication, the same R.S.A. No. 2009 of 1985. ::-5-:: ought to have been pleaded and proved. For the reasons afore-stated, I do not find any substantial question of law that may arise for consideration in these appeals where both the Courts below have concurrently held that the declaratory suit filed after a period of more than 50 years when mutation in respect of the estate of Gokal was sanctioned, is hopelessly time barred. No interference in the said finding of fact is called for. Consequently, there is no merit in these appeals and the same are accordingly dismissed. However, the parties are left to bear their own costs.

Suraj Bhan & Ors vs Jagdish & Ors on 1 December, 2008

Punjab-Haryana High Court

In the High Court of Punjab & Haryana at Chandigarh R. F. A. No. 3762 of 2003 (O&M) Chiman Lal and another ..... Appellants vs State of Punjab and another .... Respondents17.2.2009 ( Rajesh Bindal) vs. Judge Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. N. S. Dandiwal, Advocate, for the appellants. Mr. Vivek Chauhan, Assistant Advocate General, Punjab. Mr. H. S. Riar, Senior Advocate with Mr. Sameer Sachdeva, Advocate, for Punjab State Agricultural Marketing Board. Rajesh Bindal J. For orders see detailed reasons recorded in a separate order of even date passed in RFA No. 317 of 2004 - Smt. Shanti Devi vs The Collector and others.

Chiman Lal And Another vs State Of Punjab And Another on 17 February, 2009

Punjab-Haryana High Court

ORDER V.K. Agrawal, Member (T) 1. In these two appeals issue involved is about the classification of 'Sanifresh lavatory disinfectant' (both liquid and solid) manufactured by M/s. Balsara Hygiene Products Ltd. As both appeals involve common issue arising out of a common order-in-appeal, the same are being disposed of by a common order. 2. The Appellants claimed classification of the impugned product under sub-heading 3808.90 of the Schedule to the Central Excise Tariff Act in their classification lists No. 1/91-92, dated 1-4-1991 and 11-4-1991. Both the classification lists were approved by the Assistant Collector, Bhandup and Thane. The Collector reviewed the approval under Section 35E(2) of the Central Excise Act and, on appeals being filed, the Collector (Appeals) Bombay set aside the approval and classified the impugned products under sub-heading No. 3402.90 holding that though the impugned products had some disinfectant properties, they were used for cleaning of sanitarywares in the lavatory; that when the products were used to clean lavatory, then as a result of use of these products, germs in the lavatory also got killed; that the contention that the main purpose for using the impugned product was to kill the germs in the lavatory and not to clean the lavatory did not stand to reason. Hence these two appeals. 3. Shri P.M. Joshi, learned Advocate submitted at the outset that both the classification lists were approved on 8-5-1991 and 24-4-1991 whereas the sample was drawn only on 27-6-1991 and the chemical examiner's report is dated 31-7-1991; that as such the review order issued by the Collector under Section 35E(2) of the Central Excise Act could not be issued based on such test report; that as the Collector had reviewed the classification lists based on test report, the review orders were bad in law. The learned SDR Shri Satnam Singh submitted that the review orders were not solely based on the test report of the chemical examiner; that the Collector had considered the Technical literature as well as Explanatory Notes of HSN while reviewing the classification lists. 4. We observe that the learned SDR has rightly submitted that the review orders of the Collector were not based solely on the findings of the Chemical Examiner's Test Report as he had ordered filing of applications with the Collector (Appeals) for setting aside the approval of classification lists after taking into consideration the Technical Book and referring to the Explanatory notes contained in HSN. Accordingly we reject the preliminary objection of the learned Advocate and hold that review orders were not bad in law. 5. The learned Advocate, arguing on merit of the case, submitted that the main raw material for their product 'sanifresh lavatory disinfectant (powder) is 'sodium bisulphate' which forms 85% of the product; that the sodium bisulphate is a disinfectant which is evident from Condensed Chemical Dictionary by Hawley; that according to the said dictionary, the uses of sodium bisulphate are flux for decomposing minerals; substitute for sulphuric acid in dyeing, disinfectant, manufacture of sodium hydrosulfide, etc. He further, submitted that chemical examiner had given his test reports without carrying out a test, called Riedal Walkar coefficient' (RWC), that such a test could be carried out only by a qualified Micro Biologist and not by a chemist. He mentioned that the appellants had sent samples (powder and liquid) to the National Chemical Laboratory, Pune which had opined that the samples had disinfectant properties; that they had confirmed the bactericidal properties by indicating the RWC values of both the samples; that they had tested both the products for disinfectant properties on two bacterial cultures, namely, Es-chirichia Coli and Pseudomonas Sp. for their bacterial effect at varying concentrations and confirmed their effectiveness even at a dilution of 1:125 for 10 minute contact period. He also mentioned that the report from NCL, Pune is from Govt. Laboratory and cannot be overlooked. He further mentioned that it is apparent from the report of the Chemical Examiner that no facility was available on the laboratory to test the sample for its disinfectant power by RWC method. He also mentioned that there are reports from other laboratories which categorically stated that both liquid and powder sanifresh lavatory disinfectant are disinfectants. He referred to the Report, dated 16-9-1991 from Italab Pvt. Ltd. Industrial Testing & Analytical Laboratories, Bombay and Micro Care, Thane. In addition, Assistant Commissioner, division I, Thane in order, dated 21-4-1998 had classified their product (liquid) in question under sub-heading 3808.90. Similarly, Assistant Commissioner, Division VI, Bombay has classified their product under sub-heading 3808.90 in Order No. 388/RCB/97-98 dated 10-3-1998. He also contended that both the products are marketed as disinfectants; that consumers buy these products as disinfectants as they have got disinfectant use and it is settled law that in the matter of classification, popular and commercial meaning should be taken into consideration 6. In respect of product "Sanifresh lavatory disinfectant (liquid), he mentioned that the main raw material is Hydrochloric Acid which constitutes 30% of the product and phenol which constitutes 10% provides the disinfectant quality to the product. He referred to all the test reports including the Test Report from National Chemical Laboratory according to which the impugned product is a disinfectant. 7. He further contended that word 'cleaning' means separating dirt from the basis surface and no chemical action is required whereas the word 'disinfectant' means a substance used on inanimate objects which destroys harmful micro-organisms or inhibits their activities; that disinfectant cannot be equated with Insecticides; that disinfectants are preparations for general disinfection purposes and are used in bathrooms, gutters, floor cleaning etc. He also referred to page 529 of the HSN according to which "disinfectants are agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro-organisms, generally on inanimate objects. Disinfectants are used, for example, in hospitals for cleaning walls, etc., or sterilising instruments. Finally he relied upon the decision of the Supreme Court in the case of Bombay Chemical Pvt. Ltd. v. Collector of Central Excise, 1995 (77) E.L.T. 3 (S.C.) in which it was held that "A 'disinfectant' which, therefore, is used for killing may broadly be covered in the word 'pesticide'. Disinfectants may be of two types; one to disinfectant and other to destroy the germs. The former, i.e., those products which are used as disinfectants for instance lavender, etc. may not be covered in the expression 'pesticide'. But those products which are used for killing insects by use of substances such as high boiling tar acids have the same characteristic as 'pesticides'." The learned Counsel submitted that in Bengal Chemical case, the Apex Court held that the goods produced from Phenolic Compounds and high boiling tar acid being disinfectant fluids which have the capacity of killing bacterial are pesticides. 8. Countering the arguments, Shri Satnam Singh, learned SDR, submitted that the description mentioned on the plastic container in which product is packed, is that sanifresh lavatory disinfectant cleans the toilet, removes stains, kills germs and freshens the air and it is thus evident that the product in question is actually used for cleaning of sanitary wares in the lavatory and as a result of use of these products, germs also got killed. He also mentioned that the product, being simple mixture, its ingredients retain their individual properties; that sodium bisulphate has properties of cleaning agent and is used as a cleaner; that it is also having comparatively low germicidal properties (being displayed by its weak acidic nature); that the cleaning properties of sodium bisulphate was having predominance over its germicidal properties. After referring to Hawley's Condensed Chemical Dictionary and Concise Chemical and Technical Dictionary by H. Bennett regarding Hydrochloric acid, the learned SDR Contended that there is no mention of hydrochloric acid being used as a disinfectant. On the other hand, because of the strong acidic nature and corrosive action, it displays germicidal properties depending upon their concentration. Nonyl Phenol which is used in manufacturing sanifresh liquid, is used as surfactant and the major use of the impugned product (liquid) is for cleaning the toilet bowl. He also mentioned that there is variation in RWC Value of the product in powder and liquid form according to the Reports from National Chemical Laboratory. Further as per report from Micro Care if the concentration is less than 10%, it would not be disinfectant. The concentration of the product has not been brought on record. Finally, he submitted that as per Explanatory Notes of HSN under Heading 34.02, the heading includes cleaning or degreasing preparations which includes "Acid or alkaline cleaners specially formulated for cleaning sanitary ware, frying pans, etc...." Thus the product formulated for cleaning sanitary ware is more appropriately classifiable under sub-heading 3402.90. He also submitted that HSN Note IV under Heading 38.08 excludes "preparations covered by more specific headings of the Nomenclatures or having subsidiary disinfecting, insecticidal, etc. properties." In reply, the learned Advocate submitted that it is clear from the description mentioned on the container that the product is meant only for lavatories only and it kills germs. As far as product in liquid form is concerned, he submitted that corrosive and germicidal properties of hydrochloric along with Nonyl Phenol acts as disinfectant ; that Assistant Commissioner Thane in Order, dated 21-4-1998 which pertains to sanifresh lavatory disinfectant (liquid), has held that the primary function is disinfectant and is classifiable under sub-heading 3808.90 and not 3402.90. 9. We have considered the submissions of both the sides. The Revenue wants to classify the impugned product as cleaning Preparations under subheading 3402.90 whereas the appellants want to classify them under sub-heading 3808.90 as disinfectants. The appellants have emphasized the fact that sanifresh lavatory disinfectant (Powder) consists mainly of sodium bisulphate (85) which by itself is a disinfectant according to Hawley's Condensed Chemical Dictionary. It is observed that Commissioner (Appeals) has himself observed in the impugned order that "department accepts that the subject products have got disinfectant properties and that this is because of certain chemicals which are ingredients of the subject products." The test results obtained by the appellants from National Chemical Laboratory reveal that both the products are disinfectant. These test reports were obtained after performing RWC test. We observe that it is clearly mentioned in the Dy. Chief Chemist's report that "there is no facility available here in the laboratory to use the sample for its disinfectant power by Rideal Walker method...." The Revenue has not adduced any test report or any other evidence to controvert the findings given in the test reports given by National Chemical Laboratory. Similarly, the product in liquid form contains hydrochloric acid and Nonyl Phenol. One of the uses of Phenol is fungicides antioxidants. We also find that Explanatory Notes of HSN below Heading 38.08 mention that disinfectants are agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro organisms. The test reports adduced by the appellants confirmed the bactericidal properties of both the impugned products. The appellants have succeeded in showing that the products in question are disinfectant classifiable under sub-heading 3808.90 of CETA. Accordingly, we allow both the appeals filed by the appellants.

Balsara Hygiene Products Ltd. vs Collector Of C. Ex. on 11 November, 1998

Customs, Excise and Gold Tribunal - Delhi

4 the Tribunai. On the enhanced compensafiiénf intezest payable is at 6% p.a. from the date bf petition till paymant. The appeal is alloweé in parfi};' _ é%dge% Iudge TL.

Author: K.Sreedhar Rao S.N.Satyanarayana

Ankit Choudhary vs Hemaiah S/O Muniswamy on 27 January, 2009

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.2.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.5683 of 2005 S.Karthikeyan .. Petitioner Vs. 1. The Chief Engineer (General) Highways, Chepauk Chennai  600 005. 2. The Divisional Engineer Highways, Vellore  9. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records relating to the order in proceeding No.Nir 4(i)42174/2003-2, dated 13.5.2004 of the first respondent and the consequential order of the second respondent in proceeding No.3475/2004-Pi-2, dated 12.1.2005, quash the same and to consequently direct the respondents to restore the petitioner's scale of pay and salary with arrears and all other consequential benefits. For Petitioner : Mr.R.Krishnasamy for Mr.V.Ajay Khose For Respondents : Mr.A.Edwin Prabhakar Additional Government Pleader ORDER Heard the learned counsel for the petitioner and the respondents. The respondents have also filed counter affidavit. 2. The writ petition is directed against the order of the first respondent dated 13.5.2004 by which the first respondent has cancelled the selection grade scale granted to the petitioner in the post of Typist by his proceedings dated 23.6.1987 with effect from 7.12.1982. 3. A reference to the impugned order shows that the selection grade scale which has been granted to the petitioner with effect from 7.12.1982 in the order of the first respondent dated 23.6.1987 is sought to be taken away nearly after 17 years of conferring of such benefits and the order also shows that the same is on the basis of certain corrections made in regularising the services of the petitioner in the post of Typist based on the proceedings of the first respondent dated 13.5.2004, which is stated to be on the basis of G.O.Ms.No.1016, Personnel and Administrative Reforms (Personnel) Department, dated 15.10.1986. The order further proceeds to recover the excess salary stated to have been received by the petitioner for the year from 7.12.1982 to 27.12.1987. Therefore, under the impugned order the civil right which has accrued to the petitioner in the post of selection grade Typist is sought to be taken away without even following the basic principles of natural justice and without even giving notice to the petitioner. Such fact having not been disputed the impugned order has to be set aside on the sole ground of violation of principles of natural justice and at this juncture it has to be taken note that pending disposal of the writ petition there has been an order of stay of recovery. 4. When a pay scale has been granted to a civil servant which has been enjoyed by the civil servant, a civil right has accrued to him and after many years even if it is found that by mistake of the authorities the amount has been paid, as long as there is no misrepresentation or fraud played by the civil servant concerned in receiving the excess amount, no recovery can be made. That has been an established judicial precedent as enunciated by the Supreme Court in Sahib Ram v. State of Haryana and others, 1995 Supp (1) SCC 18. That was a case where a person was not having the required educational qualification and in fact he was not entitled to relaxation of qualification and the Principal has by error granted him relaxation based on which revised salary has been paid. On finding that the amount has been paid without misrepresentation on the part of the government servant, the Supreme Court held that the amount paid cannot be recovered. The operative portion of the said judgment is as follows: "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." 5. That was also the view taken by the Apex Court in Shyam Babu Verma and others v. Union of India and others, 1994 (I) LLJ 815=[1994] 2 SCC 521. In that case while holding that the prescription of two different scales of pay for Pharmacists Grade-B depending upon academic qualifications is not arbitrary or unreasonable, the Supreme Court has directed that no steps should be taken for recovery or adjustment of any amount paid to the petitioners therein due to the fault of the respondents, the petitioners being in no way responsible for the same. 6. The Apex Court in yet another decision in Col.B.J.Akkara (Retd.) v. Government of India, [2006] 11 SCC 709, referring to the decisions in Sahib Ram case and Shyam Babu Verma case, referred supra, has held as under: "27. ... This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." 7. In Syed Abdul Qadir and others v. State of Bihar and others, [2009] 3 SCC 475, even though it was held that in a given case it is open to the Court to decide that the excess amount paid wrongly should be recovered if the error was deducted within a short span of time, on the facts of the said case, there was direction to refund the amount recovered. The following portion of the judgment of the Supreme Court would be relevant to enlighten on the issue: 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18; Shyam Babu Verma v. Union of India, [1994] 2 SCC 521; Union of India v. M. Bhaskar, (1996) 4 SCC 416; V. Ganga Ram v. Regional Jt. Director, [1997] 6 SCC 139; Col. B.J. Akkara (Retd.) v. Government of India and Ors., [2006] 11 SCC 709; Purshottam Lal Das and Ors. v. State of Bihar, (2006) 11 SCC492; Punjab National Bank and Ors. v. Manjeet Singh and Anr., AIR 2007 SC 262 and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr., (2000) 10 SCC 99 . 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. *** 61. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants - teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment. 8. The Division Bench of this Court consisting of P.Sathasivam and S.K.Krishnan,JJ., as they then were, in D.Palavesamuthu v. Tamil Nadu Administrative Tribunal, rep. by its Registrar, Chennai and others, [2006] 1 MLJ 143 held that even if the fixation of scale of pay was made by mistake by the authorities and if the teacher concerned was not at fault he should not be penalized, based on the principle enunciated by the Supreme Court in Sahib Ram case referred supra and Divisional Superintendent, Eastern Railway, Dinapur and others v. L.N.Kashri and others, AIR 1974 SC 1889. The Division Bench has held as follows: 6. .. Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner. 9. In cases where fixation of pay has been made in accordance with law by which certain benefits have been conferred, subsequently if certain mistakes were found, such amount which was paid cannot be recovered without giving opportunity to the teacher concerned. That was the view taken by me in Y.Chellammal and others v. State of Tamil Nadu, rep. by its Secretary, School Education Department and others, [2008] 1 MLJ 97. 10. That apart in the present case it is not in dispute that while passing the impugned order no opportunity has been given to the petitioner. Therefore, for violation of principles of natural justice also the impugned order is liable to be set aside and it is not the case of the respondents, as it is seen in the counter affidavit, that the petitioner has misrepresented or played fraud in obtaining the selection grade scale. P.JYOTHIMANI,J. [sasi] In such circumstances, the writ petition stands allowed and the impugned order of the first respondent stands set aside. No costs. Consequently, W.P.M.P.No.6282 of 2005 is closed. 11.2.2010 Index : Yes Internet : Yes sasi To: 1. The Chief Engineer (General) Highways, Chepauk Chennai  600 005. 2. The Divisional Engineer Highways, Vellore  9. W.P.No.5683 of 2005

S.Karthikeyan vs The Chief Engineer (General) on 11 February, 2010

Madras High Court

JUDGMENT Prakash Krishna, J. 1. These two revisions are directed against the common order dated 9th February, 1993, passed by the Sales Tax Tribunal, Agra in two connected second appeal Nos. 324 of 1989 and 314 of 1991 for U.P. and Central respectively. 2. The dispute relates to the assessment year 1984-85 (U.P, and Central), The applicant is a registered dealer engaged in the business of oils oil cakes and organic fertilizers etc. The acceptance of the account books for the relevant assessment years is not in dispute, However, the Asstt. Commissioner (Assessment) on examination of the account books rejected the claim of the applicant regarding non taxability of sale of pulsa de-oiled cake amounting to Rs. 19,528/- and lumba de-oiled cake amounting to Rs. 5880/- and subjected to these two sales at the rate of 4%, rejecting the claim that they were cattle fodder or organic fertilizer in respect of turn over relating to U.P. Similarly, it rejected the claim of the dealer/applicant with regard to inter State sales of aforesaid two items and levied the tax under the Central Sales Tax Act for the assessment year in question. The assessing authority, besides rejecting the claim of exemption from tax of the aforesaid two items, imposed interest also under Section 8(1) of the U.P. Sales Tax Act. The said orders have been confirmed by the Tribunal by the order under revision. 3. Since the common questions of fact and law are involved in both these revisions, they were heard together and are being disposed of by a common order. 4. Learned Counsel for the applicant in support of the revisions submitted two points namely, (i) turn over of lumba de-oiled cakes and pulsa de-oiled cakes are exempt being cattle fodder in view of exemption notification issued under Section 4 of the U.P. Sales Tax Act; (ii) since there was a classification dispute, the authorities below were not justified in levying the interest on such turn over. 5. The learned Counsel for the applicant on the first point submitted that cattle fodder is exempt under the exemption notification issued under Section 4 of the Act. Elaborating the argument it was submitted that the pulsa de-oped and lumbaa de-oiled cakes being included in the fodder of cattle fodder are liable to be exempt. By subsequent notification dated 31st January, 1985 issued under Section 3-D of the Act the earlier notification dated 7.9.1981 was amended. The de-oiled cake has been made taxable w.e.f. 3/4/1975 vide notification No. 2994 and the rate of tax was fixed at the rate of 4% by the subsequent notification dated 31.1.1985, vide entry No. 10. It was submitted that notwithstanding the notification, if any, issued under Section 3-D of the U.P. Sales Tax Act, the commodity having been declared non taxable by a prior notification issued under Section 4 of the Act, no tax liability can be fastened on the dealer/applicant. In contra, the learned Standing Counsel submitted that assuming for a moment that the oil cake was cattle fodder but it having been specifically made taxable by the subsequent notification issued under Section 3-D of the Act there is no error in the order of the Tribunal. 6. I have given careful consideration to the respective submissions of the learned Counsel for the parties. The controversy involved in the present revision is no longer resintegra and is fully covered by the judgment of the Supreme Court in the case of Commissioner of Sales Tax of U.P. v. Agra Belting Works 1987 UPTC 850. The Supreme Court has considered the notification issued under Section 4 and 3-A of the Act and has come to the conclusion that when a notification under Section 4 granting exemption from liability, a subsequent notification under Section 3-A prescribes the rate of tax, it is beyond doubt that the intention to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification is there. As the power both for grant of exemption and variation of the rate of tax vests in the State Government and it is not requirement of the Statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification under Section 3-A, the Supreme Court rejected the contention of the assessee which was accepted by the High Court. It has been held when the power to grant exemption by issuing notification under Section 4 of the Act and to levy tax on a commodity both vests in the State Government and intention to levy tax is clear, there is no justification for ndt giving effect to the notification issued subsequently levying tax on the commodity. The Tribunal has, therefore, rightly placed upon the aforesaid judgment of the Apex Court and the learned Counsel for the applicant could not place any material before me to take a view different from the one taken by the Tribunal. I find no legal infirmity in the order of the Tribunal, so far as point No. 1 is concerned. 7. Learned Counsel for the applicant also placed reliance upon a judgment of this Court in the case, of Commissioner of Trade Tax v. S/S Paras Ram Lakshi Ram (2005) 41 STR 42. The reliance placed upon the said judgment is misplaced one. The controversy involved therein was totally different and the law laid down therein was in a different factual context. No such controversy was involved therein as it is involved here. The Court was not called upon to adjudicate as to what would happen if an item which has been granted general exemption under Section 4 of the Act is subsequently made taxable by issuing a fresh notification under Section 3-D of the Act. The sad ruling, therefore, does not support the argument of the learned Counsel for the applicant. 8. Learned Counsel for the applicant then submitted that in any view of the matter the applicant was disputing the classification of the commodity in question. It was submitted that according to the applicant's case the commodity in question was not liable to be taxed being cattle fodder, an exempted item, but it has been held to be otherwise. There being a dispute with regard to the applicability of correct rate of tax and as such there was a classification dispute, no interest could be charged from the applicant. On the other hand the learned Standing Counsel submitted that the dispute raised by the applicant was for the sake of the dispute and as such the order levying a penalty was correctly affirmed by the Tribunal. 9. After hearing the learned Counsel for the parties, it does appear that the applicant since the very beginning raised a dispute with regard to the applicability of correct rate of tax on the turnover of pulsa and lumba de-oiled cakes. In this facts situation the Supreme Court in the case of CST. v. Hindustan Aluminium Corporation 1989 U.P.T.C. (S.C.) has held that when there is a classification dispute of a commodity the correct rate of tax would be known only after finalization of the assessment order and in such type of cases the levy of interest Under Section 8(1) of the Act is unjustified. Sub Section (1) has no application to such a situation. 10. Respectfully following the aforesaid judgment of the Supreme Court, I find sufficient force in the argument of the learned Counsel for the applicant and accordingly it is held that the order demanding interest by the authorities below under Section 8(1) of the Act is legally incorrect. 11. In view of the above discussion, both the revisions are hereby allowed in part as indicated above. The demand of levy of interest under Section 8(1) of the Act is hereby set aside and to that extent the order of the Tribunal stands modified. No order as to costs.

Author: P Krishna

Amar Jyoti Industries vs Commissioner Of Sales Tax on 28 October, 2005

Allahabad High Court

JUDGMENT Harington, J. 1. This is an application by the wife against whom a decree nisi for dissolution of marriage has been made for alimony until the decree is made absolute. 2. The husband has tendered the amount due up to the decree nisi and says that, inasmuch as the wife has been found guilty of misconduct, she has forfeited her right to receive any alimony subsequent to the decree nisi. 4. Alimony has been paid by the husband to the wife since the institution of the suit that payment was made in pursuance of a private arrangement between the parties, no application was made in Court in respect of it. 5. The husband relies on the case of Dunn v. Dunn (1888) L.R. 13 P.D 91 in which it was held in England that where alimony pendente lite had been granted to a wife in a petition for divorce the right to such alimony ceased upon the wife's being found guilty of adultery. 6. But in this country the period during which alimony is payable is regulated by Section 36 of the Divorce Act, which provides that it shall continue in the case of a decree for dissolution of marriage until the decree is made absolute. This provision, therefore, makes the law as laid down in Dunn v. Dunn (1888) L.R. 13 P.D 91 inapplicable in this country. Had alimony been granted it must by the express words of the statute have been continued to be payable until the decree is made absolute. 7. The decree nisi then under Indian law is no ground for depriving the wife of her alimony, and if it be no ground for depriving a wife of alimony, it appears to me equally to be no ground for refusing a wife the alimony which would otherwise be granted to her. The Indian Divorce Act contemplates the payment to the wife of alimony as long as she is in law a wife. Mrs. Bowen is still the wife of Mr. Bowen and should, therefore, be supported until she ceases, under a decree absolute, to fill that position. The parties are agreed that alimony, if payable, shall be at the rate of Rs. 70 a month. 8. The result is that the application must be granted with costs on scale 2.

Author: Harington

Bowen vs Bowen on 10 August, 1909

Calcutta High Court

JUDGMENT C.N. Ramachandran Nair, J. 1. The petitioner has approached this Court on account of non-payment of compensation for cutting trees for the reason that the petitioner does not hold patta or title for the property. Ext.P1 shows the inventory regarding the items cut, which are all coconut trees, arecanut trees, jack fruit tree, mango tree, etc. Going by the items referred to in Ext.P1 there is no forest tree or tree of spontaneous growth. All these are obviously planted by farmers in their property. So far as the KSEB is concerned, it is not the title of the property that is relevant, but the person who sustained damage on account of cutting of trees. I am not deciding the petitioner's title over the property because the same is not relevant for directing the Board to give compensation to the petitioner. Admittedly the petitioner is a cultivator and occupier of the land and the trees were planted by him or his predecessors. In the circumstances, he is entitled to compensation. All that the Board has to look into is whether the petitioner is in possession and enjoyment of the property and on proof of the same by production of certificate to that effect from the Village Officer, or Panchayat or such other local authority, the Board will give compensation to the petitioner without insisting any documents of title to the property. If there is delay on the part of the petitioner in obtaining possession certificate it is a matter of factual verification by field staff of the Electricity Board and on being satisfied, the compensation will be given to the petitioner within two months from the date of receipt of a copy of this judgment, which will be produced by the petitioner.

