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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.12.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Habeas Corpus Petition No.1353 of 2007 Swathi .. Petitioner Vs 1. The Secretary to Government Prohibition and Excise Department Secretariat, Chennai-600 009. 2. The Commissioner of Police Greater Chennai. .. Respondents ----- Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. ----- For Petitioner : Mr.P.Murugesan For Respondents: Mr.P.Kumaresan Addl. Public Prosecutor ----- O R D E R (P.D.D.J.)(R.R.J.) Internet :yes 5.12.2007 ATR To 1. The Secretary to Government Prohibition and Excise Department Secretariat, Chennai-600 009. 2. The Commissioner of Police Greater Chennai. 3. The Superintendent Central Prison, Chennai. 4. The Public Prosecutor High Court, Madras. P.D.DINAKARAN,J, AND R.REGUPATHI,J. ATR HCP No.1353 of 2007 5.12.2007.(Order of the Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu  Dhina @ Dhineshkumar @ Arun @ Arunkumar, son of Kaliyaperumal @ Sivakumar, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and he has to be detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2. Challenging the abovesaid detention, the wife of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records pertaining to the detention order passed against the detenu by the second respondent in Memo No.288/BDFGISSV/ 2007, dated 3.7.2007, set aside the same and to direct the respondents to produce the body of the detenu, now detained at Central Prison, Chennai before this Court and to set him at liberty. 3.1. The order of detention dated 3.7.2007 was passed on the basis of ground case in Crime No.562 of 2007 for alleged commission of offences under Sections 341, 336, 392 and 506(ii) IPC, complaint of which was lodged by one Sugumar. According to the complainant, on 19.6.2007, while he was proceeding to purchase simcard for his cell phone at the junction of West MGR Nagar and RK Nagar, the detenu herein and his associate Settu @ Gunasekaran came to the junction in a motor cycle. Suddenly, Settu @ Gunasekaran snatched the cell phone of the complainant. The detenu, who was sitting in the motor cycle, wrongfully restrained the complainant and snatched his money purse with a cash of Rs.350/-. When the complainant raised hue and cry, the detenu and his associate tried to escape from the spot. On hearing the hue and cry of the complainant, the public at the spot came for his rescue. On seeing the public, the detenu and his associate left the motor cycle on the road and picked up stones from the road side and pelted the same against them. The stones fell on the road side and scattered all over the road. At that time, Settu @ Gunasekaran threatened the public by brandishing knife and by uttering filthy words. The public apprehending danger to their lives ran for safety, shop vendors closed the shops and the entire traffic came to standstill causing insecurity in the minds of the public. At that time, the police personnel attached to J6 Thiruvanmiyur Police Station, who were on rounds, came to the spot and apprehended the detenu and his associate with the help of public and retrieved the knife and other items. Based on the complaint given by the complainant, a case, as stated above, was registered. 3.2. The second respondent, taking note of the above case as a ground case and finding that there are eight adverse cases pending against the detenu in Crime No.418/2007 on the file of R9 Valasaravakkam Police Station, Crime Nos.102, 232, 255, 408 and 413/2007 on the file of J6 Thiruvanmiyur Police Station, Crime No.900/2007 on the file of S8 Adambakkam Police Station and Crime No.551/2007 on the file of Tindivanam Police Station, for the offence punishable under Section 379 I.P.C. and having satisfied that there is a compelling necessity to detain him in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order, ordered his detention branding him as a Goonda. 4. The learned counsel for the petitioner placing reliance on the decision of the Apex Court in DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446], contends that the said eight adverse cases relate to the offence punishable under Section 379 I.P.C., and therefore, the solitary instance of robbery mentioned in the ground case is not relevant for sustaining the order of detention and hence, the impugned order of detention suffers on the ground of non-application of mind on the part of the detaining authority. 5. We have heard learned Additional Public Prosecutor on the above said point. 6. As rightly pointed out by the learned counsel for the petitioner, it is evident that the adverse cases mentioned in the grounds of detention do not relate to any law and order problem. But, the offence said to have been committed by the detenu as per the ground case attracts the provisions of the Tamil Nadu Act 14 of 1982. 7.1. In DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446], cited supra, whereunder the order of detention was based on the solitary instance of robbery, the Apex Court held as follows:- "... Though in the grounds of detention the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus, a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order." 7.2. That apart, the above ratio laid down by the Apex Court was followed by a Division Bench of this Court, in which one of us (P.D.DINAKARAN, J.) was a party, in MALA v. THE SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, GOVT. OF TAMIL NADU, CHENNAI, [(2004) M.L.J. (Crl.) 306]. 8. Admittedly, in the instant case, the adverse cases relate to the offence of theft punishable under Section 379, IPC and the ground case relates to the offence of robbery punishable under Section 392 IPC and hence, we are of the opinion that the ratio laid down in DARPAN KUMAR SHARMA's case, cited supra, squarely applies to the present case on hand, which is also not disputed by the learned Additional Public Prosecutor. 9. Applying the ratio laid down by the Apex Court in Darpan Kumar Sharma's case, cited supra, we are inclined to set aside the order of detention, Accordingly, the order of detention dated 3.7.2007 is set aside and the Habeas Corpus Petition is allowed. The detenu Deena @ Dinesh @ Arun @ Arun Kumar is directed to be released forthwith, unless he is required in any other case.

Swathi vs The Secretary To Government on 5 December, 2007

Madras High Court

JUDGMENT M.P. Thakkar, C.J. 1. Slavery has been outlawed in all civilized countries and the Constitution of India does not countenance it. And yet it appears that the plight of unemployed workers seeking an honourable means of livelihood is made miserable by unscrupulous contractors who exploit the helpless workers. It virtually amounts to compelling them to work as slaves. This fact was brought to light by a vigilant Union, namely. Hind Mazdoor Sabha acting through its alert General Secretary Shri P. Chidambaram by instituting the present petition. Having regard to the averments regarding serious exploitation of the workers at the hands of the unscrupulous contractors and having regard to the allegations made in the petition that officers of the Labour Department were not taking necessary steps to prevent the exploitation of the workers, we issued an interim order on 7th April 1982 in the following terms: By way of interim relief we direct as under: Mr. A.C. Israni is appointed as Commissioner and is authorized and directed to execute the commission in the manner indicated hereinafter. Respondents are directed to permit the aforesaid Commissioner to do everything and take all necessary steps to carry out the commission without let or hindrance and are directed not to create any obstacle in his way (doing so will amount to contempt of Court). The Commissioner shall visit the factory of respondent No. 3 (Sher Vallabh Khandsari Udyog, Upleta) in order to investigate the truth or otherwise of the allegations made in the petition and to interrogate the workers concerned and to make a report to the Court regarding the true state of affairs at the earliest. The Commissioner is hereby authorised to enter the premises of the factory and to interrogate the workers and the officers, Respondent No. 3 Mandli and its partners, proprietors or officers or whosoever is in charge of the factory is directed to permit the Commissioner appointed by the Court, who will bring a copy of this order, the seal of the Court, to enter the premises along with the members of his party and to make an investigation and interrogation. A copy of the petition will be made available to the Commissioner. The learned Counsel for respondent No. 4 Labour Commissioner states that he will depute a Labour Officer and an Inspector of Factories to accompany the Commissioner appointed by the Court and they would also co-operate with the Commission in making the investigation. Respondent No. 1-the Collector of Rajkot is directed to depute an officer from his office and also directed to make arrangement for police protection so that the Commissioner and the officers accompanying him may be able to execute the commission as directed by the Court. Mr. Misra, the Secretary of the petitioner-Union, is also authorized to accompany the Commissioner and the party. With regard to the expenses of the Commissioner we will pass an appropriate order hereafter. Respondent No. 2-State of Gujarat will make available a State vehicle at its cost to enable the Commissioner and the party to visit the site. 2. Pursuant to the directions issued by us, the Commissioner appointed by us proceeded to Upleta and made appropriate investigation and inquiry. The exhaustive report dated April 13, 1982 submitted by him shall be made a part of the record. The following passages from the report require to be quoted inasmuch as we propose to issue certain directions on the basis of the said report: After a thoughtful consideration, it was decided to request any partner of the second factory, if he was available in the town, to come and see me in this connection. On inquiries, it was learnt that one of the partners of that factory, one Shri Shantilal Vasrambhai Patel was available in the town. A message was sent to him containing that request that he may kindly come and see me at the rest house. It appears that before he got the said message, he had already received the information about our party having visited the premises of Hari Vallabh Khandsari Udyog factory. On receiving the message, he came to the rest house and I got the opportunity of informing him about the facts of this petition, he was also told that about 22 persons mentioned in that list and worked in his factoiy during that season and that there were serious allegations regarding the treatment which had been meted out to them. Shri Shantilal who appeared to be an intelligent person threw the entire burden upon the contractors, but could not deny that perhaps all the-48 workers mentioned in the list Annexure "A", may have worked in his factory during that season. However, he could not give any affirmative reply without verifying the same from the books. It was difficult for me to press upon him, in absence of any authority, to give that information after examining the necessary books. He was, however, explained his responsibility towards his workers as an employer and it appeared that he immediately realised the seriousness of the situation. When still a number of workmen employed in his factory, were yet to be paid their wages before they left that place, a suggestion was made to him that the wages of those workmen may be paid by him or by his clerks directly to them without the intervention of the contractors and their receipts be also obtained directly. It was learnt during those discussions, that when labourers are brought from other States to work in such factories, they are also paid the railway fare for coming and for also going back to their respective villages. As such Shri Shantilal expressed that not only the balance of wages will be paid to the remaining workers but also the railway fare will be paid to them. It was given out that Saturday, the 10th April, 1982 had been fixed as the day on which they would be paid the balance of their wages as well as the railway fare. A suggestion was given to Shri Shantilal whether he would have any objection to make payments of those labourers in presence of Govt. Labour Officers Shri N.H. Dave and Shri S.G. Hathi and also to give them the railway tickets instead of paying them fare in cash. This last suggestion was made because, a passing reference was also made during discussion that even from the amount of railway fare of the labourers, the contractors were misappropriating certain portions. Shri Shantilal readily agreed to this suggestion. Instructions were given to the abovenamed-2-Labour Officers .to remain present in the Krishna Khandsari Works on Saturday, the 10th April, 1982 and to see that the balance of wages is paid to each workmen in their presence and their receipts are obtained accordingly. They were asked to prepare a record of the persons with their names and to submit the same to the undersigned. They were also asked to go to the railway station with those workers and to assure that the owner purchases the railway tickets for their respective designations and hands over the same to the workmen in order to enable them to reach their respective native places. Shri Shantilal also disclosed that he happened to be the Central Secretary of Khandsari Factory Owner's Association. He also expressed not only his surprise but also grief that the contractors, through whom they have been employing labourers, have actually been exploiting the labourers. He, therefore, assured us that from the next season, as far as possible, no labourers would be employed through contractors but all attempts would be made to engage them directly and all efforts will (be) made to see that there is no intermediary who may oppress or victimise them. The two partners of the factory which is Respondent No. 3 in this petition, also gave their assurance, that even though they had not been found to be involved in any manner in this incident covered by this petition, yet, in the general interests and advancement to industrial peace, even they would be very careful in future and would see that in case the labourers are employed through contractors, they are paid their proper wages and that their other conditions of service are also properly maintained. They gave a very clear undertaking that they would be directly dealing with such labourers and even regarding the delivery of their post, they would take care to see that the letters addressed to them would actually be delivered to them and the letters which they wish to post to their friends and relatives are also duly posted through the office of the factory. All these talks and discussions had taken place in presence of Shri Misra, the representative of the petitioner Union. The situation was a peculiar one which had to be faced in a manner which could be legal and suitable under the circumstances. It as felt that though no definite evidence could be gathered, perhaps some unscrupulous contractors possibly Shri Siyaram Singh or their henchmen may have terrorised or harassed those workers who were interrogated by us or their friends or associates at certain times. The local Mamlatdar of Upleta and the local Police Officers were given instructions that till those workers actually leave Upleta for their respective destinations, their protection and security should be their responsibility. On receiving the necessary assurance in that connection from those local officers as well as the owners of the two factories, we returned to Rajkot in the night. It appears that though a letter was addressed to the District Collector, Rajkot as early as March 12, 1982 in which serious complaints regarding exploitation of migrant workers brought from Bihar were made to the District Collector, the District Collector failed to take any action. We would have expected him to take appropriate steps in order to ensure that the workers were not exploited in the State of Gujarat. That the workers were being exploited by the contractor concerned is evident from the aforesaid passages extracted from the report. It is also evident from the before mentioned passages extracted from the report that Shri N.H. Dave, Government Labour Officer at Rajkot has failed and neglected to discharge his function. We do not propose to issue any directions to the Labour Commissioner in the context of the observations made by the Commissioner in his report, for Mr. Hava for the Labour Commissioner has made a statement to the effect that appropriate directions will be issued to all Government Labour Officers and steps will be taken to ensure that what has happened in regard to the complaint made to the District Collector at Rajkot, who is also ex-officio Inspector of Factories under the Factories Act, will not be repeated anywhere else in future by any other District Collector or any other Labour Officer. In view of the assurance given to us we do not propose to issue any further directions. 3. We must place on record our appreciation for the initiative taken by the petitioner in order to bring to our notice the flagrant exploitation which was taking place openly in disregard of the relevant provisions of law. We also must place on record our high appreciation for the investigation made by the Commissioner who appear to have taken immense pains and appears to have handled the situation with great ability and tact. But for him, possibly, the true situation could not have been discovered. We hope that the authorities concerned will show greater awareness of responsibility resting on their shoulders and will ensure that what has happened in the present instance does not happen in Gujarat hereafter. The Commissioner has taken great pains and he has proceeded to the site, made inquiries and made an exhaustive report. Having regard to the nature and extent of the work done by him and the responsibility shouldered by him at considerable inconvenience to himself with a sense of urgency in view of the directions of the Court, we are of the opinion that fairness demands that at least a sum of Rs. 5,000/- is paid to him by way of honorarium for the work done by him. This amount will of course have to be paid by the State Government having regard to the peculiar facts and circumstances of the case narrated hereinbefore. The State Government is, therefore, directed to deposit a sum of Rs. 5,000/- on or before July 12, 1982. Upon the amount being deposited learned Registrar will inform the Commissioner and make over the amount to him on obtaining proper discharge. 4. Our attention is called to the circumstance that the Central Government has enacted an Act known as The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 in order to protect migrant workers. The Act has been made applicable to Gujarat and rules have been framed under the authority conferred by the relevant provision of the Act. It, however, appears that no machinery has still been set up under the Act in order to carry out the mandate of the Act read with the Rules. We direct the State Government to set up the appropriate machinery latest by June 30 1983. The machinery so set up should be required to submit a six-monthly report to the Labour Minister as also the Labour Commissioner (I) regarding steps taken by them to (a) detect cases of such exploitation. (b) initiate appropriate legal proceedings against those who are guilty and (2) as regards results achieved by them. We further direct the Labour Commissioner: (1) to ensure that migrant labourers employed directly or indirectly by any employer are: (a) not subjected to restrictions in their freedom of movement and are not kept in captivity; (b) paid atleast minimum wages; (c) given facilities to communicate with their family members at the home-town; (d) not exploited by taking back wages by adopting the device of providing housing, meals, etc. and collecting exhorbitant or out of proportion charges for such facilities. It must further be ensured that - (2) housing accommodation (if it is provided) is reasonably good; (3) If meals are provided, food is wholesome and hygienic; (4) charges collected for housing and meals etc. are reasonable. He is further directed: (5) to make a survey of migrant workers by surprise raids in all districts every month and submit a report to the Labour Minister; (6) to interrogate the workers in the course of surprise raids in absence of employer's representative, recording their statements after giving them assurance regarding their safety etc. and, if possible, with the aid of tape-recorder; (7) to give publicity in newspapers giving names of employers and details of exploitation so as to deter others; and (8) to take legal steps against employers committing breach. The vigil should be continuous so that the purpose is served. Subject to these directions, the petition will stand disposed of as not pressed in view of the request of the petitioner Union in this behalf.

Author: M Thakkar

Hind Mazdoor Sabha vs District Collector And Ors. on 22 June, 1982

Gujarat High Court

JUDGMENT Nevaskar, J. 1. This is a petition for certificate that the case is a fit one for appeal to the Supreme Court under Article 134(1)(c), Constitution of India. 2. The petitioner Abdul Kareem S/o Abdul Hakeem Musalman of Lakhakhedi was prosecuted along with others under Section 302 read with Section 34, I.P.C. 3. The learned Sessions Judge convicted Abdul Kareem under Section 302, I.P.C. for having fired a gun at deceased Kasam which resulted in his death while he was going from his village Bagla to attend weekly Bazar of Mahidpur along with P. W. Ismail and P-W. 3 Ibrahim. He was sentenced to transportation for life. 4. Accused preferred appeal to this Court wherein the decision of the learned Sessions Judge was upheld. The present petition is directed against that decision. 5 Facts as they appear from the record indicate that the deceased along with P.W. 1 Ismail and P.W. 3 Ibrahim started from his village to go to Mahidpur & that the deceased had a horse with him to ride upon. The probable time of starting is between 9 and 10 a.m. It also appears to be clear that by 12 noon the party consisting of P. W. 5 Ahmad, P.W. 1 Ismail and P.W. 3 Ibrahim reached Mahidpur with the dead body which was carried in Ahmad's cart. This Ahmad had followed the party of the aforesaid three persons Kasam, Ismail and Ibrahim after a short interval. The statements of P. W. 7 Nathuram and P. W. 6 Onkar clearly indicate these facts. These two witnesses P.W. 1 Ismail and P.W. 3 Ibrahim state on oath that they saw the accused Abdul Kareem firing the gun at Kasam. The presence of these two witnesses at the time of the incident, on account of these facts was considered to be so highly probable that it was proper for the Court to act upon that supposition. The place where the incident took place was nearabout the field of accused Abdul Kareem and earth smeared with human blood was found on the spot. In the First Information Report which was immediately lodged Abdul Kareem was mentioned as the person who fired gun at Kasam which shot through his chest. On these materials the accused was convicted. 6. The principle point urged by Mr. Rege is that one circumstance which appears from the statement of witness Sobharam was not taken into account in convicting the accused. This was with regard to the presence of the accused at some other place at the alleged time of the incident. 7. The point with regard to the 'alibi' of the accused was not specifically pressed by the learned Counsel who urged the case before us. Main points urged before us were that since witnesses Ismail and Ibrahim cannot be believed in so far as the other accused are concerned they should not be believed even with regard to this accused. It was also urged that even assuming that the party consisting of Kasam, Ismail and Ibrahim left their village together yet after a short distance from their village Bagla road bifurcated and both led to Mahidpur and that the deceased1 might have gone by a road different than that by which the witnesses went. 8. Both these points urged have been considered by us. The theory of 'alibi' was suggested in the statement of 'Panch-witness' Sobharam whom the prosecution did not examine and he was examined as a Court-witness. This witness made contradictory statements with regard to the seizure of the gun article (1) by the Police. Having regard to the other material on record the contention with regard to the absence of the accused from the scene of the occurrence cannot be attached much weight. 9. The principles which govern the matters of grant of certificate to appeal to the Supreme Court are well established and it is only where there is a substantial question of law or there has been an infringement of the essential principles of justice or there is a matter of great public importance that this Court would consider it pro-i per to grant a certificate that the case is a fit one for appeal to the Supreme Court. It would also consider it proper to grant a certificate where exceptional and special circumstances exist which make it just for the Supreme Court to intervene. 10. None of these factors are involved in the present case. The matter entirely rests upon the assessment of the evidence direct and circumstantial bearing on the question with regard to the guilt of the accused. 11. I do not think this is a fit case for the grant of the certificate asked for. 12. The application is, therefore, rejected. Samvatsar, J. 13. I agree.