Author: C R Nair

Kurian vs Kerala State Electricity Board on 8 April, 2002

Kerala High Court

JUDGMENT 1. This second appeal by the appellant-landlord is filed under Section 39 of the Delhi Rent Control Act, 1958, hereinafter called the Act, against the order of the Rent Control Tribunal confirming with some modification the determination of the standard rent for the premises occupied by the respondent-tenant. 2. The premises were leased by the landlord to the tenant on the 14th of May, 1956. The application of the tenant for the fixation of the standard rent was made under Section 9(1) of the Act. Section 9(2) of the Act requires that "in fixing the standard rent of any premises, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of Section 6 and the circumstances of the case." As the premises were a shop, the standard rent thereof had to be determined according to the criteria laid down in Section 6(B)(2)(b) of the Act i.e., "calculated on the basis of 7 1/2 per cent, per annum of the aggregate amount of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction." This is the rule to be followed by the Controller in the first instance. If however, this rule cannot be followed, then an alternative rule is laid down in Section 9(4) in the following words:-- "9 (4): Where for any reason it is not possible to determine the standard rent of any premises on the principles set forth under Section 6, the Controller may fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises." 3. Shri Shiv Charan Dass Bajaj, Additional Controller who first dealt with the application was of the view that it was not possible to determine the standard rent of these premises under Section 6 of the Act in the absence of sufficient evidence and, therefore, he determined the standard rent under Section 9(4). The Rent Control Tribunal Shri P.S. Pattar was, however, of the, view that even if evidence was not sufficient for determining the standard rent under Section 6, a further opportunity should be given to the parties to produce such evidence. He, therefore, remanded the case for a fresh determination of the standard rent. The order of remand seems to have created the impression that the rent must be determined under Section 6 of the Act. The Additional Controller Shri P.C. Saini, therefore, proceeded to do so. He found that the construction of the premises commenced before 5-11-1942 and the electric connection to the building was given in 1944. Accepting the evidence of Ramesh Chander, Rw 5 he held that the building was constructed in 1943-44. There was no evidence about the cost of construction of this particular building. Nor was there any evidence as to what was the cost of construction of such a building in the year 1943-44. The only evidence was that of the schedule of the rates of building work issued by the Central Public Works Department in two years, namely, 1935 and 1950. The Controller thought that the rates of 1935 were too low as compared with the prices prevailing in 1943-44 and that the rates of 1950 could serve as a better guide. He therefore, accepted the assessment of Rs.1,440/- made by Aw 1 Jugal Kishore on the basis of the schedule of rates of the Central Public Works Department for the year 1950, as to the cost of construction of the super structure of the premises as correct. 4. No evidence was available regarding the market price of the land comprising the premises for the year 1943-44 or 1942-43. Phool Chand, Rw purported to assess it at the rate of Rs.240/- per square yard on the basis of the market price of 194. The controller observed that this assessment appears to be without any basis. He nevertheless thought that the premises being a part of a three storeyed building, the rate of Rs.250/- per square yard, if divided by three, gave a rate of Rs.80/- per square yard for the land comprising the premises which consisted of a shop on the ground floor. The Controller, therefore, calculated the cost of the superstructure to be Rs.1,440/- that of the land to be Rs.1,620/- and thus the round total to be Rs.3,200/-. He worked out the standard rent to be Rs.20/- per month, that is Rs.240/- per annum which was 7 1/2 per cent, of the above total. The Rent Control Tribunal Shri C.G. Suri accepted the basis on which the Controller had proceeded but modified some details of his reasoning and varied the standard rent to Rs.23/- per month. 5. The second appeal lies only on a "substantial question of law". If the basis on which the Controller and the Tribunal have proceeded is held to be in accordance with Section 6 then this court would have no jurisdiction to question the finding of the Tribunal inasmuch as it is not for me to reappreciate the evidence. Unfortunately, the Controller as well as the Tribunal have proceeded on an entirely wrong view of Section 6(b)(2)(b) of Act and I am, therefore, constrained to interfere. The true construction of Section 6(b)(2)(b) read with Section 9(2) on the one hand and with Section 9(4) on the other hand, according to me, is as follows:-- "The primary rule laid down by Section 9(2) is that the Controller has to fix the standard rent at an amount which appears to him to be reasonable having regard to the provisions of S. 6. The expression "having regard to" means that the Controller must take into account that provisions of Section 6(B)(2)(b) in fixing the standard rent and must be satisfied that the amount arrived at in accordance with Section 6(B)(2)(b) is a reasonable one before he can fix it as the standard rent. The criteria laid down by Section 6(B)(2)(b) are two-fold, namely (a) the reasonable cost of construction, and (b) the market price of the land comprised in the premises, the later being ascertained as on the date of the commencement of the construction of the premises. What is the meaning of "reasonable cost of construction"? In my view, the Controller is bound to ascertain normally the actual cost of construction of the premises. It is only if it is found that the actual cost of construction is unreasonable that the Controller has to determine the reasonable cost of construction. The unreasonableness of the actual cost of construction may be due to various reasons. For instance, certain materials available at a lower rate of price may have been purchased or shown to have been purchased at a higher rate of price without justification. Or the building contractor or the architect may have been paid consideration higher than reasonable consideration for constructing the premises without justification. It would be a very exceptional case and a very difficult job to show that the actual cost of construction is not a reasonable one. Therefore, in the vast majority of cases the actual cost of construction would furnish the basis on which the Controller can act. The use of the adjective "reasonable" to quality the cost of construction does not, however, mean that the Controller does not have to find or attempt to find the actual cost of construction at all. It does not mean that the Controller may determine what was the reasonable cost of construction of the premises without any reference to what was the actual cost of construction. The word "reasonable" does not mean what is reasonable in the subjective opinion of the Controller. The opinion of the Controller as to what is the reasonable amount to be fixed as standard rent under Section 9(2) and what is the reasonable cost of construction under Section 6(B)(2)(b) is ordinarily to be based on the actual cost of construction unless the Controller can justify departure from the actual cost of construction for some special reasons as are envisaged above. 6. The expression "cost of construction" denotes the actual expenditure incurred in constructing the premises. Normally, the information as to such expenditure is in the special knowledge of the landlord if he has constructed the premises or is within the special knowledge of some predecessor of the landlord who may have constructed them. It is, therefore the duty of the landlord, if he has constructed the premises, to produce the direct evidence about the cost of construction consisting of entries of the expenditure in his account books or cheques or other receipts showing the various amounts paid by him for the purchase of the materials and for the wages and fees of persons employed in the construction. If such direct evidence is not available either because the construction is an old one or because the landlord has himself not constructed the premises, then it would be difficult to prove the actual expenditure incurred for the construction of the particular premises. The next best course then would be to determine the date or the period in which the premises were constructed and to give evidence of the prices of the building materials used in the premises and of the wages and fees payable to the persons employed in such construction work on the relevant date or during the relevant period. Such evidence may relate to the construction of other premises in the locality or the township but it must relate to the period during which the premises were constructed. It could then be said that the cost of construction during that period being proved by evidence the Controller would be justified in holding that the cost of construction of the premises during the same period of time in the same locality and under the same circumstances must be the same. 7. In the present case, non of these two methods for determining the cost of construction has been followed. For, the evidence available was neither in respect of the cost of construction of these premises nor in respect of premises constructed during 1943-44 in the locality or town in which the premises are situated. The evidence was quite different, namely, consisting of the Central Public Works Department schedule of building rates for the years 1935 and 1950. Presumably the C. P. W. D. Rates form the basis on which quotations are invited by the C. P. W. D. For Govt, construction work from the building contractors. If so, the persons who formulated these rates must have taken into account the current cost of construction. Therefore, these rates, if property proved, would be a good guide to the cost of construction prevalent in the year in which these rates are issued for the type of construction to which they relate. It is not known if no such rates were issued by the C. P. W. D. For the year in which the premises were constructed. In fact, we do not know definitely the date or the year of the construction of the premises at all. Nor is there any index available by which the cost of construction of a particular year can be found out by adding to or subtracting from the C. P. W. D., rates for a different year. For instance, the cost of living of a particular year may be found by deducting from or adding to the cost of living worked out for a basic year in accordance with the cost of living index. Such a use of the C. P. W. D. Rates is not possible in the absence of a similar cost of construction index relating to the C. P. W. D. Rates. 8. The architects examined by the parties have purported to give their opinions as to the cost of construction of the premises in 1943-44. For instance, Jungal Kishore, Aw 1, based his estimate of the cost of construction of the premises in 1943-44 on the schedule of rates of C. P. W. D. For the year 1950, while Gian Chand, AW7, based his estimate of the cost of construction of the premises in 1943-44 on the C. P. W. D. Rates of 1935. He is said to have added an amount equal to 170 per cent to the cost of construction in 1935 to arrive at the cost of construction in 1943-44. But there was absolutely no basis to determine the cost of construction of 1943-44 on the basis of the C. P W. D. Rates of 1935 unless it is established by the maintenance of a cost of construction index that the rise in the cost of construction from 1935 to 1943 was 170 per cent. The cost of construction is a fact which is to be proved like any other fact. It consists of the actual prices of building materials and the rates of wages and fees payable for the construction of a building on a particular date or during a period of time. It is not a question of opinion at all. The architects may be experts for the purpose of designing and building house, but they are not experts for the purpose of giving opinion as to what would be the cost of construction in a particular year without any data about the prices of materials and wages prevalent in that particular year. Under Section 45 of the Evidence Act, the points on which the opinion of experts is relevant are enumerated. Opinion evidence is not admissible outside that enumeration. The difference between "cost of construction" and "reasonable cost of construction" is the same as the difference between a primary finding of fact and secondary finding of fact which consists of an inference drawn from the primary facts. This latter distinction is discussed in Said-ud-din v. Mahabir Singh, C. W. No . 600 of 1970. Decided on 27-11-1970 by me. But the inference by the Controller as to what cost of construction is reasonable is not a matter of opinion but only of an inference drawn from proved primary facts. As the architects did not have any primary evidence about the prices of materials and the wages prevalent in 1943-44, they could not draw any inference from them about the cost of construction of 1943-44. Their evidence was, therefore, irrelevant and inadmissible being only opinion on points on which opinion evidence was not admissible. 9. The cost of construction under Section 6(B)(2) has, therefore, to be proved by definitive evidence. It cannot be arrived at by guesses and conjectures. If no evidence of the prices of the materials and wages prevalent at the time of construction of the premises is available and no cost of construction index is available to infer the cost of construction of the year in question from the data relating to the cost of construction in another year then if would not be possible for the Controller to determine what amount would be reasonable to be fixed as standard rent having regard to the provisions of Section 6. Though Section 9(2) requires that the Controller should first attempt to fix the standard rent under Section 6, the Legislature also contemplates that it ;may not be possible to fix the standard rent under Section 6. This is why Section 9(4) provides an alternative basis for the fixation of the standard rent "where for any reason it is not possible to determine the standard rent under Section 6." The very fact that the Legislature has provided an alternative basis in Section 9(4) supports the view taken by me above that the determination of the standard rent under Section 6 has to be made on definitive evidence of prices of materials, wages and market value of the land of the relevant period and not by far-fetched conjectures. The meaning of the words "where it is not possible" must be understood property to avoid confusion of thought. On the one hand, the Controller may be obsessed with the idea that he must any how fix the standard rent under Section 6. He may then go to the length of accepting even inadmissible evidence for this purpose as was done in the present case. For instance, a mere surmise can be drawn about the cost of construction and the market value of the land in a particular year from evidence available for a different year though there may not be any scientific correlation between the prices of materials, wages and the market value prevalent during these two years as was done in this case. This could not be the meaning of the word "possible". In such a far-fetched sense it would be always possible to fix the standard rent under Section 6 and Section 9(4) to become a dead letter. There would be no possibility of the Controller ever fixing the standard rent under Section 9(4). If the Legislature had contemplated that the standard rent must be fixed under Section 6 whether proper evidence is available or not then it would not have provided for the alternative method of fixing the standard rent under Section 9(4). Therefore, the proper way to understand the words "where it is not possible" is by giving them a reasonable interpretation. The possibility is not a mere physical possibility but a reasonable possibility, that is to say, it would be possible to fix the standard rent under Section 6 if a reasonable conclusion as to standard rent could be arrived at according to the criteria laid down in Section 6. It is essential that these criteria such as the cost of construction of the premises and the market value of the land must be proved according to the ordinary rules of evidence under the Evidence Act. These criteria are the questions of fact which must be proved by relevant and admissible evidence. If such evidence is not admissible, the conclusion would be that it is not possible to prove compliance with these criteria under Section 6. It would then be said that it is not possible to fix the standard rent under Section 6 and the Controller would have to take resort to the alternative criteria laid down in Section 9(4). 10. The second constituent of the standard rent under Section 6(B)(2)(b) is the market price of the land comprising the premises. The best evidence of the market price would be available if the land under the premises is bought immediately before the construction of the premises. That would be a literal compliance to the following words of Section 6(B)(2)(b), namely, "the market price of the land comprised in the premises on the date of the commencement of the construction." But it would be a rare case in which such evidence would be available. The next best evidence would be in the form of sale deeds of similarly situated land in the neighborhood executed on or about the date of the construction of the premises. This is how, for instance, the market price of a piece of land is found for the purpose of premption or to determine the amount of compensation for the acquisition of the land in accordance with the very first requirement specified in Section 23(1) of the Land Acquisition Act. In the present case there is absolutely no evidence as to what was the market value of the land comprised in the premises or of similarly situated land in the year of the construction of the premises. The architects have purported to give their opinions about such market values. These opinions are inadmissible in evidence just as such opinions were inadmissible in evidence to determine the cost of construction. 11. As the lower courts failed to construe the words "cost of construction" and "the market price of the land comprised in the premises" used in Section 6(B)(2)(b) correctly, they allowed inadmissible evidence to become the basis of their findings as to the standard rent. The result is that their findings are without any evidence and are vitiated by a wrong approach to the determination of the standard rent under Section 6. They are, therefore, set aside. 12. Shri Madan Bhatia, learned counsel for the landlord has drawn my attention to the fact that evidence is available on the record for the determination of the standard rent under Section 9(4) apart from the "situation, locality and condition of the premises." Two judgments are on record fixing the standard rent of shops in the vicinity of the premises. One is the order of the Controller, Ex, Aw 8/2, and the other is Ex, RZ/1. If the parties and the learned lower courts had been aware of the correct construction of Section 6 they would have attempted to obtain evidence of the prices of building materials and wages and of market value of land in year of the construction of the premises. It is because they were not so aware that they did not attempt to do so. It is only when such an attempt is made but seems to be unsuccessful that it can be said within meaning of Section 9(4) that "it is not possible to determine the standard rent under Section 6." Before arriving at such a conclusion, therefore, it is necessary once again to give the parties an opportunity to adduce evidence of the prices of building materials and wages and of market value of land during the period in which the house was constructed. If such evidence is found not to be available then only resort could be taken to Section 9(4) to determine the standard rent. As a rule, a remand should be avoided as it delays the final decision of the case. It would have been glad, therefore, to determine the standard rent myself under Section 9(4). I refrain from doing so, however, as it would only be fair that the parties should have one opportunity of adducing evidence of the prices of the building materials and wages and of market value of land during the period of construction of the premises. They do not seem to have been aware of the necessity of doing so in the past. 13. The appeal is, therefore, allowed. The orders of the Additional Controller and the Rent Control Tribunal are set aside and the application for the fixation of the standard rent is remanded back to the Additional Controller who will give an opportunity to the parties to adduce the evidence of the prices of building materials, wages of labourers and fees payable to architects etc. During the period in which premises were constructed and of the market value of the land comprised in the premises on the date of the construction thereof and then proceed to determine the standard rent under Section 6(B)(2)(b) and if this is not possible then under Section 9(4). In the circumstances of the case, parties shall bear their own costs. 14. Parties to appear before the Court of Additional Controller on 15-9-1971. 15. Appeal allowed.

Diwan Chand Karam Chand Khanna vs Tirath Ram Jassa Ram on 23 August, 1971

Delhi High Court

113'; Writ Appcal is fibd under Section 4 of High Court Act praying to set aside the order Pefimn No.17778/200'? dateé 04.01.2003. _ : * _ This Writ Appeal coming on for f AC"l'iKG cmsr wanes, delivered tJf.;c"'fo30wi1:;g:_: 0 -3......__..W0.........._II Mi1'%00%% 0 A Sri. B.J.So2aayaji, learned §@é't1 on admission. Rwornii 2. Before lcarncd Judg¢,-- were mod, (me by the Workman bn.°'0a_gemu )fr:xVt agamst' tm award ciatcd 16.05.2901'? Mysore 'mt mfietence No.83] __ consficration of the matter and the 0 the fo1low1ng' : VA party is dimctcd to pay to the first V R§g§25;OOO/- (Rupees Twenty Five Thousw '0n..!y;) for his illegal removal fiom service. The " party is not entitled to any other reliefs. Intimate the Government aaocoxdingly.' % AV This award of the Labour Court was the subject matter of before the icarned Single Judge, as mentiomad hcncinabove by the Worlman as well as by the Management. W 4. Immed Single Judge by the impumed order, V with the findings reoonied by the Labour Court, 'fit that the cozmpcmsation granted by the Labour of Rs.2S,O{)O/- would be 1 enhance it to Rs.50,000/---. It "of the the learned Single Judge, which chem H us in this Int1'aCourtAppeal. Vv 5. Learned counsel {for yf-Vuoualy submitted before us that ifs: before the Labour Court 240 days in a year and conscquezfiily 'that made at his instance aficr a long and £ie1fiy._§f years. The submission is that on Vtwon» it would be wholly unjusfied and to award him with payment of compensation _ to . Judge has also taken into eonsxii ' this matter and has recorded a finding that thc _ xéfifiqfidént had worm fiom 16.03.1993 to 31.03.1994 placing' on Ex.W-1, the ocriIfica' tc issued by the Assistant 'Executive Enmccr. Ex.W-2 is a series of vouchers and other W documents again to show that the Workman had with the appellants for the aforesaid period. evidence of M.W.1 further re-1nfo' we worked with the second party from 16.53. He further admitted that during the put 2.; continuous service. hyt witness sufieiently the documents, Exs.W-I and we employed by the app-eliants for discharged his dutiesaS$¥zch.._,\\\'~.//:»"* ._ .. 2, '2'. safificeefm; th,, T: by the Labour Court and concuneti by Judge, Workman has been denied 'rejnsta:i€me_r_§}t, and continuity of service, but was of Rs.25,000/-, which hm since V by the learned Single Judge. all the aforesaid facts and features, we are of the 5 that no case fir interfiezenee is made out in this appeal. H Learned counsel for the appellants hm plmed reliance on a jendgxnent ofthe Supreme Court repottedin 2006 AIR EV 3571 gassasmntsngauer, c.A.n., ltota Ya. mum xuumu) to coamrfi "® that delay in mking reference is rm; and in this was delay of ten years in making a request should be granted to the Workman. 10. We have no dispute with nsggxd ratio tit' aforesaid case, but it does not to of the insmmt 11. As 1ncn£ion::d._hez=cin,t3.!.1§5_v::, had new dc-niad reinstatement, ::.«'.~311&_ 'of"se1vx:e' , by the Labour Court as welt Judge. That being the factual pnganeemcnt of amount from Rs.2S,€)00V['-« be a ground for interference in this man cm nma; The' V is hereby disrnissed. ..\ Soli- Sd/- Judge Acting Chief Justice?"

Author: Deepak Verma A.S.Bopanna

Assistante Executive Engineer vs Sri Huchegowda on 30 July, 2008

Karnataka High Court

ORDER Smt. Archana Wadhwa 1. The very short point involved involved in the present appeal is that the appellants cleared semi finished forged slabs falling under chapter 72 to their customer, M/s TRF Ltd. Jameshedpur on payment of duty of Rs.46,896.00. The said goods were rejected by their customer and returned to the appellants. On returns the appellants filed a D3 Intimation under Rule 173L of Central Excise Rules, 1944 to their jurisdictional Superintendent of Central Excise. The said slabs were subsequently reprocessed by the appellant and re-made as semi-finished forged products roughly shaped. The same (sic) again cleared on appropriate duty of Rs.64,467.00. Subsequently, the appellant claimed refund of duty of Rs. 46,896.00 originally paid by them. 2. The said refund claim lodged by the appellants was rejected by the Assistant Commissioner on the ground that the rejected slabs were re-made into different articles and cleared under different heading, As such, they were the goods of different class then what originally cleared by the appellants. As such, their refund claim was rejected in terms of provisions of Rule 173L (3)(iii) of the Assistant Commissioner did not succeed before the Commissioner (Appeals). Hence the present appeal. 3. I have heard Shri D.Jha, ld.Consultant for the appellants and Shri V.K.Chaturvedi, ld.SDR for the Revenue. The Commissioner of Central Excise (Appeals) in his impugned order has held as under:- "In terms of Rule 173L (3) (iii)no refund shall be admissible in respect of duty paid on goods which are disposed of in any manner other than for production of goods of the same class. In other words for admissibility of refund under Rule 173L production of goods of the same class is a pre-requisite. In the instant case returned goods were of chapter heading 7207.90 which after reprocessing were cleared as `scrap' and `parts of machines' falling under chapter heading 8431.00. The returned/rejected goods `slab' falling under 7209.90 and reprocessed goods falling under 7204.90 and 8431.00 cannot be treated as `goods of the same class' as they do not fall within same tariff heading, as such refund not allowable under rule 173L. The Assistant Commissioner has correctly rejected the refund claim." 4. As such, it is seen that the objection of the authorities below is that the returned/rejected slab and reprocessed goods cannot be treated as goods of the same class. The provisions of Rule 173L (3)(iii) requires that the goods received back and the goods subsequently cleared should be of the same class and nowhere specifies that they should also fall under the same chapter and/or tariff heading. As such, it is to be seen as to what is meaning of the expression `the same class. What was originally cleared by the appellants was semi finished forged blanks and subsequently they have been roughtly shaped but they remained to be forged blank. In the case of Trivani Glass Works Ltd. Vs. CCEx. Vs. Commr. of Central Excise, reported in 1992 (62) ELT 329 (Tribunal), the Tribunal has held that a receipt bank of the broker pieces of glass into the factory and transformation of the same into sheet glass by processing and re-melting would be covered by the provisions of Rule 173L. The expression ' of the same class' has been used to denote that the goods received back and the goods subsequently cleared after being re-made and broudly confirmed to the same class and should not be altogether different items. As such, it does not mean that they should be identical goods. Admittedly, the duty has been paid in respect of the same items two times. As such, where the fact of payment of duty at the time of original removal of the goods, the identity of the returned goods and their subsequent removal of payment of duty again, are established by documentary evidence and refund claim is made in time, there should be no legal impedement to refund being granted. As such, keeping in view the overall facts of the case, I set aside the impugned order and allow the appeal with consequential relief to the appellants. (Pronounced)

M/S Indian Forging & Stamping Co. vs Commr. Of Central Excise, Jsr. on 27 July, 2001

Customs, Excise and Gold Tribunal - Calcutta

[Section 14(1)] [Section 14] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print CR.MA/8776/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8776 of 2011 In CRIMINAL MISC.APPLICATION No. 12747 of 2010 In SPECIAL CRIMINAL APPLICATION No. 2469 of 2009 ========================================= HANSABEN MAHENDRABHAI SHAH - Applicant(s) Versus MAHENDRA SOMABHAI SHAH & 1 - Respondent(s) ========================================= Appearance : PARTY-IN-PERSON for Applicant(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/07/2011 ORAL ORDER Prayer in the present application is to recall the order passed by brother Judge, Justice Akil Kureshi in Criminal Miscellaneous Application No.12747/2010. Hence, Registry is directed to place the present application before the same Bench after obtaining appropriate order from Hon'ble The Chief Justice and the convenience of the learned Single Judge. (M.R. Shah, J.) *menon     Top

Author: M.R. Shah,

Hansaben vs Mahendra on 19 July, 2011

Gujarat High Court

JUDGMENT Richard Garth, C.J. 1. In this case I think that the learned Judge in the Court below has not done full justice to the owners of the property. He has substantially adopted the valuation of the Collector; and has made his award upon the supposition that the fair mode of estimating the price of the property in the market is to capitalize its present rental at so many years' purchase. 2. I consider that, having regard to the evidence on both sides, this is not a fair way of arriving at the market value. Where Government takes property from private persons under statutory powers, it is only right that those persons should obtain such a measure of compensation as is warranted by the current price of similar property in the neighbourhood without any special reference to the uses to which it may be applied at the time when it is taken by the Government, or to the price which its owners may previously have given for it. Of course, if it can be satisfactorily shown that the purposes to which the land is applied are as productive as any other to which it is applicable, or that the price given by the owners is its full market value, it would be very just to assess the compensation upon that basis. But in this case I find no evidence to that effect. On the contrary, it would appear that a considerable portion of the land is virtually unoccupied, and that the owners had previously prepared a plan for laying out the whole area to much greater advantage; and, moreover, it is in evidence that the claimants bought the property at a lower rate, in consequence of the title having been seriously questioned by two professional gentlemen. We have therefore to consider, having regard to the evidence on both sides, what is a fair sum to award to the claimant in respect of this land; but, before we enter upon this question, there is a preliminary point which it is desirable that we should at once dispose of. 3. Mr. Jackson insists that his clients are entitled to the agreed price of the buildings, as they stand, in addition to the fair value of the land itself. But I do not see how, upon any principle of compensation which has been suggested in argument, his claim in this respect can be supported; and I have tried in vain to discover why the learned Judge who tried the case in the Court below, or the assessors, thought it right to allow the owners this sum. 4. If you estimate the value of the property upon its present rental, and capitalize that rental into so many years' purchase, you are, in fact, taking into consideration the value of the buildings; and if you award the sum thus arrived at to the owners, you are, in fact, paying them the value of the buildings; so that, besides giving them the value of the buildings as they stand, you would be paying them for the buildings twice over. 5. But, then, suppose you proceed upon another principle. Instead of estimating the value of the property according to its present uses and its present rental, suppose you ascertain what it would be worth, if occupied in a different way, as for a bazaar, or for shops, or other buildings of a lucrative character. Estimating it in this way, you must necessarily take into consideration that the present buildings must all be pulled down, because, until they are pulled down, the land could not be applied to its new and more advantageous uses; and all that the owners could possibly obtain, or ask, for the buildings, under such circumstances, would be the price of the old materials. 6. Then, there is again a third principle of valuation, in which the same result would follow as in the first mode of estimating the value; and that is to suppose the buildings to remain standing, and to estimate them at a capitalized rental value, while you estimate the remainder of the property at its market value, treating it as unoccupied land. This principle of valuation would prove anything but favourable to the owners, because they could not expect to get for Mrs. Romaine's house, with a bazaar or shops built round it, as much rent as they have hitherto obtained; nor could they lay out the frontage land to advantage, with the small buildings which now occupy a portion of it obstructing the full range of the street. But if this principle were adopted, the owners could not then be entitled to the capitalized rental of the buildings as well as to their value as they stand, because they would in this way be again receiving the value of the buildings twice over. 7. This point being disposed of, it seems clear that the fairest and most favourable principle of compensation to the owners is that upon which the weight of the argument on both sides has been bestowed, viz. what is the market value of the property, not according to its present disposition, but laid out in the most lucrative and advantageous way in which the owners could dispose of it. 8. And, after full consideration, it appears to me that the fair amount of compensation to award to the owners upon this principle is Rs. 39,500. Three of the claimants' witnesses--one of them Shambhu Nath Bai a large landowner in Calcutta, who, it seems, has had extensive dealings in house property--state the value of the claimants' land, back and front, at Rs. 800 a cottah. Now, having regard to the large area of back land, as compared with the frontage, and also to the fact that 15 cottahs are occupied by the tank, Rs. 800 per cottah seems rather a high average for the land all round. The frontage is, no doubt, valuable; and, making all due allowance for some of the properties mentioned by the witnesses commanding a higher price in consequence of the purchaser's requiring them for special purposes, I cannot estimate the frontage at less than Rs. 1,000 a cottah. Making the same allowance then which it is generally fair to do in cases of this nature for a little over-statement on the part of the claimants witnesses, Rs. 700 a cottah would, probably, be a fair price for the entire area. This would give for the 55 cottahs Rs. 38,500. If, instead of calculating the whole area together, we were to estimate the front land (say 15 cottahs) at Rs. 1,000, and the back land at Rs. 600 per cottah, the result would be very nearly the same, say-- 15 cottahs at Rs. 1,000 ... 15,000 0 0 40 cottahs at Rs. 600 ... 24,000 0 0 -- Rs. 39,000 0 0 9. Or, if we were to adopt the evidence given for the Government, their first witness says that he purchased 32 and 33 Bow Bazaar, occupying an area very nearly of the same extent as the claimant's (between 54 and 55 cottahs) for Rs. 38,000. He gave this sum with the building in very bad repair--a fact which we all know depreciates, sometimes unduly, the value of house property. Taking then the claimant's property of equal extent to be worth an equal sum, the result would be much the same as the sum which we propose to allow. Then, if to this sum we add another Rs. 1,000 for severance of the portion adjoining Champatollah Lane, we consider the plaintiff will be properly compensated. The damage caused by severance is not considerable; the two portions of the property have been, in fact, divided by a wall, and the severed portion still retains a frontage upon Champatollah Lane. 10. "We therefore set aside the award of the Judge, and fix the amount of compensation at Rs. 39,500, to which the Collector will of course have to add the statutory 15 per cent. The owners will have the costs of this appeal, and the costs to which they are entitled in the Court below will be calculated according to the rule adopted by Mr. Beaufort,--that is to say, the costs which would be allowed in a regular suit. The owners are also entitled to interest at 6 per cent, upon the sum which we award for compensation from the time when the Government took possession of the property.