Author: Nevaskar

Abdul Kareem vs State on 13 July, 1955

Madhya Pradesh High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6229 of 2011 BHOLA MANJHI, SON OF SIDHESHWAR MANJHI Versus THE STATE OF BIHAR ----------- 2. 17.03.2011 Heard learned counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence under Sections 302, 201 and 34 of the Indian Penal Code. It has been submitted that apart from strong suspicion emerging against the petitioner on account of the alleged motive, there is no cogent material against him. Considering the same, let the petitioner above named, be released on bail on furnishing bail bond of Rs. 5,000/- (Five thousand) with two sureties of the like amount each or any other surety to be fixed by the court concerned to the satisfaction of Additional Chief Judicial Magistrate, Mokama, in Mokama P.S. Case No. 211 of 2010 subject to the following conditions: (i)That one of the bailors will be a close relative of the petitioner who will give an affidavit giving genealogy as to how he is related with the petitioner. The bailor will undertake to furnish information to the court about any change in address of the petitioner. (ii)That the affidavit shall clearly state that the petitioner is not an accused in any other case and if he is, he shall not be released on bail. (iii)That the bailor shall also state on affidavit that he will inform the court concerned if the petitioner is implicated in any other 2 case of similar nature after his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on the ground of misuse. (iv)That the petitioner will give an undertaking that he will receive the police papers on the given date and be present on date fixed for charge and if he fails to do so on two given dates and delays the trial in any manner, his bail will be liable to be cancelled for reasons of misuse. (v) That the petitioner will be well represented on each date and if he fails to do so on two consecutive dates, his bail will be liable to be cancelled. (Anjana Prakash, J.) S.Ali

Bhola Manjhi vs The State Of Bihar on 17 March, 2011

Patna High Court - Orders

Court No. - 3 Case :- MISC. SINGLE No. - 1821 of 2010 Petitioner :- Om Prakash Respondent :- State Of U.P.Through Secy. Home Deptt. Lko.And Ors. Petitioner Counsel :- R.K.Pathak Respondent Counsel :- C.S.C. Hon'ble Shri Narayan Shukla,J. Petitioner's application for grant of Arms Licence is pending since 2006 along with reports of Subordinate Officer before the the opposite party no. 2 i.e. the District Magistrate, Sultanpur Keeping in view of the aforesaid facts, I hereby dispose of the writ petition finally with the direction to the opposite party no. 2 i.e. the District Magistrate, Sultanpur to dispose of the petitioner's application expeditiously within 6 months from the date of production of a certified copy of this order. Order Date :- 2.4.2010 Amit

Om Prakash vs State Of U.P.Through Secy. Home ... on 2 April, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MFA.No. 138 of 2008() 1. NATIONAL INSURANCE CO.LTD. ... Petitioner Vs 1. C.H.RAMLA, W/O.LATE C.H.FAROOK, ... Respondent 2. C.H.FARHANA, D/O.LATE C.H.FAROOK 3. C.H.FARHAN, S/O.LATE C.H.FAROOK 4. C.H.MUHAMMED FARZIN, S/O.LATE C.H.FAROOK 5. MAHAMOOD.K., KAVULLATHIL HOUSE 6. RABIYA.C.C, W/O.MAHAMOOD, CHERIYA 7. K.P.SUBHAKARAN, S/O.RAMAN, For Petitioner :SRI.E.M.JOSEPH For Respondent : No Appearance The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice K.P.BALACHANDRAN Dated :16/09/2008 O R D E R J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No.138 of 2008 --------------------------------- JUDGMENT Koshy, J. The deceased, who was an autorickshaw driver by profession, sustained fatal injuries during the course of employment on 26.2.2002. The Workmen's Compensation Commissioner awarded an amount of Rs.4,11,900/- with 12% interest from the date of accident in an application filed by the wife, children and parents of the deceased. 2. The main contention raised in this appeal is that Rs.4,000/-, fixed as the monthly income, is on the higher side. Admittedly, the deceased was a duly licensed autorickshaw driver. An autorickshaw driver will get more than Rs.150/- per day and Rs.4,000/- fixed as the monthly income cannot be termed as excessive. The compensation was calculated strictly as per the provisions under the Workmen's Compensation Act. 205.95 was taken as the relevant factor as he was aged 31 at the time of  MFA 138/08 2 accident. Therefore, it cannot be stated that compensation awarded is excessive. 3. The next contention is that 12% interest awarded from the date of accident is excessive. Section 4A of the Workmen's Compensation Act deals with payment of interest. Section 4A(3) provides that compensation should be paid within one month from the date of accident and the employer should be directed to pay interest at the rate of 12% per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank on the amount due. The question is when the compensation fell due. In Kerala State Electricity Board v. Valsala ((1999) 8 SCC 254) this question was considered by a three member bench of the Honourable Supreme Court. In that case the accident occurred prior to the amendment of the Workmen's Compensation Act, which came into force on 15.9.1995. The contention taken up by the workmen was that even though the accident occurred before the date of amendment, the compensation fell due  MFA 138/08 3 after the amendment, as the adjudication was done after the amendment and therefore, benefit under the amended provisions should be granted to the workmen. That was rejected by the Honourable Supreme Court and held that amount falls due on the date of accident itself and therefore, if the accident is occurring before the amended Act, compensation cannot be decided on the basis of the amended sections. The matter was also considered by a Constitutional Bench of the Honourable Supreme court in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222), wherein, it was held that the liability of an employer to pay compensation under Section 3 arises immediately on the occurrence of the accident. It was also held in paragraph 8 of the said judgment that it was the duty of the appellant under Section 4A(1) of the Act to pay compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. In Gopinath v. United India Insurance Co. Ltd. (2000 II LLJ 80 Ker. DB), Vagher  MFA 138/08 4 Mamad Husein Gadh v. Secretary, Gujarat Electricity Board (1996 Lab. IC 368), Divisional Manager, New India Assurance Co. Ltd. v. S.B. Singh (2003 Lab. IC 596 Orissa) and in various other decisions it has been held that interest is payable from the date of accident. In Maghar Singh v. Jashwant Singh ((1998) 9 SCC 134) case the accident was in 1984 and the Supreme Court directed to pay interest from 1984 onwards, but, however, considering the long delay, by exercising the powers of the Supreme Court, the rate of interest was reduced from 12% to 9%. From these larger bench decisions it is very clear that interest is payable from the date of accident when the compensation fell due. We see no merit in the appeal. Appeal is dismissed. (J.B.Koshy, Judge) 16th September, 2008 (K.P.Balachandran, Judge) tkv 

National Insurance Co.Ltd vs C.H.Ramla on 16 September, 2008

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.690 of 2006 and C.M.P.No.6756 of 2006 Muthulingam ... Petitioner vs. 1.V.Gunasekaran 2.G.Singaravel 3.V.Rathakrishnan 4.Arul 5.Rajendiran 6.Samuvel 7.K.Meera 8.N.Balasubramanian 9.Rajasekaran 10.Kasthuri 11.Santhakumari 12.Vasantha ... Respondents (No relief sought against respondents 2 to 12 and they are given up in the above CRP) This civil revision petition is preferred against the order dated 08.09.2005 passed by the learned II Additional District Munsif, Ulundurpet in I.A.No.689 of 2005 in O.S.No.389 of 2004. For Petitioner : No appearance For Respondents : No appearance ORDER vj2 25.02.2009 Index :Yes Internet :Yes G.RAJASURIA,J vj2 To The II Additional District Munsif, Ulundurpet C.R.P.(PD).690 of 2006 25.02.2009 Animadverting upon the order dated 08.09.2005 passed by the learned II Additional District Munsif, Ulundurpet in I.A.No.689 of 2005 in O.S.No.389 of 2004, this civil revision petition is focussed. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The first respondent/plaintiff herein filed the suit O.S.No.389 of 2004 seeking permanent injunction so as to restrain the defendant his men, agents, servants from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. It appears, the defendant entered appearance and filed the written statement. Whereupon, when the matter was posted for trial, the plaintiff filed I.A.No.689 of 2005 under Order I, Rule 10(2) of the Code of Civil Procedure for impleading as many as 10 persons as defendants, D3 to D12 in the suit. After hearing both the sides, the lower court allowed the application. Being disconcerted by and dissatisfied with the order of the lower Court, the ninth respondent/proposed party in the I.A has filed this revision on the following grounds, inter alia thus: The lower Court without considering the fact that the suit itself is for injunction as against the two defendants and without any cause of action, simply permitted the plaintiff to add as many as 10 more defendants. Hence, he prayed for setting aside the impugned order of the lower Court. 3. Despite printing the learned counsel on either side, no one represented. 4. Pored and perused the records, which would demonstrate and evince that the suit itself is for bare injunction as against the two defendants, on the main allegation that there was an oral partition among the plaintiff, his brother including the second plaintiff and their father and in that the suit property was allotted to the share of the plaintiff; he has been enjoying the same; he rented out various portions to several tenants; D2 created a mortgage in favour of D1 illegally in respect of the suit properties and that the defendants 1 and 2 are trying to trespass into the suit property and give disturbance to him. However, in the affidavit accompanying the I.A.No.689 of 2005, which was filed as stated supra under Order 1 Rule 10(2) of the Code of Civil Procedure to implead additionally as many as 10 defendants, the plaintiff simply alleged as though D2 pleaded in the written statement that the suit was bad for non-joinder of necessary parties and that the respondents 8 to 12 are none but the brothers and sisters of D1 an D2 and the remaining proposed parties are tenants and that they should be added as defendants. In the cause of action para in the plaint, there is no whisper about anything so as to justify the impleadment of the proposed additional 10 defendants. 5. The entire reading of the plaint would project and convey as though D1 and D2 only are trying to interfere with the plaintiff's possession and enjoyment of the suit properties and in such a case, it is not known as to how the lower Court in its cryptic order throwing to winds the relevant laws and that too without au courant with facts and au fait with law, passed such an order. The scope of the suit should have been taken into account by the lower court. But it failed to do so. In an injunction suit, the plaintiff cannot try to directly get his title decided. If at all, the plaintiff was interested in getting his title decided and once for all to put an end to all sorts of disputes relating to the suit property, he ought to have filed a proper comprehensive suit and not a suit for bare injunction and hence, the revision petitioner is right in setting forth the grounds of revision as against the order of the lower Court. 6. De hors the fact whether the respondents and proposed parties are objecting to such impleadment or not, the lower Court was enjoined by law to see as to whether impleadment of such new parties was necessary. But, in this case, merely on apprehension and that too without any cause of action against the proposed defendants, the plaintiff simply did choose to file the said I.A., which deserves to be dismissed. Accordingly, the order of the lower Court in I.A.No.689 of 2005 is set aside by allowing this revision and the I.A shall stand dismissed. No costs. Consequently, the connected miscellaneous petition is closed.

Muthulingam vs V.Gunasekaran on 25 February, 2009

Madras High Court

Gujarat High Court Case Information System Print CR.MA/981520/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9815 of 2008 In CRIMINAL APPEAL No. 1998 of 2008 ========================================================= THAKORE VELAJI AMTHAJI & 2 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS BR RAJPUT for Applicant(s) : 1 - 3. MR AJ DESAI, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL Date : 21/08/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) Rule. Mr.A.J.Desai, learned APP waives service of rule on behalf of the respondents. Learned counsel for the petitioner does not press this petition. Hence, this petition stands rejected as not pressed. Rule is discharged. (R.P.DHOLAKIA,J.)(D.N.PATEL,J.) radhan/     Top

Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Patel,&Nbsp;

Thakore vs State on 21 August, 2008

Gujarat High Court

JUDGMENT Kochu Thommen, J. 1. These thirty-three income-tax referred cases arise from a common order of the Kerala Agricultural Income-tax Appellate Tribunal, Trivandrum, dated April 30, 1973, in Agricultural Income-tax Appeals Nos. 2 to 5 of 1969 and 130 to 135 of 1969 and 300 to 303 of 1968 and 127 to 129 of 1969, 304 to 307 of 1968 and 138 to 143 of 1969 and 308 to 311 of 1968 and 136 and 137 of 1969. 2. The assessees are brothers and they were assessed to agricultural income-tax either as individuals or legal representatives of their deceased father in respect of the assessment years 1958-59 to 1967-68. The returns of their income from their rubber estates were rejected by the assessing authority and assessments were completed on best judgment basis. The assessees failed in their appeals before the statutory authorities and hence the following questions have been referred to us by the Tribunal at the instance of the assessees : "(i) Whether, on the facts and in the circumstances of the case, the inspection and seizure of the account books on October 11, 1961, are valid in law and whether the details of crop collected by the officer on the date of inspection without notice to the assessee can be used against the assessee in his assessment ? (ii) Whether, on the facts and in the circumstances of the case, the details of crop for one year is applicable to all the years under dispute ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal had sufficient justification in disbelieving the report of the Commissioner so far as it relates to the yield under rubber ?'' 3. An inspection of the assessees' premises was conducted on October 11, 1961, by the Inspecting Assistant Commissioner, Special, Kottayam, together with the Agricultural Income-tax Officer, Kottayam, and the Agricultural Income-tax Officer, Moovattupuzha, who is the assessing authority. The officers also recovered a book from the premises at the time of the inspection. From the data collected by the officers at the time of the inspection as well as from the figures revealed by the book, they came to the conclusion that the average annual yield of rubber in the estate came to 630 lbs. per acre. The finding of the assessing authority has been challenged by the assessees on various grounds. They contend that the Agricultural Income-tax Act, 1950, does not authorise inspection and seizure, and, therefore, any material gathered by such inspection and seizure is inadmissible as evidence against the assessees. They further contend that the officers relied upon certain statements alleged to have been made by the Superintendent of the Estate and the assessees' representative, Shri K. M. Michael, although copies of these statements were not given to them. They were thus denied a reasonable opportunity for contradicting those statements. The assessees also contended that the total yield of 1,30,375 lbs. shown in the book for the period from May 4, 1960, to February 7, 1961, did not represent the yield from the assessees' estate as it included rubber sheets brought to the estate by 23 persons in the neighbourhood for drying them in the assessees' smoke house. It is contended that this fact was not properly verified by the officers and the estimate made on the basis of this inflated figure not only for that particular year but for the other years also is erroneous and unrelated to the correct position. 4. It is true that the Act does not authorise search and seizure. It is not, however, correct to say that materials gathered as a result of such search and seizure are inadmissible as evidence. As stated by the Supreme Court, "So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure."--Pooran Mal v. Director of Inspection (Investigation) of Income-tax, [1974] 93 ITR 505, 526 (SC). See also Kuruma v. Queen, [1955] AC 197 (PC), Reg. v. Leatham, [1861] 8 Cox CC 498, and Annamalai Chettiar & Co. v. Deputy Commercial Tax Officer, [1965] 16 STC 687 (Mad). In the light of these decisions it can no longer be contended by the assessees that the orders are vitiated because the department relied upon facts and figures collected through unauthorised search and seizure. 5. Incriminating materials and documents discovered in the course of inspection of the assessees' business premises can be relied upon by the department for the purpose of making an estimate provided the assessees are given a reasonable opportunity to inspect them and take notes therefrom or copies thereof. The only evidence that was available to the department for the purpose of making an estimate was the data collected at the time of the inspection on October 11, 1961. The incriminating statements and admissions made by the superintendent and the assessees representative, Shri K. M. Michael, were not put to the assessees, and as such they are not a proper basis for making an estimate. The finding of the Commissioner was rightly rejected by the Tribunal for the reason that the Commissioner had not taken into account relevant facts such as the nature of the growth, girth and variety of the rubber trees, etc. Consequently, it would appear that the only reliable evidence available to the department was the evidence relating to the year in which the inspection was conducted. The necessary facts for drawing an inference as to the years preceding or following the year in which the inspection was conducted do not appear to have been found by the Tribunal. In the light of what is stated above, we answer questions (i) and (iii) in the affirmative, that is, in favour of the department and against the assessee. We would, however, refuse to answer question (ii) and remand the case to the Tribunal for the purpose of finding the necessary facts in relation to all the years in question. We direct the parties to bear their respective costs. A carbon copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Kerala Agricultural Income-tax Appellate Tribunal, Trivandrum.