Author: R Garth

In Re: Land Acquisition Act (X Of ... vs Unknown on 4 September, 1876

Calcutta High Court

JUDGMENT S.C. Mohapatra, J. 1. Plaintiff is the appellant against the order rejecting the plaint for nonpayment of the Court-fee. 2. The suit was for declaration that the decree passed by Calcutta High Court in Award Case No. 74 of 1958 is void against the plaintiff and therefore, it is not executable which was valued at Rs. 14,500/- and Court-fee of Rs. 150/- was paid. On the objection of the defendant, trial Court by order dated 14-8-1975 directed the plaintiff to pay ad valorem Court-fee on Rs. 14,500/- under Section 7(iv)(a) of the Court-fees Act, 1870, as amended in Orissa. On the next date, plaintiff filed an application for amendment of the plaint so far as the relief claimed. Plaintiff sought for substituting the following relief : -- "Let it be declared that the plaintiff has no liability in respect of the amount decreed by the Calcutta High Court in Award Case No. 74 of 1958 dated 22-7-1963 as the same is not binding on him." This prayer for amendment was refused by order dated 24-9-1975. Plaintiff filed Civil Revision No. 378 of 1975 in this Court against the order calling upon him to pay ad valorem" Court-fee and Civil Revision No. 379 of 1975 against the order refusing amendment of the plaint. Civil Revision No. 378 of 1975 was dismissed on 3-2-1976 in effect confirming the order of payment of ad valorem Court-fee. While allowing Civil Revision No. 379 of 1975 by order dated 3-2-1976 allowing the prayer for amendment of the plaint, direction was given to pay ad valorem Court-fee on Rs. 14,500/- within one month. Ad valorem Court-fee on Rs. 14,500/- was not paid by 3-3-1976 and an application was filed in the trial Court on 2-3-1976 for extension of time till 5-3-1976 to pay the balance Court-fee of Rupees 225/-. The application could not be taken up for final disposal on that date in view of absence of the Presiding Officer. On 6-3-1976, Court-fee of Rs. 225/- was paid claiming the same to be ad valorem fee. Trial Court accepted the Court-fee on 6-3-1976 and fixed the case for hearing. On 19-7-1976, the defendant brought to the notice of the trial Court that the plaint should be rejected for non-payment of Court-fee. After hearing the parties on the question, trial Court rejected the plaint by order dated 20-7-1976 which is the impugned order in this appeal. 3. Two questions arise for consideration in this appeal : (i) Whether the Court-fee paid is sufficient? and (ii) Whether the Court-fee paid late could have been accepted without a specific order of this Court extending the time? 4. Mr. Ranjit Mohanty, the learned counsel for the appellant, submitted that ad valorem Court-fee has been paid. I am not inclined to accept the submission. Trial Court directed payment of Court-fee under Section 7(iv)(a) of the Court-fees Act which would have to be paid under Schedule I, Article 1 thereof. However, having accepted the deficit Court-fee paid, the Court was required to give opportunity to the plaintiff to pay the balance before rejecting the plaint since there is no specific order indicating the exact amount payable. 5. The next contention of Mr. Mohanty is that after two amendments of the plaint a declaratory Court-fee as provided in Schedule II, Article 17A of the Court-fees Act is payable. The question is no more open to be agitated either in the trial Court or before me since in the Civil Revision No. 379 of 1975 it has specifically been directed to pay the ad valorem Court-fee. 6. The next question is whether the trial Court could have extended time to pay the deficit Court-fee. When a higher Court has fixed a time without any direction to the trial Court to extend time in deserving case, power under Section 149, C.P.C. or even under Section 151, C.P.C. cannot be exercised by the Subordinate Court. The extension can be granted by the Court fixing the time or any Court to which the higher Court is subordinate. In this case, however, there has been misconception regarding interpretation. The orders in both the Civil Revisions read together make it clear that Court-fee was payable under Schedule I, Article 1 of the Court-fees Act. Plaintiff was under the impression that after amendment of the plaint, the ad valorem fee was payable under Schedule I, Article 3 of the Court-fees Act. This is a lawyer's mistake. In the interest of justice, therefore, I direct the plaintiff to pay the Court-fee of Rs. 1,446.75 paise on the plaint. Having already paid Court-fee of Rs. 375/- the deficit only shall be paid within six weeks from today. Defendant is not responsible for the mistake of the plaintiff. He has suffered a prolonged litigation and shall also further suffer. Therefore, he is entitled to costs of Rs. 1,500/- (one thousand five hundred) which shall be paid by the plaintiff to the defendant within one month, failing which the deficit Court-fee shall not be accepted and the plaint shall stand rejected without further reference to Bench. Both the parties are directed to appear in the trial Court on 14-12-1987 on which day being satisfied that the costs have been paid, trial Court shall fix the date within time stipulated for payment of the deficit Court-fee and on payment of the same, after giving opportunity to the defendant to file additional written statement on the basis of the amended plaint, shall proceed with the hearing of the suit in accordance with law to conclude the same before end of March, 1988. 7. Subject to the aforesaid conditions, the First Appeal is allowed. There shall be no order as to costs in this First Appeal.

Author: S Mohapatra

Bipinbehari Pansari vs Asoka Marketing Ltd. on 11 November, 1987

Orissa High Court

JUDGMENT Mukherji, J. 1. The appeal as presented before me is confined to the portion of the plaintiffs' claim in a suit for arrears of rant for the years 1322 to 1325 B.S. in so far as it is a claim for enhancement of rent based upon Section 30, Clause (a) of the Bengal Tenancy Act, that is to say, on the ground that the rate of rent) paid by the rah/at is below the prevailing rate paid by occupancy raiyats for lands of a similar description and with similar advantages in the same village or neighbouring villages and that there is no sufficient reason for his holding at so low a rate. The plaintiffs' case was that the prevailing rates in the village and other neighbouring villages were Rs. 6-8 per pakhi of khad lands, Rs. 4-8 per pakhi of palan lands and Rs. 2 per pakhi of Fasli lands. The defendant's case was that the prevailing rates were Rs. 2-8 per pakhi of khad lands, Rs. 1-4 per pakhi of palan lands, and 4-annas to 8-annas per pakhi of Fasli lands. The plaintiffs alleged that the lands in suit were settled with one Ram Kishore the predecessor of the defendant in 1271 B.S. at an annual jama of Rs. 16-9 and that Ram Kishore was given a remission of Rs. 11-l for certain services rendered by him to the settles so that since then a rental of Rs. 5-8 was being paid for the lands but that there was no longer any reason to grant that remission. The defendant averred that the story of the settlement of the lands with the predecessor at a jama of Rs. 16-9 and of a remission of Rs. 11-1 being granted for services was false and he asserted that he and his predecessor had been holding the lands in kayami right at an annual jama of Rs. 5-8 from before the time of the Permanent Settlement. 2. In the trial Court, a Commissioner was appointed all the plaintiffs' instance to ascertain the quantities and the qualities of the lands and, that having bean done, a Sub-Deputy Collector was deputed to hold a local enquiry and submit a report and, ha having submitted a report after such local enquiry, the same was accepted by the Court. The primary Court eventually found that the prevailing rates as found by the Sub-Deputy Collector were correct and that they were Rs. 6-8 per pakhi of khad lands, Rs. 4-8 per pakhi of palan lands and Rs. 2 per pakhi of Fasli lands and that those were fair and equitable. As to the plea of kayami right set up on behalf of the defence, that Court; found that it was false and, in that view of the matter, so far as this part of the claim was concerned, the Court made a decree granting an enhancement to the plaintiffs to take effect from the year 1329 B.S. 3. On appeal by the defendant, the learned Subordinate Judge held that the prevailing rates had not been established as payment, of rent at) these rates had not been proved, and that the enquiry held by the Sub-Deputy Collector was not sufficient and no definite conclusions could be arrived at from the evidence of the witnesses who had been examined by the Sub-Deputy Collector. The observations which the learned Subordinate Judge made with regard to this matter run thus: " Under these circumstances, I must hold that the prevailing rates of rent have not been properly ascertained. The question now arises whether I should remand the case which has already been pending for a long time. A full enquiry would entail heavy costs. The proper course, in my opinion, is to disallow the plaintiffs' claim for enhancement on the ground of prevailing rates in the present suit but to leave the plaintiffs free to claim enhancement on this ground in future when they might come prepared with fuller materials." As to the story of the jama having been fixed at Rs. 16-9 and of a remission of Rs. 11-1 being granted, the learned Subordinate Judge was of opinion that he was unable to accept the plaintiffs' version to the effect that it was a remission meant to be only of a temporary character and he observed as follows :-But I do not mean that the rent of Rs. 5-8 was necessarily intended to be fixed in perpetuity. This rent was almost exactly one-third of the full rent according to the plaintiffs case. So I order that this proportion of remission should be maintained for all time and, if any enhancement is to be made on the basis of the prevailing rates, the rent of this holding should be one-third of the full rental according to those rates." 4. Now, it has been argued on behalf of the plaintiffs who are the appellants in this Court that the learned Subordinate Judge was wrong in disallowing the portion of the plaintiffs' claim based on Section 30, Clause (a) of the Bengal Tenancy Act on the ground of prevailing rates and relegating them to a fresh suit for that purpose and that, if he found that the report of the Sub-Deputy Collector was not convincing or that the other materials on the record were not sufficient for the purpose of finding out what the prevailing rates were in order to enable him to come to a definite conclusion on the question, he should have directed a further enquiry by the Sub-Deputy Collector. It has been further argued, that, if the learned Judge was willing to leave the question of prevailing rates open, he should not have fettered the hands of any Court that may subsequently come to deal with the matter by laying down that "if any enhancement is to be made on the basis of the prevailing rates, the rent of this holding should be one-third of the full rental ac-cording to those rates," and that, therefore, this direction should, in any event, be expunged from the judgment of the lower appellate Court. 5. The answers given by the respondent to the contentions of the appellants as set forth above are that it was for the plaintiffs to prove the prevailing rates in order to succeed in their claim, that the criticisms of the learned Subordinate Judge against the insufficiency of the report of the Sub-Deputy Collector and the evidence adduced on behalf of the plaintiffs 'were just and they substantially amounted to this that payment at the rates specified had not been proved and that, therefore, the materials were not adequate for determining the prevailing rates. In these circumstances, the learned Vakil says, the Subordinate Judge would have been quite justified in dismissing the plaintiffs' claim altogether; but, instead of doing so, he has given the plaintiffs a further chance of proving the rates upon better materials, is a subsequent suit, so, practically, there is no prejudice to the appellants and, therefore, the judgment of the learned Judge of the Court of Appeal below should not be interfered with. With regard to remission, it has been argued by the learned Vakil for the respondent, that) the question whether the remission had been granted only for a time or whether it was of a permanent character was one of the questions which arose for determination in the case and the learned Subordinate Judge was bound to record a finding on that question in his judgment, that if he has done so, it cannot be said, unless it is shown that the finding is not bused upon proper materials, that he is wrong in recording that finding and further that the said finding amounts to a finding on a question of fact which should not be interfered with in second appeal. 6. Now, with regard to the first of these questions, I have carefully considered the matter and it seems to me that, although the learned Subordinate Judge would have been perfectly justified in taking the view that it was for the plaintiffs to prove their case and that, inasmuch as they bad failed to prove it, their claim should be dismissed the learned Judge did not, as a matter of feet, adopt that course. Instead of dismissing the plaintiffs' claim outright and for all times, the learned Judge declined to direct a further enquiry upon certain grounds which he noted in his judgment and gave the plaintiffs a further chance of proving their claim in a sub" sequent suit; and, in doing so, I think he was exercising a judicial discretion which pre-supposes that he must have felt that, if the plaintiffs were not successful in proving their claim, it was not on account of any fault on their part. In fact, it would seem that the plaintiffs took all steps that were necessary for them to take in order to prove this part of their case. They applied for a commission for the purpose of getting the lands measured and their qualities ascertained. They applied for an enquiry by a Sub-Deputy Collector such as is contemplated by Section 31 of the Bengal Tenancy Act. That there are different classes of lands in this village and that there are prevailing rates for the different classes of lands are facts which are admitted on both sides. The only question is what the prevailing rates are. The Sub-Deputy Collector's report was accepted as correct by the trial Court and, if a different view of it was taken by the Court of Appeal to which the matter was taken after the decision of the trial Court, it cannot be said that there was any blame which could legitimately attach to the plaintiffs for the conduct of their proceedings. The argument advanced on behalf of the respondent with regard to this matter, I have also carefully considered and it seems to me that, apart from the question of additional costs which the plaintiffs will have to incur in ease they are asked to prove their claim in a subsequent suit, there is also this prejudice to them, namely, that they may not succeed in getting an enhancement of rent for many years to come. I have examined carefully the grounds upon which the learned Subordinate Judge declined to direct a further enquiry in the present proceedings. Those grounds shortly are that it would be necessary in the event of the matter being re-opened to order a remand, that the suit had been pending for a long time and that heavy costs would have to be incurred. None of these grounds, to my mind, was sufficient to justify the order declining to reopen the proceedings, which bad terminated in a decree in favour of the plaintiffs and which decree was being assailed before the Court of Appeal below. In the first place, it would not be necessary to make an order of remand. The Appellate Court could direct a further enquiry setting out what further materials were wanted to come to a proper decision. The fact that the suit had been pending for a long time was no ground for not taking steps to bring it to a satisfactory termination. As to costs they will have to be incurred in either case and it is just possible that, if the present proceedings are re-opened, the costs will be much less than what they would otherwise be. To my mind, therefore, the grounds upon which a further enquiry has been refused are not at all sufficient. In this connection, I would only refer to the pertinent observations made by Sir Lawrence Jenkins, C.J., in the case of Nabin Chandra Saha v. Kula Chandra Dhar [1910] 37 Cal. 742 to which my attention has been drawn by the learned Vakil for the appellant. At page 745, the learned Chief Justice, in circumstances similar to those appearing in the present case, observed as follows, " Next, I shall deal with the point that the Courts have erred in so far as they have failed to give effect to the appellants' contention that the rate of rent paid by the defendants is below the prevailing rate paid by occupancy raiyats for land of a similar description and with similar advantages in the same village or in neighbouring villages. It appeared to the Munsif that the prevailing rate of rent could not be satisfactorily ascertained without a local enquiry and so the Court directed a local enquiry to be held under Chapter XXV of the old C.P.C., as allowed by Section 31, Clause (6) of the Bengal Tenancy Act. It seems that three separate enquiries were held, and still the Munsif was not satisfied with the report that he got. Apparently, however, he did not think it necessary or proper to direct; a further enquiry. As we have determined that the appellants are entitled to succeed on the ground of an error in relation to their objection that their contention as to a rise in prices has not had effect given to it. I think it is legitimate, in the circumstances, for us to interfere in this part of the case too, and to point out the error into which the lower Courts have fallen. I am not going to enter into the question as to whether the Munsif has correctly read the last report which was made to him. I will assume, for the sake of argument, that he has correctly read it. But on this assumption he should have passed a further order indicating clearly to the Revenue Officer, what precisely it was that he desired to be formulated in the report. The Revenue Officer can hardly be expected to know the requirements of the civil Courts in this respect, and it is right and proper that the civil Court, in directing a local investigation should indicate to the officer holding the investigation what it is that the Court precisely requires and I think it will be the duty of the Court to pass such an order now, in case the lower Court is satisfied that the present report is not sufficient for its purpose." 7. With regard to the second question noted above, reliance has been placed by the learned Vakil appearing on behalf of the respondent as also by the learned Subordinate Judge upon the case of Umesh Chandra Roy v. Surendra Chandra Dutt [1919] 29 C.L.J. 6 That, however, was a case where upon the construction of the kabuliyat by which the tenancy was created certain principles were laid down which would enable the Court to determine whether the remission granted was to operate for a time or was of a permanent character. The precise question which arises in the present case is whether the conduct of the parties shows that the remission that was granted to the tenant originally was intended to operate in future for all times to the extent of two-thirds of the rent that might to the fair and equitable rent for the lands; That question does not seem to have been considered by the learned Subordinate Judge. In the circumstances which he has carefully noted in his judgment, he has come to the conclusion that the remission was of a permanent nature. But as to whether the original intention of the parties was that, whatever might be the amount of rent two-thirds out of it would have to be remitted in all future times, it is not a matter upon which it can be said that the attention of the learned Judge was directed at all. In fact, reading his judgment, it does not appear to me that he has recorded any finding of fact on that question. He has dealt with the circumstances and he says " the remission was made in consideration of services rendered by him, that is, the lessee, and the fact of the remission being continued for twenty years after the death of the lessee and even after the property had passed out of the hands of the original lessor leads to the inference that the remission was intended to be a permanent one." It should be noted that the remission there referred to was a remission of Rs. 11-1-0 out of the total rent of Rs. 16-9-0 and the learned Judge at once makes the observation in the next passage in his judgment: " But I do not mean that the rent of Rs. 5-8-0 was necessarily intended to be fixed in perpetuity. This rent was almost exactly one-third of the full rent according to the plaintiff's case. So I order that this proportion of remission be maintained for all time." It would seem, therefore, that there is no finding such as may be treated as a finding of fact to the effect that the original intention of the parties was that whatever might be the rent, two-thirds of it would have to be remitted to the tenant in consideration of the services rendered by his predecessor. This matter also should be further investigated. 8. For all the reasons stated above I am of opinion that the decree of the learned Subordinate Judge should be set aside and the case sent, back to his Court so that the matter may be dealt with in the. light of the observations made. Having regard to the circumstances of the case, I make no order as to costs.

Author: Mukherji

Pranesh Chandra Sen And Ors. vs Banwarilal Shaha on 13 March, 1924

Calcutta High Court

JUDGMENT 1. These two appeals are directed against the decree in a suit for arrears of rent. The defendant holds a tenure in the zemindari mahal Tamluk situated in the District of Midnapore. The plaintiffs, who are two brothers governed by the Mitakshara Law, own twelve-and-a-half annas share in the zemtndari and are patmdars under the proprietors of the remaining three-and-a-half annas share. The plaintiffs are consequently the immediate landlords of the defendant as a tenure-holder, and as such they instituted the present suit on the 12th December 1916, for recovery of arrears of rent due from him. On the 12th February 1917 the defendant filed a written statement setting forth various objections to the claim. On the 28th February 1917 he filed an additional written statement contending that the suit could not proceed, inasmuch as the minor son of the first plaintiff, born on the 16th November 1916, had not been joined as a co-plaintiff. On the 20th December 1917 he filed a supplementary written statement objecting that the suit could not proceed as the minor son of the second plaintiff, born on the 15th April 1917, had not been joined as a co-plaintiff. The Trial Court held that the plaintiffs were competent to maintain the suit without joining their minor sons as co-plaintiffs, and, after dealing with the objections, on the merits, decreed the claim in part. Upon appeal, the District Judge held that the plaintiffs could not maintain the suit for the entire rent in the absence of their sons, but he decreed the claim in respect of twelve-and-a-half annas share, inasmuch is the plaintiffs had been registered under the Land Registration Act as proprietors in respect of that share. Both the parties were dissatisfied with this decree. The plaintiffs have appealed (No. 1747 of 1920) on the ground that they were competent to maintain the claim for the entire rent as managers of a joint Mitakshara family, even though their minor sons were not brought on the record., The defendant has appealed (No. 1655 of 1920) on the ground that Section 60 of the Bengal Tenancy Act had been misconstrued and misapplied by the District Judge and the claim should have been dismissed in its entirety. We shall consider, first, the appeal preferred by the plaintiffs. 2. It may be observed at the outset that the plaintiffs, who are members of a joint Mitakshara ramily, are joint landlords within the meaning of Section 188, of the Bengal Tenancy Act, which provides that where two or more persons are joint land lords, anything which the landlord is, under the Act, required or authorised to do, must be done, either by both or all those persons acting together, or by an agent authorised to act on behalf of both or al of them. This provision has no application to the institution of a suit for arrears of rent, which is not something that the landlord is required or authorised to do by the Bengal Tenancy Act: See Pramada Nath Roy v. Ramani Kanta Roy 35 I.A. 73 : 35 C. 311 : 7 C.L.J. 139 : 18 C.W.N. 249 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 3 M.L.T. 151 (P.C.). This renders inapplicable the decisions in Sati Prasad v. Radha Nath 18 Ind. Cas. 197 : 16 C.L.J. 427 and Sati Prasad Gorga v. Sanatan Dhara 61 Ind. Cas. 549 : 25 C.W.N. 38, where, in cases instituted by the present plaintiffs, it was ruled that Section 188 governed a suit or alteration of rent on alteration of area under Section 52 and a proceeding for settlement of fair and equitable rent under Section 105. The case before us, which is not subject, to the operation of Section 188, must consequently be determined with reference to whit Sir Ahur Wilson caled "the general principles of legal procedure," in Pramada Nath Roy v. Ramini Kanta Roy 35 I.A. 73 : 35 C. 311 : 7 C.L.J. 139 : 18 C.W.N. 249 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 3 M.L.T. 151 (P.C.). 3. The proposition that in suits relating to transactions affecting a joint Hindu family, all the members thereof need not always be joined, was foreshadowed by Sir James Col vile in Jogendro Deb Roy Kut v. Funindro Deb Roy Kut 14 M.I.A. 367 : 17 W.R. 104 : 11 B.L.R. 244 2 Stuh. P.C.J. 517 : 3 Sar. P.C.J. 32 : 20 E.R. 824, when he observed that case, sometimes occur "wherein the interest of a joint and undivided family being in issue, one member of that family has prosecuted a suit or has defended a suit, and a decree has been made in that suit which may afterwards be considered as binding upon all the members of the family, their interest being taken to have been sufficiently represented by the party in the original suit." This assumes that, in respect of the subject-matter of the litigation, the members of the family had no conflicting interest inter se. This principle has been reiterated by the Judicial Committee in two recent decisions. In Kishen Parshad v. Har Narain 9 Ind Cas. 739 : 38 I.A. 45 : 33 A. 272 : C.L.J. 345 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 395 (P.C.) where the Judicial Committee reversed the decision of the Allahabad High Court in Shamrathi Singh v. Kishen Prasad 29 A. 311 : 4 A.L.J. 194 : A.W.N. (1907) 58, Lord Robson observed as follows: The Indian decisions as to the powers of the managing members of an undivided Hindu joint family are somewhat conflicting. It is, however, clear that where a business y like money-lending has to be carried on in the interests of the family as a whole, the managing members may properly be entrusted with the power of making contracts, giving receipts and compromising or discharging claims ordinarily incidental to the business. Without a general power of that sort, it would be impossible for the business to be carried on at all. 4. Again, in Sheo Shartkar Ram v. Jaddo Kunwar 24 Ind. Cas. 504 : 41 I.A. 216 : 36 A. 383 : 20 C.L.J. 282 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 645 : 12 A.L.J. 1173 : 16 Bom L.R. 810 (P.C.), where the Judicial Committee affirmed the decision of the Allahabad High Court in Jaddo Kuar v. Sheo Shanker Ram 7 Ind. Cas. 902 : 33 A. 71 : 7 A.L.J. 945 Lord Moulton observed as follows: There seems to be no doubt upon the Indian decisions, from which their Lordships see no reason to dissent, that there are occasions, including foreclosure suits, when the managers of a joint Hindu family so effectively represent all other members of the family that the family as a whole is bound. It is quite clear from the facts of this case and the findings of the Courts upon them, that this is a case where this principle ought to be applied. There is not the slightest ground for suggestion that the managers of the joint family did not act in every way in the interests of the family itself. 5. These pronouncements by the Judicial Committee weaken the effect of the decisions in Bal Kishan Lal v. Topeswar Singh 14 Ind. Cas. 845 : 15 C.L.J. 446 : 17 C.W.N. 219; Lala Suraj Prosad v. Golab Chand 28 C. 517 : 5 C.W.N. 640; Debi Prosad v. Dharamjit 22 Ind. Cas. 570 : 41 C. 727 : 19 C.L.J. 437 and Bissonath Prosad Malita v. Brindesri Prosad Singh 17 Ind. Cas. 577 : 40 C. 342 : 17 C.W.N. 1025, which had already been doubted by the Full Bench in Bidya Prosad Singh v. Bhupnarain Singh 29 Ind. Cas. 629 : 42 C. 1068 : 21 C.L.J. 543 : 19 C.W.N. 849, namely, that all the co-parceners are necessary parties to a suit oh a mortgage of a joint family property, so that if a decree is passed in such a suit without their being joined as parties, the decree is not binding on them and they are entitled to sue for declaration that their interests are not bound thereby. The opinion expressed by the judicial Committee, namely, that where a suit is brought on a mortgage by or against a manager of p. joint Hindu family in his representative capacity, the other members of the family are not necessary parties to the suit, which will consequently not fail by reason of their non-joinder, harmonises with the rule enforced in Allahabad in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 : 34 A. 519 : 9 A.L.J. 819; Madan Lal v. Kishen Singh 15 Ind. Cas. 138 : 34 A. 572 : 9 A.L.J. 844; in Madras in Sheikh Ibrahim v. Rama Aiyar 10 Ind. Cas. 874 : 35 M. 685 : 21 M.L.J. 508 : (1911) 1 M.W.N. 442, and in Patna in Abdul Rahman v. Shib Lal Sahu 63 Ind. Cas. 570 : 2 P.L.T. 572 : 6 P.L.J. 650 : (1922) Pat. 81 : 4 U.P.L.R. (Pat.) 13 : (1922) A.I.R. (Pat.) 252; Baijnath Goenka v. Daleep Narain Singh 58 Ind. Cas. 489 : (1920) Pat. 261 : P.L.T. 582; Muhammad Sadiq v. Khedan Lal 36 Ind. Cas. 197 : 1 P.L.J. 154 : 2 P.L.W. 365; Girwar Narain Mahton v. Makbulunnissa 36 Ind. Cas. 542 : 1 P.L.J. 468 and Raghunandan Singh v. Parmeshwar Dayal Singh 39 Ind. Cas. 779 : 2 P.L.J. 306 : 1 P.L.W. 636 : (1917) Pat. 137. In Bombay, a similar result has been reached by a circuitous process, for, although it has been held that all the co-parceners are necessary parties to a suit brought on a mortgage by or against the manager, the decree in a suit, not so constituted against all the members, but brought against the manager alone in his representative character, when, executed, passes the interest of the other co-parceners-also in the property, though the sale may be avoided by them on the ground that, they were not liable to the debt contracted by the manager; see Ramchandra Narayan v. Shripalrao Tukojirao 33 Ind. Cas. 771 : 40 B. 248 : 18 Bom. L.R. 33; Laxmam Nilkant v. Vinayak Keshav 33 Ind. Cas. 956 : 40 B. 329 : 18 Bom. L.R. 52; Chimana Sada Shiv v. Sada Barka 7 Ind. Cas. 990 : 12 Bom. L.R. 811; Ramakrishna Narayan v. Vinayak Narayan 5 Ind. Cas. 967 : 34 B. 354 : 12 Bom. L.R. 219; Madhusudan Shivaram Kanvinde v. Bhau Atmaram Lad 18 Ind. Cas. 385 : 15 Bom. L.R. 36. The true position is tersely put by Benson and Sundara Aiyar, JJ., in Sheikh Ibrahim v. Rama Aiyar 10 Ind. Cas. 874 : 35 M. 685 : 21 M.L.J. 508 : (1911) 1 M.W.N. 442. The ordinary rule no doubt is that all persons in whom the right to any relief exists, should be joined as plaintiffs. But this rule is not of universal application. The language of Section 26 of the Civil Procedure Code, 1882, corresponding to Order 1, Rule 1, of the present Code, is 'that all persons may be joined in one suit as plaintiffs, in whom the right to any relief...is alleged to exist, whether jointly, severally, or in the alternative.... ' Section 30 of the Code of 1882, corresponding to Order 1, Rule 8, lays down the general rule of procedure Where one or more persons wish to sue on behalf of or for the benefit of themselves and other persons having the same interest m a suit. But it cannot, in our opinion, be laid down that in no case has a person a right to sue on behalf of himself and others, where the procedure laid down in Section 30 is either not applicable or has not been taken advantage of. There are several statutory exceptions to the rule, and there is no reason why there should not be other exceptions based not on any legislative provision but on the substantive law applicable to the parties. The judgment of the Judicial Committee, in Kishen Parshad v. Har Narain 9 Ind Cas. 739 : 38 I.A. 45 : 33 A. 272 : C.L.J. 345 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 395 (P.C.), already referred to, shows that the case of the manager of a Hindu family is such an exception. 6. This view does not militate against the decisions of the Judicial Committee in Balwant Singh v. Rockwell Clancy 14 Ind. Cas. 629 : 39 I.A. 109 : 34 A. 296 : 15 C.L.J. 475 : (1912) M.W.N. 462 : 11 M.L.T. 344 : 9 A.L.J. 509 : 16 C.W.N. 577 : 23 M.L.J. 18 : 14 Bom. L.R. 422 : (P.C.), and Ganesha Row v. Tulja Ram 19 Ind. Cas. 515 : 40 I.A. 132 : 36 M. 295 : 18 C.L.J. 1 : 17 C.W.N. 765 : 11 A.L.J. 589 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 (P.C.). In the first case, Sir John Edge held that a mortgage by the elder of two brothers was void as against the minor younger brother, even though the mortgage was for discharging the father's debts, inasmuch as the elder brother did not profess to represent the younger brother in the transaction, and acted on his assumed position as absolute owner. In the second case, Mr. Ameer Ali held that where a minor co-parcener has in fact been joined as a party to a litigation, represented by the manager as his guardian ad litem, leave of the Court in accordance with the statutory procedure is essential to the validity of a compromise by the manager on behalf of the minor; see Upendra Nath Biswas v. Shib Kumari Debi 52 Ind. Cas. 616 : 23 C.W.N. 634. On the other hand, the Judicial Committee held in Gulab Singh v. Raja Seth Gokuldas 19 Ind. Cas. 521 : 40 I.A. 117 : 40 C. 784 : 17 C.L.J. 619 : 17 C.W.N. 918 : 15 Bom. L.R. 613 : (1913) M.W.N. 542 : 14 M.L.T. 55 : 9 N.L.R. 117 : 25 M.L.J. 179 (P.C.) that a manager would be acting within his powers and authority, if, in order to save the heavily encumbered joint family estate, he placed the Same under the charge of the Court of Wards. It is, we think, fairly obvious that even if we assume, contrary to the opinion expressed in Day a Shankar v. Hub Lal 27 Ind. Cas. 497 : 37 A. 105 : 13 A.L.J. 21, that the manager of a joint family cannot, as a universal rule, be deemed entitled to sue or liable to be sued on behalf of the family, Padmakar Vitiayak Joshi v. Mahadev Krishna Joshi 10 B. 21 : 10 Ind. Jur. 188 : 5 Ind. Dec. (N.S.) 396; Kashinath v. Chimnaji 30 B. 477 : 8 Bom. L.R. 268; the tendency of the modern decisions, specially those of the Judicial Committee, is in favour of recognition of the representative character of the manager, though, no doubt, the question must be decided in each individual case or special class of cases, subject to the operation of relevant statutory provisions, if any, such as the one embodied in Section 188 of the Bengal Tenancy Act. An instructive example is afforded by the decision in Bhola Roy v. Jung Bahadur 23 Ind. Cas. 798 : 19 C.L.J. 5, where it was ruled that the plaintiff, who alone had always collected rent as the head of the joint Mitakshara family, was himself competent to maintain the suit, even though he had an infant nephew. The addition of the infant as co-plaintiff raised in that case, a question of limitation; it was ruled, that this did not affect the right of the original plaintiff to continue the suit and to recover the amount due. A stricter view had been previously adopted in Mir Tapurah Hossein v. Gopi Narayan 7 C.L.J. 251 at p. 260, where it was ruled that when rent is due to the members of a joint Hindu family, it is not open to the manager alone to maintain a suit for rent without joining the other members, either as plaintiffs or as defendants, except when the tenant has dealt with such managing members as sole landlords In support of this view, reliance was placed, amongst other decisions, on Shamrathi Singh v. Kishan Prasad 29 A. 311 : 4 A.L.J. 194 : A.W.N. (1907) 58, which, as we have seen, has been overruled by the Judicial Committee on appeal: Kishan Pershad v. Har Narain 9 Ind Cas. 739 : 38 I.A. 45 : 33 A. 272 : C.L.J. 345 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 21 M.L.J. 378 : 13 Bom. L.R. 359 (1911) 2 M.W.N. 395 (P.C.); see also Muhammad Sadiq v. Khedan Lal 36 Ind. Cas. 197 : 1 P.L.J. 154 : 2 P.L.W. 365; Romesh Chandra Mandal v. Bhuyan Bhaskar Mahapatra 39 Ind. Cas. 225 : 1 P.L.W. 346. The decision in Harihar Pershad Singh v. Mathura Lal 8 C.L.J. 256 : 35 C. 561 : 12 C.W.N. 598 also harmonises with the less stringent view, though in that case, as in Bhola Roy v. Jung Bahadur 23 Ind. Cas. 798 : 19 C.L.J. 5, the minor member had been placed on the record represented by the adult managing member as guardian ad litem. That, however, is, in most cases, really a matter of form, though it has the appearance of substance. As explained in Sham Kuar v. Mohanunda Sahoy 19 C. 301 : 9 Ind. Dec. (N.S.) 646 a guardian cannot be appointed under the Guardians and Wards Act, 1890, in respect of the property of a minor who is a member of a joint Hindu family governed "by the Mitakshara law and possessed of no separate estate. In such an event, if the minor is added as a party to the suit, the manager would represent himself arid his minor coparceners as his guardian ad litem. But precisely the same result is reached, if the manager be deemed to have instituted the suit or to have defended the claim in his representative character, and, as pointed out in Krishna Jiva Tewari v. Bishnath 16 Ind. Cas. 392 : 34 A. 615 : 10 A.L.J. 317, where all the adult members of a joint Hindu family appear on the record as plaintiffs or defendants, it is a legitimate presumption that they are acting as managers on behalf of themselves and of the minor members of the family who do not join in the suit: Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 : 34 A. 519 : 9 A.L.J. 819; Madan Lal v. Kishen Singh 15 Ind. Cas. 138 : 34 A. 572 : 9 A.L.J. 844; Sheo Dulare v. Brij Bhukhan 25 Ind. Cas. 849 : 1 C.L.J. 656. 7. It is well established that the manager of a joint Hindu family has power to acknowledge a debt and pay interest thereon so as to bind all the members including minors: Saroda Charan Chuckerbutty v. Durga Ram De Sinha 5 Ind. Cas. 484 : 37 C. 461 : 11 C.L.J. 484 : 14 C.W.N. 741; Chidambaram Chetti v. Ramaswami Chettiar 26 Ind. Cas. 911 : 27 M.L.J. 631; and he may give a discharge under Section 7 of the Indian Limitation Act : Banwari Lal v. Sheo Sankar Misser 1 Ind. Cas. 670 : 13 C.W.N. 815. It is competent to him to agree to a reference to arbitration on behalf of himself and his minor co-parceners: Harendra Lal Roy Chowdhury v. Nahwa Salimullah Bahadur 7 Ind. Cas. 21 : 12 C.L.J. 336; Uppara Chinngappa v. Gaddam Chinna Hanumanna 50 Ind. Cas. 471 : (1915) M.W.N. 425 : 9 L.W. 314. He is equally competent to enter into a compromise, beneficial to his minor co-parceners, with a view to put an end to a threatened litigation : Bai Rewa v. Jethabhai Vithaldas 4 Ind. Cas. 133 : 11. Bom. L.R. 1064. A decree obtained against him in a suit to which the otter members are not parties, may be operative against the latter under certain circumstances, provided the matter was one in which the manager sued was entitled to represent the whole family; Amrita Sundari v. Sherajuddin Ahamed 29 Ind. Cas. 156 : 19 C.W.N. 565; Balki v. Brojobashi 14 Ind. Cas. 333 : 16 C.W.N. 1019; Jijamba Bai Sahib v. Sagniram Jathai Row Sahib 14 Ind. Cas. 374 : 22 M.L.J. 45. It is equally well settled that in a joint Hindu family all the members need not join in granting leases; the manager can grant leases and sue for rents on behalf of the family: Ayyappa v. Venkatakrishnamarazu 15 M. 484 : 2 M.L.J. 219 : 5 Ind. Dec. (N.S.) 689; Parthasarathi Aiyangar v. Rangasawmy Aiyangar 38 Ind. Cas. 645 : 4 L.W. 654 he can also recognise the transferee of a non-transferable holding; Golapdi Meah v. Puma Chandra Dutta 41 Ind. Cas. 37 : 21 C.W.N. 774 : 27 C.L.J. 129. 8. In these circumstances, we are not prepared to hold that a suit for rent instituted by the managing members of a joint Mitakshara family must of necessity fail, merely because the infant co-parceners have, not been placed on the record as joint plaintiffs or pro forma defendants. In the case before us, there is manifestly no substance in the objection taken piecemeal by the defendant. He held the tenure under the plaintiffs and had always paid rent to them, and cannot be maintained with any show of reason that he would have been secured immunity from a possible claim by the infants if they had been brought on the record and represented by their respective fathers as guardian ad litem. 9. The result is, that the appeal by the plaintiffs is allowed, the decree of the District Judge set aside, and the decree of the Subordinate Judge restored with costs here and in the lower Appellate Court. The appeal by the defendant must as a corollary stand dismissed with costs.

Kalipada Das vs Raja Sati Prasad Garga Bahadur And ... on 7 August, 1922

Calcutta High Court

JUDGMENT Chaturvedi, J. 1. This is a writ petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing an order of the Board of Revenue dated 19-5-58. 2. The necessary facts of the case are in a short compass. Respondents Nos. 2 and 3 filed an applica-tion under Section 20 of the U. P. Zamindari Abolition and Land Reforms Act for being reinstated la the plots in suit on the ground that they were adhi-vasis. The petitioner contested the application and denied that the respondents had acquired adhivasi rights. The trial court decided the case on 27-2-54 holding that the respondents had acquired the rights of adhivasi. The petitioners then went up in appeal to the Commissioner and the Additional Commissioner allowed the appeal by his order dated 4-6-54. He held that the respondents had not acquired adhivasi rights. On 17-1-55 the respondents filed a revision petition before the Board of Revenue. This petition appears to have been placed in Chambers of a Member of the Board, Mr. A. N. Sapru, who dismissed it on 13-4-55. He dismissed it on the ground that the revision was barred by time inasmuch as the order sought to be revised was dated 4-6-54 and the revision petition was filed on 17-1-55. It appears that the Board usually allows a period of four months for filing a revision application. According to the respondents, they did not come to know of the dismissal of their revision for a long time and it was on 9-1-58 that respondent No. 2 filed an application purporting to be under Section 151 C. P. C. praying that the ex parte order of the 13th April 1955 be set aside. In the meantime Mr. A. N. Sapru had ceased to be a Judicial member of the Board and was put in charge of the administrative work, with headquarters at Lucknow, The application for setting aside that ex parte order came up before Mr. Ram Ker Singh, a Judicial Member of the Board, and Mr, Ram Ker Singh allowed the application on 19-5-58 without issuing any notice of the application to the. petitioner. It would thus appear that the respondents were not heard when the revision application was dismissed and the petitioner was not beard when the dismissal order was set aside. After setting aside the order dismissing the revision a date was fixed for hearing the revision on merits and notices were ordered to be issued to the parties. Before, however, the revision could be heard by " the Judicial Member, tbe present writ petition was filed on 19-1-59 and an interim order was issued by this Court directing the Board of Revenue not to hear and decide the revision till further orders from this Court. The writ petition itself has now come up for final hearing before us. 3. Learned counsel for the petitioner has urged number of grounds in support of the writ petition, but we shall only deal with those which are necessary to be decided, because, in our view, on some of the points interference by this Court will not be justified, for substantial justice has been done and the revision filed by the respondents has now to be heard and decided on its merits. 4. The first point that we have to consider is whether Mr. R. K. Singh had any jurisdiction to set aside the order passed by Mr. A. N. Sapru. Learned counsel for the petitioner has contended that the application filed by the respondent on 19-1-1958 should be treated as an application for review and not one under Section 151, C. P. C. It does appear that in the application it is stated that there was an error apparent on the face of the record of the case, which is a ground which could be urged under the provisions of Order 47 Rule 1 C. P. C. There has been a great deal of controversy before us on the question whether the Code of Civil Procedure applies to applications for review filed in the Board of Revenue in proceedings under the Zamindari Abolition and Land Reforms Act, But we do not consider it necessary to decide that controversy and shall assume that the Code of Civil Procedure applies to cases for review filed before the Board of Revenue. The relevant rule on the point is rule 5 of Order 47. The material words of this rule are; "Where the Judge or Judges ..... continues or continue attached to the Court at the time when the application for a review is presented .... such Judge or Judges of the Court shall hear the application ....." The argument of learned counsel is that Mr. A. N. Sapru still continues to be attached to the Court and he was the only Member of the Board of Revenue who was legally authorised to hear and decide the application for review. We do not agree with this contention of the learned counsel. The word "Court" used in Section 5 of Order 47 is significant and the question that we are to consider in the present case is whether Mr. A. N. Sapru continued to be attached to the Court on the date when the review application was allowed by Mr. R. K. Singh. As already stated in the beginning of this judgment. Mr. Sapru was relieved of his duties of a Judicial Member of the Board before the application was filed and he was appointed as Administrative Member of the Board with his headquarters at Lucknow After the appointment as Administrative Member, he had no judicial work to perform. That being the position, we think it cannot be said that he continued to be attached to the Court as such. The Board of Revenue has amongst its members both Administrative and Judicial Members. The Judicial Members dispose of judicial work, of the Board and the Administrative Member deals with the administrative work. The Board of Revenue is not a court while dealing with administrative work and can be said to be a court only as far as disposal of judicial work is concerned. Mr. Sapru, because of his appointment as Administrative Member, ceased to have anything to do with the judicial work of the Board of Revenue and as such he was no longer a Member of the Board inasmuch as he was not 1o do any judicial work. That being the position, the provisions of Order 47 Rule 5 do not make it obligatory that Mr. Sapru should himself have dealt with the application for review, and we think the rule has no application to a case like the present. 5. The next point urged by learned counsel for the petitioner is that the order of Mr. Sapru could have been reviewed or set aside only by two Members of the Board and not, by any single Member. This contention is based on three grounds, urged by learned counsel. The first ground is that Sub-section (3) of Section 220 of the U. P. Land Revenue Act applies to the case and that sub-section clearly provides that, a single Member vested with all or any of the powers of the Board shall not have the power to alter or reverse a decree or order passed by Board or by any Member other than himself. The contention of learned counsel is that this sub-section applies to all cases heard by a Board irrespective of the nature of the case. We do not find it possible to agree with this contention of the learned counsel. The U. P. Land Revenue Act in which this section occurs deals with matters connected mostly with revenue administration of the state including the assessment and realisation of revenue. It does speak of the constitution of the Board of Revenue and according to Section 7 of the Act the Board has been authorised to distribute its business and to make such territorial division of the jurisdiction amongst its Members as it may deem fit. Sub-section (2) is important. It says that all orders made Or decree's passed by a Member of the Board in accordance with such distribution or division shall be held to be the orders or decrees of the Board. The constitution of the Board with connected matters is dealt with in Chapter II in which Section 7 occurs. Chapter III provides for the maintenance of maps and records; Chapter IV for their revision; Chapter V for settlement of revenue; Chapter VI for re-assessment or revision of the settlement: Chapter VII for partition etc. of mahals; Chapter VIII for collection of revenue; Chapter IX for procedure of revenue courts and revenue officers and. Chapter X deals with the subject of appeals, references and revisions. Section 220 occurs in this Chapter. Learned counsel for the Petitioner Con-ceded that upto the first paragraph of Section 219 the provisions of this Chapter were confined to cases arising under the U. P. Land Revenue Act. But he says that the second paragraph of section, 219 and Sub-section (3) of Section 220 apply to all cases coming up for hearing before the Board, of Revenue. As regards the second paragraph of Section 219 we think it is sufficient, to state that it could not be made to cover all cases coming up-before the Board, because every enactment, the U. P. Tenancy Act, Zamindari Abolition and Land Reforms Act, contains provisions concerning institution of revisions. If the second paragraph was made to apply to all cases coming up before the Board of Revenue the other similar provisions under the other Acts would have to be held to be superfluous. Even Section 220 Sub-section (1) obviously refers to cases which have been decided under the U. P. Land Revenue Act. The usual legislative practice is to provide in the Act itself for appeals and revisions which arise under it. We see no reason for holding that in the U. P. Land Revenue Act an extraordinary procedure has been followed and provisions have been inserted as parts of Sections 219 and 220 which are of universal application. We presume that the usual legislative practice has been followed in the U. P. Land Revenue Act as well and both sections 219 and 220 are made to apply only to cases which arise under the U. P. Land Revenue Act. The present case arose out of proceedings under the U. P. Zamindari Abolition and Land Reforms Act and would therefore, not be governed by the provisions of Subsection (3) of Section 220 of the Land Revenue Act. (6) The other argument advanced by learned counsel to support the contention that only two members of the Board could have set, aside the order is that rule 190 of the Rules contained in the Revenue Manual would apply to a case under the Zamindari Abolition and Land Reforms Aot as well. This rule, along with the other rules contained in the same Chapter of the Revenue Manual, purports to have been made under the U. P. Land Revenue Act and the U. P. Tenancy Act and not under the Zamindari Abolition and Land Reforms Act. Learned counsel referred to rule 186 of the Rules framed under the Zamindari Abolition and Land Reforms. Act in this connection. Rule 186 is in the following words: "The provisions contained in the U. P. Tenancy Act, 1939, as regards the hearing and decision of suits under the said Act shall apply to the proceedings under Section 232." The present proceedings can be said to arise out of proceedings under Section 232, because the question involved was whether the respondents had acquired adhivasi rights. But the rule only says that the provisions of the U. P. Tenancy Act are to be applied as regards the hearing and decision of suits. It has no application to the hearing of revisions arising sunder Section 232 of the Zamindari Abolition and Land Reforms Act. It may be possible to say that suit includes an appeal and the provisions that have been applied to suits should therefore, be applied to appeals as well. But it is well established that a revision cannot be said to be a continuation of the suit, and Rule 186 nowhere purports to apply provisions of the U. P. Tenancy Act to revisions arising out of cases instituted under Section 232 of the U. P. Zamindari Abolition and Land Reforms Act. The provisions of the U. P. Tenancy Act may or may not apply to appeals arising out of cases instituted under Section 232 of the Zamindari Abolition Act, but no rule has been framed to the effect that they can be applied to revisions. We, therefore, think that neither the U. P. Tenancy Act nor the rules framed thereunder, including rule 190 can be said to apply to revisions arising out of cases under Section 232 of the U. P. Zamindari Abolition and Land Reforms Act. 7. The third argument of learned counsel in connection with the above point was that Section 273 of the U. P. Tenancy Act itself contemplates that a review application cannot be allowed by one Member of the Board of Revenue. Section 273 of the U. P. Tenancy Act has been applied to the Za-mindari Abolition and Land Reforms Act by Rule 239 of the U. P. Zamindari Abolition and Land Reforms Act. Learned counsel for the petitioner has argued that the rule is invalid and it is the Code of Civil Procedure which applies to review applications. We do not consider it necessary to decide this controversy. If Section 273 of the U. P. Tenancy Act has not been legally applied to cases arising out of the Zamindari Abolition and Land Reforms Act, the contention of learned counsel on the interpretation of the section need not be considered at all. Assuming that it has been legally applied to cases arising under the Zamindari Abolition Act, we think that the interpretation of the Section of learned counsel is not correct. Section 273 is in the following words: "The Board on its own motion or on the application of a party to the case, may review and may rescind, alter or confirm any decree or order made by itself, or by a single member." The contention of learned counsel is that it is only the Board as a whole which can review either its own decision or decision of a single Member of the Board. This argument is met by the provisions of Section 7 of the U. P. Land Revenue Act. Sub-section (2) of that section, as already stated, says that an order passed by a Member of the Board in accordance with the distribution of work shall be held to be the order or decree of the Board; If in deciding a particular case the Board consists of a single Member, his order can ,be reviewed by a single Member, because he constitutes the Board even for the purpose of Section 273 of the U. P. Tenancy Act. If the word "Board" is held to mean the entire body of the Members constituting the Board, a difficulty will arise where the order which is sought to be reviewed was passed by two or three of its Members. According to Section 273 the Board may review or alter an order passed by itself or by a single Member. But it is not said that the Board can review or alter an order passed by two or three Members. So, even if the entire Board has the power to review, it has the power to review an order passed only by all the Members of the Board or by one Member of it. The whole Board will have no power to review or alter an order passed only by all the Members of the Board or by one Member of it. The whole Board will have no power to review or alter an order passed by two or three members. The interpretation of the learned counsel for the petitioner, therefore, cannot be accept ed and it has to be held that an order passed by one or more of the Members constituting the Board can be reviewed or altered by one or more Members constituting the Board for the purpose of that case, as provided by Section 7(2) of the Land Revenue Act. We, therefore, do not find it possible to accept the contention of learned counsel that in case aris ing out of Zamindari Abolition and Land Reforms Act one single Member of the Board could not have reviewed his own or predecessor's order. 8. The next point urged by learned counsel for the petitioner is that the application made by the respondents under Section 151, C. P. C., for setting aside the order of Mr. A. N. Sapru, could not have been allowed because such an application could be made under Order 47 Rule 1 C. P. C. and that being the position the inherent powers of the Court could not be invoked for the purpose, as there was specific provision in the Code itself for an application like this. We do not consider it necessary to decide this point, because this point can be argued before the Board of Revenue while it is hearing the revision on its merits. The point can be urged before the Board as a preliminary point at the hearing of the revision. 9. The next point urged by learned counsel for the petitioner is that Order 47 C. P. C. is applicable to proceedings for review pending in the Board of Revenue and Rule 4 Order 47 provides that no application for review shall be granted without issuing notice to the other party. In the instant case, notice was not issued and the review application was allowed. On this point again the question arises whether Order 47, C. P. C. applies to proceedings for review before the Board of Revenue when arising out of cases under the Zamindari Abolition and Land Reforms Act. But we do not consider it necessary to decide this point. The position in this case has been that the respondents revision application was dismissed without hearing them. When the respondents applied for setting aside the order the order was vacated without hearing the petitioner. So, one ex parte order has been vacated by another ex parte order. The revision is still pending before the Board of Revenue and will have to be heard and decided on its own merits. The petitioner could have applied to the Board of Revenue for setting aside the ex parte order dated 19-5-1958 the order impugned before us). The order had been passed in the absence of the petitioner and the petitioner should have gone to the Board of Revenue and requested the Board to give him a hearing. We think there was another remedy open to the petitioner which he failed to avail of. His proper course was to approach the Board itself and not to approach this Court directly with the present petition. Even on the merits, we think the petitioner's contention is not correct. 10. In somewhat similar circumstances a Division Bench of this Court refused to interfere with the order of the Board of Revenue which had been passed ex parte and then the ex parte order was set aside without notice to the other party. The case mentioned above is the case of Laljit Singh v. Pyare Lal, 1956 All. L. J. 335: (AIR 1956 All 714). The learned Judges pointed out that there was no authority which laid it down as a matter of law that when both parties were absent and an order was made against one of them, the court had no jurisdiction to set aside that order without hearing the other party. The learned Judges held that the provisions of Order 9 Rules 9 and 14, C. P. C. provided that no order made under rules 8 and 13 should be set aside without notice to the other side, but the said rules were held to apply only to cases in which the order had been passed against one party in the presence of the other party. The same view was taken by the High Court of Calcutta in the case of Official Trustee of Bengal v. Benode Behari Ghose, l.L.R, 51 Cal. 943: (AIR 1925 Ca! 114). In the Calcutta case the appeal was V summarily dismissed under Order 41 Rule 11 C. P. C. and then on the appellant's application for review the Bench cancelled that order and directed the appeal to be heard again. This last order was passed without notice to the respondent. But the learned Judges upheld its validity and referred to a practice of the High Court extending over 40 years permitting such a course to be adopted. 11. The next case of the Calcutta High Court is Tanaki Nath Hore v. Prabhasini Dasee, I.L.R 43 Cal 178; (AIR 1916 Cal 741). It is on all fours with the case before us. In this Calcutta case the appeal was summarily dismissed by a Division Bench of the High Court. But the order of dismissal was set aside on an application for review filed by the appellant Without issuing notice to the respondent. It was held that this order was valid even in the absence of notice, as the expression "opposite party" in Order 47 rule 4 C. P. C. means a party which was interested to support the order sought to be vacated. But the respondent was not considered to be such a person before the appeal had been admitted under Order 41 rule 11 C. P. C, It appears from the case of Baboo v. Jagdei, 1957 R D 286 that the Board of Revenue have also been following the same practice. 12. Apart from the cases mentioned above, we think that substantial justice has been done in the case and an ex parte order which the Board of Revenue considered to be wrong has been set aside with the consequence that the revision has been restored to its original number. Notices have been issued to both the parties and both the parties have been given opportunity of arguing their cases before the Board of Revenue. The revision will now be heard and decided on its merits and it is expected that the party which has law and justice on its side should succeed. If we were to set aside the order of Mr. R. K. Singh dated 19th May 1958. we might be perpetuat-ing an injustice which had been done to the respondents by an incorrect ex parte order passed by Mr. A. N. Sapru. In such cirumstances, it is open to this Court to refuse to interfere in its jurisdiction tinder Article 226 of the Constitution. In the case of A. M. Allison v. B. L. Sen, (S) AIR 1957 S. C. 227 the learned Judges of the Supreme Court observed: "Proceedings by way of certiorari are 'not of course' (vide Halsbury's Laws of England, Hailsham Edition Vol. 9 paray 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs for it was satisfied that there was no failure " of justice ....." This Court has also expressed the same view in the case of Pooran Singh v. Additional Commissioner, Agra, 1957 All. L. J. 193: (AIR 1957 All 276). The learned Judges observed that the mere fact that an order was without jurisdiction or that there was an error apparent on the face of the record was not sufficient to justify the issue of a writ, but in addition it had to be established that the order had resulted in injustice to the petitioner. 13. For the reasons given above we do not think that we should allow this writ petition. It is accordingly dismissed, but in all the circumstances of the case we direct that the parlies bear their own costs.

Author: Chaturvedi

Sripat Narain Rai vs Board Of Revenue, U.P. And Ors. on 13 April, 1959

Allahabad High Court

ORDER S.K. Seth, J. 1. The present revision by the landlady/applicant No. I and the other applicants is directed against the interim order dated 31-7-1989 passed by the Rent Controlling Authority in Case No. 51/86-87. It may be mentioned that the revision was barred by limitation as provided under Section 23-E of the M.P. Accommodation Control Act, 1961. But, then, vide order passed by this Court on 7-7-1992, it, in the facts and circumstances of the case, considered it proper to entertain the same in exercise of its suo motu power unddr the said section and as such there remains no question of it being barred by limitation. 2. As the tenant-applicant had not de-'posited rent during the pendency of the case instituted by landlady-applicant No. 1 and the other applicants for his eviction from the . accommodation in question under Section 23-A of' the M.P. Accommodation Control Act, 1961, the landlady-applicant No. 1 and the other applicants made an application to the Rent Controlling Authority for striking out his defence under Sub-section (6) of Section 13 of the Act. But, then, since in his written statement, the tenant non-applicant had denied the relationship of landlord and tenant between the parties, it was held by the Rent Controlling ' Authority vide his order dated 31-7-1989 that before it could pass any order in respect of the said application it was necessary that they produced evidence before it to establish the fact that the defendant-non-applicant was the tenant of the landlady-applicant No. I in respect of the said accommodation. 3. The present revision under Section 23-E of the Act is directed against the abovesaid order dated 31-7-1989 passed by the Rent Controlling Authority. In the opinion of this Court, there is an error of law apparent on the face of the said order. In fact, it was for the said reason that this Court vide its order dated 7-7-1992 considered it proper and to be in the interest of justice to interfere with the said order in exercise of its suo motu power of revision under Section 23-E. 4. Now, it is laid down in Section 23-H of the Act that the provisions of Section 13 thereof shall apply 'mutatis mutandis' in respect of an application for recovery of possession of accommodation under Section 23A and in respect of proceedings for revision under Section 23-E against final order by the Rent Controlling Authority under Section 23-C or under Section 23-D as they apply to a suit or proceedings instituted on any of the grounds referred to in Section 12; provided that no suit or proceedings for eviction of the tenant is pending before any Court at any of its Stages in relation to the same accommodation. In the case before us, there was no material on record indicating that there was any suit or proceedings of eviction of the tenant-non-applicant pending before any Court in relation to the accommodation in question. Thus, the proviso to Section 23-H was not attracted in respect of it. It, therefore, followed that in accordance with the main part of the said section, the provisions of Section 13 of the Act applied 'mutatis mutandis' in respect of the proceedings in question initiated by the landlady-applicant No. 1 and the other applicants for eviction of the tenant-non-applicant from the accommodation in question under Section 23-A. It, therefore, further followed that as the tenant-non-applicant had admittedly failed to deposit rent in respect of the accommodation in question as required by Sub-section (1) of Section 13 of the Act, the Rent Controlling Authority had power to direct his defence against eviction to be struck out under Sub-section (6) of the said section. 5. In the above connection, it may be mentioned that the stand taken by the tenant-non-applicant in the proceedings in question that there had existed no relationship of landlord and tenant between the parties did not make difference to the exercise of power of striking out his defence by the Rent Controlling Authority under Sub-section (6) of Section 13 read with Section 23-H of the Act. Needless to say, what could be directed to be struck out by the said authority in exercise of its said power was only the defence against eviction under the Act and that in spite of striking out of the said defence the tenant-non-applicant was not to be precluded from establishing any other defence which might have been taken by him. Thus, even after the striking out of his defence under Sub-section (6) of Section 13 of the Act on account of non-deposit of rent as required by Sub-section (1) of the said section, the tenant-non-applicant, under the leave to defend granted to him Under Section 23-C, could still establish the defence taken by him that since there had existed no relationship oflandlord and tenant between the parties, the application made by the landlord applicant No. 1 and the order applicants for his eviction from the accommodation is question under Section 23-A was liable to be rejected on the said ground. 6. In the opinion of this Court, from the legal position as explained above, it followed that when any landlord made an application before the Rent Controlling Authority for eviction of a tenant Under Section 23-A of the Act, any application made by him during the pendency of the proceedings for striking out the defence of the tenant under Sub-section (6) of Section 13 read with Section 23-H of the Act was (not) required to be disposed of by the said authority on the basis of allegations as regards existence of relationship of landlord and tenant between the parties made by him and that it was not necessary for the said authority to determine the question relating to existence of such relationship finally before proceeding to dispose of the said application. 7. It could easily be seen that there was a good reason for interpreting the provisions of Sub-section (6) of Section 13 read with Section 23-H of the Act in the abovesaid manner. If the denial of the landlord-tenant relationship on the part of the tenant was false and mala fide, and he chose to avoid deposit of rent by taking shelter under such denial, there remained no valid reason why any defence against eviction under the Act was continued to be made available to him during the course of the proceedings. On the other hand, if the denial of the said relationship by him was true and bona fide, and he chose not to deposit rent for the said reason, striking out of his defence did not affect him prejudicially in any manner for the reason that it was still open to him to have the application made by the landlord for his eviction from the accommodation dismissed by establishing his defence that there had existed no such relationship between the parties. 8. For the reasons stated above, in exercise of the suo motu power of this Court under Section 23-E of the Act, the order dated 31-7-1989 passed by the Rent Controlling Authority, Jabalpur in Case No. 51-86-87 is set aside. The said authority is directed to dispose of the application made by trie landlady-applicant No. 1 and the other applicants for striking out the defence of the tenant-non-applicant under Sub-section (6) of Section 13 read with Section 23-H of the Act afresh after hearing both the parties with advertence to the legal position as regards the said provisions as explained in this order.