Author: K Thommen

Varghese Varghese And Ors. vs Commissioner Of Agricultural ... on 7 May, 1976

Kerala High Court

IN THE HIGH COURT OF KARNATAKA AT B»ANGAl,§J_i§.*V;EV":' %.% DATED THIS THE 3"' DAY or AUGUST, zoéfi K PRESENT) me Honme MR.Jus11cgs.R.Aagmsuangm - = " A N 0 if V THE H()N'BLE MR. JUSTEE, A.N;%'%vE:4%;i§50PALAL GOWDA MISCELLANEOUS FIRST Avéssijhso.11i24s;i12oo5(wc) BETWEEN: Aged abou.t%_31"y._e'&r£:;;.. _ , ' C/0 Krishna, _ E ' _ No.309, Harm se'e::iv,._'- _ % I-iinkai, Mysore. Sri. K. Raju, V Appeflant _. _(By Nata raju A:-}.éociv:2|tes, Advs.,) 1;" ~.S'fi, i(a§§ g#ss¥fari:y, Major, Sfo. Ra_B§'3_§'3h, D.NO.3592/2, 6"" Creissy 'Tiiak Naoar, Mysctfe :.DIstfl¢. . New India Assurance Co., Ltd., V 'A (By Sr!.Vishnu. D. Bhat, Adv., for R1, No'.73, 1" Fioor, Madhvesh Compiex, Elfiazarbad Road, " Mysore-570 O10. Rmondents Sri. A.K. Bhat, Adv., for R2) This Misceiianeous First Appeal is flied under Section 30(1) of The Workman Compensation Act against thevordetr-.. dated 30.9.2006 passed in WCA No.129/'Z005 on theéflie' of * V. the Labour Officer and Commissioner for _.'N0fi(:Ti'En ' _ Compensation, Mysore District, Mysore, partiy aiiomnjgthei' claim petition for compensation and seeking.én'tian'ce'ment of compensation. This Appeal coming on for adniiiseiion thio.'£'i-iv, VENUGOVALA GOWDA, 1., deiiyered the foiio9yi'n;g_:....VV Appeiiant is the petiti-oneirn yv¢e:;h]cR-12o}2oo5 NF on the fiie of the Lander ,,.¢orkmen's compensshtioiiti ('(_.--'ornmissioner' for short), Mysore Di¥.'st;jk':t,% '_Tne'i:*'esoondents herein were the respoiidents iii theesaiottihcaée. The said petition was filed tn'ée;i:3eiiant contending that, wniie he was working as driyv7e'réi.5i:,2oo5 in Maxi Cab bearing Registration and during the course of employment i-eitinm No.1, he met with an accident and it grievous injuries to his right leg, left leg, nose .« aii over the body. He took treatment as an in-patient Cat K.R.hospEtai, Mysore, for the injuries suitiinmi in the X earning capacity and consequentiy new that he is entitled to a compensation of Rs.49,915/- togaher with ihtere;-fiat.' 12% p.a. from the date of accident from respondent Insurance Cornnany. Dissatisfied.'v_'4_witiiA.i.:'tne it quantum of award and to grant the icom'neer_;s'a.ti¢'n' in the ciaim petition, this appeaithaas bee_ni;3refer.ree'..,': 1 3. We have heard i;earneqi.entinsei.L'for't'he-,ap!;;eiIant and the respondents and _ 4. Learneti;».'ceti:;nse'i*-iifet thevaaaavpeiiant by taking us through the 2 and the documents, specifically I-§<ts,%?5 ta contended that the Comrnissiener In assessing the loss of earning capacity at the ioss of earning capacity should be asseased atIe7'a§st't1'at 45% and the impugned award is iiabie :9 be madam. '' " *5: Per contra, learned counsel for the 2"" respondent ..i1.n§u;ance Company contended that, in timracts and Z circumstances of the case the award passed Commissioner is justified. 6. Considering the rival submiaeioijsr the substantiai questien requirea coneidere§i"ie._:.t_._VV Whether thevCu.mm_issioiner isjiustified in assessing the less or ~ea.rr:in§' r;aba'city'--.. at 13% despite documentary evidence "e..j'~?5_'_'..to P9 and the evidfiflfie ofiawtz'? ' V " 7. The5'ja,i;bei'lVaint. as PW.1. 1*' respondehtWemtievdyeifhe's.:"edrri'itted that the aforesaid vehicie was i'nvdlved'v§§i~.the_:;accEdent and that the appeiiant was the_drive'r atrtrte met the accident occurred. The itVfirsdinet$'bfa_the«Comrrii§si'dher with regard to Issue Nos.1, 2, 'S final, since there is no cross appeal by t the"re:epondeeVts3. Hence, we have to examine in this tt"'~.-«.___appeai, "the finding rendered with regard to Issue No.4 8. Appeiiant during the COUTSE Of I135 examination 35 V i' :PW.1 has stated about the injuries sustained i_ay'{iim in the accident, the treatment taken and the disabiiity 'é he suffers. As per wound certificate, the ro:Iow::§g;.,,§n3t;r§e§ " ' L were found by PW2. a. Rt. Leg, Rt. Knee swollen; b. Deformity of the Rtieg present; 3 c. Abnormai mobiIet§4';~...¢ryptd'?$ d. Punctured wound aspect, bleeding' I e. V f. toe. Referring to "'E,x.P9,V"i:heAV.X»rSye, PW2 has stated that, they . 'show ct§rrimunited'AE.riter eondylar fracture of right tibia with of great toe. He has also stated that, on e)t'arri'i'nati6r§,'v_v».or§.;,"i3.3.2006, he has found the foilowing -injuries: V " =a_. He had tenderness and sweiiinc of Rt. Knee; V Knee movements are restricted to 70 degree c. Movements are painfui; d. Various deformity of the Rt. Leg by 2 Cms. K ,4'. inpatient, Ex.P8, Pass book of the said hospital and Ex.i?9, the X~--rays and the evidence of PW.2, the disability at 10% by the Commissioner, _ erroneous. There is misreading of the..,eyider3<§e'oi5'_iff*iiii.?t by u the Commissioner, leading to an i.iieg;aiity"a§:a substantial question has arisen 'for: Considering the nature of injurieie-:_as_V_vnotie.-.3g;[;,yvvVf%PW.2, which are not in aispute,is_ i*.easovn'ebie.:'bto., ho-id that the percentage of total q.iAsei1ii:itv* it 15% and consequently 'rthiereiitiiie ieesf'-of e_e'rn'ing capacity of 15%. Hence, the inwardVV'req«Qiresi'i*te'V.be modified. The age and income of the"eppeiie~nt'hes~--been correctly assessed by the t-ie'riee«," the appellant is entitled to be .Vey_iiare.e:1"vthe;"'ieornpensation of Rs.74,872.80, which is rouinawteti of'toe?'i_i2§i.74,875/~ i.e., (Rs.4ooox6ox2o7.9sx1s 979: '}?4;i',872.&i3R)';. To the said extent, the learned Commissioner i'ia'sA.xj:or:1mitted a material error and iiiegaiity. Hence, the V' ..__"V'irnni.igned award requires to be modified. L X

Author: S.R.Bannurmath & Gowda

Sri K Raju S/O Krishnappa vs Sri Rangaswamy S/O Rangaiah on 8 August, 2008

Karnataka High Court

Gujarat High Court Case Information System Print CR.MA/3916/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3916 of 2008 ========================================================= ISHWARBHAI MATHURBHAI RATHOD - Applicant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : MR MK VAKHARIA for the Applicant. MR K.T.DAVE, APP for the Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 28/03/2008 ORAL ORDER Learned counsel for the applicant seeks permission to withdraw the present application. 2. Permission as prayed for is granted. This Criminal Misc.Application is disposed of as withdrawn. (D.N.PATEL,J) *dipti     Top

Author: Dn Patel,&Nbsp;

Ishwarbhai vs State on 22 March, 2011

Gujarat High Court

1. Noorulla Basha, driver Gr. II, Rs. MRT Sub-Dvn., KEB, Shimoga ... 3650/- 2. Ameer Jan, Cleaner, Rural Sub-Dvn., KEB, Shimoga .... 2600/- 3. Abdul Ghani, D.A., Gr. I.MT Sub-Dvn., KEB, Shimoga .... 2600/- 4. Nabi Jan, Asst. Lineman, Hirenullur Section, KEB, Birur .... 2270/- That apart, the widow of deceased Dastagir has been given DCRG of Rs. 67,940-40 Ps. Besides, she is getting a monthly pension of Rs. 2,412/-. Thus the family is getting a monthly income of Rs. 13,262/-. JUDGMENT Ramakrishna, J. 1. The complainant Jabhiulla invoking the provisions of Article 215 of the Constitution of India read with Section 12 of the Contempt of Courts Act, 1971 (the Act for short), has sought to punish the respondents-accused 1 and 2 for the reasons set out in the complaint. 2. A few facts that are necessary for the disposal of this petition, are as follows :- The complainant filed W.P. No. 2976 of 1992 seeking a writ of Mandamus directing the respondents to consider his case for offering him a post in the Karnataka Electricity Board, (hereinafter called the Board) on compassionate ground, on the ground that his father Dastagir who had been serving as an employee of the Board in Chickmagalur Division died on 4-9-1989 in harness while on duty leaving behind him the members of his family consisting of his wife and eight children and that his application for appointment on compassionate ground came to be rejected by the Board though he was entitled to the appointment under the scheme called Appointment on Compassionate grounds of widows, sons, unmarried daughters etc., of a Board employee who dies while in service. The learned single Judge not being satisfied with the case made out by the complainant dismissed the writ petition. The matter was taken up in W.A. No. 2327 of 1992. The Division Bench of this Court on a consideration of the matter afresh allowed the writ appeal by its order dated 22-9-1993 and issued the directions as follows :- "5. In the result, the appeal is allowed. In substitution of the order passed by the learned single Judge, we direct the respondents to consider the representation of the appellant for appointment on compassionate ground in the light of the decision referred to above and in accordance with the scheme prevailing at the time of the death of the appellant's father. The respondents shall comply with this order within three months from this date." 3. Aggrieved by the above order, the respondents took up the matter before the Supreme Court in SLP. No. 7460 of 1994 which came to be dismissed with the following observations :- "Delay condoned. The impugned order merely requires the petitioners to consider the representation made to them by the respondent herein for appointment on compassionate ground in accordance with law. There is no direction made in the impugned order to give such an appointment in case the respondent is not entitled to the same in accordance with law. The petitioners cannot, therefore, have any grievance against such an order. The SLP is dismissed with these observations." 4. Subsequent to the order made by this Court on 22-9-1993 in WA No. 2327 of 1992, according to the complainant, be made a representation to the Board on 21-10-1993 seeking appointment on compassionate ground, but the Board failed to consider it though three month's time given by this Court in the writ appeal to do so expired on 22-12-1993. Therefore, he has filed this contempt petition seeking to punish the respondents in accordance with law for disobedience of this Court order. 5. However, it is to be noted that by Annexure-R1, endorsement issued by the Board on 18-6-1994, appended to the statement of objections to this petition, the representation of the complainant came to be rejected by the Board having considered it in the light of the orders made by this Court and the Supreme Court on the ground that the deceased family getting a monthly income of, in all, Rs. 13,262/- was having enough means to live and hence the complainant need not be appointed on compassionate ground. 6. We have heard learned counsel on both sides. 7. Sri G. V. Shantaraju, learned counsel for Sri. Jayanth M. Pattanashetty, learned counsel for the complainant, urged the following points :- (1) The consideration of the representation of the complainant by the Board was not in conformity with the direction issued by the Supreme Court and this Court. (2) The appointments of the other dependants of the deceased in the Board were during his life-time while he was in service and not after his death; therefore, the application of the complainant seeking appointment in the Board on the death of his father while in service ought to have been considered. (3) The scheme envisages appointment to one of the dependants states therein regard being had to the facts and circumstances in which they are kept in harness on the death of their sole bread-winner, which has been ignored by the respondents. (4) The respondents failed to obey the order of the Division Bench within the given time nor did they seek for extension of time to do so. (5) The view taken by this Court in K. Raja v. Karnataka Electricity Board is in favour of the complainant and in the light of the said decision, the respondents ought to have considered the case of the complainant for appointment on compassionate ground as envisaged in the scheme. This having not been done, a clear case of contempt is made out. 8. Sri Sundaraswamy, learned Senior Counsel appearing for the Board, brought to our notice the stand taken by the respondents in the detailed statement of objections presented on their behalf. We have perused it. With a view to enable the respondents to consider the case of the complainant, the Board called for the details of the family of the deceased Dastagir from the local Officers. The information so received discloses that deceased Dastagir, Board employee, died on 4-9-1989 leaving behind his wife and eight children - Six sons and two daughters; that the daughters are married and that out of six sons, four have been presently working in the Board in different capacities, drawing salary as follows :- 9. Sri Sundaraswamy, therefore, submitted that of course, the scheme had been evolved by the Board in order to provide appointment for one of the immediate dependants of the Board employee who died in harness while in service as as to give immediate relief to the bereaved family from the difficulties by the sudden demise of their sole bread winner, but regard being had to the quantum of income being derived by the family of the deceased after his death particularly the salaries of the other three sons of the deceased already working in the Board and the pension and DCRG given to his wife, the Board arrived at the conclusion that this was not a case where the discretion available under the scheme could be exercised to offer a job to the complainant on compassionate ground. Thus he submits that taking into consideration all the factors, the Board rightly rejected the representation of the complainant by its endorsement, Annexure-R1, and that therefore, he is not entitled to the fruits of the scheme. 10. Sri Sundaraswamy also brought to the notice of the Court an important aspect that so far as the personal law applicable to the Muslims is concerned, there is no such doctrine as the Hindu Undivided Family in Hindu Law where if the Kartha of the family is the only bread-winner and there is no partition of the joint family, the dependants, on the death of the Kartha, who are entirely depending upon his only source of earning deprived of by his death, are entitled to the benefits as envisaged in the scheme and that such a thing is not found in the family of the Muslims. We are of the view that in this case, there is no need for us to go into this question as, without referring to this question, we may decide this matter by referring to the law declared by the Supreme Court in Umesh Kumar Nagpal v. State of Haryana, relied upon by Sri Sundaraswamy. A Division Bench of the Supreme Court considering the question of appointment on compassionate ground in public service held as follows :- (at p. 2307 of AIR SCW) "The object is not to give a member of such family a post muchless a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family ......." 11. In paragraph-4 of the judgment, the Supreme Court distinguishing its earlier decision in Sushma Gosain v. Union of India, held as follows (1994 AIR SCW 2305 at p. 2308, para 4) :- "..... The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned Judgment ....." In paragraph-6 thereof, their Lordships laid down : (at p. 2309 of AIR SCW) "..... The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." 12. In another decision in LIC v. Asha Ramchandra Ambekar, the Supreme Court held that hardship of the candidate did not entitle him to compassionate appointment dehors the provisions of statutory regulations and instructions and that the High Court should have merely directed the employer Corporation to consider such candidate's claim and should not have straightway directed the Corporation to give him compassionate appointment under Article 226 of the Constitution. In paragraph-11 thereof the Supreme Court has further observed that the Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law, that disregardful of law, however hard the case may be, should never be done, that in the very case itself, there are regulations and instructions governing the matter and that the Court below has not even examined whether a case would fall within the scope of relevant statutory provisions. 13. In the light of the rulings of the Supreme Court in the above cases, we have to say that the law laid down by the Division Bench of this Court in K. Raja's case () supra is no longer a good law. 14. Sri Shantaraj, learned counsel for the complainant, has not been able to convince us that there has been either disobedience of the order of this Court or positive act of contempt sought to be established against the respondents. 15. Viewed from any angle, we do not see any good ground to interfere with this petition to initiate contempt proceedings against the respondents as sought for. 16. In the result and for the reasons stated above, we drop these proceedings. 17. Petition dismissed.

Author: Ramakrishna

Jabhiulla vs The Chief Engineer Karnataka ... on 25 August, 1994

Karnataka High Court

40. Appendix I Part I Entry E Motor buses, motor lorries item (1A) and motor taxis used in a business of running them on hire. ORDER R.D. Agrawala, Judicial Member 1. In this appeal preferred by the revenue for the assessment year 1984-85, three substantial grounds are taken which read as under: (1) The AAC ought to have held that depreciation at 40 per cent was eligible only if the car was used in a business of running on hire. (2) The AAC erred in ignoring the fact that the car was not registered as a taxi. (3) The AAC ought to have held that in the circumstances of the case no such business of running a motor taxi on hire was carried on by the assessee. 2. We have heard the learned representatives on both sides. 3. A few facts first. During the year under account, the assessee purchased a car and leased it out to M/s Jupudy Jagannadharao & Sons at a rental of Rs. 50 per day. Depreciation at the rate of 40 per cent was claimed on the car. The Income-tax Officer allowed it at 20 per cent. 4. On appeal, the learned Appellate Assistant Commissioner, Visakhapatnam whose order dated 22nd November 1985 is impugned before us held that the assessee was entitled to 40 per cent depreciation since the motor vehicle was given on hire. 5. It is this finding of the first appellate authority which is challenged before us by the revenue. 6. Shri Radhakrishnamurthy, the learned departmental representative, contended before us that the car was never used by the assessee as a taxi ; that it was simply let out on hire to a single person ; that the vehicle was also never registered as a taxi nor road tax paid thereon as taxi and in these circumstances depreciation which was admissible would be governed by Appendix I--Entry III Machinery and Plant (not being a ship) item (7) and not Entry E item (1A). Opposing this, Shri D. Kameshwara Rao, C.A., canvassed before us that although there is no dispute to the facts that the car was rented out by the assessee to one person, this renting out assumed the character of changing the use of the vehicle as a taxi. The learned Representative conceded that the car may not have been registered as a taxi on which tax payable for a private car alone may be paid and not the increased road tax leviable for a taxi and in the process facts. constituting an offence in the Motor Vehicles Act may also be present, yet, so long as the car was rented, out and fetching rent, for the purposes of admissibility of depreciation under the Income-tax Rules, 1962 it fell within the category, latter of the two described above thereby entitling it to get depreciation at the rate of 40 per cent. In reply, the learned Departmental Representative, opposing these contentions urged that while in the former entry, i.e., Appendix I Entry III item (7) the Legislature has used the word 'motor car', in the latter entry Appendix I Entry E item (1A), it used the terminology 'motor taxis' used in a business of running them on "hire", which makes all the difference. 7. Having considered the rival submissions carefully, we are of the view that the learned Appellate Assistant Commissioner fell in a legal error when he applied the latter entry and granted depreciation of 40 per cent as the assessee's case falls within the purview of first entry entitling him only to get depreciation of 20 per cent. We say so for the following reasons. 8. The assessee after purchasing a car leased it out only to one party on a rental of Rs. 50 per day. It is difficult to concur with the learned Appellate Asstt. Commissioner that this situation could be equated wherein a vehicle is used as a taxi for general hiring by the public at large. While there may not be any dispute that the assessee let the car on hire at a fixed rental, we are not inclined to agree that it could mean that the vehicle is being used as a taxi. What is meant by use of a car as taxi is that it is available to public in general or in any case to a restricted class of public such as taxis attached to big hotels, etc., for general hire. It cannot be conveniently forgotten that under the Motor Vehicles Act, the car needs separate registration as a taxi and in all the States of the country taxis are allotted separate digital numbers to be displayed on their number plates which itself goes to suggest that a particular vehicle is being used as a taxi. We are, therefore, not impressed by the plea canvassed by the learned counsel for the assessee that the fact that the assessee did not get the car registered as a taxi and was not paying road tax thereon leviable as per the provisions of Motor Vehicles Act should be totally kept aside while determining that the vehicle in question was being run as a taxi. 9. After violating certain statutory provisions of the Motor Vehicles Act, the assessee cannot be permitted to take advantage of its own wrong and yet derive a benefit which is admissible only in the contingency of the car being used in a particular manner. Infraction of the provisions of the Motor Vehicles Act in the case in hand, has a direct bearing on the determination as to whether a vehicle could be treated as a motor car or taxi. 10. In the present case what appears is that on the basis of a contract, the assessee agreed to give on hire a car at a rental of Rs. 50 per day. Such a contract may be binding between the parties to it but it cannot take the character of something in rem by which public at large would be concerned with. As stated above, if a vehicle is not available for general hire nor registered properly as a taxi, we cannot call it a taxi. 11. Coming to the legal position also, we agree with the learned departmental representative that where the Legislature intended to allow 40 per cent depreciation, it used the words 'motor taxis' unlike in the other entry where it has used the term 'motor cars'. At this stage we reproduce below the aforesaid two entries : 20. Appendix I Part I Entry III - Machinery and Plant (not being ship) - item 7 Motor cars, motor cycles, scooters and other mopeds. 12. What was the need for the Legislature to use two different terminologies at two places in the same appendix ? The only reasonable way in which this question could be logically answered is that where the motor is used as a motor bus, motor lorry or motor taxi, depreciation admissible would be 40 per cent and where it is used only as a motor car, the depreciation would be only 20 per cent. If the Legislature had a different intention akin to the plea raised before us on behalf of the assessee, it could have also used the words motor car instead of motor taxi in item (1A) of Entry E. 13. The underlying idea in making this distinction is also manifest. Where a motor is used as a bus, lorry or taxi, it admits of more wear and tear for a variety of reasons. Where it is used as a private car, it is handled in a much safer, better and careful manner. It is for this reason that while in the former case, the depreciation allowable is 40 per cent, in the latter it is only 20 per cent. We are also not impressed by the reasoning assigned by the learned Appellate Asstt. Commissioner to say that if as per the Income-tax Officer there was no business and the car was not a business asset, no depreciation could have been admissible. The gravamen of the controversy is not as to whether the car is business asset or not. The controversy in fact revolves round as to whether the car is used as a taxi or not. What we feel is that the facts and circumstances of the case go to support the view that the vehicle in this case is being used though as a private car but not as a taxi. The depreciation, therefore, will be regulated by item (1A) by entry E of Appendix I and not by item (7) of Entry III of Appendix I. 14. In the result, the revenue succeeds and the appeal is allowed.

Income-Tax Officer vs Jupudi Parthasarathy on 13 June, 1988

Income Tax Appellate Tribunal - Hyderabad

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 2134 of 2009() 1. SAMUEL ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.S.SREEKUMAR For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.K.MOHANAN Dated :21/04/2009 O R D E R V. K.MOHANAN, J. ------------------------------------------- Bail Application No. 2134 of 2009 ------------------------------------------- Dated this the 21st day of April, 2009. O R D E R In this Petition filed under Sec. 439 Cr.P.C., the petitioners who are accused Nos. 1 to 3 in Crime No.171 of 2009 of Mavelikkara Police Station for offence punishable under Secs.477 of I.P.C., seek their enlargement on bail. 2. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. 3. Having regard to the nature of the offences, the duration of judicial custody of the petitioners, the present stage of investigation and the other circumstances of the case etc., I am inclined to grant bail to the petitioners. Accordingly, the petitioners are directed to be released on bail on each of them executing a bond for Rs.25,000/- (Rupees Twenty Five Thousand only) with two solvent sureties each for the like amount to the satisfaction of the concerned J.F.C.M. and subject to the following conditions:  Bail A.No.2134 Of 2009 -:2:- 1. The petitioners shall report before the Investigating Officer between 9 a.m. and 11 a.m. on all Wednesdays. 2. The petitioners shall make themselves available for interrogation as and when required by the police till the filing of the final report. 3. The petitioners shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution. 4. The petitioners shall not commit any offence while on bail. If the petitioners commit breach of any of the above conditions, the bail granted to them shall be liable to be cancelled. This application is allowed as above. V.K.MOHANAN, JUDGE MBS/  Bail A.No.2134 Of 2009 -:3:-

Samuel vs State Of Kerala on 21 April, 2009

Kerala High Court

CENTRAL INFORMATION COMMISSION Complaint No CIC/WB/C/2008/00312 dated: 28.02.'08 Right to Information Act 2005-Section 18(1)(e) Complainant: Shri Nandlal Sharma Respondent: Prime Minister's Office (PMO), New Delhi. Decision announced 30.11.'09 Facts: - The Commission has received a complaint from Shri Nandlal Sharma of Ajmer, Rajasthan that his request dated 20.01.2008 under RTI Act, 2005 seeking information related to meetings of the Prime Minister, submitted to Central Public Information Officer, Prime Minister's Office, New Delhi has been given an incomplete response. However, the complainant has not enclosed the copy of response received from the CPIO with the petition before us. Having admitted the complaint of Shri Sharma u/s 18(1)(e) of the RTI Act, 2005 the Commission served notice on 07.09.2007 to the CPIO, Prime Minister's Office, New Delhi seeking comments on the complaint. In her response of 25.09.2009 The CPIO Ms. Sanjukta Ray, Deputy Secretary submitted comments endorsing a copy also to complainant Shri Nandlal Sharma. CPIO Ms. Sanjukta Ray has informed the Commission that the request of the complainant had been denied by a letter dated 21 February, 2008 in light of the provisions of Sections 7(9), 8(1) and 11 of the Right to Information Act, 2005 by stating the grounds for denial in detail. She has enclosed the copy of the reply given to complainant Shri Sharma. On the other hand the complainant Shri Sharma has filed a rejoinder before us stating that the he does not agree with the information provided. Decision Notice Because the 1st appellate authority has not addressed the questions of appellant, which are of direct concern to his public authority and because the 1 complainant has pleaded no ground for making a direct complaint to us u/s 18(1)(e), the Commission has decided to remand this complaint to the First Appellate Authority Ms. Vini Mahajan Joint Secretary, Prime Minister's Office, to dispose of the complaint of Shri Nandlal Sharma as 1st appeal within ten working days from the date of receipt of this decision, under intimation to Shri Pankaj Shreyaskar, Jt Registrar, Central Information Commission. If not satisfied with the information provided on this 1st appeal, appellant Shri Nandlal Sharma will be free to move a 2nd appeal before us as per Sec 19 (3). Announced this thirtieth day of November 2009. Notice of this decision be given free of cost to the parties. (Wajahat Habibullah) Chief Information Commissioner) 30.11.2009 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. (PK Shreyaskar) Jt. Registrar 30.11.2009 2

Shri Nandlal Sharma vs Prime Minister’S Office (Pmo) on 30 November, 2009

Central Information Commission

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Nathu Singh vs State Of U.P. & Another on 6 September, 2010

Allahabad High Court

Court No. - 43 Case :- APPLICATION U/S 482 No. - 25293 of 2010 Petitioner :- Deepak Tiwari Respondent :- State Of U.P. & Another Petitioner Counsel :- R.D.Dauholia Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the applicant and learned AGA. This application has been filed with a prayer to dispose of the bail application of the applicant on the same day in case crime No. 1949 of 2010, under Sections 420/218 IPC, P.S. Kotwali Lalitpur, District-Lalitpur. However, considering the facts and circumstances of the case, it is directed that applicant moves application for appearance/surrender before the court concerned within 30 days from today, on which the court concerned shall fix the date of surrender/appearance, in the meantime the court concerned shall seek the instructions from the prosecution side. In case the applicant moves the application for bail on the day of the appearance or surrender, the same shall be considered and disposed of expeditiously, if possible, on the same day by the courts below. With this direction this application is finally disposed of. Order Date :- 10.8.2010 Ashish Tripathi

Deepak Tiwari vs State Of U.P. & Another on 10 August, 2010

Allahabad High Court

JUDGMENT G.B. Pattnaik, J. 1. Petitioner who is the wife and had filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code has prayed for enhancement of monthly maintenance granted by the learned Magistrate. Before this case was taken up for hearing on the request of the counsel for the opposite party, the records of Criminal Revision No. 37 of 1985 filed by the husband challenging the order of the Magistrate were brought from the Court of the Second Additional Sessions Judge Cuttack and the said revision after being registered in this Court as Criminal Revision No. 111 of 1986 was also heard along with Criminal Revision No. 106 of 1985 and both the cases are being disposed of by this common judgment. 2. The averments in the application filed under Section 125 of the Code are to the effect that the marriage between the petitioner and opposite party took place on 4.5.1974 and both of them continued to live as husband and wife till June 1975, though they were not pulling on well with each other on account of failure to pay the required dowry by the petitioner's parents. The opposite party, the husband, illtreated the petitioner and ultimately assaulted her. At last, the opposite party sent the petitioner to her father's house where she has been staying all along and she has been neglected by her husband. In the meantime, on the application of the husband under Section 13 of the Hindu Marriage Act, a decree for divorce has been passed. As the petitioner does not have sufficient means to maintain herself, she clamed maintenance by filing the present application. According to the petitioner, the opposite party gets a monthly salary of Rs. 1,000/- and that apart, he has some houses in the town of Cuttack which he has given on rent and gets about Rs. 1,800/-per month from the house rent. She, therefore claimed Rs. 500/-per month as maintenance allowance and Rs.15,000/-towards medical expenses. 3. The opposite party denied the allegations made in the application and took the stand that the petitioner had left him on her own accord and even though the opposite party tried to bring her back but was unsuccessful. Ultimately, he was forced to file the application for divorce and has obtained a decree thereunder. The opposite party denied to have neglected the petitioner at any point of time and further asserted that the petitioner had sufficient means to maintain herself and, therefore, she was not entitled to claim maintenance invoking the provisions of Section 125 of the Code. 4. Parties led evidence before the learned Magistrate and on consideration of the materials, the learned Magistrate came to hold that the petitioner was the legally married wife of opposite party and he had refused to maintain her. On the question of petitioner's inability to maintain herself, the learned Magistrate came to hold that though she gets something from tuition, but the exact amount was not known and, therefore, she must be held to be entitled to receive maintenance within the ambit of Section 125 of the Code. After coming to the conclusion hat the petitioner is entitled to receive maintenance, the learned Magistrate also considered the monthly income of the husband-opposite party and ultimately directed that the petitioner should get Rs. 75/- per month towards maintenance from the date of institution of her application The legality of this order has been challenged by the husband in Criminal Revision No. 37 of 1985 before the learned Second Additional Sessions Judge Cuttack the records of which were brought back to this Court by order dated 18.2.1986 and the said revision has been numbered as Criminal Revision No 111 of 1986. 5. Mr. Sahu, the learned counsel appearing for the husband-opposite party contends that one of the pre-conditions of entitlement to receive maintenance under Section 125 of the Code is that the wife is unable to maintain herself. According to him since in this case it is proved that the wife has some income from tuition the provision of Section 125 of the Code is not attracted and, therefore, the order of the learned Magistrate must be set aside. 6. Section 125 of the Code is a provision intended to prevent vagrancy and the main object is to enable discarded wives to secure the relief of maintenance. The obligation of a husband to maintain his wife can be implemented by a Magistrate in taking a summary action, subject of course to the condition that the ingredients of the said provisions are fully satisfied. It provides speedy remedy against starvation and gives effect to the fundamental and natural duties of a man to maintain his wife, children and parents. The learned Magistrate has found in the present case that the wife has been refused maintenance and the husband has sufficient means to maintain Mr. Sahu appearing for the husband-opposite party does not challenge the said findings. The only point for consideration is, therefore, whether in the facts and circumstances of the present case, it can be said that the wife is unable to maintain herself. Mr. Sahu's main contention is that the wife has some income from tuition and therefore, she cannot be said to be unable to maintain herself. The phrase "unable to maintain herself means unable to earn a livelihood. This obviously means that the earning is such that the wife can maintain herself without depending upon others. But merely because a deserted wife earns a paltry sum by engaging herself in some profession which may not even be sufficient to give one meal per day, it cannot be said that she is able to maintain herself with the income she earns. The income must be such which would be sufficient for an ordinary person to be maintained out of the same. The evidence in the present case discloses that the petitioner earns some money by doing tuition. But what is the exact amount she earns from the tuition is not on record Keeping in view the cost of living in the present day and without any definite evidence as to the income of the wife from the so-called tuition, it is not desirable and possible to hold that she has sufficient income so as to disentitle her to receive maintenance under Section 125 of the Code. In this view of the matter, in my opinion, there is no force in the contention of Mr. Sahu, the learned counsel for the husband-opposite party and, therefore, Criminal Revision No. 37 of 1985 before the Second Additional Sessions Judge (Criminal Revision No. 111 of 1986 of this Court) preferred by the husband must be dismissed. 7. Coming to the other revision filed by the wife-petitioner in this Court (Cr. Rev. No. 106 of 1985), the question for consideration is whether in the facts and circumstances of the present case, a monthly maintenance of Rs. 75/- can be held to be reasonable. 7 he opposite party-husband is a clerk saving under the Government of India. The basic salary is about Rs. 500/- If the allowances of a Government servant are taken into consideration, the total income would be more than Rs. 1,000/-. That apart, there is positive assertion by the wife-petitioner that the husband gets some income from the houses given on rent. Taking into consideration all these materials, in my opinion a sum of Rs. 75/- is inadequate and in the fitness of things, the petitioner-wife must get a maintenance of Rs. 100/- a month. I would, therefore, hold that the petitioner is entitled to receive monthly maintenance of rupees one hundred and this amount is payable with effect from the date of the application made by her as has been held by the learned Magistrate. Criminal Revision No. 106 of 1985 must accordingly be allowed. 8. In the ultimate result, therefore, Criminal Revision No. 106 of 1985 is allowed and Criminal Revision No. 37 of 1985 which has been brought over to this Court from the Court of the Second Additional Sessions Judge Cuttack and registered here as Criminal Revision No. 111 of 1986 is dismissed.

Author: G Pattnaik

Namitarani Bose vs Dipak Kumar Bose on 28 February, 1986

Orissa High Court

JUDGMENT Arnold White, C.J. 1. The question referred to us appears to assume that an award made in the circumstances stated in the question would not be a valid award. In the course of the argument the question was raised whether, under the provisions of the Code of Civil Procedure, an award made in the circumstances stated would not be valid notwithstanding the refusal of two of the arbitrators nominated by the parties to act, and the fact that the Court had appointed arbitrators in the place of those who had refused to act without the parties desiring" (see Section 507 of the Code of Civil Procedure of 1882) that the nomination of fresh arbitrators should be made by the Court. As to this I am not prepared to dissent from the view taken by this Court in Pugardin v. Moidin 6 M. 414 and Bala Pattabirama Chetti v. Seetharama Chetti 17 M. 498 and by the Allahabad High Court in Fayaz-ud-din v. Amir-ud-din 6 A.L.J. 351 : 1 Ind. Cas and in Bepin Behary Chowdry v. Annoda Prosad Mullick 18 C. 324. In his judgment in the Allahabad case, Stanley, C.J., refers to the statement of the law in Russel on Arbitration, (see Edition 9, page 92) that the acceptance of the office by an arbitrator seems necessary to perfect the appointment. But the question of course is, not whether the original appointment of arbitrators who refuse to act was good, but whether an award given in the circumstances stated in the question is a good award. I share the doubts expressed by Banerji, J., in the Allahabad case, but, as I have said, I am not prepared to dissent from the cases to which I have referred. Accordingly, I deal with the case on the footing that the award was bad. 2. The general right of appeal which would otherwise exist from a decree given in pursuance of an award is expressly cut down by Section 522, which provides that no appeal shall lie from a decree following a judgment under that section except in so far as it is in excess of, or not in accordance with, the award. There is thus a double limitation--a limitation as to the ground of appeal and a limitation as to the extent of the scope of the appeal where an appeal lies. Even when the decree is in excess of the award, there is only an appeal, against so much of the decree as is in excess of the award. The intention of the Legislature seems to be clear that where there is a reference to arbitration and an award, if the Court sees no cause to remit the award, and there is no application to set aside the award, or an application to set aside the award has been refused, that the validity of the award cannot be impugned. The grounds on which an award may be remitted are set out in Section 520. It seems clear that under this section an alleged defect in the tribunal which gave the award is no ground for remitting it. It also seems clear that this is no ground for setting aside the award under Section 521. As I read the provisions of the old Code, it Seems to me that if there was no appeal under Section 522 on the ground that there was no award in law, there were no means of impugning an award (except where there is an application to file an award under Section 526) on the ground that the award was bad in law. This being so, one would be disposed, if possible, to construe Section 522 so as to supply these means. This, in effect, in the numerous decisions to which we have been referred, is what the Courts in this country have done. They Have held that award in Section 522 means a good award; but the very object of Section 522 seems to have been to prevent that question being raised when matters have reached the stage of judgment according to the award. 3. The question came before the Privy Council in Ghulam Khan v. Muhamad Hassan 29 C. 167 : 29 I.A. 51. In that case their Lordships observed: Those words (the words in Section 522 limiting the right of appeal) appear to be perfectly clear. Their Lordships would be doing violence to the plain language and the obvious intention of the Code, if they were to hold that an appeal lies from a decree pronounced under Section 522, except in so far as the decree may be in excess of, or not in accordance with, the award. The principle of finality which finds expression in the Code is quite in accordance with the tendency of modern decisions in this country. The time has long gone by since the Courts of this country showed any disposition to sit as a Court of appeal on awards in respect of matters of fact or in respect of matters of law. In the earlier Privy-Council case, Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55, the award was made after the period allowed by the Court had expired. The Privy Council held that an appeal lay from a decree in pursuance of the award. Section 521 expressly provides that no award shall be valid unless made within the period allowed by the Court. In that case the tribunal which made the award was functus officio when the award was made and the award was invalid by the express enactment of the legislature. That seems to me to be a different case from the present where the award is sought to be impugned by way of appeal from a decree given under Section 522 on the ground that certain of the arbitrators were appointed by an order which the Court had no jurisdiction to make. In any case, we are governed by the later decision. In Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55 the Privy Council no doubt express their entire approval of the judgment of the Allahabad High Court in Chuha Mal v. Hari Ram 8 A. 548 and in that judgment the Allahabad Judges made the general observation that as the award was invalid the decree was not a decree in accordance with an award from which no appeal lies. But it seems to me the observation by the Allahabad Judges and the approval of their judgment by the Privy Council must be read with reference to the facts of the case in the Allahabad High Court, and not as a pronouncement that in all cases where an award is bad in law there is a right of appeal notwithstanding the express limitation on the right of appeal contained in Section 522. 4. The numerous authorities are collected and discussed in the order of reference. I do not propose to go through them. With all respect to the learned Judges who have taken the view which is suggested by Krishnaswami Aiyar, J., as the right view in the order of reference, in my opinion, the question is governed by the decision of the Privy Council in Ghulam Khan v. Muhammad Hassan 29 C. 167 : 29 I.A. 51, and I do not think we could hold that there is a right of appeal in the circumstances related in the order of reference without doing violence to the express language of Section 522. 5. I think the case Kanakku Nagalinga Naik v. Nagalinga Naik 32 M. 510 : 6 M.L.T. 176 : 4 Ind. Cas. 871 : 19 M.L.J. 480 was rightly decided and I would answer the question, which has been referred, in the negative. 6. It is satisfactory to note that the difficulties which have given rise to this order of reference have been removed by the new Code. Krishnaswami Aiyar, J. 7. I have had the advantage of reading the judgment of the learned Chief Justice. I entirely agree with him that no reason has been shown for reconsidering the decision in Pugardin v. Moidin 6 M. 414 followed in Bala Pattabirama Chetti v. Seetharama Chetti 17 M. 498 and Bepin Behary Chowdhury v. Annoda Prosad Mullick 18 C. 324. Section 507, which speaks of the arbitrator refusing to accept the arbitration and requires the Court to nominate a fresh arbitrator only when the parties desire that this nomination shall be made by the Court, contrasted with Section 510, which enables the Court in its discretion, when the arbitrator named by the parties dies or refuses or neglects or becomes incapable to act, either to appoint a new arbitrator or to make an order superseding the arbitration, leaves no room for doubt as to the correctness of the decision in Pugardin v. Moidin 6 M. 414. It follows upon the facts stated in my referring judgment that the award in this case was invalid, not having been made by the tribunal constituted in accordance with the agreement of the parties. 8. The question, however, remains whether a decree having been made in accordance with the award, an appeal, lies from the decree except in so far as it is in excess of, or not in accordance with, the award. In my order of reference, I overlooked the fact that Section 522 had no application to a case where the award was remitted for re-consideration and it became void on the refusal of the arbitrators to re-consider it. A decree passed in accordance with an award which has so become void is not a decree under Section 522 and the limitation contained in it of the right of appeal has no application. But the difficulty remains with reference to a decree passed in accordance with an award invalid under the last clause of Section 521 by reason of its not having been made within the time allowed by law. In such a case there could be no application to set aside the award, as it could not fall within clauses a, b, or c, of Section 521. It can hardly be contended that Section 522 Clause 1 deals only with cases to which Section 520 and clauses a, b and c of Section 521 in terms apply. If it be so limited, the cases of no submission, of no award in law and of awards bad for any irregularity in, this reference, would lie outside Section 522 and the decrees passed in accordance with the award in such cases would he appealable without reference to the limitation contained in the last clause of Section 522. If no application has, as a matter of fact, been made to set aside the award as in Raja Har Narain Singh v. Chaudrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55, whether the case be one in which there is scope for such an application or not, or if the Court has refused an application to set aside the award, Section 522 seems to be applicable. It would, no doubt, be an unmeaning formality for the Court to wait until the period prescribed by Article 158 of the Limitation Act has expired as provided by the second Clause of Section 522, if no application would lie under Section 521. This is perhaps a strong argument in favour of the view that the case of an invalid award under the last clause of Section 521 is not intended to be dealt with by Section 522. I feel bound to hold that the decision of the Privy Council in Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55, is unaffected by the later decision of the same tribunal in Ghulam Khan v. Muhammad Hassan 29 C. 167 : 29 I.A. 51. I think it unnecessary to repeat the reasons far this conclusion which I have already given in the order of reference. I may add, however, that the judgment of the Privy Council in Hansraj v. Sundar Lal and Hansraj v. Duarka Das 35 C. 648 : 10 Bom. L.R. 581 : 12 C.W.N. 585 : 7 C.L.J. 520 : 138 P.L.R. 1908 : 18 M.L.J. 266 : 99 P.W.R. 1908 : 14 Bur. L.R. 146 : 80 P.R. 1908, contains no word of disapproval of doubt with reference to the decision in Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55, treated as perfectly good law in the judgment of the Chief Court of the Punjab in the case of Hansraj v. Ganga Ram 88 P.R. 1902 : 119 P.L.R. 1902 (F.B.) from which the appeal came to the Privy Council. Whatever difficulty there may be in reconciling the decision of the Privy Council in Raja Har Narain Singh v. Chaudrain Rhagwant Kuar 13 A. 300 : 18 I.A. 55 with their Lordships' view as to the meaning of the last clause of Section 522, there appears to be no doubt as to their interpretation of that class as applied to cases of arbitration in pending suits. It appears to be their Lordships' conclusion that, if the first two clauses of Section 522 are complied with, the decree passed in accordance with the award is final except as provided in the last clause. It is perhaps a matter for regret that in their exposition of the law in Ghulam Khan v. Muhummed Hassan 29 C. 167 : 29 I.A. 51, there is no word dealing with the practically unanimous decisions of the Indian High Courts See Husananna v. Linganna 18 M. 423; Amrit Ram v. Dasrat Ram 17 A. 21; Kali Prosanno Ghose v. Rajani Kant Chatterjee 25 C. 141; Mahomed Wahid-ud-Din v. Hakiman 25 C. 757 and Nandaram Daluram v. Newchand Jadavchand 17 B. 357 which held that there was a right of appeal though the decree was in accordance with the award, if there was no submission or there was no award in fact or in law. I am, however, satisfied that the ratio decidendi of their Lordships in Ghulam Khan v. Muhammad Hassan 29 C. 167 : 29 I.A. 51 in cases of awards in pending suits, was that the language of the clause of Section 522 limited the right of appeal. As regards the other cases of application to file a submission under Section 523, or to file an award under Section 525, the judgment of the Privy Council is clear that the order filing the agreement or the award or refusing to file it is a decree and appealable under -section 540 without reference to anything in Section 522. If after such filing of the agreement or award and in the first case after the award is delivered, no objection is allowed under Section 520 or 521 and a decree is made in pursuance of the award. It would seem to follow that the last clause of Section 522 applies as a matter of course. It is unnecessary to consider other difficulties under Sections 525 and 526 as to whether it would be competent to the Court to entertain objections not mentioned in Section 520 or 521. All that we are now required to decide is whether after the decree in accordance with the award, an appeal may be entertained except in so far as the decree is in excess of, or not in accordance with, the award. I agree, though with some hesitation, in the conclusion arrived at by the learned Chief Justice. Ayling, J. 9. I concur in the view taken by the learned Chief Justice, and in the answer proposed by him.