Author: S Seth

Smt. Sona Bai And Ors. vs Khoob Chand on 15 July, 1992

Madhya Pradesh High Court

ORDER B.P. Sinha, J. 1. This is an application for quashing the proceeding started against the petitioner for realisation of the money by issue of distress warrant against him. 2. It appears that in the proceeding under Section 145 of the Code of Criminal Procedure, the disputed land was attached under Section 145 (4) of the Code. The standing Rabbi crops were settled by public auction in four blocks on 22-1-1968. The petitioner's bid was the highest amount for block No. 4. His bid was Rs. 1600. The bid was accepted by an order of the Magistrate. The bid money was not deposited that day. The Nazir reported that nobody appeared before him to deposit the money. Thereupon next day i. e., on 23-1-1968 the Magistrate passed the following orders- "Perused the report of the Nazir in the margin. Issue D. Ws. for the realisation of the sums fixing 23-2-68." Accordingly distress warrant was issued for realisation of the aforesaid amount of Rs. 1600 from the petitioner. The petitioner filed an objection and prayed that the distress warrant may be recalled, which was rejected. Hence this revision application has been filed. 3. The contention of learned counsel for the petitioner is that the petitioner had offered Rs. 1200 to the Nazir that day and wanted time for depositing the balance sum. The money was not accepted. The petitioner left the place under the impression that his bid would be cancelled. It was only long after that date that he learnt about the issue of the distress warrant and as such he disputes the liability to pay the amount. Further it has been contended that at any rate the amount cannot be realised by issue of distress warrant. In this connection, the submission is that there is no provision in the Code of Criminal Procedure for the realisation of such amount by issue of distress warrant. Section 386 of the Code provides for realisation of fine. Section 547 of the Code provides that any money, other than a fine, payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. Learned Counsel has submitted that fhis amount was not payable by virtue of any order made under this Code. The contention seems to be well founded. There was no order of the Court directing the petitioner to pay any amount. Therefore the amount was not payable by virtue of any order made under the Code. It was only a contract between the Court and the petitioner on account of settlement that there could be a liability on the petitioner to pay the bid money. Such liability cannot be considered as being under an order made under the Code. Therefore Section 547 of the Code has got no application in this case. There is no other provision in the Code of Criminal Procedure to cover the instant case. It would appear that in that very bid, three other blocks were settled with other persons. One of those persons was Ram Narain Singh. He was settlee for one of the blocks for Rs. 4000. Distress warrant was issued against him as well. He came up to this Court for quashing that proceeding in Criminal Miscellaneous No. 1716 of 1968, which has been disposed of by order D/- 30-10-1968. This very point was involved therein and this Court held relying upon the previous decision of this Court in Jagdip Singh v. Jaipal Singh, 1942 Pat WN 77 that the order of the court issuing the distress warrant for realisation of the consideration money was unwarranted in law and therefore order was set aside. 4. The instant case, is fully covered by the aforesaid case, with which I respectfully agree. Under the circumstances the application is allowed. The order of the Sub-divisional Magistrate of Jehanabad dated 23-1-1968, directing the issue of distress warrant for realisation of the amount from the petitioner is set aside. I would like to make it clear that it is open to the Magistrate to take any course or mode provided under the law for realisation of the consideration money from the petitioner, if he is liable to pay the same.

Author: B Sinha

Kameshwar Prasad Singh vs State Of Bihar on 28 November, 1969

Patna High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1184 of 2005() 1. K.RAVEENDRAN, AGED 60 YEARS, ... Petitioner Vs 1. C.SUGUNAMMA, 35/717, ... Respondent 2. VIJAYA KUMAR, S/O.KOCHUNNI KARTHA, 3. THE ORIENTAL INSURANCE COMPANY LTD., For Petitioner :SRI.R.SUDHISH For Respondent :SRI.MATHEWS JACOB (SR.) The Hon'ble MR. Justice A.K.BASHEER The Hon'ble MR. Justice P.Q.BARKATH ALI Dated :14/07/2010 O R D E R A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1184 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1647/1996 on the file of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated June 22, 2002 dismissing the O.P. 2. The facts leading to this appeal in brief are these : The claimant was aged 50 at the time of the accident and was employed as Assistant Sub Inspector of Police earning Rs.4,675/- per month. On July 31, 1995 at about 8.15 a.m., while he was pillion riding on the motor cycle bearing Reg.No.KL-7G-6807 along Banerji Road, Ernakulam, the second respondent who was riding the motor cycle suddenly swerved the motor cycle without proper care as a result of which the right leg of the claimant was trapped inside the back wheel of the motor cycle causing severe injuries to him. The accident occurred due to the negligence of the second respondent. First respondent as the owner, second respondent as the rider and third  MACA.No.1184/2005 2 respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and the rider of the offending motor cycle remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending motor cycle filed a written statement denying the liability. 4. Claimant was examined as PW1 and Exts.A1 to A9 were marked on his side. On the side of the contesting third respondent, Exts.B1 and B2 were marked. The Tribunal on an appreciation of evidence found that the claimant has failed to prove any negligence on the part of the second respondent and that therefore claimant is not entitled to any compensation from the respondents and dismissed the O.P. . The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The following point arise for consideration : 7. We have gone through the evidence of PW1 and Exts.A1 to A7 and Exts.B1 and B2. It is pertinent to note that the police did not charge any case against the second respondent. Ext.B1 is the photocopy of the final report relating to the criminal case. Ext.A1 is the photocopy of the FIR. It is seen from these documents that the right leg of the claimant accidentally went under the rear wheel of the motor cycle and sustained the injury. In an attempt to prove the incident, claimant examined PW2, an alleged eye witness to the incident. The Tribunal has chosen to disbelieve his evidence. On going through his evidence, we find no reason to come to a different conclusion. For all these reasons, we find no reason to interfere with the finding of the Tribunal that there was no negligence on the part of the second respondent and that the accident was caused due to the  MACA.No.1184/2005 4 negligence of the claimant himself. It follows that he is not entitled to any compensation. Therefore, we find no merit in this appeal and the same has to be dismissed. In the result, the appeal is dismissed. No costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1184/2005 5

K.Raveendran vs C.Sugunamma on 14 July, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1862 of 2007 BHARAT KUMAR SHARMA . Versus THE STATE OF BIHAR & ORS . with CWJC No.2295 of 2007 MAHESH PRASAD YADAV . Versus THE STATE OF BIHAR & ORS . with CWJC No.2346 of 2007 MD.SOHAILUDDIN . Versus THE STATE OF BIHAR & ORS . ----------- For the Board :- Mr. Purnendu Singh Advocate. Mr. A. B. Sinha Advocate. 11. 29.06.2010 A supplementary rejoinder to the counter affidavit Jagdish/ ( Shailesh Kumar Sinha, J.) For the petitioner :- Mr. Naresh Chandra Verma, Advocate Mr. Ram Kumar Singh, Advocate. For the State :- Mr. Raghvendra Kumar Singh AC to GA - 5 Mr. Shashi Kant Singh AC to GA - 6. has been filed on behalf of the petitioner. Heard learned counsel for the petitioner, State as also the respondent - Board. The grievances of the petitioners is that petitioners have not been paid their correct amount of provident fund's dues for the reasons that Board failed to deposit the contributions in the provident fund account of the petitioners month to month with the result that petitioners were deprived of getting the interest to the extent of each contributions at the rate available at the material time. Learned counsel appearing on behalf of respondent 2 - Board submits that petitioner had earlier filed a representation which was considered but the grievance raised therein was not tenable. In the above circumstances, learned counsel for the petitioners submits that for expeditious disposal of their claims as highlighted in the writ application, petitioners propose to file a separate representation before the Secretary of the respondent- Board enclosing the copy of the relevant documents if any, in support of such claim along with certified copy of the present order within a period of four weeks from today. In case such representations are filed, the Secretary of the respondent - Board shall consider and dispose of the representation by passing a reasoned order in accordance with law expeditiously, preferably within a period of four months on receipt of such representation. Upon consideration, if any, amount of the petitioners is found payable, the same may also be paid preferably within a period of two months. The order passed on such representation shall be communicated to the concerned petitioners by post under registered cover. All the above writ applications are disposed of with the above observations/directions.

Bharat Kumar Sharma vs The State Of Bihar &Amp; Ors on 29 June, 2010

Patna High Court - Orders

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Bal Krishana Mishra & Others vs State Of U.P.& Others on 30 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.8625 of 2009 NAGENDRA RAUT, son of Late Dev Narayan Raut, Resident of village/Mohalla- Nariyal Bazar, Ward NO.16 (New), P.S. Madhubani Town, District- Madhubani ....Petitioner Versus 1. THE STATE OF BIHAR & 2. Mithilesh Karak son of Lakshman Karak, resident of Mohalla- Maharajganj, Ward No.12, P.S. and District- Madhubani. ...Opposite Parties ----------- JA/- (Anjana Prakash, J.) 2/ 30.08.2010 No one appears for the petitioner. The petitioner seeks quashing of the cognizance order dated 8.10.2007 passed in T.R. No.2801 of 2007 by the Judicial Magistrate, 1st class, Madhubani, on the ground that earlier he had instituted a case against the complainant, but I find that there is no relation between the case filed by the opposite party no.2 and the one filed by the petitioner. In view of such, the application is dismissed.

Nagendra Raut vs State Of Bihar &Amp; Anr on 30 August, 2010

Patna High Court - Orders

iN THE HIGH COURT ore' KARNATAKA" " if T. CIRCUET BENCH AT £)HAR\&'x*:.'.$_i'::T~.V A 1 _ DATED THIS THE 2013 . .B3F"O17éi4}g:_ . . THE HONBLE 2sa5R.JTjsT1cE."A..:--.TT WRIT PE'if§f!f§.ON NO;6vTS€¥€§]-'_2§)O9(§f{l\iI4KE3i:?;) BETWEEN: " " ' . V31'. SWITCHGEARS AND'TE££NSI?.0.RMERS No.33, 3RD BTTAsE,4n:_MA1N; PEENYA _ j IN§3USTRIAI?.._A&;':§A, ' BANGALORE _58§"R33«;_PRESE?¢TED {Ts AUTH0R1sVEE%.SIGNATQRYT_' H sHR1.T«,«VTRUD_RA£>z'25_ .. AGE 69 YEARS, we 3AN_ ALORE. --- ' V " ' ' ...PET1'moNEz2 (BY S-RI. V.M.-- SHE_E'LA\{A'Ie'FEi, ADV.) AN D': .__...;..-........... '- ' T "T; aHi§r"3Li%'ELECTéiéi1T'¥ SUPPLY COMPANY, .»:~.°: _ _ :;:.Qxe.P€n.R'mfE OFFICE, P.B.ROAI:>, m.;iB_:.iv, 1:33: zfrs MANAGING DIRECXFGR, .' SU?E§€iE~I'i'ENDING ENC§iNEER{ELE} TE_N£)'E'i2ENG AND PROCEDURE, m:s;_<:o:vs, HUBLI. " V. '3i;.TI~:"i4: EXECUTIVE ENGINEEWELEJ T (B? SRE. SHIVARAJ P. MUDHOL, ADV.) ANID M [}IVIS§C)N, HESCOM, BHATAPRJABHA, BELGAUM DIST, ..,,RES?OI'~IDENT'S T}-HS PE'I'f'i'ION ES FILEE UNDER ARTICLES 225 AND 227 OF' THE CONS'l"I'¥'U'}'ION OF' INDIA PRAYXNG TO QUASI-I THE) OFFICIAL MEMORANDUM DATED es/01 /2009_.i§S'§S{}E_B--;:_T'iiE ewe AT ANNEXURE ---- LAND ETC. " e e. _ * * 4_ THIS PETITION COMING ONFOR4PRE'LIMfNZ$i?'fii<F;;§I?IN€3;~ 2 THIS DAY, me eeum' MADE TH}; Fo:,1;e,w:_r:e; -- '- _ * '~ .w..m..~...<>e't< D Ewen though the nieatiier is 1i'st.ed --:€br preIin3ir1a1y hearing, with C{)I'1Sf§:I'1'£"'_0f taken up for final dispesai. 2. supplied some .V It appears, a joint __tIr'1e presence of the ofiicials of the reeV;"3a;1de;V;§t:-;."V$a':fs_ as the petitioner. According to EIfespender1ts;.....ivt was found that the transformers ' ~--.f:he petitioner were defective. Hence, a .' nefiee_A§§é;s..e:issued by the respoxxdents to the petitioner fipon him to five an explanation which is in the A ef final netiee. On 16/07/2008 e. reply was Vfgiven to the said final notice, the respondents, . . ' . " kmv nevertheless, have black listed the petitioner. Hence, this writ petition. :3: 3. Mr. V.M.SheeIava.t1th, learned counsel appearing for the petitioner submits that befoxeiseuilig final notice, there was no show cause entire proceedings culminating in F: petitioner is liable to be "I 4' i - i 4. Mr. Shivraj 'ed appearing for the indeed, before issuing 1iio1:iee,§fn.o cause notice was isstied, also held and no personal hean"15.g was J" ,5. L' imam, before black Iisting, it is essential ehow cause notice is required to be issued, a A ._ and then personal hearing is gven. The é;aidv*..ei<ercise is not done. Hence, I am of the View that * stifle order of black listing the petitioner 'ivorrants interference. Consequently, the following 'i order is passed: ifl " : 4 : 6. Petition is allowed. The Impugned o__rder at Annexure "L" stands quashed. It is gthe respondents to inmate appropriate L .'éig.'§i;1St the petifioner, if, they chosejtéi do , i and made absolute. Mr. Shivaraj P. MfidLi1"G~3,,» Aciiiacatgé ".isV7} )Vc9r:11'§;tted 'to' fie powef tbufweeks.

Author: Ajit J Gunjal

V T Switchgears And Transformers vs Hubli Electricity Supply Co ... on 20 March, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 131 of 2007() 1. GOPALAN, S/O. VASU, ... Petitioner Vs 1. THE STATE OF KERALA, REP. BY ... Respondent For Petitioner :SMT.T.SUDHAMANI For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :12/01/2007 O R D E R V. RAMKUMAR, J. - - - - - - - - - - - - - - - - - BAIL APPLICATION NO.131 OF 2007 - - - - - - - - - ----------------------- - - - - - - DATED THIS THE 12th DAY OF JANUARY, 2007 O R D E R Petitioner who is the accused in Crime No.193/03 of Rajapuram Police Station for an offence punishable under section 55 (g) of the Abkari Act for allegedly having been found in possession of 25 litres of wash on 27.10.2003, seeks anticipatory bail. 2. Admittedly, the case which was taken on file by the J.F.C.M.-II, Hosdurg as C.P.No.35/05 could not be proceeded with due to the abscondence of the petitioner whose case has been transferred to the long pending register as L.P.C.No.53/06 now pending before the J.F.C.M.-I, Hosdurg. Anticipatory bail cannot be granted so as to nullify the process issued by a court of competent jurisdiction. There is no reason why the petitioner should not surrender before the Magistrate and seek regular bail. Accordingly, if the petitioner surrenders before the Magistrate and files an application for regular bail, within two weeks from today, the same shall be considered and disposed of, preferably on the same date on which it is filed. With this direction, this petition is disposed of. V.RAMKUMAR, JUDGE dsn 

Gopalan vs The State Of Kerala on 12 January, 2007

Kerala High Court

[Section 290(6)] [Section 290] [Complete Act]

Central Government Act

[Section 1] [Complete Act]

Central Government Act

JUDGMENT Kunhi Raman, J. 1. The plaintiff, in response to his application for the post, was appointed as Chief Agent of the defendant Insurance Company for a period of 10 years commencing from the 2nd May, 1943. There was a stipulation in the contract of employment that a guarantee should be given by the plaintiff in respect of the volume of work that he would secure. During the course of the plaintiff's employment, there was transfer of management of the defendant company to the 2. Prithvi Insurance Co., Ltd., who had purchased a number of shares of the defendant company. This was necessitated by the financial state of the defendant. After the Prithvi Insurance Co. had thus obtained control of the defendant company, it was decided that the latter should run its business as a "closed fund". As a consequence, notices were issued by the new management to all the agents and sub-agents of the defendant company on the 30th November, 1943, asking them to stop taking new business from the 15th December, 1943, and also terminating the agencies. A letter to that effect was sent to the plaintiff on the 3rd December, 1943, and in this the plaintiff was also offered an appointment in the Prithvi Insurance Co., Ltd. He was not willing to accept this offer. He pleads that the termination of his service amounts to a breach of contract by the defendant company. He brought this to the notice of the defendant company by his letter, dated 26th January, 1944, in which he claimed compensation for wrongful termination of the contract of service. Thereupon, the defendant offered to keep the contract open and called upon the plaintiff to fulfil his undertaking already given in respect of the volume of business to be acquired through his agency. The plaintiff states that since the contract had been terminated before this letter was despatched, it was not open to the defendant to revive the contract with the alleged ulterior motive of demonstrating that the plaintiff was in the wrong. He states that he was prevented from earning his remuneration as a result of the unlawful conduct of the new management of the defendant company. According to him, had the contract been kept open and had he been permitted to discharge his duty as chief agent, "he would have earned Rs. 50,000, and this the defendant company has prevented him from earning. He estimates the loss caused to him by reason of the breach of contract on the part of the defendant at Rs. 35,000. In the plaint, however, he has claimed only Rs. 30,000 in respect of this part of the cause of action. He also alleges that he is entitled to have an account taken of the commission already earned by him in the defendant company before his services were terminated. This, according to him, would amount to Rs. 1,000. He asks for a decree for Rs. 31,000 or such other amount as may be fixed by this Court and for costs. 3. The defendant company raises the following pleas in its written statement. The valuation report of the defendant company made on the 23rd December, 1942, disclosed a deficit of over Rs. 49,000. Thereupon, the Superintendent of Insurance intimated to the company that its account showed that it was barely solvent and that therefore the interests of the policy holders would be in danger, unless fresh capital in cash was raised. This advice was not acted upon, with the result that the Superintendent of Insurance threatened to take action under Section 53 of the Insurance Act, 1938. At that stage, the Prithvi Insurance Co., Ltd., acquired a majority of shares of the defendant company. On making an examination of the affairs of the defendant company, it was decided that the proper method of safeguarding the interests of the policy holders would be to run the business of the defendant as a "closed fund". The Prithvi Insurance Company accordingly intimated to the Superintendent of Insurance of their decision. This met with the approval of that officer and he consequently dropped taking further action against the company. The decision arrived at by the defendant company to stop new business obviously meant drastic reduction in the agencies. The defendant pleads that the plaintiff's contract of employment does not imply any promise on the part of the defendant company that it would continue to transact fresh business. Such a term is not in the contract and it would be quite inconsistent with the nature and scope of Insurance business. The defendant also pleads that the plaintiff was not in a position, to fulfil the guarantee given by him and for that reason his agreement is liable to be terminated. Of the 14 agents appointed by the plaintiff, only 5 did any work and the total premium income derived from the business secured by them fell short of the proportionate guaranteed amount. In view of the financial condition of the defendant company, the plaintiff would not have Canvassed policies for the defendant to any substantial extent. The defendant therefore denies liability to pay damages to the plaintiff and pleads also that the amount claimed is grossly exaggerated. Dealing with the offer to appoint the plaintiff in the Prithvi Insurance Company, Ltd., the defendant pleads that had the plaintiff accepted the offer, it would have brought him a higher income than what he could have earned under the suit contract. The defendant points out that a number of its chief agents and agents had chosen to accept similar terms offered to them by the Prithvi Insurance Co., Ltd. With regard to the sum of Rs. 1,000 claimed in the plaint as representing commission already earned by the plaintiff before his services were terminated, the defendant pleads that had the plaintiff applied for payment of what was due to him, he would have got it without difficulty, but he had not chosen to claim it until the suit was filed. On these pleadings the following issues were framed: 1. Has the defendant committed breach of the contract, dated 2nd May, 1943 2. To what damages, if any, is the plaintiff entitled? 3. To what reliefs are the parties entitled? 4. The plaintiff's complaint is that since he was appointed as chief agent of the defendant company for a period of 10 years, the defendant was bound to continue its business for that period and that the stopping of business by the defendant company after a majority of its shares were acquired by the Prithvi Insurance Co. amounted to a breach of contract. The defendant's answer to this contention is that on a proper construction of its contract with the plaintiff, it cannot be contended that there was a duty imposed upon the defendant to continue its business for a period of ten years to entitle the plaintiff to enjoy the benefit of his appointment. According to the defendant, the business of the company was stopped for valid reasons as a result of criticism of its financial condition by the Superintendent of Insurance, who was competent to make that criticism on the strength of the reports published by the defendant. The majority of the shares of the defendant was taken over by the Prithvi. The defendant thus became a subsidiary company to the Prithvi. On a scrutiny of the financial condition of the defendant company, it was then felt that the proper course to adopt would be to continue the defendant company as a "closed fund". The idea was that no fresh insurance business should be accepted by the defendant, but that it should go on functioning only in respect of the insurance business which was already secured before it became subsidiary to the Prithvi. This naturally meant stopping fresh work being done by the chief agents and agents. Such procedure, according to the defendant, was legitimate and could not give the plaintiff a cause of action. It is also contended that after the plaintiff's services were determined by notice, the plaintiff was offered an equally profitable agency as chief agent of the Prithvi. From the point of view of the remuneration which was likely to be earned by the plaintiff, this new appointment offered to him was as good as the appointment under the defendant company, which was terminated by notice. Since the plaintiff did not choose to accept this offer, even if it is found that the defendant had committed a breach of contract, the plaintiff would be entitled only to nominal damages. 5. The first question for determination turns upon the construction of the contract of chief agency between the plaintiff and the defendant. This contract is to be found in two letters Exhibit P-l, dated 2nd May, 1943, which contains the terms of the appointment and Exhibit P-2, dated 3rd May, 1943, which is the acceptance of those terms by the plaintiff. In Exhibit P-l, which was sent in response to plaintiff's application for the post, the defendant company informed the plaintiff that he was appointed chief agent from 15th April, 1943, subject to certain terms and conditions enumerated in the letter. These authorised the plaintiff to engage agents, organisers, inspectors and superintendents for the purpose of securing Insurance business within the whole of the Presidency of Madras, which was the area allotted to the plaintiff. Reference was then made to a guarantee which was to be given by the Plaintiff in respect of the quantum of business to be secured by him year after year. The next clause referred to the commission payable to the plaintiff on the business secured by him which was inclusive of the remuneration which he would have to pay to his employees. The method of payment of the commission earned by the plaintiff was then referred to and incidentally reference was also made to the doctor's fees payable on examination of persons who send proposals for insurance to the defendant company. Clause 5 of the letter is important and may be read in full. It is as follows: The tenure of your appointment as chief agent shall be for a period of 10 years certain. You shall not be removed in the meanwhile for any reason whatsoever except for reasons of fraud, misappropriation of funds or for your presentation of a petition for adjudication as an insolvent or failure to fulfil the annual progressive guarantee of premium income. 6. It is not necessary to refer to the remaining clauses of this letter which deal with other details concerning the chief agency. 7. The question therefore is, What is the proper construction to be put upon Clause 5 of Exhibit P-l2 Since the plaintiff was informed that the tenure of his appointment as chief agent would be for a period of;10 years certain, can he complain of a breach of contract because his services were terminated before the expiry of this period? The fundamental principles involved in a case of this description arose for consideration in Shivlal Mulchand v. Manlekji Mancherji (1929) I.L.R. 54 Bom. 510. All the relevant English decisions, which may be regarded as leading cases on the subject, are discussed in the judgments of the two learned judges who decided this case. In the judgment of the learned Chief Justice (Marten, C.J.), reference is made to the rule of construction of a contract like the present. The following observations of Kay, L.J., in Hamlyn & Co. v. Wood & Co. (1891) 2 Q.B. 488, are quoted: I agree with the rule as laid down by the Master of the Rolls, vis., that the Court ought not to imply a term in a contract unless there arises from the language of the contract itself, and the circumstances under which it is entered into, such an inference that the parties must have intended the stipulation in question that the Court is necessarily driven to the conclusion that it must be implied. To state the rule in any wider terms would be going, I think, beyond what is justifiable on principle. 8. The facts of that English case are then referred to. That was a case where the defendants who were brewers had agreed to sell all their grain to the plaintiffs. Subsequently, the defendants sold their business and the question was whether they had committed a breach of the contract. It was held that from the contract, a term could not be implied to the effect that the defendants would not by any voluntary act of their own prevent themselves from continuing the sale of the grain to the plaintiff for the period mentioned in the contract. 9. Another English case which is referred to in the judgment of Blackwell, J., in the Bombay case is Lazarus v. Cairn Line of Steamships, Ltd. (1912) 106 L.T. 378 Mr. Justice Scrutton in his judgment in that case summarised the principles that can be gathered from the leading English cases on the point and two of the principles so laid down, which are relevant to the present case, are the following: 1. Where there is a principal subject-matter in the power of one of the parties, and an accessory or subordinate benefit arising by contract out of its existence to the other party, the Court will not, in the absence of express words, imply a term that the subject-matter shall be kept in existence merely in order to provide the subordinate or accessory benefit to the other party. 2. But where there is an express term requiting the continuance of the principal subject-matter or giving the plaintiff a right to a continuing benefit, the Courts will not imply a condition that the plaintiff's right in this respect shall cease on certain events not expressly provided for. 10. The question then is whether the facts of this case will bring it within the purview of the first or the second of these classes of cases; in other words, was there an obligation on the part of the defendant to continue to carry on its business for ten years for the purpose of enabling the plaintiff to earn his (Commission by discharging his duty as chief agent? If, for bona fide reasons, the defendant had of necessity to stop functioning actively as an insurance company, can that give a cause of action to the plaintiff to claim damages for the reason that such conduct on the part of the defendant deprived him of the benefit that he would otherwise have derived under the contract of chief agency? The relevant part of the contract between the two parties has already been read. In that contract, there is no express stipulation to the effect that the defendant would continue to carry on active business of the insurance company for the full period of ten years for which the plaintiff was appointed as chief agent. Consequently, the "decision of the defendant to function as a "closed fund" did not amount to breach of an express contract. The contract stated that the plaintiff would hot be removed for any reason whatsoever except for reasons of fraud, misappropriation of funds, insolvency or failure to fulfil the guarantee that he gave with regard to the quantum of business to be secured by him as chief agent. Can this part of the contract be regarded as containing an implied term that the defendant undertook to carry on active business for the full period of ten years? On a careful scrutiny of the contract as a whole and especially of the two relevant terms adverted to, the inference that can be drawn, in my view, is that the whole contract depended upon the defendant being able to work as an active insurance company for ten years. There was no undertaking or promise given by the defendant that the company would work for that period. If the company did not work for that period, but had to stop active work for bona fide reasons, then the plaintiff cannot take the defendant to task and plead that a breach of contract was committed; in other words, the case is covered by the observations of Kay, L.J., in Hamlyn & Co. v. Wood & Co. (1891) 2 Q.B. 488, in which the rule laid down by the Master of the Rolls was adopted namely, that the Court ought not to imply a term in a contract unless there arises from the language of the contract itself, and the circumstances under which it is entered into, such an inference that the parties must have intended the stipulation in question, that the Court is necessarily driven to the conclusion that it must be implied. In my judgment, the circumstances and the facts of this case do not warrant such a term and it cannot therefore be implied. 11. At first sight there seems to be an apparent conflict between the view taken in Rhodes v. Forwood (1876) 1 A.C. 256, the facts of which are very similar to the present case and the decision in Turner v. Goldsmith (1891) 1 Q.B. 544, where the facts appear to be somewhat similar, but where a different conclusion was arrived at. The distinction between the two cases was considered by Phillimore, J., in his judgment in Northey v. Trevillion (1902) 7 Com. Cases. 201 where it was stated as follows: The distinction seems to be that if it is a mere contract of agency with no service or. subordination, the Court will hold that there is no implied contract that the agent is to be supplied with the means of earning his commission. If the contract is one of service then the commission is merely intended to be instead of salary, and the contract cannot be determined without compensation. This was adopted by Blackwell, J., in his judgment in the case reported in Shivlal Mulchand v. Manekji Mancherji (1929) I.L.R. 54 Bom. 510. In the present case, the terms of the, contract entered into between the plaintiff and the defendant indicate that there-was merely a contract of agency and there was no "service or subordination". The plaintiff is a highly influential man who has shares in lucrative concerns and who is himself in very affluent circumstances. Because of his status and financial condition, the defendant entered into a contract of agency with him,. There does not appear to be any contract of service or subordination so far as the plaintiff is concerned. Therefore the facts of the present case are similar to the facts in Rhodes v. Forwood (1876) 1 A.C. 256 and not those in Turner v. Goldsmith.(1891) 1 Q.B. 544 12. The reason why the Prithvi Insurance Co. was approached for purchasing a large number of shares in the defendant company has been clearly explained in the evidence of the witnesses examined on behalf of the defendant. The Superintendent of Insurance, on a scrutiny of the report of progress of the defendant company, had valid reasons for objecting to its continuing to do active business as before. Certain courses were suggested by him. The defendant company approached the United India Life Assurance Co. The latter company, on taking expert advice, was not willing to take it up. Then the Prithvi Insurance Co. came to the relief of the defendant company and took over a large number of shares which reduced the defendant company to the position of a subsidiary company to the Prithvi Insurance Co. The evidence of D.W. 1, T.S. Swaminathan who has got technical qualifications to pronounce an opinion on the subject, is that he was consulted and that it was he who advised the Prithvi Insurance Company to run the defendant company as a "closed fund." He also said that he did not advise the United India Insurance Co. to take up the defendant company. The evidence shows that in November, 1943, there was a deficit of Rs. 49,000 and the decision reached by the Prithvi Insurance Company after taking expert opinion was to adopt the course already referred to. It is stated on behalf of the defendant company that even now the plaintiff will be getting his commission earned on insurance already effected by him, as and when the insured pay their premiums. It was decided that no fresh insurance business should be transacted. The evidence shows clearly that the decision to run the defendant company as a "closed fund" was taken after obtaining the opinion of qualified experts, that it was a bona fide decision and not one made with the sinister object of bringing an unfair advantage to the Prithvi Insurance Co., or of putting the plaintiff to any loss. 1st issue: In view of these circumstances, my finding on the first issue is in the negative. 13. 2nd issue: The next question is about damages. On my finding on the first issue, the plaintiff is not entitled to any damages, but the question as to whether there are other circumstances which would disentitle the plaintiff to damages even if it is assumed that the defendant had committed a breach of contract, must now be considered. The Prithvi Insurance Co. made offers to all the agents working for the defendant company, similar agencies in that company. Most of them accepted. But the plaintiff refused the offer. The offer was to pay him commission at the rate of 7 1/2 per cent, on the business secured. The plaintiff's learned advocate states that under the plaintiff's agreement with the defendant company, he was entitled to commission at 10 per cent, on the renewal policies, and he therefore states that he was not offered equally advantageous terms by the Prithvi Insurance Co. But what is urged on behalf of the Prithvi Insurance Company is that it is a more successful company than the defendant company and that there is a possibility of a larger volume of business being secured by an agent of the Prithvi Insurance Company than by an agent of the defendant company. Thus, the plaintiff would not have sustained any detriment whatsoever; on the other hand he would have been benefited had he accepted the agency of the Prithvi Insurance Company. There is certainly a difference in the rate of commission offered to the plaintiff; it was 2 1/2 per cent, lower than the rate of commission that he was entitled to under his contract with the defendant company. But that will be a minor factor. There is substance in the defendant's advocate's contention that the damages to which the plaintiff will be entitled will in any event be nominal. But in view of my finding on the first issue, my finding on the second issue is that the plaintiff is not entitled to any damages. 14. There remains only one other minor point for consideration. The plaintiff has claimed Rs. 1,000 as the amount of commission earned by him before the defendant decided to run its business as a "closed fund". On this point the evidence is that in response to the claim of the plaintiff, the defendant sent a statement showing a lower amount (Rs. 326-10-0). But the plaintiff has not yet scrutinised that statement nor has he replied admitting or denying the correctness of the figure mentioned in Exhibit D. 3. In the circumstances, in the interests of both the parties the point about the actual amount payable to the plaintiff in respect of this item is left open. But the defendant has admitted clearly that the plaintiff is in any event entitled to commission earned by him in respect of business already secured by him and to renewal commission in future in respect of that business. The parties have not yet come to an agreement as to the exact amount that is payable to the plaintiff. That is a matter that parties agree to look into and decide for themselves, and if the plaintiff is entitled to an amount higher than what is conceded by the defendant, it is open to him to claim it. 15. Since the plaintiff has substantially failed in this action the suit is dismissed with costs.