Author: A White

Tallapragada Suryanaraina Row vs Tallapragada Sarabaya on 20 December, 1910

Madras High Court

[Section 44(2)] [Section 44] [Complete Act]

Central Government Act

THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY W.P.NO.12216 OF 2019 ORDER Aggrieved by the action of official respondents in not enforcing the judgment in C.C.No.248 of 2015 dated 15.02.2017 passed by the court of IX Special Magistrate, Hasthinapuram, L.B.Nagar, R.R. District, Hyderabad, which has been confirmed in appeal and revision, by arresting the unofficial respondent No.4 herein, the present writ petition is filed. Heard the learned counsel for the petitioner. Learned Assistant Government Pleader for Home produced written instructions of Sub-Inspector of Police, Musheerabad Police Station, Hyderabad City, dated 20.06.2019, stating that upon the directions of trial court, the Station House Officer, Musheerabad executed the warrants on the 4th respondent herein on 20.06.2019 and produced before the court. Recording the statement made in the written instructions, the writ petition is disposed of. Interlocutory applications pending, if any, shall stand closed. No order as to costs. --------------------------------------------- A.RAJASHEKER REDDY,J DATE:26-06-2019 AVS

M. Satyanand vs The State Of Telangana on 26 June, 2019

Telangana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 184 of 2008() 1. RANJAN.V., S/O.NADESHAN, ... Petitioner Vs 1. THE STATE OF KERALA REP. BY PUBLIC ... Respondent 2. SIVARAM TRANSPORT FINANCIERS LTD., For Petitioner :SMT.T.SUDHAMANI For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :14/01/2008 O R D E R R.BASANT, J ------------------------------------ B.A.No.184 of 2008 ------------------------------------- Dated this the 14th day of January, 2008 ORDER Application for anticipatory bail. Petitioner faces allegations under Section 138 of the Negotiable Instruments Act. Cognizance has been taken. The petitioner has not so far appeared before the learned Magistrate. Coercive processes have been issued against the petitioner by the learned Magistrate. The petitioner finds such processes chasing him. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. He is willing to surrender before the learned Magistrate and apply for bail. But he apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is therefore prayed that directions under Section 438 and/or 482 Cr.P.C may be issued in favour of the petitioner. 3. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the  B.A.No.184 of 2008 2 circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider such application on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 4. This bail application is, in these circumstances, dismissed, but with the specific observation that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) rtr/-

Ranjan.V. vs The State Of Kerala Rep. By Public on 14 January, 2008

Kerala High Court

JUDGMENT Arthur Wilson, J. 1. This appeal raises a question upon the construction and effect of the Bengal Tenancy Act, a short question, but one which may be of considerable importance wherever that Act applies. 2. The facts of the case are not in dispute, and are simple. In the year 1837 the then owner of the zemindari interest in an 8 annas share in Dihi Haloti created a putni tenure in those 8 annas in favour of one Abbott, at a rent reserved. The zemindari and the putni interests both underwent subsequent devolutions, and at the "time which is now'material, the present plaintis (appellant) held 6 annas of the zemindari interest, respondents 14 and 15 held one anna, and respondents 2, 3, and 16one anna. The putni aterest was held by the remaining respondents, and also by respondent 16. The last-mentioned, therefore, was interested both in the zemindari and in the putni. The putni rent fell into arrear so far as the share which should have come to the appellant was concerned. 3. The appellant thereupon brought the present suit on the 17th April 1900 in the Court of the Subordinate Judge of Rajshahye. He made the putnidars defendants, and he joined as co-defendants his co-sharers in the zemindari on the ground that they refused to join him as plaintiffs. The suit was framed as one under the Bengal Tenancy Act to recover the whole rent of the tenure, and for that purpose to bring to sale the tenure itself. But the plaint asked in the alternative for a decree for the plaintiff's share of the rent. 4. The Subordinate Judge refused to make a decree under the Bengal Tenancy Act for the whole putni rent, and gave a decree only for the plaintiff's share of the rent. On appeal, the case came before two Judges of the High Court, Ghose and Geidt JJ., who differed in opinion, Ghose J. holding that the view of the Subordinate Judge was correct, Geidt J. being of the contrary-opinion. In consequence of this difference the case was referred to a third Judge. Brett J., who agreed with Ghose J., with the result that the appeal was dismissed. Against that decision the present appeal has been brought, and it lies upon their Lordships to determine which of the views taken by the learned Judges ought to prevail. 5. Section 65 of the Bengal Tenancy Act enacts that:- Where a tenant is a permanent tenure holder...he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon. 6. Section 159 and the following sections provide the means and procedure for so bringing the tenure to sale, and for the cancellation of incumbrances thereupon. The only other section which it is necessary to refer to is Section 188, which says that :- Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all those persons acting together, or by an agent authorized to action behalf of both orallof them. 7. By the express terms of the Bengal Tenancy Act, in the event of rent being unpaid, the owners of the zemindari interest are entitled, by suit under that Act, to bring a putni to sale, with the consequences prescribed by the Act. And it is a general rule-a rule not derived from the Bengal Tenancy Act, but from quite another branch of law, namely, the general principles of legal procedure-that a sharer, whose co-sharers refuse to join him as plaintiffs, can bring them into the suit as defendants, and sue for the whole rent of the tenure. This must apparently be the law applicable to the present case, unless there be something to exclude the case from the operation of these general rules. 8. For the purpose of this exclusion, what was relied on was this: it was said that, by express or implied agreement between the zemindars and the putnidars, the shares in the putni rent of the several zemindars were to be paid, and so far as they were paid at all, were, in fact, paid separately; and it was contended that that agreement, on the one hand, entitled the separate zemindars to sue for their separate shares, and to bring to sale the right, title, and interest of the putnidars, but on the other hand, either precluded the zemindars altogether from obtaining a decree under the Bengal Tenancy Act for the rent as a whole, or at any rate prevented one of the zemindars from doing so by making his co-sharers defendants. 9. This was the contention which prevailed with the Subordinate Judge and with two out of the three Judges in the High Court. 10. The evidence of the alleged agreement consisted of certain decrees, which seemed to show that the shares of the rent had been from time to time separately recovered. It has long been held in Bengal that agreement, either expressly proved or implied by the conduct of the parties, may establish the right to sue separately for the shares of rent receivable by the separate share-holders; and their Lordships have no inclination to question that course of rulings. 11. But it has been equally clearly laid down in Bengal that such an arrangement, expressed or implied, merely affects the right to sue separately for rent, and in no other respect modifies the terms of the holding; and their lordships think that this is clearly a sound view of the law. And it appears to their Lordships to be sufficient ground upon which to decide this appeal, for it follows, from the propositions referred to, that the right to bring the tenure to sale for arrears of rent remains intact, and also the right of one sharer to sue, making his co-sharer defendants when they will not join as plaintiffs. 12. It only remains to notice Section 188 cited above. It was suggested in argument that this section precludes a suit under the Act, for the aggregate rent of the tenure, unless all those entitled to share in the rent join as plaintiffs. Their Lordships are not impressed by this argument. The filing of a suit is not a thing which the landlord is, under the Act, required or authorised to do. It is an application to the Court for relief against an alleged grievance, which the plaintiff is entitled to submit, not by reason of any provision of the Tenancy Act, but under the general law. 13. Their Lordships will humbly advise His Majesty that this appeal should be allowed, that the decrees of both Courts in India should be discharged, and that instead thereof it ought to be declared that the appellant is competent to bring a suit under the Bengal Tenancy Act, for the whole rent due in respect of the property in suit, that the case ought to be remitted to the High Court to take the necessary steps for the disposal thereof on the footing of the above declaration, and that the respondents who defended the appeal to the High Court ought to pay the costs thereof, and that the costs in the Court of the Subordinate Judge ought to be dealt with by that Judge on the above footing. 14. The respondents who defended this appeal will pay the costs of it.

Author: A Wilson

Raja Pramada Nath Roy vs Raja Ramani Kanta Roy on 11 December, 1907

Bombay High Court

JUDGMENT 1. The plaintiff respondent in this appeal sued for certain shares in the pala of a thakur's Skeba, and in the property appertaining there to. His claim is based on an arpannamah executed in his favour by three of the defendants Nos. 5, 6 and 7. He is at present an 8 annas owner of the property in dispute, has a reversionary interest in 5/6 of the remainder: and is the maternal uncle of defendants Nos. 5-7. It is asserted in the plaint and appears to be the case that the plaintiff owing to his place of residence and other advantages could perform the sheba of the thakur much better than defendants Nos, 5 to 7, and that this was a reason for the arpannamah. Under these circumstances relying on the decision in Mancharam v. Pranshankar 6 B. 298 the lower appellate Court has held that the office of shebait was alienable by defendants Nos. 5-7 and that the plaintiff acquired a good title under the arpannamah. This decision was, in our opinion, correct. It is true that the decision in Mancharam v. Pranshankar 6 B. 298 has recently been disapproved of in this Court see Rajeswar Mullck v. Gopeswar Mullick 35 C. 226 : 7 C. L. J. 315 12C. W.N. 323 but that was on the ground that the alienation was by will. At the same time Maclean, C. J. admits that there are authorities for such an alienation inter vivas under special circumstances. Such special circumstances seem to have existed in the case of Khetter Chander Ghose v. Hari Das Bundopadhya 17 C. 557 where a transfer inter vivas Of an idol and the lands with which ,it was endowed was allowed on the ground that the arrangement was a beneficial one for the idol, because it tended to provide for the proper conduct of its worship. Further light is thrown on the case by the judgment in Rajaram v. Ganesh 23 B. 131 where Ranade, J, while affirming the general rule against alienation, indicates private voluntary alienations as possible exceptions to the rule. It is to be observed that in Mancharam v. Pranshankar 6 B. 298 the fact that the alienation was to a person in the line of succession and capable of performing the worship of the idol was regarded as a justification for the alienation, and that in Bajeswar Mullick v. Gopeswar Mullick 35 C. 226 : 7 C.L.J. 315 12 C.W.N. 323, Mittra, J. treated "clear benefit to the Thakur" in the same way. In the present case, therefore, as the alienation was by an arpannamah to a closely connected member of the family who seems to have more interest in the worship of the idol than any one else, and as it seems to have been made without any idea of personal gain, but in order to prevent the interference of the appellant who claims herself as an alienee of the interest of defendants Nos. 5-7, we consider that the case is governed by the special circumstances to which Maclean, C.J., refers. 2. The result is that this appeal is dismissed with costs.

Nirodbarani Dassi vs Shiba Das Pal Dewasin on 8 July, 1909

Calcutta High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 14 of 2010() 1. MANIAPPAN, S/O.VASU, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.AJITH MURALI For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :08/01/2010 O R D E R K.T. SANKARAN, J. --------------------------- B.A. No. 14 of 2010 ------------------------------------ Dated this the 8th day of January, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the accused in Crime No. 29/2009 of Thiruvalla Excise Range. 2. The offence alleged against the petitioner is under Section 8(1)(2) of the Abkari Act. 3. The prosecution case is that on 15.06.2009, the petitioner was found in possession of one litre of arrack. The petitioner was arrested on 25.11.2009 and he was remanded to judicial custody. 4. It is submitted by the learned Public Prosecutor that the petitioner is involved in five other cases of similar nature. 5. The learned counsel for the petitioner submitted that the petitioner undertakes not to commit any offence of similar nature while on bail in the present case. This undertaking is recorded. 6. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the  B.A. No. 14 of 2010 2 petitioner, the nature of the offence and also the undertaking, I am of the view that bail can be granted to the petitioner. 7. The petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the Judicial Magistrate of the First Class, Thiruvalla subject to the following conditions:- K.T. SANKARAN, JUDGE  B.A. No. 14 of 2010 3 ln 

Maniappan vs State Of Kerala on 8 January, 2010

Kerala High Court

Gujarat High Court Case Information System Print SCA/14314/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14314 of 2010 ========================================================= NILANG RAMANBHAI BANKER - Petitioner(s) Versus DOLY NILANG BANKER - Respondent(s) ========================================================= Appearance : MR AY KOGJE for Petitioner(s) : 1, MR RAMNANDAN SINGH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 18/02/2011 ORAL ORDER Mr. Samir Upadhyay, learned advocate appearing for Mr. Kogje for the petitioner states that he does not press this petition. Petition therefore stands disposed of as not pressed. Notice is discharged. Interim relief, if any, stands vacated. (K.S. JHAVERI, J.) Divya//     Top

Author: Ks Jhaveri,&Nbsp;

Nilang vs Doly on 18 February, 2011

Gujarat High Court

Gujarat High Court Case Information System Print SCA/9077/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9077 of 2008 ========================================================= BRADY & MORRIS ENGINEERING COMPANY LIMITED - Petitioner(s) Versus GHANSHYAMBHAI BHIKHABHAI PANCHAL - Respondent(s) ========================================================= Appearance : MR DG SHUKLA for Petitioner(s) : 1, MR TR MISHRA for Respondent(s) : 1, MR UT MISHRA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 30/09/2008 ORAL ORDERRule returnable on 17th November, 2008. Interim relief to continue till final disposal of the matter. Learned advocate for the petitioner states that the award will be complied with. Liberty to the parties to move the Court even before earlier than the fixed date. (S.R.BRAHMBHATT, J.) vijay*     Top

Author: S.R.Brahmbhatt,&Nbsp;

Brady vs Ghanshyambhai on 30 September, 2008

Gujarat High Court

Court No. - 49 Case :- CRIMINAL APPEAL No. - 5204 of 2009 Petitioner :- Ram Ji Respondent :- Union Of India Petitioner Counsel :- Raj endra Tiwari Respondent Counsel :- A.N. Singh Hon'ble Ra°esh Dayal Khare,J. As prayed, list after four weeks. Order Date :- 19.1.2010 S.Ali

Ram Ji vs Union Of India on 19 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14102 of 2010 RAM CHARITRA MANDAL Versus THE UNION OF INDIA & ORS ----------- 02. 27.08.2010 Learned counsel for the petitioner, Union of India as also the Bank are present. As prayed for on behalf of the respondents - Union of India and Bank, put up this case after four weeks so as to enable them to file counter affidavit. List this case after four weeks within top forty cases for filing counter affidavit. Jagdish/ ( Shailesh Kumar Sinha, J.)

Ram Charitra Mandal vs The Union Of India &Amp; Ors on 27 August, 2010

Patna High Court - Orders

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Commissioner Customs & Central ... vs M/S Samtel Color Ltd. Gaziabad on 30 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(S). No. 115 of 2007 ... 1. Ranjana Kumari 2. Chandra Shekhar Yadav 3. Madan Mohan Prasad 4. Renu Kumari 5. Kumari Swetambara 6. Arjun Kumar 7. Dinesh Mahto ... Petitioners -V e r s u s- 1. The State of Jharkhand 2. The Principal Secretary, Department of Human Resource Development, Jharkhand, Ranchi 3. The Director, Primary Education Directorate, Department of Human Resource Development, Jharkhand, Ranchi 4. The District Superintendent of Education, Ranchi ... Respondents ... CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK. ... For the Petitioner : - Mr. Rajesh Kumar, Advocate For the Respondents : - J.C. to G.P.-III. ... 08/ 14.12.2009 Heard counsel for the parties. 2. The grievance of the petitioners is that after having issued letters of appointment to them, the respondents, by the impugned letter, have terminated the services of the petitioners, which act on the part of the respondents, according to the petitioners, is illegal, arbitrary and contrary to the principles of natural justice. 3. In response to the advertisement issued by the State Government through the J.P.S.C. for filling up the vacancies in the post of trained teachers, the petitioners had submitted their applications. In consonance with the requirements as contained in the advertisement, the petitioners had enclosed the certificates pertaining to their claim for reservation in the Scheduled Caste category. When the applications were received, petitioners like several others, were issued admit cards and they were allowed to appear at the written examination followed by interview and finally a merit list was published in which the names of the petitioners have also transpired. 4. However, on final scrutiny of documents, it was found that the petitioners had produced caste certificates which they had obtained from the concerned authorities in the State of Bihar. Upon an objection being taken against such certificates, the petitioners produced fresh certificates which they had obtained from the competent authority in the State of Jharkhand. Upon receiving such certificates, the concerned department had sought for a guideline from the department head as to whether the certificates produced subsequently by the petitioners should be accepted or not. It appears that by way of clarifications and instructions, the department head had issued a clarificatory letter under which instruction was issued to verify the genuineness of all such certificates which the candidates had produced after obtaining the same from the competent authorities of the State of Jharkhand and then, if the certificates were found genuine, to proceed further. It further appears that the certificates which were produced by the petitioners, were subjected to verification and upon being found genuine, letters of appointment were issued to each of the petitioners. However, on perusal of letter of appointment, it appears that the same was issued indicating that the letter of appointment was issued temporarily and subject to further scrutiny of the certificates and other testimonials which the petitioners had submitted. 5. It appears that a similar controversy in respect of the caste certificate which the several candidates had produced and which were obtained from the concerned authorities of the states other than Jharkhand, when not being accepted by the respondents, was referred to a Bench of this Court and subsequently the matter came up for consideration before a Division Bench of this Court in the case of Kavita Kumari & Others vide W.P.(S) No. 578 of 2004 and analogous cases. After considering the entire issues involved, this Court had recorded its observations along with its directions in the following terms :- 6. It appears that in the light of the above observations and declarations as contained in the Division Bench judgement of this Court, the respondent State had terminated the appointment of the petitioners vide the impugned letter and against which the petitioners are aggrieved. 7. Learned counsel for the petitioners would submit firstly that the directions as contained in the Division Bench judgement of this Court in the case of Kavita Kumari (Supra) would not apply to the present petitioners since the present petitioners were not impleaded as party in the earlier writ applications. Secondly, the petitioners had declared from the very beginning even in their respective application forms, that they are residents of the State of Jharkhand. Although they had initially submitted caste certificate issued by the concerned authorities of the State Bihar along with their application forms, but subsequently on being insisted upon, they had obtained their caste certificates issued by the appropriate authorities in the State of Jharkhand. The petitioners, have therefore the support of two factors firstly, that they are permanent residents of Jharkhand and secondly, that they had obtained caste certificates issued by the authorities concerned in the State of Jharkhand. 8. Per contra, the counsel for the respondents would argue that admittedly, though appointment letters were issued to the petitioners but the same was declared as temporary and made subject to further scrutiny of the testimonials attached by the petitioners to their respective applications. Admittedly the petitioners did not submit their caste certificates issued by any competent authority of the State of Jharkhand along with their individual applications. Rather, the certificates which they had enclosed along with their respective applications were though issued by the authorities other than those of the State of Jharkhand. It is further explained that since the petitioners had submitted caste certificates subsequently after obtaining the same from the concerned authorities of the State of Jharkhand, the appointment letters were issued to them in consonance with the instructions received from the head of department but later, when the position was duly clarified by the observations and directions contained in the order of the Division Bench of this Court in the case of Kavita Kumari (Supra), the respondents had no option but to cancel the appointment letters of the petitioners on the ground that they had not submitted their caste certificates obtained from the competent officers of the State of Jharkhand along with their respective application forms. 9. Having heard learned counsel for the parties and having gone through the records, I am of the opinion that the petitioners have not been able to make out a definite case for grant of the reliefs as claimed for by them in this writ application. 10. The directions as issued by the Division Bench of this Court are clear and specific and the same would apply in general, to all similarly situated candidates and cannot be treated as confined only to the writ petitioners whose cases were considered by the Division Bench. Admittedly, the petitioners had not submitted their caste certificates issued by any competent authority within the State of Jharkhand along with their application forms. Such caste certificates were obtained much later. In the direction as issued by the Division Bench in the case of Kavita Kumari, it has been strictly stipulated that those candidates who have obtained certificates from the district authorities of the State of Jharkhand after the last date of filing of the application form, those certificates also cannot be taken into consideration to grant benefit of reservation. This gives sufficient ground to the respondents to cancel the appointment letters issued to the petitioners. 11. As regards the contention of the petitioners that before issuing the termination letter, the petitioners have not been informed by any prior notice, such Rule, in my opinion, would not apply to the petitioners' case in view of the fact that admittedly the letters of appointment issued to them were purely temporary, as declared in the individual letters. As regards the claim of the petitioners that by virtue of letters of appointment, the petitioners had reported their joining and their services were continuously taken from the date of their appointment till the date of issuance of the impugned letter of termination, for a period of more than four years, and yet the petitioners are not being paid any salary or any wages whatsoever, the respondent authorities shall have to consider this aspect in accordance with the demands of equity and natural justice. Apparently, at the time when the letters of appointment were issued to the petitioners, the respondent authorities did not maintain any reservation as regards the caste certificates and other testimonials produced by the petitioners and had proceeded to issue letters of appointment and to engage the services of the petitioners. It was only after the judgement of the Division Bench of this Court in the case of Kavita Kumari (Supra) that certain directions/guidelines were declared and the respondents appear to have realized that the appointment letters issued to the petitioners was improper. However, in view of the fact that the petitioners did not voluntarily offer their services gratuitously and for all purposes they had rendered services only in expectation of being paid their remuneration for the services rendered, the petitioners cannot be deprived of their legitimate claim for salary/wages for the period for which their services were taken by the respondents. 12. Under the circumstances, this application is disposed of with a direction to the respondents to pay the stipulated salary/wages to the petitioners for the period during which their services were engaged. Such payment has to be made by the respondents within a period of two months from the date of receipt/production of a copy of this order. Let a copy of this order be given to the counsel for the respondent State who, within 24 hours of the receipt of the copy of this order, shall forward the same to the concerned authorities of the respondents including the respondent Nos. 2, 3 and 4. (D.G.R. Patnaik, J.) Birendra/

Ranjana Kumari & Ors. vs State Of Jharkhand & Ors. on 14 December, 2009

Jharkhand High Court

ORDER S.S. Kang, Vice President 1. Appellants filed this Miscellaneous Application for extension of stay. As we are taking up the appeal, therefore, there is no need to pass any order in respect of miscellaneous application 2. Appellants filed this appeal against the Order-in-Appeal passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) held that call charge indicators (STD/PCO monitor) are classifiable under heading 8470 of Central Excise Tariff. 3. The contention of the appellants is that in this case the dispute in respect of classification is for the period 1.12.1997 to 25.5.1998 and during this period the Board issued a Circular dated 24.1.1994 to the effect that call charge indicators are classifiable under heading 9029.00 of Central Excise Tariff. This Circular was withdrawn by another Circular dated 5.4.1999 whereby it was clarified that call charge indicators are under heading 84.70 of Central Excise Tariff. The contention of the appellant is that during the period in dispute as per the Board's Circular dated 24.9.1996 the call charge indicators are classifiable under heading 9029 of CET and this classification is specifically claimed before the Commissioner (Appeals). The appellants also relied upon the decision of the Tribunal in the case of Silver Line Telecom (P) Ltd. v. CCE, Faridabad 2003 (58) RLT 979 : 2003 (110) ECR 720 (T). 4. The contention of the Revenue is that the heading 84.70 covers calculating machines and displaying machines with calculating functions and these call charge indicators are covered under this heading and therefore, there is no infirmity in the impugned order. 5. We find that dispute in this case is regarding the classification of call charge indicator (STD/PCO monitor) during the period 1.12.1997 to 25.5.1998. Regarding classification of call charge indicator, Board issued a Circular dated 24.1.1994 whereby it was clarified that call charge indicators are classifiable under heading 90.29 of CETA. Thereafter, the Board again issued another Circular dated 5.4.1999 whereby it was clarified that the call charge indicators are classifiable under heading 84.70 of the Central Excise Tariff Act. Revenue is not disputing that during the period in dispute as par circular the call charge indicators are classifiable under heading 9029 of the CETA. The Tribunal in the case relied upon by the appellant held that as per the Board's Circular dated 24.1.1994, call charge indicators are classifiable under heading 9029.00 of the Central Excise Tariff Act and the Circular issued by the Board is binding by the departmental authorities. 6. In view of the above Board Circular and in view of the decision of the Tribunal, the impugned order is set aside and the appeal is allowed. (Pronounced in open Court.)

Uniword Telecom Ltd. vs Cce on 13 September, 2004

Customs, Excise and Gold Tribunal - Delhi

JUDGMENT P.N. Shinghal, J. 1. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated January 33 1975 in appellant Nemi Chand Jain's Miscellaneous Petition No. 304 of 1974. 2. M/s. Sheikh Rasool Transport Co. held a stage carriage permit for one daily return trip on Jabalpur-Mandla via arela-Niwas route. The permit was cancelled and the route was notified. Fifteen persons applied for grant of permit on that route including the appellant and Khuwaja Garib Nawaz Bus Service. Regional Transport Authority, Jabalpur, granted the permit to the appellant by its order dated September 8, 1972. Four appeals were filed against that order, including appeal No. 320 of 1972 of Khuwaja Garib Nawaz Bus Service. The appeals were fixed for hearing on different dates, but were disposed of by a common order of the State Transport Appellate Tribunal dated April 29, 1974, by that order the tribunal set aside the Regional Transport Authority's order in the appellant's favour and granted the permit to Khawja Garib Nawas Bus Service. The appellant felt aggrieved because, according to him, the Tribunal dismissed his appeal without giving him a hearing. The precise grievance was that when the case was taken up for hearing on January 11, 1974, the parties were present, but the Tribunal adjourned the case for final hearing on March 11, 1974, at Gwalior. No one however appeared on behalf of Khwaja Garib Nawaz Bus service in its appeal No. 320 of 1972, on March 11, 1974, while Counsel for appellant Nemi Chand and one other respondent were present. The Tribunal did not hear those present and reserved the appeal for orders along with the connected appeals. One Trivedi however appeared before the Tribunal on behalf of Khwaja Garib Nawaz Bus Service on April 10 1974. The Tribunal's order sheet of that date recorded that Shri Trivedi stated before the Tribunal that he could not attend on the last date due to unavoidable reasons and that his appeal may be considered on merits as urged in the memorandum of appeal. The Tribunal thereafter passed the aforesaid order dated April 29, 1974 by which it set aside the Regional Transport Authority's order in favour of appellant Nemi Chand and granted in the permit to Khwaja Garib Nawaz Bus Service. The appellant thereupon filed the aforesaid Miscellaneous Writ Petition No. 394 of 1974. Two other unsuccessful applicants did the Same, but we are not concerned with them. As the High Court has dismissed the appellant's writ petition by its impugned order dated January 3, 1975, Nemi, Chand has filed the present appeal. 3. The short question for consideration is whether there is justification for the argument of the Counsel for the appellant that the Tribunal disposed of the appeal and set aside the Regional Transport Authority's order in his favour without hearing the appellant. 4. It is not disputed before us, and is in fact quite clear from the notes of the proceedings of the Tribunal, that when appeal No. 320 of 1972 of Khwaja Garib Nawaz Bus Service was taken up for hearing by the Tribunal on March 11, 1974, no one was present on behalf of Khwaja Nawaz Bus service which was the appellant. The Counsel for respondent Nemi Chand, who is the present appellant, was present, but the Tribunal did not hear any one and simply reserved the case for order along with the connected appeals. There is therefore justification for the argument of the Counsel for appellant Nemi Chand that he remained under the impression that the Tribunal did not think it necessary to hear the arguments of the respondents as it had made up its mind not to make an order against them and to dismiss the appeal. It will be recalled that the Tribunal simply recorded an order on March 11, 1974 reserving the case, for decision along with the other appeals. There could therefore be no question of allowing the appellant to appear thereafter, without notice to the respondents, and at their back. The Tribunal however allowed Shri Trivedi to appear on behalf of Khwaja Garib Nawaz Bus Service on April 10, 1974, which had not been fixed as the date for taking up the case. Moreover the Tribunal allowed Shri Trivedi to say that he could not attend the Tribunal on the last date due to unavoidable reasons and that his appeal may be considered on merits as urged in the memorandum of appeal. Surprisingly enough, the Tribunal gave that hearing to Shri Trivedi at the back of the respondents and did not even inform them that it had done so. The Tribunal followed that up by its order dated April 29, 1974 by which the order granting the permit to Nemi Chand was set aside and the permit was granted to Khwaja Garib Nawaz Bus Service. Nemi Chand was therefore taken by surprise for as has been urged by his Counsel, he could justifiably conclude that as appellant Khwaja Garib Nawaz Bus Service did not appear on March 11, 1974, and the Tribunal did not hear the respondents who were present, and reserved the appeal for order, the Tribunal was not going to make an adverse order. At any rate, there can be no doubt that Nemi Chand was condemned unheard. His grievance in that respect is justified and should be removed. 5. Mr. Mehta appearing for the respondent has argued that the Tribunal was justified in not dismissing the appeal on March 11, 1974 for non-prosecution on behalf of appellant Khwaja Garib Nawaz Bus Service for, according to him, that was not permissible under Section 64 of the Motor Vehicles Act. Reference in this connection has been made to Vajesingh Salambhai Naik and Ors. v. Stale of Gujarat and Anr. C.A. No. 1543/974 decided on 12.12.1975 and to the decision of the Madhya Pradesh High Court dated December 3, 1975 in Asghar Ali Haji Mulla Tayyabali (miscellaneous Petition No. 1225 of 1975). We do not think it necessary to examine the correctness of the legal proposition advanced by Mr. Mehta, but even if it were assumed that the appeal could not be dismissed for want of prosecution on March 11, 1974 it was not, for reasons already stated, permissible for the Tribunal to allow Shri Trivedi to appeal before it on April 10, 1974, and to make his submissions at the back of the respondents. So also, it was not permissible for the Tribunal to give a decision adverse to the respondents on the merits, on the basis of the grounds which had been urged in the memorandum of the appeal and to condemn respondent Nemi chand without informing him of the developments which had taken place on April 10, 1974 and without giving him a hearing. The decision in Vajesingh Salambhai Naik's case (supra) which was followed in Asghar Ali Haji Mulla Tayyabali turned on the provisions of Sections 17(i) and 20 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, were quite different, and is not directly in point. 6. The appeal is there for allowed with costs, the impugned order of the High Court dated January 3, 1975 and the order of the Tribunal dated April 29, 1974 in so far as it relative to appeal No. 320 of 1972 are set aside and the Tribunal is directed to rehear the appeal and to decide it afresh according to law. As the matter has become quite old, the Tribunal should rehear the appeal expeditiously. In the mean time, as it will not be desirable to disrupt the existing transport arrangements on the route, we direct that the status quo may be maintained for the time being.

Author: P Shinghal

Nemi Chand Jain vs State Transport Appellate ... on 20 September, 1976

Supreme Court of India

Regarding agitation of the workers of Food Corporation of India (FCI) in Karnataka. SHRI G. PUTTA SWAMY GOWDA : Sir, with your permission, I would like to raise a matter of public importance. It is regarding the agitation of FCI workers of Karnataka who are sitting in dharna in front of the Office of the Labour Minister of the Union Government, since four or five days. FCI is a public sector undertaking of the Union Government. Due to the maladministration and fraudulent operations of the authorities or the officers in Karnataka, the workers including the loading and unloading workers, are badly affected and are losing their legitimate rights. They are ignoring the welfare of the poor workers. They have submitted a memorandum of demands to the authorities. Ten important demands, like increase in tender wages, regularisation of godown workers and prohibiting the contract labour system, have been put forth in the memorandum. The authorities are not sympathetic to their demands and have been ignoring their requests for nearly two or three years. Instead of considering their request, they are ignoring the welfare of the workers. They have fradulently drawn six crores of rupees in the name of workers. This is a very serious matter. I urge upon the Government to take suitable steps on this matter.