Author: K Raman

S. Ranganatha Iyer vs The Indo Union Assurance Co., Ltd. on 21 March, 1945

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 28647 of 2010(Q) 1. C.SOBANA DAS, ... Petitioner Vs 1. THE PRINCIPAL SECRETARY , ... Respondent 2. THE DIRECTOR OF REVENUE INTELLIGENCE, 3. THE DIRECTOR GENERAL, 4. THE PRINCIPAL SECRETARY TO GOVERNMENT 5. M.KUNJAPPY KURIYIL, For Petitioner :SRI.P.A.SEBASTIAN For Respondent : No Appearance The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :16/09/2010 O R D E R M.SASIDHARAN NAMBIAR,J. --------------------------------------------- W.P.C.NO.28647 OF 2010 --------------------------------------------- Dated 16th September, 2010 JUDGMENT Petition is filed under Article 226 of Constitution of India for a writ of mandamus to direct respondents 1 to 4 to conduct effective investigation in detail by authorising central investigation agencies like CBI, National Investigation Agency, FERRA and Revenue Intelligence regarding the illegal activities of fifth respondent, receipt of foreign fund and its misuse and diversion, illegal occupation of government land and purchase of vast extent of land under the cover of a Trust and his nexus with terrorist and fundamental groups. According to the petitioner he had submitted Exts.P1 to P4 representations/  Wpc 28647/10 2 complaints and no action was taken so far. 2. If no action is taken on Exts.P1 to P4 complaints, remedy of the petitioner is to file a complaint before the concerned Magistrate under Section 156(3) of Code of Criminal Procedure as held by the Apex Court in Sakiri Vasu v. State of U.P (2008 (1) KLT 724). Petitioner is not entitled to directly approach this Court by filing a petition under Article 226 of Constitution of India. Petitioner did not produce any materials in support of the allegations raised in this petition. Petition can only be dismissed. Petitioner at this stage submitted that petition may be dismissed as withdrawn. Petition is dismissed as withdrawn. M.SASIDHARAN NAMBIAR, JUDGE. uj.

C.Sobana Das vs The Principal Secretary on 16 September, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 31405 of 2008(L) 1. XAVIER WILLIUM, VAREKKAT HOUSE ... Petitioner Vs 1. CONVENER, KERALA HEADLOAD WORKERS ... Respondent 2. KERALA HEAD LOAD WORKERS WELFARE BOARD 3. SECRETARY, INTUC AROOR UNIT 4. SECRETARY, CITU AROOR UNIT, 5. SECRETARY, AITUC AROOR UNIT 6. SECRETARY, BMS AROOR UNIT, AROOR PO., For Petitioner :SRI.M.V.PAULOSE For Respondent : No Appearance The Hon'ble MR. Justice V.GIRI Dated :13/11/2008 O R D E R V.GIRI, J ------------------- W.P.(C).31405/2008 -------------------- Dated this the 13th day of November, 2008 JUDGMENT Petitioner is the partner of an establishment which functions in the Industrial Estate at Aroor, Alappuzha. Petitioner's firm handles hundreds of barrels of chemicals every week and the loading and unloading of the consignment is being done by the head load workers registered with respondents 3 to 5. Petitioner's complaint is regarding the excessive charges being collected by the Unions over and above the rates which are approved by the Head load Workers Welfare Fund Board. Reference is made in the writ petition to Ext.P1 list of wages prevailing from 7.11.2006. 2. On instructions, learned Standing Counsel for the Board submits that the rates have been revised with effect from 11.7.2008. Counsel for the petitioner is justified in submitting that the Unions shall not be permitted to collect any rate in excess of what is  W.P.(C).31405/2008 2 permitted by the Board and this would apply both in relation to the rates prescribed under Ext.P1 and the revised rates as such. 3. Accordingly, writ petition is disposed of directing respondents 1 and 2 to see that the rates which are prescribed by the Board, for loading and unloading of materials is strictly enforced and no Union is permitted to collect any charges in excess thereof. I make it clear that the requirement to adhere to the prescribed rates will apply both in cases where Board collects the amount and disburses it to the Unions or in cases where Unions themselves collect the amount from the employers. V.GIRI, Judge mrcs 

Xavier Willium vs Convener on 13 November, 2008

Kerala High Court

Gujarat High Court Case Information System Print SCA/8492/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8492 of 2010 With SPECIAL CIVIL APPLICATION No. 8493 of 2010 ========================================= HARSHADKUMAR CHAMPAKLAL THAKER & 4 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================= Appearance : MR NIKHIL S KARIEL for Petitioner(s) : 1 - 5. GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 3 - 4. MR MK VAKHARIA for Respondent(s) : 5, ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 29/09/2010 ORAL ORDER Leave to amend. Heard learned Advocate Mr.Kerial for the petitioners. Learned Advocate for the petitioners tenders affidavit in rejoinder. A copy of the same is given to learned Advocate Mr.Munshaw, who wants time till Wednesday, i.e. 06.10.2010 to take further instructions in the matter and if required, to take necessary rectificatory measures. S.O. to 06.10.2010. No recovery shall be effected till then. (Ravi R.Tripathi, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

Harshadkumar vs State on 29 September, 2010

Gujarat High Court

JUDGMENT B. R. ARORA, J. : The Revenue, by this application made under s. 27(3) of the WT Act, has prayed that the Tribunal, Jaipur Bench, Jaipur, may be directed to state the case and refer the following question of law for the opinion of the High Court : "Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in remanding the case to the WTO for valuation of property as per, Schedule III of the Act whereas the said Schedule became effective from 1st April, 1989 and the assessment had already been completed much before this date ?" 2. The assessee and Bhanwar Lal Gupta, Vidhyasagar Gupta and Sunder Lal Gupta are the co-owners of the factory called "Jindal General Manufacturing Company" situated at C-92, Wazirpur Industrial Area, Delhi. The assessee filed the return under the WT Act for various years. The WTO accepted the total value of the suit property at Rs. 36,54,000 in each of the years under consideration on the basis of the report of the DVO. Dissatisfied with the order passed by the Assessing Officer, assessing the assessee on a higher value, the assessee preferred an appeal before the CWT(A). The appeal filed by the assessee was decided by the Dy. CWT(A) by a common order and the appeal filed by the assessee was partly allowed. The assessee, aggrieved with the order passed by the Dy. CWT(A), filed an appeal before the Tribunal, Jaipur Bench, Jaipur and the Tribunal, by its order dt. 12th Sept., 1994 allowed the appeal filed by the assessee and remanded the case to the assessing authority to reassess the assessee and determine the value of the property as per the amended rules contained in Schedule III of the Act. The Revenue thereafter moved an application under s. 27(1) of the Act to refer the above question of law for the opinion of the High Court. The Tribunal, by its order dt. 5th July, 1995 dismissed the application under s. 27(1) of the Act filed by the Revenue by a common order and refused to refer the question mentioned in the application because the question of law, which is sought to be referred by the Revenue, already stands decided by the judgment of the Supreme Court and as such no referable question of law arises fit for reference to the High Court. 3. It is contended by the learned counsel for the Revenue that when the assessment had already been completed before 1st April, 1989, the valuation of the property, as per Schedule III of the Act, could not have been made under Schedule III of the Act. The Schedule III of the Act came into force w.e.f. 1st April, 1989 and, therefore, the schedule III can be applied for the valuation purposes only with respect to the proceedings which were pending before the assessing authority on or after 1st April, 1989 and not on the proceedings which have been competed before this date. 4. We have considered the submissions made by the learned counsel for the Revenue. 5. The appeal filed by the assessee was allowed by the Tribunal and the case was remanded to the assessing authority and the assessee was permitted to raise the additional grounds. The Tribunal, while remanding the case, directed the WTO to value the present share of the assessee in the joint familys property as per the amended rules contained in Schedule III of the Act after giving proper opportunity of hearing to them. Schedule III of the Act, which relates to the determination of the value of the property, is a procedural law and applies to the pending proceedings. After the order of remand was passed by the Tribunal, the assessment proceedings are pending before the assessing authority. 6. It may not be out of place to mention here that in the case of the assessee and the other co-owners for the assessment of the earlier years with respect to the same property, the value of the property was assessed at Rs. 16,19,000 or around by the WTO and the CWT(A), exercising the powers under s. 25(2) of the Act, set aside the order of the assessment and remanded the case to the AO to reassess the assessee taking into consideration the report of the DVO. The matter with respect to these assessments is also pending before the AO which has to be decided under the amended law and, therefore, it cannot be said that the assessment proceedings have been completed. After the introduction of Schedule III (Part A) of the Act, the valuation has to be made on the basis of the amended law. 7. After the remand, the matter is pending before the assessing authority for adjudication and the valuation of the property has to be made in accordance with Schedule III of the Act. The amendment with regard to the procedure or of evidence are to be construed as retrospective and applies to all the pending matters on the dates when the amendment was made unless there is a specific indication that such was not the intention of the legislature. The controversy in the present case stands concluded by the judgment of the Supreme Court in CWT vs. Sharvan Kumar Swarup & Sons (1994) 210 ITR 886 (SC). It has been held by the apex Court in this case that "r. 1BB partakes of the character of a rule of evidence. It deems the market value to be the one arrived at on the application of a particular method of valuation which is also one of the recognised and accepted methods. The rule is procedural and not substantive and is applicable to all proceedings pending on 1st April, 1989, when the rule came into force. The procedural law, generally speaking, is applicable to pending cases. No suitor can be said to have a vested right in procedure". 8. Since the controversy stands concluded by the aforesaid judgment of the Supreme Court, no referable question of law arises in the matter and the learned Members of the Tribunal were justified in refusing to state the case and to refer the question for adjudication to this Court. The application under s. 27(3) of the WT Act, therefore, deserves to be dismissed. 9. In the result, we do not find any merit in this application and the same is hereby dismissed.

Author: B R Arora

Commissioner Of Wealth Tax vs Chhagan Lal Gupta. on 16 January, 1996

Rajasthan High Court

Gujarat High Court Case Information System Print CR.A/2309/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2309 of 2009 ================================================= M. H. MILLS & INDUSTRIES LTD - Appellant Versus J.D.TEXTILES & 2 - Opponents ================================================= Appearance : MR BC DAVE for Appellant: None for Opponents : 1 - 2. MS. C.M. SHAH, LD. APP for Opponent: 3, ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 08/03/2010 ORAL ORDER Heard learned advocate for the appellant. Appeal is admitted. R & P be sent back for preparation of paper book. [ S.R. BRAHMBHATT, J ] /vgn     Top

Author: S.R.Brahmbhatt,&Nbsp;

M vs Unknown on 8 March, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2010 CORAM THE HON'BLE MR.JUSTICE R. SUDHAKAR W.P.Nos. 44050,44052 to 44055 of 2006 1 K. BALAIYAH SKILLED MAZDOOR, PANCHAYAT UNION CENTRAL PHARMACY, Petitioner in THANJAVUR. W.P.No.44050/2006 2. P. NAGARAJAN SKILLED MAZDOOR, PANCHAYAT UNION CENTRAL PHARMACY THANAJVUR. Petitioner in W.P.No.44052/2006 3. A. VENKATAHALAM SKILLED MAZDOOR, PANAHCYAT UNION CENTRAL PETITIONER in PHARMACY THANJAVUR. W.P.No.44053/2006 4. S. ANBUMANI SKILLED MAZDOOR, PANAHCYAT UNION CENTRAL PETITIONER in PHARMACY THANJAVUR. W.P.No.44054/2006 5. M. GURUMURTHY SKLLED MAZDOOR, PANCHAYAT UNION CENTRAL PETITIONER in PHARMACY THANJAVUR. W.P.No.44055/2006 Vs 1 THE COMMISSIONER PANCHAYAT UNION, THANAJVUR. RESPONDENT in all Writ petitions. Prayer Original Application Nos.428, 430, 431,432 and 433 of 2000 respectively, were filed before the Tamil Nadu Administrative Tribunal, Madras Bench to issue a direction to the respondent to regularise the services of the petitioner. Since the Tamil Nadu Administrative Tribunal was abolished, the O.A. was re-transferred and numbered as Writ petition. For Petitioner .. Mr.K.Venkataramani Senior Counsel For Respondents .. Mr. C. Kalaiselvan ORDER Original Application Nos.428, 430, 431,432 and 433 of 2000 respectively, were filed before the Tamil Nadu Administrative Tribunal, Madras Bench to issue a direction to the respondent to regularise the services of the petitioner. Since the Tamil Nadu Administrative Tribunal was abolished, the O.A. was re-transferred and numbered as Writ petition. 2. Petitioners were appointed as Skilled Mazdoor in the Panchayat Union Central pharmacy in Thanjavur, under the Control of the Commissioner of Panchayat Union, Thanjavur. Petitioner A.Venkatachalam was appointed on 30.09.1981, S. Anthony was appointed on 16.10.1983, M. Gurumurthy was appointed on 10.04.1984, K. Balaiyah was appointed on 31.10.1989 and P. Nagarajan was appointed on 12.03.1996. It is not in dispute that the Central Pharmacy had incurred loss resulting in closure. It appears notice was issued to all the petitioners stating that their service will be terminated for the above said reason. At that point of time, they filed original application in the year 2000 for regularisation of their service. In view of the termination order, interim order was passed by the Tribunal not to oust petitioners from service. As on today, it is not clear whether the Central Pharmacy had been disbanded or closed. The respondent filed a reply wherein they have stated that the Central Pharmacy is still running. Be that as it may, the controversy in the present cases is as follows:- All the 5 petitioners seek regularisation stating that as on today, they have put in more than 10 years of service. They have made a representation to the District Collector in this regard. The Government, as a model employer, should regularise the service of such employees who have served long years with the respondent. The learned counsel for the petitioners rely upon G.O.Ms.No. 22 dated 28.02.2006 and G.O.Ms.No. 125, Municipal Administration and Water Supply Department dated 27.05.1999 and state that in view of the long period of service rendered by the petitioners, their claim for regularisation should be considered. The relevant portion of the aforesaid G.O. Ms.No.22 reads as follows:- "The Hon'ble Chief Minister had announced during the Tamil Nadu Government officials Union and Government Servants and Teachers Associations General Conference held on 08.02.2006, that the services of employees working in various Government Departments on daily wages, those who have completed more than 10 years of service as on 01.01.2006 will be regularised. 2. Based on the announcement made by the Hon'ble Chief Minister on 08.02.2006, the Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service as on 01.01.2006 be regularised by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post. 3. The Departments of Secretariat may, therefore, be directed to pursue action to regularise the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 01.01.2006 as ordered in para 2 above, in consultation with the respective. Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required, proposal shall be sent to Government. 4. This order issues with the concurrence of Finance Department vide its U.O.No.985/FS/P/2006 Dated 28.02.2006." 3. In terms of the above said G.O direction were issued to all the Government Departments for regularisation of service of daily wagers who have rendered more than 10 years of services. It is not disputed that at the time of initial appointment, the respondent found that the petitioners are qualified for appointment in service. Such being the case, the petitioners are entitled to seek regularisation in terms of G.O.Ms.No. 22 dated 28.02.2008. Further, in terms of G.O.Ms.No. 125 Municipal Administration Water Supply Department dated 27.05.1999, in respect of appointment made after 1.10.96, Government has directed that they should be absorbed into time scale of pay. 4. In the present case, the petitioners were appointed long before in the year 1989, 1991 and 1993. Some of the petitioners are experienced. The respondent has filed a reply stating that the appointment of the petitioners were purely temporary and no rules were framed for regularising their services. 5. This stand of the respondent cannot be countenanced in the light of two G.O. referred to above. More over, the Court had considered the claim of the persons who were employed for a long number of years as casual labourers and have directed to the Government to regularise their service with consequential benefits. One of such judgement relied upon by the petitioner is reported in 2009 2 MLJ 676 (V. Lingam Vs. State of Tamil Nadu, through the Secretary, Education Department, Chennai and others). In the present case petitioners were employed as skilled Mazdoor during the year 1981, 1983, 1984, 1989 and 1996 and that they have put in more than 10 years as on today. It is also not in dispute that they have served in respondents' department satisfactorily as the respondent employed them initially on the ground that they are qualified for the said post. The Government has redressed the grievance of the similarly placed persons by passing several Government Orders from time to time of which two of them have been already referred to above. In such view of the matter, the Director of Commissioner of Panchayat Union, shall consider the case of the petitioners for regularisation and forwarded the same to the competent authority as well as to the Government for appropriate relief. Keeping in view and G.o.Ms.No. 22 dated 28.02.2008, the case of the petitioners will be considered sympathically and also on the merits. 6. The petitioners are entitled to make further representation to the respondent as well as to the Director of Rural Development for redressal of the in grievance. On such representation being made the competent authority shall consider and dispose the same of on merits within a period of 3 months from the date of such representation. 7. Till such time the representation is disposed of, the petitioner's position as Skilled Mazdoor shall not be disturbed. The writ petition is disposed of as above. No cost. sms To THE COMMISSIONER PANCHAYAT UNION, THANAJVUR

K. Balaiyah vs The Commissioner on 8 February, 2010

Madras High Court

JUDGMENT Desai, C.J. 1. This petition raises a question of some importance affecting the construction of S. 33(2) of the Industrial Disputes Act, 1947, to be referred to by us hereinafter as "the Act." The matter has been argued before us by Mr. S. D. Parekh with ability and discernment and he has made a valiant attempt to persuade us to hold that a decision of the Bombay High Court on the identical question should not be regarded by us as binding on this Court and he has taken his stand on the ground that that decision to which we shall presently turn was delivered per incuriam. 2. The facts may be succinctly stated. The petitioners are a limited company which owns a factory at Jamnagar. Respondent 2 was in the employment of the petitioner-company and he was chargesheeted by the company on 14 September, 1959, and a departmental inquiry was held against him. After the inquiry the employer dismissed respondent 2 from employment. At that time conciliation proceedings were pending before respondent 1. An order was passed by the employer discharging the services of respondent 2 and in that order it was mentioned that the amount of one month's salary had been sent by money order to respondent 2, along with certain other amounts due to him in respect of outstanding leave. After the order of dismissal, the petitioner-company made an application to respondent 1 who is the conciliation officer asking for his approval in respect of the order of dismissal. The Conciliation officer passed an order on that application on 27 January, 1960, and by that order he refused to grant approval to the action taken by the petitioner-company and rejected the applications. The ground on which the application asking for approval of the dismissal was rejected was that the application had been made subsequent to the order of dismissal. In that order he has expressly referred to S. 33(2) of the Act. The petitioner-company has challenged the correctness of that order on this petition. 3. It has been argued before us by Mr. Parekh that the conciliation officer has erroneously interpreted the relevant provisions of S. 33 of the Act. In order to appreciate the argument it is necessary to set out here the material and relevant part of S. 33 : "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings :- (1) During the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before a labour Court or tribunal or national tribunal in respect of an industrial dispute, no employer shall - (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceedings is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in according with the standing orders applicable to a workman concerned in such dispute, - (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman; Provided that no such workman shall be discharged or dismissed, unless he had been paid wages for one month and an application has been made by the employer to the authority before which the proceedings is pending for approval of the action taken by the employer. * * * (5) Where an employer makes an application to a conciliation officer, board, labour Court, tribunal or national tribunal under the proviso to Sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit." 4. The brief argument on behalf of the petitioner-company founded on the difference in the language of Sub-secs. (1) and (2) of S. 33, is firstly that whereas Sub-section (1) speaks of express permission which it is said requires to be granted before any order of dismissal or discharge can be made, Sub-section (2) and particularly the proviso to that Sub-section speaks of only an approval to the action taken by the employer. The greatest stress has been laid by Mr. Parekh on the proviso to Sub-section (2). The keystone of the argument is that although the initial part of the proviso may suggest a different meaning, the crucial words of the proviso are "for approval of the action taken by the employer." It is said that the proviso though not very happily worded must be read in a manner which harmonizes Sub-section (2) with Sub-section (1) and if it be so read, greater emphasis should be laid on the words "for approval of the action taken by the employer" rather than the words in the initial part of proviso which state "unless he has been paid wages for one month and an application has been made by the employer to the authority." 5. Mr. Parekh has also relied on Sub-section (5) of S. 33 and learned strongly on the words "under the proviso to Sub-section (2) for approval of the action taken by him." 6. He has also drawn our attention to S. 38 which relates to the rule-making power of the Government. Sub-section (4) of that section is as under : "(4) All rules made under this section shall, as soon as possible, after they are made, be laid before the State Legislature or, where the appropriate Government is the Central Government, before both Houses of Parliament." 7. Rules have been framed both by the Central Government and the Bombay Government under the Act. Rule 60 of the rules framed by the Central Government is as under :- "60. Application under S. 33. - (1) An employer intending to obtain the express permission in writing of the conciliation officer, board, labour Court, tribunal or national tribunal as the case may be, under Sub-section (1) or Sub-section (3) of S. 33 shall present an application in form J in triplicate to such conciliation officer, board, labour Court, tribunal or national tribunal and shall file along with the application as many copies thereof as there are opposite parties. (2) An employer seeking the approval of the conciliation officer, board, labour Court, tribunal or national tribunal as the case may be, of any action taken by him under Clause (a) or (b) of Sub-section (2) of S. 33 shall present an application in form K in triplicate to such conciliation officer, board, labour Court, tribunal or national tribunal and shall file along with the application as many copies thereof as there are opposite parties. (3) Every application under sub-rule (1) or sub-rule (2) shall be verified at the foot by the employer making it or by some other person proved to the satisfaction of the conciliation officer, board, labour Court, tribunal or national tribunal to be acquainted with the facts of the case. (4) The person verifying shall specify by reference to the numbered paragraphs of the application, what he verifies of his own knowledge and what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (5) The verification shall be signed by the person making it and shall state the date on which and the place at which it was verified." 8. The argument here is that this is a statutory rule and must be accorded greater efficacy and importance than any ordinary rule framed by virtue of delegated authority. Particular reliance has been placed on sub-rule (2) which deal expressly with any action taken inter alia by a conciliation officer under Clause (a) or (b) of Sub-section (2) of S. 33. The rule, it is pointed out, speaks of "any action taken by employer" and the arguments is that this clearly envisages the situation that the order of dismissal has already been passed and approval of the conciliation officer is sought in respect of an order of dismissal which had already been made. Reliance has further been placed on the form J and K referred to in sub-rule (1) and sub-rule (2) respectively of rule 60. The material part of form K which relates to rule 60 (2) is as under :- "*The workman ...... discharged/dismissed under Clause (b) of Sub-section (2) of S. 33 has ...... been paid wages for one month. The applicant prays that the conciliation officer ...... may be pleased to approve of the action taken namely, [Here mention the action taken under Clause (a) or (b) of Sub-section (2) of S. 33.]" 9. There can be no doubt that rule 60 and the material part of form K which we have quoted above proceed on an interpretation of S. 33 for which Mr. Parekh contends. 10. The arguments on behalf of the petitioners ran that rules made by the Central Government were laid before both Houses of Parliament and we must attach fullest importance to rule 60 and the language of form K while interpreting S. 33(2). It will be necessary to advert to this argument a little later in our judgment. 11. Were the matter res integra, we should have found some difficulty in negativing the argument canvassed before us by Mr. Parekh. But this question of construction of S. 33(2) must, however, be regarded, so far as this Court is concerned, as concluded by authority. In Premier Automobiles, Ltd. v. Ramachandra, [1960 - I L.L.J. 443] this provision came up for examination before a Division Bench of the Bombay High Court and it was there held that the application for approval to the authority concerned required to be made by the employer under the proviso of S. 33(2) of the Industrial Disputes Act, 1947, must be made by the employer before he passes the order of dismissal or discharge. The view was also expressed that the words "action taken" in the proviso to S. 33(2) of the Act must be construed as "action proposed to be taken." In delivering the judgment of the Courts, Chainani, C.J., examined the scheme of S. 33 and referred to the amendments made in 1956. The learned Chief Justice then referred in the judgment to what was said in the statement of objects and reasons relating to the amendments in S. 33. Mr. Parekh has sought to rely before us on what is said in that statement of objects and reasons set out in the judgment of the learned Chief Justice. With great respect, we on our part do not deem it permissible to us nor do we deem it desirable that we should seek any assistance from that statement of objects and reasons. It is not necessary to examine cases on this aspect of the matter as, in our opinion, it is a well-settled principle of construction favoured by the Courts of this country that in case of any legislation of the nature before us, the Court should not look at the statement of objects and reasons. The learned Chief Justice has pointed out in his judgment that there was considerable force in the arguments advanced on either side regarding the construction of the wording of the proviso and observed that it was possible to take both the views. Ultimately, the Court reached the conclusion that harmony between Sub-section (1) and Sub-section (2) of S. 33 would be brought about by preferring the view which it ultimately took and which we have already mentioned above. This decision of a Division Bench of the Bombay High Court was delivered on 15 October, 1959 and, as held by a Full Bench of this High Court, this Courts, is bound to follow the decision of that High Court unless that decision can be brought into one of the well-recognized exceptions to the rule, that a decision of a Court of co-ordinate jurisdiction should be followed by another Court similarly constituted. 12. One of the exceptions is that a judgment delivered per incuriam is not binding on a Court of co-ordinate jurisdiction, Mr. Parekh has tried his utmost to persuade us to take the view that the decision of the Bombay High Court should be treated by us as per incuriam. It is in this Context that we must revert to S. 38(4) of the Act. The argument here is that the rules framed by the Central Government under S. 38 were placed before both the Houses of Parliament and we must read rule 60 and, if necessary, form K as if they were part of the Act. In support of the present argument, reliance has been placed by counsel on the following passage from Maxwell on Interpretation of statutes, 10th Edn., pp. 50 and 51 :- "Instruments made under an Act which prescribes that they shall be laid before Parliaments for a prescribed number of days, during which period they may be annulled by a resolution of either House, but that if not so annulled they are to be of the same effect as if contained in the Act, and are to be judicially noticed, must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act. If there is a conflict between one of these instruments and a section of the Act, it must be dealt with in the same spirit as a conflict between two sections of the Act would be dealt with. If reconciliation is impossible, the subordinate provision must give away, and probably the instrument would be treated as subordinate to the section." 13. Reliance has also been placed by counsel on the following passage in May's Parliamentary Practice, 16th Edn., pp. 849-850; "Apart from the special opportunities of the affirmative and negative procedures ....... there exists in the House of Lords a general power of challenged delegated legislation by moving for papers (and dividing the Houses upon the motion), or by asking a question. In the House of Commons, a member, if he does not avail himself, of the facilities of 'exempted business' to move a 'prayer' for the annulment of delegated legislation, might move it on another occasion ..... The opportunities of question time are freely used for inquiry as to the purpose, meaning or effect of statutory instrument." 14. Our attention has also been drawn by Mr. Parekh to Art. 105(3) of the Constitution which relates inter alia to powers, privileges and immunities of the Houses of Parliament and lays down that in respect of matters not expressly mentioned in the constitution, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members had committees, at the commencement of the Constitution. Our attention has also been drawn to the rules of Procedure and Conduct of Business in Lok Sabha (5th Edn.). Chapter XXI of the Rules of Procedure relates to subordinate legislation. Rules 234 and 235 are as under : "234. (1) Where a regulation, rule, sub-rule bylaw, etc., framed in pursuance of the Constitution or of the legislative functions delegated by Parliament to a subordinate authority is laid before the House, the period specified in the Constitution or the relevant Act for which it is required to be laid shall be completed before the House is adjourned sine die and later prorogued, unless otherwise provided in the Constitution or the relevant Act. (2) Where the specified period is not so completed, the regulation, rule, Sub-rule, bylaw, etc., shall be re-laid in the succeeding session or sessions until the said period is completed in one session. 235. The Speaker shall, in consultation with the Leader of the House, fix a day or days of part of a day as he may think fit for the consideration and passing of an amendment to such regulation, rule, sub-rule, bye-law, etc., of which notice may be given by a member : Provided that notice of the amendment shall be in such from as the Speaker may consider appropriate and shall comply with these rules." 15. Founded on these rules and the passages quoted above, the argument is that a very material aspect of construction of S. 33(2) was not brought to the notice of the Division Bench which decided the Bombay case and, therefore, we must regard that decision as per incuriam. 16. We are unable to accede to this argument. It is true that the rules relied on by Mr. Parekh and the quotations from May's Parliamentary Practice and Maxwell do lend support to the argument of Mr. Parekh. It is also true that Sub-section (5) of S. 33 goes to advance that argument as furnishing intrinsic evidence which would afford useful assistance in interpreting another provisions of the same section. It is also true that S. 33(2) is not happily worded. Even so, we do not think that these considerations are sufficient to lead us to the conclusion that the Bombay decision must be treated as delivered per incuriam. Our attention has been drawn by Mr. Parekh to a number of decisions which explain the principle underlying this exception to the principle of comity of judgments. It is not necessary to burden this judgment with an examination of all those decisions and we shall be referring to only one or two of them. In Nicholas v. Penny [(1950) 2. K.B. 466], the Court of Appeal had to consider this question. Lord Goddard, C.J., made the following observations at pp. 472-473 : "....... it has been laid down by the Court of Appeal in Young v. Bristol Aeroplane Company. Ltd. [(1944) K.B. 718], which has been followed quite recently in this Court, that where material cases or statutory provisions, which show that a Court has decided a case wrongly, were not brought to its attention the Court is not bound by that decision in a subsequent case." 17. These are instructive observations. Equally instructive are the following observations of Lord Greene in Young v. Bristol Aeroplane Company, Ltd. [(1944) 1 K.B. 718 at 729] : "Where the Court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the Court is satisfied that an earlier decision was given in ignorance to the terms of a statue or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provisions was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this Court might properly consider itself entitled not to follow an earlier decisions of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts." 18. In Bengal Immunity Company, Ltd. v. State of Bihar [A.I.R. 1955 S.C. 661], the learned acting Chief Justice, Mr. S. R. Das (as he then was) made mention of the decision of the Court in England in (1944) 1 K.B. 718, in the context of a decision given per incuriam. 19. Here it seems convenient to allude to the juridical meaning of the expression per incuriam. In its primary sense it means something determined through want of care. The law lexicons point out that the expression connotes an order obviously made thought some mistake or under some mis-apprehension; a decision or a dictum of a judge which clearly is the result of some material oversight. The doctrine of binding precedent of a co-ordinate Court is to absolute in its applicability. It does not require a Court to abdicate wholly its own judgment. It does, however, rest strongly on the principle of comity which requires uniformity of decisions of Courts and certainty about the law. Moreover, the sound principle that confusion and uncertainly should, as far as possible, be avoided also requires that precedents of the nature under consideration should be respected and followed unless there is strong permissible reason for not doing so, for instance, in case of a decision delivered per incuriam. It is not, however, every relevant consideration or aspect or facet of a question or point for determination about which there may have been some mistake or misapprehension or which might have been overlooked by the Court which decided the question or point that can be regarded as adequate ground for treating the decision as per incuriam. 20. To apply these considerations to the present case. We put to ourselves the question whether we would be justified in concluding that any precedent, any binding decision, any material and important provisions of law or any governing principle of law was not brought to the attention of the Division Bench which decided the Bombay case. The answer, in our opinion, must be in the negative. The mere circumstances that an argument founded on S. 38(4) of the Act had not been presented before that Court cannot be sufficient for reaching the conclusion that the decision was given per incuriam and, therefore, need not be followed by a Court otherwise bound to do so. Reference to S. 38(4) and the reasoning underlying the passages from May's Parliamentary Practice and Maxwell as also the two rules in Rules of procedure and conduct of business in Lok Sabha at the highest afford an argument founded on one of the principles of construction. However sound that principle may be; it is in the context of the present case only on aspect of the matter and one step in the ratiocination which would lead the Court to a proper interpretation of S. 33(2). In our judgment that sole consideration should not, in case of the decision of the Bombay High Court in Premier Automobiles v. Ramachandra [1960 - I L.L.J. 433] be so magnified as to invite the impress of one delivered per incuriam. Therefore, whatever view we might have taken of the case before us, were the matter res integra, we are bound to follow that decision. 21. For reasons already discussed, the petition fails and will be dismissed. The rule will be discharged with costs.