Regarding Agitation Of The Workers Of Food Corporation Of India (Fci) ... on 26 April, 2000

Lok Sabha Debates

ORDER 1. In this order we are considering two appeals filed under Section 111 of the Companies Act, 1956, involving 100 shares in Petition No. 155/111/ 92 and 3,050 shares in Company Petition No. 154/111/92 in Auto Lamps Ltd. (hereinafter referred to as "the company"). Since the facts and circumstances of both the cases are similar, we are disposing of these two petitions by this common order. 2. The 3,050 impugned shares were purchased by the petitioners in Company Petition No. 154/111/92 from one Shri R. Raghuraman, on March 20, 1990, and 100 shares on April 16, 1990, from one Shri Raghunath P. Aggarwal jointly with Mrs. Annu Gupta, Miss Vibha Aggarwal and Miss Shruti Aggarwal. These shares were lodged along with the instruments of transfer with the company on the dates of purchase itself. It is the case of the appellants that Shri Vimal K. Gupta, one of the appellants, in his capacity as a director of the company, raised the matter of transfer of these shares at various board meetings of the company and the petitioners had also sent reminders in writing about the registration of transfer a number of times but no action was taken by the company for nearly two years. On March 21, 1992, the appellants sent a notice to the company under Section 113(3) for return of the certificates and in response by a letter dated March 31, 1992, which was received by the appellants on April 4, 1992, the company informed them that the board of directors of the company had refused registration of the impugned shares. Aggrieved by the decision of the company, the instant appeals have been filed on April 22, 1992. 3. In the reply filed by the company, it is stated that the appeals are not maintainable under Section 111 for the reason that the board of directors of the company had refused registration of transfer of the impugned shares, at its meeting held on June 30, 1990, when Shri Vimal K. Gupta, one of the appellants, was present in his capacity as joint managing director. Therefore, he had notice of refusal of the registration of shares and as such should have come before the Company Law Board within a period of two months thereafter, which the appellants had failed to do. Since the appeals were filed only on April 22, 1992, the same are time barred under Section 111(2). Refusal was on the ground that the instruments of transfers were not properly stamped and executed and the transfers were likely to result in disproportionate shareholding and, therefore, be prejudicial to the interest of the company and its shareholders. It is further stated that this matter was once again considered on November 25, 1990, by the board of directors and it was resolved that since the legal infirmities regarding the transfer of shares have not been removed by Shri Gupta, the transferee, the same cannot be registered. Discussions on transfer of the said shares, it is further stated in the reply, were deferred for reasons stated at the above meetings held on February 15, 1991, April 17, 1991, May 15, 1991, and June 28, 1991. According to the company, it is, therefore, evident that the matter was finally decided by the board of directors of the company on June 30, 1990. 4. According to the company, the letter dated March 31, 1992, only conveyed the information which related to the decision as back as on June 30, 1990, when the board took the decision to refuse registration of transfer of shares and as such the letter dated March 31, 1992, itself is not a letter of rejection giving cause of action to the appellants to move these appeals. It is also stated that the instruments of transfers along with the share certificates were returned to Shri Vimal K. Gupta on June 30, 1990, during the board meeting itself and as such they are no longer with the company. Further, it is averred that the transfers were in violation of article 43 of the articles of association of the company, according to which the names of the transferees will have to be approved by the board of directors before transfer, which, in the present cases were not complied with. In addition, as the registration of transfers of the impugned shares in favour of the appellants would disturb the equilibrium of the present management of the company and as such the transfer will be against the interest of the company and its members, the same was refused and this decision of the board should not be disturbed. 5. During the hearing, the authorised representative of the appellants, Shri Ashish Makhija submitted that the appellants issued a notice to the company under Section 113(3) for delivery of the share certificates as the company had failed to comply with the provisions of Section 113(1). On receipt of this notice, the company sent an intimation on March 31, 1992, communicating the rejection of registration. Immediately thereafter these appeals were filed on April 22, 1992, i.e., within a period of two months, from the date of communication of the rejection as provided in Section 111(3). He further stated that the said certificates along with the instruments of transfer continued to be with the company and that is the reason why notices under Section 113(3) were sent by the appellants. The transfer forms along with the share certificates were lodged with the company for 3,050 shares on March 20, 1990, and 100 shares on April 16, 1990, respectively, and were received by the accountant as evidenced by the endorsement of the accountant on the forwarding letters enclosing the share certificate and the transfer forms. He also relied on the legal opinion obtained by the company to the effect that the company was not barred from registering the shares in the name of the appellants. He further stated that there were no defects in the instruments of transfer and the petitioners' acquisition of these impugned shares which constituted only about 5 per cent. of the paid-up capital of the company would not constitute any threat to the existing management and, therefore, both the grounds that the company had relied on for refusal do not stand. 6. According to Shri Chaudhary, counsel for the respondent-company, both the appeals are time-barred under Section 111(3) as the appellants, being on the board of directors, had constructive notice of refusal of registration of transfer of shares when the board took a decision to refuse the transfer of these shares at the meeting held on June 30, 1990. Therefore, according to him, the limit of two months from the date of notice of refusal expired on August 30, 1990. Even assuming that it was not a proper notice, the four-month limit from the date of lodgment of the transfer instruments, as provided in Section 111(3), expired on May 20, 1990, and June 16, 1990, respectively, for these lodgments and, therefore, the appellants have no locus standi to prefer the appeals in view of the limitation. He further submitted that the replies sent by the company in response to his notice under Section 113(2) cannot be construed as communication of rejection of these transfer of shares and also cannot be construed as the starting point for computing the period of limitation. 7. Continuing his arguments, Shri Chaudhary stated that neither the share certificates nor the transfer instruments were with the company but all the time they remained with the appellant as he was in charge of the secretarial work in the company. Referring to the minutes of the meeting dated June 30, 1990, Shri Chaudhary pointed out that the share transfer forms were presented to the board actually by the appellant in his capacity as joint managing director and at no time during the last two years, till he issued the notice under Section 113(3), did the appellant ever ask the company for return of the share certificates inasmuch as he was aware that they remained in his custody. 8. As, according to the pleadings of the petitioners, the transfer instruments were handed over to the accountant of the company, Shri Chaudhary offered to call the officials working in the accounts department of the company as witnesses, which was allowed by us. Shrimati Lila Jagwani, Mrs. Kamal Handa, Shri Rajagopalan Nair, the steno typist stated that none of them had any knowledge of these transfer instruments and share certificates nor were they in the custody of the same. The appellants did not choose to call any witness on their behalf. 9. As one of the grounds of rejection of the transfer was that the instruments of transfer were defective, we perused the copies of the instruments filed by the parties. The photostat copies of the transfer instruments filed by the appellants showed that the stamps had been cancelled while the copies furnished by the company, the stamps had not been cancelled. In the absence of the originals, which were also not available with either the appellants or with the company as per separate affidavits filed by them, we could not determine the correctness of the transfer instruments. Accordingly, we advised the company to issue duplicate certificates to the transferor and on production by the petitioner of new transfer forms along with duplicate certificates, the company may consider the registration of transfer. In the hearing on August 10/1993, it was reported that duplicate certificates in respect of the impugned shares had already been issued by the company in the name of the transferors and the appellant, as per the authority given by the transferors held the shares in his custody. It was also reported that the appellants would lodge the transfer forms along with the duplicate certificates and the c'ompany also agreed that it would look into the matter expeditiously by placing the request for transfer before the board of directors. In view of this, we directed the company to file a copy of the board resolutions on the decision taken in this regard in respect of these transfers. 10. Further hearing of the matter was also fixed on November 8, 1993. The company filed a copy of the minutes of the board dated October 30, 1993, on November 24, 1993. As per the minutes, it was seen that the board had refused registration of the impugned shares on the ground that the transfers, if approved, would be detrimental to the interest of the company and suck transfers shall cause imbalance in the management in favour of Shri Vimal K. Gupta disproportionately and further harassment to the company. 11. When we considered the board resolution at the hearing on March 13, 1995, Miss Richa Maini, counsel for the company, raised an objection that any grievance against the refusal by the board resolution dated October 13, 1993, should be agitated through a fresh appeal and cannot form part of the earlier appeals as the cause of action for the appeals arose, even according to the appellants, on the basis of the company's letter dated March 31, 1992. We informed her that this objection has no basis inasmuch as the issue of duplicate certificates and consideration of the subsequent transfer arose out of our own directions in the instant appeals and these appeals had not been disposed of by us. Even these directions had to be issued only because the company was not in a position to produce the transfer instruments whatever may be the reasons, for our perusal as the alleged defects in the instruments was one of the grounds for the earlier refusal. 12. Since We have held that the consideration of the board resolution dated October 13, 1993, is within our competence in the instant appeals and as the question of limitation was raised in regard to these appeals initially, it is necessary for us to deal with the same. 13. Admittedly, the petition was filed on April 22, 1992. The cause of action for the appellants to file these appeals, according to the appellants, was the letter dated March 31, 1992, conveying the decision of the board to refuse registration. Therefore, according to the appellants, the appeals had been filed within a period of two months from the date of receipt of that communication. The company contended that the appellant was aware of the decision of refusal on June 30, 1990, itself when the board took the decision in his presence. It is seen from various minutes of the board that even later after June 30, 1990, the matter relating to the transfer of the impugned shares had been raised by Shri Vimal K. Gupta and it was found to have been rejected on November 25, 1990, and in the meeting on April 17, 1991, it is stated in the minutes that tbe matter of transfer of the said shares was deferred. In the minutes dated May 15, 1991, it is stated since there was no material before the board, the earlier decision stands. At a subsequent meeting, it is stated that as Shri Vimal Gupta could not produce any material regarding transfer, it was decided to defer the matter. 14. Thus, it is evident from the minutes of the various board meetings that the board of directors did not seem to have put any finality to the matter. Even assuming that the rejection was done on June 30, 1990, later minutes show that the board was considering revising its decision. Even assuming that, as long as the decision taken on June 30, 1990, was not revised by the board, that decision should stand, we have to keep in mind that even if a shareholder is a director and is aware of the decision taken in the board, as per Section 111(2), the transferor/transferee are bound to be sent notices of refusal. In this case, the company conveyed the decision of the board regarding refusal only on March 31, 1992, and the appeals were filed within two months from the date of receipt of communication. The second limb of the argument of the company, is that, in the absence of any communication, the appellants should have filed the appeals within a period of four months from the date of lodgment, as per Section 111(2). We are of the view this issue has to be examined in the light of the decision of the Supreme Court in Shailesh Prabhudas Mehta v. Calico Dyeing and Printing Mills Ltd [1994] 80 Comp Cas 64, in which the Supreme Court has held that a company does not lose its right of refusal after a period of two months from lodgment except that it may become liable for penalty for not complying with the provisions of Section 111(1), as provided in Sub-section (12) of Section 111. 15. Therefore, we have to extend the same logic with regard to the applicability of the time limit specified in Sub-section (3) of Section 111, for the transferee/transferors especially relating to the period of four months. Since admittedly in this case, the appeals have been filed within a period of two months from the date of receipt of the letter of refusal, we hold that, these appeals are maintainable. 16. Now, the only issue before us is regarding the resolution of the board dated October 13, 1993, according to which the board refused the registration of the impugned shares in favour of Shri Vimal K. Gupta for the reasons stated therein. 17. The company is a public limited company having nearly 60 members. There are three identifiable groups of shareholders other than outsiders. The members of these three groups are closely related in that they are brothers, sisters, sisters-in-law and brothers-in-law of Shri Gupta. While Shri Vimal K. Gupta group holds 9.68 per cent. shares, the other two groups hold 70 per cent. of the shares. The transfer of the impugned shares which account for about 3.81 per cent. of the total share capital of the company would make the holding of Shri Gupta to nearly 13 per cent. This company, not being a listed company is governed by the provisions of its articles in relation to the powers of the board in respect of refusal of transfer of shares. It is seen from Article 44 of the articles of association, that the directors have absolute and uncontrolled discretion in the matter of registration of the transfers and without assigning any reason, they can decline registration. When discretion is vested in the board to refuse registration of transfer, we have only to see whether the reasons given are legitimate, bona fide and are in the interest of the company. 18. The question relating to the powers of court in dealing with the decisions of the board of directors of companies to refuse registration has been dealt with in a number of cases by various High Courts and the Supreme Court. In Bajaj Auto Ltd. v. N.K. Firodia [1971] 41 Comp Cas 19, the Supreme Court observed "where the directors have uncontrolled and absolute discretion in regard to declining registration of transfer of shares, the court will consider if the reasons are legitimate if the directors have acted on a wrong principle or from corrupt motive. If the court found that the directors gave reasons which were legitimate, the court would not overrule that decision merely on the ground that the court would not have come to the same conclusion". In Luxmi Tea Co. Ltd. v. Pradip Kumar Sarkar [1990] 67 Comp Cas 518, the Supreme Court observed that the power to refuse cannot be exercised arbitrarily or for any collateral purposes and can be exercised only for a bona fide reason in the interest of the company and the general interest of the shareholders. 19. There are various other judicial decisions laying down the principle that as long as the decision of the board to refuse is for legitimate reasons, bona fide and in the interest of the company, the court should not interfere with the decision of the directors. 20. Keeping these principles in mind we have to examine the reasons given by the directors in refusing the registration in the present appeals. 1. That these shares were acquired with the understanding that they were to be distributed among three groups. But Shri Vimal Gutpa has sought to register all the shares in his name in violation of the understanding. 2. Shri Vimal K. Gupta is a man of litigating nature and has done considerable damage to the company by dragging the company into many litigations on very petty matters. 3. In a case before the Delhi High Court, wherein, after making a statement that he was not interested in acquiring any part of the shares in dispute in the case, he later prayed for transfer for the entire quantity of the shares and, therefore, the court observed that his prayer was with ulterior motive. 4. Taking all the above into consideration, it is stated in the board resolution, the board found that the transfer of the impugned shares would be detrimental to the interest of the company and would cause a tilt of balance in the management in favour of Shri Vimal K. Gupta and further harassment to the company. 21. If we look into these grounds, we find that there is no evidence to show that there was any agreement regarding distribution of these shares among the three groups and no evidence was produced regarding various litigations initiated by Shri Vimal K. Gupta against the company. Even assuming that he has done so, if he is not already a member, the company might be justified in not admitting him as a member consequent on transfer ' of shares in his name. But he is already a member. Even the observation of the High Court relates to the acquisition of nearly 30 per cent. of shares in the company covered in that proceeding (26,840 shares) and not the shares in question in these appeals. It is an admitted fact that Shri Vimal Gupta was the joint managing director of the company for nearly four years. Even when he was in that position and in spite of his repeated requests for registration of transfer of the impugned shares in his name, the board refused to concede to his request. Therefore, it is obvious that it is the estrangement of relationship within the family that seems to have been the paramount reason for refusal of registration of the impugned shares. In a private limited company, the atmosphere of cordial relationship among the members is absolutely essential in the interest of. the company and in such a situation the board of directors may be justified in refusing registration of shares in certain given circumstances. In the present case, the company is a public limited company even assuming that it is a family managed company, Shri Vimal Gupta is already a shareholder holding more than 9.5 per cent. shares. He is not on the board. The transfer of the impugned shares in his name would take his total holding only to 13 per cent. as against 70 per cent. held by the other two groups. His holding of 13 per cent. cannot in any way affect the composition of the board of directors as apprehended by the board. Therefore, we are of the view that the reasons given by the board to refuse registration are not legitimate and as such the same cannot be sustained and the appeals should be allowed. We order so. Accordingly, we hereby direct that the impugned shares be registered in the name of the transferees within 30 days from the date of receipt of this order. 22. Before parting with this case, it is essential to record that in view of the close relationship between the parties, we advised the appellants to transfer all their shares in the company to the other two groups so that the entire dispute could be resolved. While the appellants showed their willingness to do so, it was later reported to us that there was no agreement regarding the quantum of consideration and as such our suggestions could not be given effect to.

Vimal K. Gupta And Ors. vs Auto Lamps Ltd. on 13 May, 1995

Company Law Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 5927 of 2010() 1. MUJEEB M.A. ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.T.B.SHAJIMON For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :22/09/2010 O R D E R V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Bail Application No.5927 of 2010 * * * * * * * * * * * * * * * * * * Dated : 22nd day of September, 2010 ORDER Petitioner, who is the 1st accused in Crime No.688/2006 of Kasaragod Police Station for offences punishable under Sections 458, 324, 354 and 427 read with 34 IPC, seeks anticipatory bail. Consequent on the non-appearance of the petitioner before the C.J.M Court, Kasaragod in LPC.No.220/2007, non-bailable warrant of arrest are pending against the petitioner. 2. Anticipatory bail cannot be granted to nullify the process issued by a court of competent jurisdiction. There is no reason why the petitioner should not surrender before the C.J.M Court, Kasaragod and seek regular bail. Accordingly, if the petitioner surrenders before the C.J.M Court, Kasaragod 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 notwithstanding the pendency of non-bailable warrants of arrest against the petitioner. This Bail Application is, accordingly, disposed of. V. RAMKUMAR, (JUDGE) dmb 

Mujeeb M.A vs State Of Kerala on 22 September, 2010

Kerala High Court

ORDER M.B. Sharma, J. 1. This is a miscellaneous petition and though it raise's a simple question of law which emerged from the reading of Section 130 of the Motor Vehicles Act, 1939 (for short the Act), but for the guidance of the court it is necessary to refer to the provisions of law as to how the case of the present nature should be dealt with. 2. A complaint was filed by incharge traffic police Jaipur City in the court of learned Magistrate that on May 17, 1985 at about 7.25 a.m., the petitioner brought his vehicle during the prohibited hours on the prohibito road. The learned Magistrate on beaforesa complaint issued a summon,accused to put his appearance and on Dec. 12, 1986 the accused had not put in appearance and the advocate filed an application under Section 130 of the Act and pleaded guilty of the offence but the learned Magistrate observing that earlier also a similar application had been dismissed, dismissed the application and ordered that as already ordered, the accused petitioner should be summoned. The case was adjourned to Jan. 17, 1987, for the presence of the accused-petitioner. 3. An offence under Section 74/124 of the Act is one which can be and should be dealt with under Section 130 of the Act. Under Section 74 of the Act, the State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge may by notification in the official gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicle or of any specified class of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 75 at suitable places. The contravention of Section 74 of the Act is punishable under Section 124 of the Act and whosoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 72 or of the conditions prescribed under that Section, or in contravention of any prohibition or, restriction imposed under Section 72 or Section 74 shall be punishable for a first offence with fine which may extend to two hundred rupees and for a second or subsequent offence with fine which may extend to one thousand rupees. 4. Sub-section (1) of Section 130 of the Act provides that the court taking cognizance of an offence under the Act (i) may, if the offence is an offence punishable with imprisonment under the Act and (ii) shall in any other case, state upon the summons to be served on the. accused person that (a) he may appear by pleader and not in person or (b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the court such sum (not exceeding the maximum fine that may be imposed for the offence) as the court may specify. Nothing in that sub-section shall apply to any offence specified in part A of the fifth Schedule. It will therefore be clear that the court has no option in a case which is not punishable with imprisonment but to state upon the summons to be served on the accused person that he appear by pleader and not in person on the specified date or plead guilty to the charge by registered letter and remit to the court such sum not exceeding the maximum fine as the court may specify. The present case being under Section 74 of the Act being the first offence, was punishable with fine only upto Rs. 200/-, and as such was not punishable with imprisonment under the Act. Therefore, the court was bound to state upon the summons that he may appear by pleader and not in person. The court instead of doing so could have also specified a date prior to hearing of charge so that the accused could plead guilty by a registered letter and remit the fine which the court could have imposed. Therefore, when the court issued summons for appearance of the accused petitioner and did not state upon the summons that he may appear through pleader there was violation of the provisions of Sub-section (1) of Section 130 of the Act. Thus when the advocate for the accused petitioner appeared and submitted an application that he wants time to plead guilty to the charge, the learned Magistrate should not have insisted upon the presence of the accused petitioner. Section 130 of the Act has been brought on the statutory book to deal with minor cases. It is well known that there are thousands of cases of traffic contravention. The legislature thought proper that the accused may not appear in person and may plead guilty or prior to the hearing of the charge the court could intimate the accused that he may plead guilty by a registered letter and remit the amount of fine specified in the summons. The court in such cases should state upon the summons to be issued to the accused petitioner that he may appear through pleader and not in person. It will be better if in such cases recourse is taken to the provisions of Section 130(l)(b) of the Act calling upon the persons charged with the offence to plead guilty and remit the fine. It will lead to the general convenience as well as to the disposal of a large number of cases which are otherwise pending in the courts of the Magistrates. 5. Consequently, I allow this misc. petition and quash the order of the learned Magistrate whereby he ordered that the accused shall appear in person. The accused shall be free to appear through advocate and the case shall proceed thereafter in accordance with law.