Author: Desai

Indian Extractions (Private) ... vs Vyas (A.V.) And Anr. on 29 August, 1960

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9291 of 2011 TARKESHWAR PRASAD Versus THE STATE OF BIHAR & ORS ----------- Saurabh ( Mungeshwar Sahoo, J.) 02. 23.06.2011 Issue notice to the respondent nos.3 to 15 in admission matter. The petitioner shall take steps for notice in admission matter on the said respondent nos.3 to 15 in ordinary process within two weeks. In the meantime, the Execution Case No.13 of 2010 pending in the Court of Execution Munsif, Ara shall remain stayed. Rule returnable within two months.

Tarkeshwar Prasad vs The State Of Bihar & Ors on 23 June, 2011

Patna High Court - Orders

12. The Supreme Court in Tulsidas Kilachand's case (supra) construed adequate consideration as excluding love and affection which may be good consideration but is not adequate consideration. The Bombay High Court in CIT v. Vivian Bose [1979] 118 ITR 989 went over the case law on the point of adequate consideration. 13. We have carefully considered the facts of the cases, submissions of the parties and the case law and we hold that the transfers by the three asses-sees to their relations were not for adequate consideration and, therefore, the provisions of Section 64(1) were rightly applied in their cases. The assessees have not addressed us on the quantum of addition under Section 64. We have, therefore, not gone into it. 14. In the result the orders of lower authorities are confirmed and the appeals are dismissed. ORDER Rajendra, Accountant Member 1. These appeals are disposed of by a consolidated order, as a common point is involved in these appeals regarding applicability of Section 64(1)(iv), (v) and (vi) of the Income-tax Act, 1961 ('the Act') in respect of transfers for inadequate consideration by the appellants (assessees) to their relations covered by the said clauses. 2. The assessees are close relatives. They were promoters of Electra India (P.) Ltd. and Electra (Jaipur) (P.) Ltd. All the three assessees hold shares in these private limited companies which they have transferred at face value to their relations specified in the aforesaid clauses of Section 64(1). The question is whether the transfer of shares at face value is for adequate consideration because the aforesaid clauses of Section 64(1) would apply only if it is held that the transfers were otherwise than for adequate consideration. In the case of Mohit Kumar Jain, who had transferred shares to his sons in Electra India (P.) Ltd. at face value, the ITO noted that the assessee himself in the wealth-tax return on valuation dates on 31-3-1975 and 31-3-1976 had shown the value of shares in Electra India (P.) Ltd., at Rs. 204 and Rs 341 per share, respectively, and that the higher market value as compared to face value was supported by the fact that there had been issue of bonus shares by the said company on 11-11-1976 and 10-11-1978. He, accordingly, held that the transfer by the assessee to his minor sons on 26-3-1975 and 8-5-1975 was not for adequate consideration. He, accordingly, added Rs. 2,040 as dividend income of the assessee (out of dividend income of Rs. 4,000 declared on the transferred shares in the assessment year 1980-81). 3. In the case of Ajay Kumar Jain where the transfer of shares in Electra (Jaipur) (P.) Ltd. were to the assessee's wife Anjula Jain on 7-11-1975 and to minor sons Anuj Jain on 29-3-1980, the ITO noted that the assessee in the wealth-tax return for valuation date of 31-3-1975 had declared the value of shares in the said company at the rate of Rs. 155 per share (the ITO has not mentioned the value declared by the assessee in the wealth-tax returns for the assessment years 1979-80 and 1980-81 which would be relevent in the case of the transfer of shares to the minor son). The ITO, accordingly, treated Rs. 757 as dividend attributable to inadequate consideration (out of Rs. 2,000 being dividend declared in respect of the transferred shares in the assessment year 1980-81). 4. In the case of Ami Chand Jain where the transfer was of 300 shares of Electra (Jaipur) (P.) Ltd. to the assessee's son's wife on 23-6-1976, the ITO noted that the asse ssee on valuation date of 31-12-1975 had shown the market value of shares at Rs. 155 per share. He, accordingly, treated Rs. 1,705 and Rs. 1,136 as dividend attributable to inadequate consideration (out of dividend of Rs. 3,000 each declared on the transferred shares for the assessment years 1979-80 and 1980-81). 5. The AAC in identical orders upheld the orders of the ITO in the cases of the three assessees. 6. At the hearing before us the learned Counsel for the assessees urged that as the purchases by the three assessees of shares in the aforesaid two companies were at face value, the transfers by them to their specified relations at face value was not for inadequate consideration. We are unable to accept this contention. The cost of acquisition by the assessees has no relevance for considering the question whether the transfers were for adequate consideration. If the transfers are not for adequate consideration, which has to be judged from the angle of market value on the date of transfer, then the provisions of Section 64(1) would apply. We have already pointed out above that the three assessees in their wealth-tax returns had themselves declared the market value of shares at figures much higher than the face value of the shares. The learned Counsel has filed before us charts showing break up value of the shares in the two companies on different valuation dates. These charts show that the market value of the shares declared by the assessees were based on the break up value of the shares. It is, thus, clear that the transfer of shares on their face value by the three assessees to their specified relations were otherwise than for adequate consideration. It has been held that the transfer should be for adequate consideration, i.e., consideration equal or nearly equal to the value of the assets transferred in order that Section 64 may not apply--Tulsidas Kilachand v. CIT [1961] 42 ITR 1 (SC) (see Kanga and Palkhivala's Law and Practice of Income-tax, Volume 1, 7th edition, page 604). 7. The learned Counsel for the assessees relied on CGT v. Cawasji Jehangir Co. (P.) Ltd. [1977] 106 ITR 390, 398 (Bom.) where it was observed that in order that the Court may hold that a particular transfer is not for adequate consideration, the difference between the true value of the property transferred, and the consideration that passed for the same, must be appreciable. The Court further observed that adequate consideration cannot be construed with precision. We have already noted above that there was appreciable difference between the market value of the shares transferred by the three assessees and the consideration received, namely, the face value of the shares. 8. The learned Counsel for the assessee next relied on CWT v. Bejoy Kumar Karnani [1979] 117 ITR 543 (Cal.). In that case the Court was dealing with the valuation of shares of an investment company and observed that the value of unquoted shares should be determined on the basis of the average earning capacity of the company. This case is clearly distinguishable as we are not dealing with the shares in an investment company. Even otherwise we notice that Electra India (P.) Ltd. declared dividends ranging from 10 per cent to 15 per cent in the years under consideration and the asset backing of the said company showed that the market value of the shares was much more than their face value of Rs. 100 each. 9. The assessee next relied on CGT v. In do Traders & Agencies (Madras) (P.) Ltd. [1981] 131 ITR 313, 321 (Mad.). In that case the Court observed that unless the price was such as to shock the conscience of the Court, it would not be possible to hold that the transaction is otherwise than for adequate consideration. We have already noted above that there was appreciable difference between the market price of the transferred shares and the face value of the shares. The market price of the shares was around twice the face value of the shares on the date of transfer and, therefore, there was an appreciable difference between the consideration for the transfer and the market price of the transferred shares. 10. The assessee next relied on CIT v. K.K. Birla [1982] 137 ITR 126 (Cal.). In that case assessee's transfer of shares to his wife at price of Rs. 4.22 per share as against the purchase price paid by the assessee of Rs. 4.12 per share was held to be for adequate consideration. In that case, the Tribunal had found that the said company had not declared any dividends and, therefore, the fair market price of the shares had to be determined on the basis of break up value of the shares on the date of transfer (which has been done in the cases in appeal before us). The Tribunal had further found that there were serious restrictions on the transfer of impugned shares in the private limited company as the shares could be transferred only to the specified relations of the members of the company as indicated on page 131 of K.K. Birla's case (supra). In view of those special circumstances, the High Court held that the transfer was for adequate consideration. However, the facts in the cases before us are clearly distinguishable because in the two companies under consideration, there are no similar restrictions on the transfers. Restrictions imposed by Clause 23 of the articles of association of Electra (Jaipur) (P.) Ltd. and Clause 39 of Electra India (P.) Ltd. are normal clauses which appear even in the articles of public limited companies which is to the effect that the directors can decline to register transfer of shares in their discretion. 11. We have already noticed above that the Calcutta High Court in K.K. Birla's case (supra) approved the Tribunal's determination of fair market value of the shares on the basis of break up value of the shares. This is exactly what has been done in the cases before us.

Mohit Kumar Jain vs Income-Tax Officer on 16 July, 1983

Income Tax Appellate Tribunal - Delhi

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20727 of 2010 ASIF HUSSAIN & ORS Versus THE MAGADH UNIVERSITY & ORS ----------- Arvind/ ( J. N. Singh, J.) 2 22.12.2010 As per the case of the petitioners they have appeared in the 4 papers of 2nd year again, but the result of the same has not been published because of which they are not being allowed to fill up the form and deposit fee for appearing in the 3rd year examination. Since the petitioners are being debarred from filling up the form only on account of non-publication of result by the University they are allowed to fill up the form and deposit the fee for 3rd year examination on provisional basis subject to result of this case. Learned counsel for the University prays for four weeks time to file counter affidavit in the case. Put up after four weeks.

Asif Hussain &Amp; Ors vs The Magadh University &Amp; Ors on 22 December, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1066 of 2009() 1. THE NATIONAL INSUANCE CO.LTD., ... Petitioner Vs 1. JIJO PAUL,S/O.PYELI,PERAPARAMBIL HOUSE, ... Respondent 2. SHIJI JOSEPH,THANNICKAL HOUSE, 3. SIBI,S/O.JOSE,VENGACHUVATTIL HOUSE, For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA) For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :15/06/2009 O R D E R V. RAMKUMAR , J. ========================== M.A.C.A. No. 1066 of 2009 ========================== Dated this the 15th day of June, 2009. JUDGMENT In this appeal at the instance of the insurer in respect of a motorcycle, the appellant challenges the award dated 14.01.2009 in O.P. (M.V.) No. 1073 of 2005 on the file of the M.A.C.T., Thodupuzha. The claimant was a pillion rider on the motorcycle. Ext.B1 is the insurance policy which was a comprehensive package policy. The Tribunal awarded a sum of Rs.41,200/- for the injuries sustained by the claimant. His injuries consisted of:- He was in the hospital for 9 days. Having regard to the injuries sustained, the duration of treatment and the treatment expenses etc., the award passed by the Tribunal cannot be said to be excessive. 2. The appellant would contend that reliance placed by the Tribunal on endorsement No.22 in Ext.B1 policy does not cover a  M.A.C.A. No. 1066/2009 : 2 : claimant like a pillion rider. Of course, advertence to endorsement No. 22 in the policy was not justified. But taking the policy as a whole, it is a comprehensive policy which was sufficient to cover the pillion rider. Hence, for different reasons the conclusion reached by the Tribunal directing the appellant to indemnify the insured is hereby endorsed. No other question arises for consideration in this appeal. This appeal is accordingly dismissed in limine. Dated this the 15th day of June, 2009. V. RAMKUMAR, JUDGE. rv  M.A.C.A. No. 1066/2009 : 3 :

The National Insuance Co.Ltd vs Jijo Paul on 15 June, 2009

Kerala High Court

JUDGMENT S.S. Kang, Vice President 1. The appellant filed this appeal against the order-in-appeal passed by the Commissioner(Appeals). The appellants are engaged in the manufacture of Polyester Yarn, Polyester Blended Yarn. Modvat scheme made applicable in respect of the goods manufactured by the appellant w.e.f. 1.3.94. The appellant filed the necessary declaration under Rule 57G of Central Excise Rules for claiming duty credit on inputs on 4.3.94. The revenue denied the credit in respect of the inputs which were received from 1.3.94 to 3.3.94 on the ground that the credit was availed without filing any declaration. Another credit was also denied under Rule 57H of Central Excise Rules on the ground that the credit is available in respect of the inputs which were in stock and which contained in the final product as the amount in dispute is in respect of inputs contained in the process loss, therefore, the benefit has been denied. 2. The contention of the appellant is that they had filed necessary declaration for availing the benefit of credit on 4.3.94. The contention is that now Rule 57G has been amended by Notification No. 7/99-CE dt.9.2.99 to the effect that credit shall not be denied on the ground that the declaration does not contain all the details required or the manufacturer fails to comply with any other requirement under Sub-rule-I and this issue has came before the Larger Bench of the Tribunal in the case of Kamakhya Steels(P) Ltd. v. CCE, Meerut where the issue before the Larger Bench was that assessee can avail credit without filing any declaration. Larger Bench of the Tribunal after taking into consideration the amendment in Rule 57G and the Board's circular remanded the matter to the adjudicating authority to examine the admissibility of credit under the amended provision of law. The appellant also relied upon the decision of the Tribunal in the case of J.B.M. Tools Ltd. v. CCE . The Tribunal after considering the Larger Bench of the Tribunal in the case of Kamakhya Steels(P)Ltd. held that where no declaration was filed the second clause of the amended notification will apply and allowed the benefit of credit where no declaration was filed in respect of the credit denied under Rule 57G. The contention of the appellant is that Rule 57H provides that during the transactional period, the manufacturer can avail credit in respect of such inputs which are lying in stock or such inputs which are used in the manufacture of final product. The contention is that as the inputs are used in the manufacture of final product, therefore, the credit cannot be denied on the ground that quantity of some inputs does not contain in the final product and credit is not available in respect of the inputs which were under the process loss. 3. The contention of the revenue is that as declaration was filed under Rule 57G on 4.3.94, therefore, prior to this declaration, no credit is available to the appellant. In respect of the claim of the appellant under Rule 57H, the contention is that the credit in respect of inputs which are actually used in the manufacture of finished goods is the quantum of inputs lost in process as calculated by the appellant is without any basis. 4. In this case the credit was disallowed on the ground that no declaration was filed under Rule 57G of Central Excise Rules. The Larger Bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. after taking into consideration the amendment made under Rule 57G and Board's circular remanded the matter to the adjudicating authority to decide the issue of admissibility of credit afresh. In view of the above decision of the Tribunal, the issue in respect of denial of credit on the ground that no declaration was filed is remanded to the adjudicating authority to reconsider the view of amendment made in Rule 57G. The adjudicating authority will decide after affording an opportunity of hearing to the appellant. 5. In respect of denial of credit under Rule 57H, the credit was disallowed in respect of the inputs lost during the manufacture of finished product is not available to the appellant. The reading of the provisions of Rule 57H makes it clear that manufacturer can take credit on such inputs which are lying in stock and on such inputs which are used in the manufacture of final product and which are cleared from the factory on or after 1.3.94. Therefore, I find merit in the contention of the appellant, credit cannot be denied on the ground that inputs are gone in invisible loss during the manufacture of final product. The impugned order in this regard is set aside and appeal is allowed in respect of denial of credit in Rule 57H. The appeal is disposed of as indicated above. The appellants are entitled for consequential relief, if any, in (sic) with law. Order dictated in the open Court.

Hind Spinners vs C.C.E. on 23 June, 2006

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.984 of 2010 KARIMAN YADAV Versus STATE OF BIHAR ----------- Jay/ (C.M. Prasad, J.) 03. 12.07.2010 On repeated calls, none appears on behalf of petitioner to argue the bail petition. Accordingly, it is dismissed for non- prosecution.

Kariman Yadav vs State Of Bihar on 12 July, 2010

Patna High Court - Orders

ORDER A.D. Mane, J. 1. This appeal is directed on behalf of the original accused Nos. 1 and 3, the son and father respectively, against their conviction and sentence passed on 6-12-1993 by the learned 2nd Addl. Sessions Judge, Beed in Sessions Case No. 75/1988. The appellant No. 1 is the original accused No. 1; whereas the appellant No. 2 is the original accused No. 3. Original accused No. 2 Maruti is the second son of original accused No. 3; whereas the original accused No. 4 is the wife of original accused No. 3. They were all tried on account of death of wife, namely, Usha of original accused No. 1 in suspicious circumstances. 2. In this judgment, we may refer the original accused Nos. 1 and 3 as appellant Nos. 1 and 2 respectively. The appellant No. 1 married Usha on 12-6-1987. She lived with him in his village Pimparnai till 25-10-1987, except on some occasions when she had been to her parents' place on account of festivals. On 25-10-1987 she was found dead and information about her death was conveyed to her parents immediately. Within couple of hours after seeing the dead body of Usha, her father P.W. 7, Dattatraya lodged his cornplaint-cum-F.I.R. at Exh. 24 with Neknoor Police Station and a crime being Cr. No. 105/87 came to be registered under sections 302, 498-A read with section 34 of the Indian Penal Code, against the original accused Nos. 1 to 4. 3. In the F.l.R. (Exh. 24,), P.W. 7 Dattatraya, made a mention that at the time of marriage of Usha with the appellant No. 1, he agreed to pay Rs. 4,000/- as a dowry and he paid Rs. 3,000/- at the time of marriage and it was promised to pay the balance amount after the marriage. After the marriage, Usha used to come to his parents' place and she used to tell to pay Rs. 1,000/- towards the balance dowry amount, to the father-in-law of Usha. She told further that she was subjected to ill-treatment as the balance amount of Rs. 1,000/- was not paid. It was also mentioned in the F.l.R. that on seeing the dead body of Usha on 25-10-1987 at about 8.30 a.m. he had noticed that his daughter's face was found blackish, her lips reddish black, and he suspected mark of assault on her. Moreover, he also noticed that the mouth and tongue of Usha was crushed, beneath the teeth. On that basis, he alleged that his daughter Usha was beaten on account of her failure to bring the balance amount of dowry and, as such, either she was killed by poisoning or she was murdered by the accused persons. 4. P.S.I. Ramrao (P.W. 13) attached to Neknoor Police Station conducted the investigation on receiving the F.l.R. at about 12.30 noon from P.W. 7 Dattatraya. In course of his investigation, he recorded the statements of six witnesses who happened to be the neighbours of the appellants and also give witnesses. He also conducted the Inquest Report (Exh. 13). There is post-mortem report (Exh. 21). P.W. 6 Dr. Radhkrishna who conducted autopsy on the dead body on 25-10-1987 between 10.30 and 11.30 a.m. could not ascertain the cause of death. He, therefore, reserved his opinion till the CA report. On receipt of CA report, he gave his opinion vide his letter addressed to the P.S.I, on 19-11-1987 (Exh. 20) mentioning that, the cause of death is "shock causing sudden ref.ex cardiac arrest due to vaso-vagat inhibition due to smothering". The C.A. report (Exh. 22) disclosed no recognisable poison in viscera. 5. The charge was framed against the appellants and others, punishable under section 302 read with section 34 I.P.C. as well as 498-A read with section 34 I.P.C. However, an additional charge was framed as per Exh. 69 on 14-10-1993, under section 304-B read with section 34 I.P.C. To the charge that was framed, the accused denied the same and pleaded not guilty under section 313 of the Criminal Procedure Code. The appellants specifically denied having committed any of the offences alleged. Not only that but they had denied the circumstances which appeared adverse to them in the evidence of prosecution witnesses. 6. The learned trial Judge, however, convicted the appellant No. 1 under section 302 I.P.C. simplicitor and sentenced him to suffer life imprisonment. The learned Judge further convicted the appellant Nos. 1 and 3 under section 304-B read with section 34 I.P.C. and each of them was sentenced to suffer Rl for seven years. Not only that, but the appellants were also convicted under section 498-A read with section 34. However, no separate sentence was imposed on them. 7. In this appeal, Shri S.N. Loya, the learned Counsel appearing for the appellants seriously questions the propriety, legality and correctness of the order of conviction of the appellants either under section 302 or under section 304-B as well as section 498-A I.P.C. The learned Counsel urged that the learned trial Judge committed grave and serious error in placing reliance on the police statements of the six witnesses and treating the same as substantive evidence in convicting the appellant No. 1 under section 302 I.P.C. The learned Judge of the trial Court has also misread the evidence of the prosecution for the purpose of conviction under section 304-B I.P.C. when the evidence on record regarding the alleged story of demand of balance amount of Rs. 1,000/- as dowry amount, suffers from lack of reliability, apart from the same being invention and after-thought story. 8. The learned Counsel further submits that the evidence of the interested witnesses on the point of settlement of marriage and the balance amount of Rs. 1,000/ - to be paid towards dowry amount, was absolutely unreliable. The learned trial Judge, however, totally failed to appreciate the evidence of the witnesses before reaching to the conclusion that the prosecution was able to prove that it was a dowry death. In the absence of any evidence to prove that there was a dowry death, the conviction under section 304-I.P.C. was illegal. It is also submitted that when the prosecution failed miserably to prove the dowry death, the evidence which is inseparable in regard to the ill-treatment as alleged, ought not to have been believed. Therefore, the conviction even under section 498-A I.P.C. was also unsustainable in law. It is, therefore, submitted that conviction of the appellants is bad in law and the appellants are entitled to clear acquittal. 9. On the other hand, Mr. A.B. Gaikwad, the learned A.P.P. supported the findings recorded by the learned trial Judge, more particularly, on the point of conviction of the appellants under sections 304-B and 498-A read with section 34-I.P.C. Mr. Gaikwad, the learned A.P.P. in course of his arguments did not think it proper to press for the conviction under section 302 I.P.C. as against the appellant No. 1 as the same is not supported by any legal evidence. Mr. Gaikwad, however, made a great deal of emphasis on the evidence of other set of witnesses who spoke about the demand of balance amount of Rs. 1,000/- as dowry amount as also the ill-treatment meted out to deceased-Usha as appearing in their evidence to support his contention that the conviction under section 304-B cannot be said to be illegal. It is urged that once the demand for Rs. 1,000/- as dowry amount is proved and evidence regarding ill-treatment as disclosed by the deceased Usha herself to her father or relatives is acceptable, the death was a dowry death and, therefore, presumption under section 113-B of the Evidence Act could be raised. Once the presumption is raised, the burden shifts on the defence and in absence of any sound explanation offered by the appellants as to the cause of death of deceased Usha, the conviction as recorded, does not require any interference in appeal. 10. Keeping in view the submissions advanced on behalf of the appellants as well as on behalf of the respondent-State, we think that we have to inquire into the following points :--- (i) Whether the conviction of the appellant No. 1 under section 302 I.P.C. is proper in law ? (ii) Whether the conviction of the appellant Nos. 1 and 2 under section 304-B or 498-A read with section 34 is also proper in law ? 11. We may mention that the learned A.P.P. was quite justified in conceding the position that prosecution has miserably failed to bring home the guilt to the appellant No. 1 under section 302 I.P.C. The prosecution has examined the neighbours of the appellants, viz., P.W. 1 Laxmibai; P.W. 2 Vijaya; P.W. 3 Housabai; P.W. 4 Laxman; P.W. 5 Jyotirarn. These witnesses are, no doubt, residing in the neighbourhood of the house of the appellants in the said village. The appellants normally reside in the house situated in the field which is half a furlong away from the village. The house in the village is, however, used for storage of corns and some one is allowed to sleep to guard the corn in that house. 12. The prosecution examined these five witnesses to prove two circumstances. The first circumstance is that the appellant No. 1 and deceased used to come in the house in village for sleeping. The second circumstances is that the appellant and deceased -Usha had, in fact, came on the fateful night to sleep in that house. All these five witnesses, however, turned hostile and they were cross-examined by the prosecution. 13. On going through the entire prosecution evidence, we may mention that there is absolutely no direct or circumstantial evidence to render corroboration by independent source to the hostile witnesses's evidence. While it is true that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone, it is equally well settled that when once a prosecution witness is declared hostile, the prosecution clearly exhibits its intention not to rely on the evidence of such witness. Such a witness requires to be corroborated from some independent source to make that part of the statement, which the prosecution wants to believe to be believable. In other words, the evidence of a hostile witness may not be rejected outright, but the Court has at least to be aware that prima facie if a witness is found to have made different statements at different stages, he must be one having no regard for truth. Thus, the rule of prudence requires that if a hostile witness is thoroughly discredited witness, whole of his testimony should be rejected. Evidence of hostile witness cannot be relied upon. Therefore, the previous version as brought on record during the course of cross-examination by the prosecution of the witnesses cannot be used as a substantive evidence in order to hold that the prosecution proved the charge for an offence punishable under section 302 I.P.C. The learned trial Judge, however, to our surprise, read the portion of evidence as appearing in their cross-examination when witnesses were confronted with their previous statement before the police as the substantial evidence to hold that the prosecution has proved the offence under section 302 I.P.C. as against the appellant No. 1. For instance in para No. 15 of the judgment, after quoting the portion A,B,C in previous statement before the police as brought out in cross-examination of the witnesses, the learned trial Judge states as follows :--- "Though the witnesses are declared hostile the fact remains that P.W. 2 to 5 have stated before police during their statements recorded under section 161 of Cr.P.C. that the accused No. 1 Rambhau and the deceased came to sleep in their house situated in the village at about 8.00 p.m. with a Ghongdi and Chadar and they slept in the said night in the room. Hence there is sufficient evidence to show that accused No. 1 and deceased were sleeping in the said room during the said tragic night and the deceased was found dead early in the morning by him and the villagers gathered." The finding recorded by the learned trial Judge as stated above, is wholly illegal. It may be stated that the learned trial Judge having accepted the evidence of hostile witnesses in the above fashion, further, said that, "the accused No. 1 did not tell how the deceased died". This conduct of the accused is also taken into consideration. Therefore, coupled with the medical evidence which we may refer to later on, the finding recorded by the learned trial Judge is that the appellants committed the offence punishable under section 302 I.P.C. 14. The approach of the learned trial Judge is totally erroneous in appreciating the evidence which requires to be admissible or inadmissible in nature. As we have observed that there is no independent source to render any assurance through the evidence of hostile witnesses from the point of view of rendering any support to what they have stated before the police. Once their evidence is to be excluded from consideration, we find no iota of evidence on record to prove the complicity of the appellant No. 1 for commission of offence punishable under section 302 I.P.C. We, therefore hold that the conviction of the appellant No. 1 under section 302 I.P.C. was illegal and the appellant No. 1 is entitled to be acquitted under section 302 I.P.C. 15. That takes us to consider whether the conviction of the appellant under section 304-B and 498-A read with section 34 I.P.C. is proper in law. In support of the prosecution version, the prosecution relied on evidence of six witnesses including P.W. 7 Dattatraya, who is author of F.I.R. We may mention, at the outset, that in F.I.R. (Exh. 13) the material facts alleged are twofold. Firstly, that when the marriage was settled it was agreed that Dattatraya would pay Rs. 4,000/- as dowry amount to appellant No. 1 or his father, appellant No. 2. Out of Rs. 4,000/- Dattatraya paid Rs. 3,000/- on the day of the marriage itself, whereas agreed to pay the balance amount of Rs. 1,000/ - later on. The second statement of act alleged in the F.I.R. is that on the last visit of deceased Usha, she stated to P.W. 7 Dattatraya to pay Rs. 1,000 to her father-in-law as he always demands it and she was being subjected to ill-treatment for that. The question arises whether the evidence adduced at the trial is consistent or inconsistent with this statement of facts as alleged in the F.I.R. and that too which facts are within the personal knowledge of the person who is the author of the F.I.R. This is so because a great deal of criticism is levelled against the evidence of witnesses that they are interested witnesses, their evidence is parrot-like story and it is afterthought story. It is, therefore, necessary to appreciate the evidence of these witnesses with due care and caution. 15-A. We, therefore, turn to evidence of P.W. 7 Dattatraya Ghodke. He stated that the marriage was settled in the presence of P.W. 8 Babasaheb; P.W. 10 Pandurang and others. It was settled that he would pay Rs. 4,000 to the appellant No. 1 and to perform the marriage. Rs. 3,000/- were paid to the appellant No. 2, two days prior to the marriage and he promised to pay Rs. 1,000 at the time of Diwali festival towards dowry. He further stated that after marriage, his daughter Usha came to his house and stayed for about 10/12 days. During her stay, she told him that the accused were demanding Rs. 1,000/- which was to be paid to them out of dowry amount and on that account they used to ill-treat and beat her. He further stated that besides ill-treatment in respect of dowry, she told him that the accused were ill-treating her on the ground that she does not know anything about the cooking etc. She further told that her mother-in-law used to say that she does not know how to cook. 16. This witness P.W. 7 was confronted with the statement in F.I.R. (Exh. 13). Several contradictions were proved and brought on record in course of his cross-examination. Firstly, that he never stated in his F.I.R. that three other accused, namely appellant No. 1, acquitted accused Nos. 2 and 4 were asking Usha to give Rs. 1,000/-, Secondly, that they used to ill-treat her on that count. It may be appropriate to mention here that in his cross-examination, he tried to tell that P.W. 10 Pandurang had told him twice, thrice that appellant No. 2 was pressing hard to pay Rs. 1,000 towards balance amount of dowry. But significantly, he was also contradicted with this version. He stated that he had thrice visited the matrimonial house of Usha, but none of the accused asked about the so called dowry amount of Rs. 1,000/- nor he has enquired about the alleged ill-treatment to deceased Usha in the house of the accused. This kind of conduct of the witness is eloquent and inconsistent with his version about demand of balance amount of dowry by any of the accused. It is, therefore, clear that P.W. 7 Dattatraya has not only improved upon his initial version at the trial but has introduced an altogether different story regarding the demand of Rs. 1,000/- and ill-treatment. 17. In order to appreciate the evidence of P.W. 7 Dattatraya, it is pertinent to read the evidence of other witnesses on the same statement of facts to see how each of them failed in their evidence to lend assurance to their version. It may be stated that the evidence of other four witnesses instead of rendering any corroboration destroys the very fabric of the prosecution's initial version. 18. P.W. 8 Babasaheb Ghodke, no doubt, corroborates that the marriage was settled and P.W. 7 Dattatraya agreed to pay Rs. 4,000 as dowry. He paid Rs. 3,000 in cash to the accused. Significantly, though he is one of the witnesses to the marriage settlement, he does not corroborate the testimony of P.W. 7 Dattatraya that he had agreed to pay Rs. 1,000 later on as the balance amount of dowry. Further, in his version in-chief he comes out with the case that deceased- Usha had disclosed him that the accused were demanding Rs. 1,000/- and ill-treating her. Not only that but deceased Usha told him that if Rs. 1,000/- were not paid to her father-in-law, he would kill her. In course of his cross-examination, he does not tell why he could not tell these things either to P.W. 7 Dattatraya or his wife nor could he explain why he did not tell about what he heard from deceased-Usha to her parents. It appears from his version that he has informed the same for the first time to P.W. 7 Dattatraya only, when he was going to Police Station for lodging the complaint on seeing the dead body of Usha. 19. P.W. 8 was with P.W. 7 Dattatraya in Police Station for about 2/3 hours before the statement of Dattatraya came to be recorded, by the police in the Police Station. Even assuming for the sake of argument that this witness has disclosed to P.W. 7 Dattatraya what he has heard from deceased Usha while they were going to Police Station on that day, we fail to understand why Dattatraya himself has not narrated what deceased Usha had already told to him when she last resided with him before her death. Neither P.W. 7 Dattatraya nor P.W. 8 Babasaheb corroborated what Usha said during her lifetime. It was highly improbable that had it been the case what P.W. 7 Dattatraya was told by Usha about the demand of Rs. 1,000 by appellant No. 2 and ill-treatment meted out to her earlier on account of non-payment of Rs. 1,000/- he would remain silent before he could lodge his F.I.R. and add something at the trial. P.W. 7 Dattatraya would have been the last person not to disclose to P.W. 8 what he had heard from Usha earlier before her death on the day when he saw the dead body of Usha. Therefore, non-disclosure of any demand of Rs. 1,000 from any of the accused or ill-treatment meted out to Usha at the hands of the accused, makes it difficult to believe the version of P.W. 7 as well as P.W. 8. 20. We, therefore, do not agree with the statement of P.W. 8 that he could disclose what Usha disclosed to Dattatraya only when he was going to Police Station. This version also appears to be highly improbable. Had it been the fact that this witness knew how Usha was treated in the house of accused previously, in that case, even he would have been the first person to make known this fact to P.W. 7 Daltatraya or his wife. But the silence on his part makes it difficult to believe that part of his version. 21. In this context, we may mention that in his cross-examination he stated that he told Dattatraya about the ill-treatment meted out to Usha at the hands of the accused, 8/15 days prior to the death of Usha when Usha was living at accused's place. Significantly, Dattatraya does not corroborate this statement in his evidence. Nevertheless it becomes difficult to find support to his omnibus statement that deceased Usha herself disclosed either demand of Rs. 1,000/- or ill-treatment from the accused to her as asserted by him in his exarnination-in-chief. 22. That takes us to P.W. 9, Vasudeo. He is one of the persons present at the time of settlement of marriage. His version is identical to say that marriage was settled and, Rs. 4,000/- were to be paid in lieu of dowry to the accused Rambhau. Out of that Rs. 3,000/- were paid at the time of marriage whereas the remaining amount of Rs. 1,000/ - was agreed to be paid after some days. He stated that after the marriage Usha had come to her parents' place. His version is that whenever Usha used to meet him, she used to tell that the accused were ill-treating her on account of Rs. 1,000/- of dowry amount. He further stated that he came to know about the said ill-treatment one month prior to Diwali and at that time Usha was residing at Safepur. Safepur is the place where Usha's parents reside. Next his version is that Dattatraya came to him after 8/ 10 days when Usha informed him about the ill-treatment and demand of Rs. 1,000/ - for payment to accused. On enquiry with Dattatraya as to for what purpose he required Rs. 1,000/-, at that time, Datiatraya told his that Usha complained ill-treatment at the hands of accused on account of Rs. 1,000/-. He did not give the money as he had no money at that time. 23. Now, if regard be had to the testimony as appearing in his cross-examination, it can straightaway be said that his version is as disclosed above, suffers from serious contradictions. The fact of stay of 15 days of Usha in parents' house is also contradictory. Not only that but the fact of his disclosure to P.W. 7 Dattatraya as to what he heard from Usha is also contradictory. Significantly, he clearly mentioned in his statement in cross that Usha never complained him about the ill-treatment at the hands of the accused persons on account of Rs. 1,000/-. She even did not tell that the accused used to ill-treat and beat her. Admittedly, he has stated that his house is near to the house of P.W. 7 Dattatraya. Therefore, if really Usha disclosed either about some ill-treatment in the house of her husband or demand of Rs. 1,000/- as a balance amount of dowry as the reason for ill-treatment, we fail to understand why this witness remained silenl throughout. Significantly, P.W. 7 Dattatraya also does not in any way corroborate the testimony of this witness having told him that he required Rs. 1,000/ - because there was a demand for balance amount of Rs. 1,000/- from any of the accused. The evidence of this witness is nothing but self-condemnation. 24. P.W. 10 Pandurang, also hails from the village of P.W. 7 Daltatraya; he is distantly related to the accused. He was also one of the person present at the time of settlement of marriage of accused/appellant No. 1 with deceased-Usha. He, no doubt, corroborates P.W. 7 Dattatraya that at the time of settlement of marriage it was agreed that the accused would be paid Rs. 4,000 as dowry. Rs. 3,000/- to be paid at the time of marriage, whereas remaining amount of Rs. 1,000/- to be paid after the marriage. He stated that after marriage, Usha used to come to her parents' house. After 2/4 months of the marriage, P.W. 2 Kashinath reminded him about payment of Rs. 1,000/-. It is his version that accordingly he told P.W. 7 Dattatraya to pay Rs. 1,000/ - to the appellant No. 2 prior to Diwali. Next his version is that seven days before the incident, the appellant No. 2 also met him in the Bazar at Neknoor and appellant No. 2 asked him to pay Rs. 1,000/-. He stated that accordingly he informed to Dattatraya. According to this witness, the appellant No. 2 had told him that Rs. 1,000 be paid before Diwali. However, Dattatraya told him that the amount will be paid after harvesting of the crop. 25. It may be noted that nowhere in examination-in-chief this witness supported the say of P.W. 7 Dattatraya that the balance amount of Rs. 1,000/- was agreed to be paid after Diwali or after harvesting of the crop. Even the balance amount, according to them, was agreed to be paid later on and no fixed period was agreed. This witness, however, comes with a case as learnt from appellant No. 2 that the amount to be paid prior to Diwali. Not only that but the P.W. 7 Dattatraya is said to have told him that he would pay the amount of Rs. 1,000/- after harvesting the crop. In course of his cross-examination this witness for the first time comes with a case that the amount of Rs. 1,000/- was agreed to be paid after Diwali, that too after harvesting the crop. Indeed this is nobody's case. Therefore, introduction of this aspect of the matter throws a considerable doubt on the veracity of the prosecution version itself about the balance of Rs. 1,000/- to be paid as a dowry amount as settled by parties at the time of settlement of marriage. The conduct of this witness is also eloquent. He never asked the appellant No. 2 as to why he would require the amount before Diwali, when it was agreed that the amount was to be paid after Diwali. Though it appears that there is small discrepancy in the evidence of this witness for the prosecution but we feel that discrepancy of this type suggests "tutoring" on the point of demand of Rs. 1,000/- by appellant No. 2 as a part payment of dowry amount agreed at the time of settlement of marriage before Diwali. The evidence of this witness in our considered opinion suffers from the very infirmity as in the case of evidence of other earlier witnesses. 26. That takes us to the next witness P.W. 11 Rangnath Ghodke, who is grandfather of deceased-Usha. No doubt, he is consistent in saying that Rs. 4,000/- were settled as dowry for marriage and out of this Rs. 3,000 were paid to the accused. He says that the marriage took place in the month of Jyeshtha. According to him, Usha used to come to his house after the marriage and she used to complain about the demand made by the accused in respect of Rs. 1,000/-. He further stated that accused were ill-treating Usha and also abusing her on account of payment of Rs. 1,000/-. It may be stated that this witness does not say as to whether Rs. 1,000/- were to be paid before or after Diwali. It is his plain version that amount of Rs. 1,000 was agreed to be paid after the marriage. He does not corroborate any of the witnesses about demand made by the appellant No. 2, either to P.W. 7 Dattatraya through someone or to P.W. 10 Pandurang. That means that he is not in the know of the subsequent things as asserted by the earlier witnesses about the demand made by any of the appellants of Rs. 1,000/- before Diwali. We have already seen that theory of demand of Rs. 1,000/- deposed to by earlier witnesses suffers from improbability factor. 27. P.W. 11 Rangnath, stated further that on his way to Pimparnai, Usha said to him doubt Rs. 1,000/- to be paid to her-father-in-law as he was ill-treating her. This statement of fact was highly improbable. If there was any ill-treatment for not paying Rs. 1,000/- and when Usha had admittedly stayed with him along with other members of his family, the question arises why Usha did not disclose these things to him earlier. It is rather unnatural to believe that he could come to know from Usha only on that day when they were proceeding to Pimparnai by walk after getting S.T. bus from Safepur to Limba Ganesh. As a matter of fact, even his earlier version in exarnination-in-chief is sharply contradicted with the version before the police. He was confronted with the previous statement before the Police about the complaint made by Usha in respect of ill-treatment. It may be sated, that this witness has to admit that after marriage of Usha he went to the house of the appellants four times and stayed there for some days. But, significantly, at no point of time Usha is said to have made any complaint about any sort of ill-treatment in the house of the appellants. No, doubt, this witness is an aged member of the family of P.W. 7 Dattatraya; but his possibility of supporting the prosecution version out of love and affection towards Usha, cannot be ruled out. Quite apart, his version also becomes difficult to believe in view of aforesaid discrepancies in his evidence. 28. The last witness is P.W. 12 Vimalbai Ghodke, who is the mother of deceased Usha. Her evidence shows that there was not only ill-treatment on the count of Rs. 1,000/- to be paid to the accused but she stated that when Usha was brought prior to Diwali to their place and where she lived for about 8/10 days, Usha narrated that she was subjected to cruelty. What kind of cruelty it was however, not stated by her. In course of cross-examination when she was confronted with the previous statement before the Police, her version -in-chief is proved to be contrary. She never stated before Police about any ill-treatment or beating as disclosed to her by the deceased Usha when deceased Usha was staying with her before Diwali. We do not find that her evidence would render any assistance to the prosecution version. 29. It is well-settled that oral evidence of witness if there is more than one witness deposing on identical statement of facts, has to be appreciated by considering as to how they fair in cross-examination vis-a-vis each other. We find that even if the evidence is tested individually and with reference to deposition of other witnesses, we find that there is no guarantee of truth which can be obtained from evidence of these witnesses to lend any assurance to the prosecution version that Usha was ill-treated either by the appellant No. 1 or by appellant No. 2 on account of failure of Usha to bring the remaining amount of Rs. 1,000 as part payment of dowry, as settled at the time of marriage. 30. We may mention that the learned trial Judge has, however, accepted the evidence of these witnesses without proper scrutiny, with due care and caution and influenced by a circumstance of unnatural death occasioned in the present case. We, however, disagree with the findings recorded by the learned trial Judge that Usha was subjected to any kind of ill-treatment on account of payment of Rs. 1,000/- as part of the dowry amount agreed between the parties at the time of settlement of marriage. 31. Mr. A. B. Gaikwad, the learned A.P.P., however, submits that death of Usha was unnatural. The deceased Usha had sustained injuries as told by P.W. 6 Dr. Jadhav which are supported by his post-mortem notes Exh. 21. Next, Mr. Gaikwad, the learned A.P.P. also urged that as per the opinion of the Doctor, the death was caused due to shock causing sudden reflex cardiac arrest due to vaso-vagai inhibition due to smothering. Moreover, the C.A. report says that there was no poison found when viscera was sent for examination. Therefore, here is a case where death appears to be unnatural especially when it is neither suicidal nor death by poison. The learned Addl. Public Prosecution emphasised that there cannot be a case of any accidental death. It was a dowry death. In this context, the learned A.P.P. invited our attention to the observation of Their Lordships of the Apex Court in the case reported in 1993 Cri.L.J. 1635 and argued that object of provisions of section 304-B I.P.C. may be kept in view vis-a-vis the Dowry Prohibition Act. He emphasised that this is a piece of social legislation, keeping in view the growing menace of the social evil. Therefore, the role of courts under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence of the prosecution. 32. There cannot be any doubt that to attract the provisions of section 304-B, the prosecution is required to establish (1) that the death of woman is caused by any burns or bodily injury or it occurs otherwise than under normal circumstances; (2) such death occurs within seven years of her marriage; (3) before her death she was subjected to cruelty or harassment by her husband or any relatives of the husband; (4) such cruelty or harassment was caused in connection with demand of dowry. In view of the findings recorded by us as above, it cannot be said that prosecution is able to establish the ingredients (3) and (4) noted above. It is true that deceased Usha died within couple of months after the marriage. The medical evidence is, however, as follows :-- P.W. 6 Dr. Jadhav, stated that when he examined the body of deceased Usha, he found natural eyes closed, tongue inside the mouth, blood stained discharge oozing through mouth and nostrils. He further stated that he found an abrasion on labia rnajora left side 1 cm. x 1/2 cm. x skin deep, irregular in shape, blood stained around the vulva. He also found abrasion on medial aspect of left leg into middle 1/3rd, 2 cm. x 1 cm. x skin deep, shape irregular, direction vertical. So also an abrasion on the back of right elbow 1 cm. x 1/2 cm. skin deep, shape irregular, whereas contusion over left cheek, just below left eye, 11/4 cm. x 1 cm. size irregular, colour bluish and subcutaneous echymosis of blood present. The Doctor further opined that the injuries were caused by hard and blunt object within 6 to 12 hours before death. All the injuries were ante-mortem. He noticed that stomach was containing semisolid undigested material present and the death had occurred within four hours of the last meals. 33. The opinion as to the cause of death, however, was reserved. The viscera which was preserved was sent to Chemical Analyser and report of Chemical Analyser was received on 17-11-1987 which shows absence of any poisoning. 34. Later on, the Dr. opined that the death was caused due to "shock causing sudden reflex cardiac arrest due to vaso vagal inhibition due to smothering". 35. The Doctor was cross-examined at great length and he had admitted that the injuries as noticed on the dead body were not sufficient to cause death of Usha. Secondly, he stated that in case of adults smothering results into suffocation or asphyxia. In such cases, the signs of congestion is available in lungs and brain at the time of post-mortem. Similarly, the marks of violence are found around the mouth as well as on the inner outerside. However, the marks of violence may not be found if smothering is done by soft substance like cloth or pillow. Significantly, the Doctor deposed that he did not find congestion either in lungs or in the brain in this case. He however added that if some foreign substance accidentally happens to go in air passages that can stirnilate vague and vaso vagal attack may come. Smothering includes obstruction or insertion of foreign substances in mouth or air canal. Reflex is a sudden reaction of vascular and neurogeric origin. In such vaso-vagal attack reflex cardiac arrest may result. As per Exh. 20, according to him, that was one of the most probable causes of death. But at the same time, the Doctor has to admit that, "it does not exclude any other possibility of remote cause of death". Moreover in cross-examination he stated that he cannot opine in this case that death was natural or accidental. 36. The question arises whether the medical evidence could be accepted as to the cause of death as cogent and reliable. Mr. Loya, the learned Counsel appearing for the appellants, brings to our notice the decision reported in the case of State of Himachal Pradesh v. Nikku Ram, 1995 Cri.L.J. 4184. In that case, the proposition enuncited is that where the injuries as found on the person of the deceased not sufficient to have caused her death, despite demands for dowry, the offence would not attract the mischief under section 304-B I.P.C. Mr. Gaikwad, the learned A.P.P. has not shown a contrary decision to the aforesaid proposition. The question still arises whether the opinion expressed by Doctor could be said to be acceptable in the given circumstances of the cases, especially when the Doctor specifically admits that the opinion given by him is one of the most probable causes of death. It is, however, at the same time, the Doctor could not dispute that the cause of death does not exclude any other possibility of remote cause of death, such as, death by sudden fear or death by accident due to fear. 37. In H.W.V. Cox, Medical Jurisprudence & Toxicology, Sixth Edition at page 253, it is stated that the terminology is confused and "suffocation", "smothering" and "asphyxia" are all used in a rather confused way. Smothering usually implies that the external nasal passages have been blocked by a fabric being pressed over them, usually by a deliberate criminal action. 38. Besides the Panchnamas of the scene of offence (Exh. 10) and Inquest Report (Exh. 13) does not in any way suggest the finding of any cloth fabric in the room where the body of the deceased was found nor do the witnesses say that when the body was in the room before arrival of police or even after arrival of police including the Panchas that any fabric was found at the place of scene of offence. No incriminating circumstance of any sort was found in the place of scene of offence. 39. In case of suffocation, at page 266 Cox observed that the death may be rapid and silent. The main feature is obstruction of the airways so that there is no access of oxygen to the lungs and no opportunity for the expiration of carbon dioxide. Both these factors lead to increasingly violent attempts at respiration in some cases, though it must be noted that especially in children and old people, death may be rapid and silent, there being none of the frantic attempts to breathe which are more characteristic of stronger adult. It must also be noted that some deaths are very rapid indeed, such as those noted when the external orifices of mouth and nose are blocked by a sheet of plastic. Death can be extremely rapid and not accompanied by any violent paroxysms or other classical manifestation of asphyxia. In these cases, there may be congestion, asphyxial harmormages or other signs which were formerly thought to be inevitable in an asphyxial process. Therefore there must be some other mechanism involved, related to sudden depletion in oxygen supply and the most likely explanation is a reflex cardiac arrest. 40. In Modi's "Medical Jurisprudence & Toxicology" Twenty First Edition, at page 211 it is, however, said that Vagal Inhibition causes sudden cardiac arrest from fright or terror, or it may be caused during a sudden an unexpected fall in the water often the water striking against the chest and pit of the stomach. 41. In this context, we may refer to the evidence of P.W. 7 Dattatraya. He stated that on receiving information, he went to the house where the deceased was lying in the house of the appellants. He made enquiries with the appellant No. 2 and his wife and they told him that they did not know anything as they were in the land. Next he stated that he waited near the dead body of deceased Usha for about one hour and confirmed that somebody had committed her murder. The fact that he suspected something foul is also noted in the F.I.R. It is evident from the prosecution evidence that the appellants ordinarily reside in the house which is in the field. There is another house in the village where they used to store foodgrains. It is stated by P.W. 7 Dattatraya that accused were not using house situated in the village for the residential purpose and, however, somebody used to sleep in the said house for the protection of the corns etc. It also came in his evidence that there are some 100/125 houses in the village, surrounding the house of the appellants. 42. The witnesses examined by the prosecution especially P.W. 10 Pandurang stated that eight days before the death of Usha, a message was received from the appellant, either appellant No. 1 or 2 that appellant No. 1 separated from his father and there is no one to prepare his food and, therefore, Usha should return. On receiving that message, Usha was sent with P.W. 11 Rangnath to the place of the appellants. 43. If we consider the situation of the house in the village viz. that it was not used as a usual residence, in the absence of participation by any of the accused in causing injuries to Usha as found on her person or causing her death in the manner suggested in the medical evidence, it is inherently improbable to connect the appellants and none else as perpetrators of the crime. It is evident that deceased Usha was young, she was newly married, the possibility of her sudden death due to fear cannot be ruled out, particularly when injuries sustained by her on her private parts are suggestive of a case of rape or attempt to rape. The medical evidence in the given case may support to the death in course of attempt to rape. Therefore, even if we accept the medical opinion as to the cause of death that will only indicate that death was homicidal. That necessarily means that death was other than in the normal circumstances. 44. Mr. Loya, the learned Counsel for the appellants also submits that as observed in Modi's Medical Jurisprudence (21st Edition), page 172, in some cases of snake bite death occurs from shock due to fright before the poisonous symptoms commence. The medical evidence, however, rules out the possibility of snake-bite. The Doctor did not notice any symptoms of snake-bite. 45. Taking the maximum view of the matter even if we accept the opinion of the Medical Officer, it can only be proved that the death was homicidal, but we cannot jump to the conclusion that death was unnatural to attract the provisions of section 304-B I.P.C. The offences under section 302, 304 part I and II and 304 Part B are mutually exclusive and ingredients of these offences are distinct. Homicidal death is one which falls outside the category of dowry death for which a separate punishment is provided for. Therefore, it is not possible to subscribe with the argument of learned A.P.P. that the case in hand is that of a dowry death. Moreover, the medical opinion as given in the case is not certain because other possibilities are not ruled out for the cause of death. 46. Taking resume of all the circumstances and the evidence adduced by the prosecution in this we are of clear opinion that it is neither a case of dowry death nor a case made out against the appellants either under sections 302 or 498-A of Indian Penal Code. 47. The learned trial judge has also convicted the appellants under section 498-A I.P.C. but, as discussed above, the evidence falls miserable short of prove the essential ingredients of section 498-A in the matter of alleged cruelty and harassment to the deceased- Usha. In the absence of evidence of demand of part of dowry from any of the appellants, the learned trial judge has committed an error of law on the face of the record in convicting the appellant No. 1 under section 302 I.P.C. and also the appellants under section 304-B and 498-A read with section 34 I.P.C. 48. The result is, therefore, the appeal must succeed. The appeal is allowed. The conviction and sentence passed against the appellants are hereby set aside and the appellants are acquitted by giving them benefit of doubt for want of reliable evidence. The appellant No. 1 be set at liberty forthwith, if not required in any other offence. 49. Appeal allowed.

Author: A Mane

Rambhau S/O Kashinath Waibhat & ... vs The State Of Maharashtra on 17 June, 1997

Bombay High Court