Author: M Sharma

Kishan Lal vs State Of Rajasthan on 19 March, 1987

Rajasthan High Court

[Section 33] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KARNATAKA AT BANGALORE 9A'I'EI) THIS THE 30TH DAY OF SEPTEMBER 20E1f'<;.T BEFORE """"" THE}KflWBU3MRJUSNCE NANANfiA{l uEu CRIMINAL PETITION NQ';'4574~j_/2Q'1:€)"_ BEIWEEN: 1. M.Basavanr1a. S/o.Late Madaiah, Aged 58 years. n -- Gramapanchayat Sf:£:_1fe*tar~y, E, Mamballi, Yalandur TaI.1 1i<.' M Chamarajanagara Dis-§,--r.i_c§t. ' " 2. Malleshaifit} S/0.Lat:e . AgEdi,37'-Yeafsf"-~.,EVA . ' F'0rmeruP'residc§f1t:,'~. " __ MambaI1i._¢Gran*1a P.anE.h'ayat.. Mai:-allai, Ya,1a'r1d'ur Taluk. Changyganaganpnmncn ."PETHTONERS ' -.fB3rV4VSr:iv';vH .'}\/Iohan Kumar, Adv. AN 2 E_4'irhe staxei ' = _Represer1--"ted by 'n§vIu:rib.a11i Police, _ -_Ya_};11*1durTa1luk. Clmmaraj nagar Dist.rict.. ...RESPONDENT[By S1'i.\/ijaya Kurnar Megélge, HCGP) Ix) This criminal petition is filed under Section 438 Cr.P.C. praying to enlarge the petitioner son bail in the event of their arrest in Crime No.15/2010 of Mam.b'a_lli Police Station, Chamarajanagara District, registered for the offence punishable under Sect..io_n it 468 read with Section 34 IPC. " *' ' This criminal petition coming....0_n for"'ordé;i+5;'*»i.pii.:s day, the Court made the following; ' " ' " Petitioners 1 and 2 are aeeiised:VfNos. 1 and 2 in Crime for offences punishable under vSect.io--n_s:= read with Section 34 of have cheated Grarna p&f1Cll'El}-fit-till" _l'of:l"'--..Marnballi by fabricating documentslto "mal{e_ gains for themselves. lrleardlfltljie learned counsel appearing for A":_petVi'tiQne_r 'EI!_Ii(1l:Vl'€1(__)V€I'11I'I1€l"ll. Advocate for the State. le;arned Government Advocate has given 'details ofi.arnoLint.s swindled by petii:ior"iers either by not mwst l..accon.nting for the amount or manipulating the J! ----L_ "$91 c m3- documents for purchase of materials. The accused are aileged to have embezzled a sum of Rs.88,00,000/~g 4. in the Circumstances. custodial interre~gaiio_I11?o_f' petitioners is necessary for proper in\Ie,st'igvati§;in_ of" accused. Therefore, petition is dii;mi.s.sefd."'--_ " . " SPS

Author: N.Ananda

M Basavanna vs The State Represented on 30 September, 2010

Karnataka High Court

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Basant Lal vs State Of U.P. Thru' Secretary Home ... on 26 August, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 15334 of 2009(J) 1. SREEKALA T.L., ... Petitioner Vs 1. STATE OF KERALA ... Respondent 2. THE DIRECTOR For Petitioner :DR.K.P.SATHEESAN For Respondent : No Appearance The Hon'ble MR. Justice P.N.RAVINDRAN Dated :08/07/2009 O R D E R P.N.RAVINDRAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 15334 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8th day of July, 2009 JUDGMENT Heard Dr.Sri.K.P.Satheesan, the learned counsel appearing for the petitioner and Smt. Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. The petitioner had served as I.C.D.S. Supervisor during the period from 1995 to 2000 and thereafter from 16-8-2005 till 12.12.2005. During the second spell of service she had applied for leave initially for a period of three months and thereafter for one year. Leave was granted only for the first spell of three months. The second spell of the leave applied for was not granted. The petitioner however proceeded on leave. Therefore, the petitioner's service was terminated with effect from 12-12-2005 by Ext.P4 order dated 20-3-2007 for unauthorized absence. Aggrieved thereby, she has moved the Honourable Minister for Health and Family Welfare by submitting Exts.P5 and P6 representations, wherein she has prayed that she  W.P.(C) No. 15334/09 -2- may be reinstated in service. The petitioner submits that the originals of Exts.P5 and P6 representations have been forwarded by the Honourable Minister to the Secretary to Government and that till date orders have not been passed on the said representations. In this writ petition, the petitioner challenges Ext.P4 and seeks a direction to the respondents to reinstate her in service. 3. When this writ petition came up for hearing to day, the learned counsel appearing for the petitioner submitted that leaving open the petitioner's contentions on the merits, the Government may be directed to take a decision on Exts.P5 and P6 representations. The learned Government Pleader appearing for the respondents submitted that Exts.P5 and P6 representations were addressed to the Honourable Minister and that though an effort was made to trace them out, the attempt was not successful. 4. Having regard to the submissions made at the Bar and the averments made in the writ petition, I am of the opinion that petitioner should submit a fresh representation setting out her grievances to the Secretary to Government, Social Welfare Department instead of seeking the intervention of this Court at this sage. I accordingly dispose of this writ petition with the direction that in the event of the petitioner filing an appropriate representation before the Secretary to Government, Social  W.P.(C) No. 15334/09 -3- Welfare Department setting out her claims and contentions within one month from today, the Secretary to Government shall consider the same and pass orders thereon after affording her a reasonable opportunity of being heard. Final orders in the matter shall be passed within three months from the date of receipt of such a representation. The contentions of the petitioner on the merits are kept open. P.N.RAVINDRAN, JUDGE. mn.

Sreekala T.L vs State Of Kerala on 8 July, 2009

Kerala High Court

[Section 56] [Complete Act]

Central Government Act

[Section 6] [Complete Act]

Central Government Act

JUDGMENT S.K. Mahajan, J. 1. Against the award of the Motor Accident Claims Tribunal, the claimants had filed appeal for enhancement of compensation whereas the insurance company had filed appeal on the ground that its liability was limited to the extent to Rs. 50, 000/-These appeals came up for hearing on 14.11.2002, when no one was present on behalf of the insurance company, the Court decided both the appeals in the absence of the counsel for the insurance company. While compensation in favor of the claimants was enhanced and the appeal of the claimants being FAO NO. 113/1999 was allowed, the appeal of the insurance company was dismissed in default. Subsequently, applications were filed for restoration of the appeal and for condensation of delay in filing the application for restoration. By order dated 14.10.2003, the appeal was restored and the matter was fixed for hearing today. 2. The only point taken in the appeal by the insurance company is that under the policy of insurance its liability was limited to Rs. 50, 000/- and it could, therefore, not be directed to pay the entire compensation under the award and the Tribunal has clearly erred in holding that the liability of the insurance company was unlimited. I have seen the original policy of insurance which has been placed on the record of the Trial Court as Ex.RW3/2. It is clearly written on the policy that the liability of the insurance company was unlimited. Learned counsel for the insurance company contends that though it is written in the policy that the liability of the insurance company was unlimited, however, as no extra premium was charged from the insured, the writing of the "unlimited liability" of the insurance company in the policy appears to be a mistake. 3. I do not agree with learned counsel for the insurance company. Firstly once it is written on the policy that the liability of the insurance company is unlimited it cannot take a plea that there was a mistake in writing the word "unlimited" on the policy and secondly nothing has been placed on record to show that extra premium was not charged from the insured to make the liability of the insurance company unlimited. The onus to prove that extra premium was not charged was entirely upon the insurance company more so when the policy shows that its liability is "unlimited". Even during the cross-examination of the insured nothing has come out that extra premium was not paid by him. In the absence of any such evidence, I am unable to agree with learned counsel for the insurance company that its liability should be held to be limited to Rs. 50, 000/-. There is nothing on record to substantiate the contentions raised by learned counsel for the insurance company. I, therefore, do not find any merits in this appeal and the same is, accordingly, dismissed. 4. On 8.5.1990, it was observed by the Court that a sum of Rs. 2, 08, 280/-had been deposited by the appellant insurance company. Since appeal has been dismissed, the said amount may be released in favor of the claimants/ respondents along with interest, if any, which might have accrued on the said amount.

Author: S Mahajan

New India Assurance Co. Ltd. vs Smt. Nachhatar Kaur And Ors. on 21 November, 2003

Delhi High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 6000 of 2007() 1. MANIKKAN, AGED 55 YEARS, S/O. AYYAPPAN, ... Petitioner Vs 1. SUB INSPECTOR, ... Respondent 2. C.I. KOLLAMGODE, For Petitioner :SMT.JEENA JOSEPH For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :03/10/2007 O R D E R R.BASANT, J. ---------------------- B.A.No.6000 of 2007 ---------------------------------------- Dated this the 3rd day of October 2007 O R D E R Application for regular bail. The petitioner faces allegations under Section 306 I.P.C. The crux of the allegations against the petitioner is that he abetted the suicide of one Krishnankutty. The suicide took place on 31/8/2007. Initially the case was registered under the caption 'man missing'. Subsequently it was found that the deceased Krishnankutty had committed suicide by hanging. It is alleged that the said Krishnankutty allegedly had sexual relationship with the sister of the petitioner. The sister of the petitioner is a mentally retarded person. Krishnankutty was taken to task when that relationship came to light. The petitioner had allegedly slapped the said Krishnankutty. Unable to stand the trauma of insult and humiliation, the said Krishnankutty is alleged to have committed suicide on 31/8/2007. The petitioner was arrested and continues in custody from 8/9/2007. Investigation is not complete yet.  B.A.No.6000/07 2 2. The learned counsel for the petitioner prays, the learned Public Prosecutor does not oppose the said prayer and I am satisfied that regular bail can be granted to the petitioner subject to appropriate conditions. 3. In the result, this petition is allowed. The petitioner shall be released on bail on the following terms and conditions: i) He shall execute a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. ii) The petitioner shall not enter the jurisdiction of Alathur police station for a period of three months. iii) During the said period of three months, the petitioner shall make himself available for interrogation before the investigating officer between 10 a.m and 12 noon on all Mondays and Fridays and thereafter as and when directed by the investigating officer in writing to do so. (R.BASANT, JUDGE) jsr  B.A.No.6000/07 3 B.A.No.6000/07 4  R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007 

Manikkan vs Sub Inspector on 3 October, 2007

Kerala High Court

[Section 31(1)] [Section 31] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print COMP/215/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 215 of 2010 ========================================= HDFC BANK LTD - Petitioner(s) Versus JEETJATAN COMPUFORMS PVT LTD - Respondent(s) ========================================= Appearance : MR PM DAVE for Petitioner(s) : 1,MR ASIT B JOSHI for Petitioner(s) : 1, MR HARSHADRAY A DAVE for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 30/09/2011 ORAL ORDER The learned Advocate for the respondent has given written offer for settlement of the dispute, to the learned Advocate for the petitioner. Learned Advocate for the petitioner submitted that since the petitioner is a Bank, he will have to get the written instructions with regard to the respondent's offer. He has, therefore, requested for time. Hence, S.O. to 11th October 2011. (K.M.THAKER, J.) jani     Top

Author: K.M.Thaker,

Hdfc vs Jeetjatan on 30 September, 2011

Gujarat High Court

IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CRIMINAL MISC 26762-M OF 2008 DECIDED ON : 13-01-2009 Manjit Kaur & another ....Petitioners versus State of Punjab & others ....RespondentsCORAM : HON'BLE MR.JUSTICE K.C.PURI Present: Shri R.K.Girdhar, Advocate, for the petitioners Shri K.S.Pannu, AAG, Punjab K.C.PURI, J (ORAL) This is a petition under Section 482 Cr.P.C. for quashing FIR No.196 dated 23-8-2008 registered under section 380 IPC against the petitioner at PS City Kotkapura and all the consequential proceedings arising therefrom. One Tejwinder Kaur got registered the FIR. The present petitioner has taken away his golden chain and ring valuing Rs.1,30,000/-. Tejwinder Kaur has filed an affidavit through his counsel in which it is mentioned that with the intervention of elders, matter has been amicably settled and she has no objection in quashing the abovesaid FIR. Since it is a personal dispute which has been settled between the parties , So FIR No. 196 dated 23-8-2008 stand quashed and further proceedings in pursuance thereto also stand quashed on the basis of compromise. sd/- {K.C.Puri} Judge mandeepkr

Manjit Kaur & Another vs State Of Punjab & Others on 13 January, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5754 of 2011 SUDHA KUMARI Versus THE STATE OF BIHAR ----------- AI ( Mandhata Singh, J.) 3 25.2.2011 Heard learned counsel for the parties. Finding certificates furnished by petitioner forged while she was appointed as Nurse on contact basis, petitioner's prayer for anticipatory bail has earlier been rejected by this Court. Now only submission is about return of the money received in capacity of Nurse, may never be a ground for anticipatory bail to this petitioner. Hence, prayer for anticipatory bail on behalf of petitioner is rejected. However, petitioner is directed to surrender and pray for regular bail.

Sudha Kumari vs The State Of Bihar on 25 February, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 16545 of 2007(T) 1. P.G.SIVAN, MANAGER GRADE I (HG), ... Petitioner 2. M.C.VARGHESE, MANAGER GRADE I (HG), Vs 1. THE SECRETARY TO GOVERNMENT, ... Respondent 2. THE DIRECTOR OF TOURISM, PARK VIEW, For Petitioner :SRI.M.C.JOHN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :14/08/2007 O R D E R Antony Dominic, J. ======================== W.P(C).No.16545 of 2007 ======================== Dated this the 14th day of August, 2007. JUDGMENT Complaint of the petitioners is regarding the rank and seniority assigned to them in the category of Manager Grade I in the Tourism Department. It is stated that they ought to have been given promotion with effect from the date of occurrence of vacancy and that in view of the delay to convene the D.P.C., promotion was also delayed, which has adversely affected their career. Petitioners make reference to Exts.P5, P6 and P7. In Ext.P5 it is seen that the Director has recommended their case for giving retrospective effect to their promotion and according to them, Exts.P6 and P7 show that similar requests have been accepted. Exts.P2, P4 and P8 are representations made by the petitioners claiming retrospective effect to their promotion and these representations are pending before the first respondent. 2. Taking into account the recommendation that is made by the Director in Ext.P5 and the benefit that is given to others by  WP(C) 16545/07 -: 2 :- Exts.P6 and P7, I direct the first respondent to consider the claim of the petitioners evidenced by Exts.P2, P4 and P8, and pass orders thereon in the light of Exts.P5 to P7 as expeditiously as possible. In the process, if any other persons' rights are likely to be prejudicially affected, such persons should also be put on notice and heard along with the petitioners. Such exercise shall be completed within a period of two months from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. Petitioners are directed to produce a copy of this judgment before the first respondent for compliance. Antony Dominic, Judge. ess 14/8 

P.G.Sivan vs The Secretary To Government on 14 August, 2007

Kerala High Court

JUDGMENT A.K. Awasthy, J. 1. The appellant/defendant has filed this appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 5.7.1996 passed by the Second Additional District Judge to the Court of District Judge, Sagar in Civil Suit No. 2-B of 1996 wherein the respondent/plaintiff's suit for recovery of Rs. 80,146.25 with interest at the rate of 15.05 percent per annum with quarterly rest was decreed. 2. The case of the plaintiff/respondent Bank is that the respondent Bank is nationalised Bank and Surendra Kumar Sharma and J.R. Chouker are authorised to verify, sign and present the plaint on behalf of the plaintiff/oriental Bank of Commerce. Plaintiff has pleaded that the defendant took the loan of Rs. 95,000/- on 20.12.1988 from the plaintiff Bank for purchasing Mahindra diesel jeep and agreed to pay the interest at the rate of 15.05 percent with quarterly rest. That the defendant agreed to repay the loan in 35 instalments of Rs. 36607 per month and the jeep was hypothecated in favour of the plaintiff Bank. That the defendant has not paid the amount of Rs. 80,146.25 even after the issuance of legal notice. It is prayed that the amount of Rs. 80,146.25 be decreed in favour of the plaintiff Bank with interest at the rate of 15.05 percent per annum with quarterly rest and the plaintiff be allowed to recover the amount by selling the hypothecated jeep. 3. The defendant has denied that he has taken the loan of Rs. 95,000/- with interest at the rate of 15.5 percent per annum with quarterly rest. It is denied that the jeep was hypothecated in favour of the plaintiff. It is also denied that the sum of Rs. 80,146.25 is due on the defendant and the plaintiff is entitled to get the amount and the alleged interest by selling the hypothecated jeep. 4. Learned Trial Court has framed the issues and examined the plaintiff's witnesses Rameshwar Prasad (P.W. 1) and Surendra Kumar (P.W.2) and from the side of the defendant, the defendant examined himself and one witness Rakesh Kumar Jain. Learned Trial Court accepted the case of the plaintiff and decreed the suit as stated above. 5. The appellant has assailed the decree on the ground that the appellant deposited F.D.R. of Rs. 71,000/- in the plaintiff/respondent Bank as a guarantee and the F.D.R. was encashed without the permission of the defendant and the amount was adjusted. It is also a ground that the proper opportunity to adduce the evidence by the learned Trial Court was not provided. That the rate of interest of 16.05 percent per annum and quarterly rest was exhibitant and illegal. 6. Defendant Rambabu (D.W.1) has not deposed in his statement that his F.D.R. was encashed by the Bank and the amount of F.D.R. was adjusted by the Bank against his outstanding loan. Rameshwar Prasad (P.W. 1), the Manager of the Bank has stated that the F.D.R. of the defendant were not encashed and this allegation is false that the amount of F.D.R. is adjusted against the amount of loan of the defendant. However, in paragraph 9 of his cross-examination Rameshwar Prasad (P.W. 1) has stated that he cannot say whether the F.D.R was encashed and the amount was adjusted. Ex. P. 14 is the statement of account of the defendant and from Ex.P. 14 it is clear that the amount of F.D.R. was not shown in the balance of the loan of the defendant. Consequently the statement of the appellant/defendant that his FDR was unauthorisedly encashed by the Bank is not supported by the evidence on record. 7. From the order sheet of the Trial Court it is clear that the evidence of the plaintiff was closed on 9.5.1996 and the dependant took the adjournment for adducing evidence. The dependant has not examined the witnesses on 15.5.1996 and 24.6.1996. The appellant has not disclosed during the arguments that how his case was adversely affected by not providing more opportunities to adduce evidence. The appellant has not prayed to issue the summons to the witnesses. It is not shown that what is the name of the witness who was material. Consequently the contention of the learned Counsel for the appellant that the learned Trial Court has transgressed the principles of natural justice by not providing enough opportunities to adduce evidence is without any merit, 8. Learned Counsel for the appellant has argued that the Bank has floated the scheme to the effect that in case of the substantial amount of loan is paid then relaxation in the rate of interest is provided. The interest of 16.5 recent with quarterly rest is exorbitant. Consequently in my considered opinion the respondent Bank should be provided with only 16.5 percent interest from the date of filing of the suit till realisation. 9. Consequently the appeal is partly allowed, only on the point of the rate of interest. The impugned judgment and decree is modified to the extent that instead of interest at the rate of 16.5 percent with quarterly rest, the respondent-plaintiff is entitled to simple interest at the rate of 16 percent per annum. Parties to bear their own costs.

Author: A Awasthy

Ram Babu Keshwarwani vs Oriental Bank Of Commerce on 12 May, 2003

Madhya Pradesh High Court

JUDGMENT 1. This is a suit by a tenant in the Nowlac Estate (we use the word 'estate' in the popular sense) to set aside a distraint made by the 1st defendant, who is admittedly the propreitor, for rent due for the Fasli year 1317. The distraint was made in January 1909. The estate is exempt from the payment of Government revenue and it is admitted that both the kudivaram and the maharam belong to the proprietor. The distraint was objected to on several grounds before the Revenue Divisional Officer. He upheld one of the objections, namely, that the 1st defendant was not the registered proprietor under Section 134 of the Estates Land Act and set aside the distraint. On appeal by the 1st defendant, the judgment of the first Court was reversed and the suit dismissed. The only point decided by the District Judge was whether the 1st defendant was the registered holder of land in proprietory right under Clause 2, Section 134. He held that he was. The learned Vakil for the appellant wishes to place before us another question. He contends that the 1st defendant was entitled to distrain standing crops. But as this question was not raised before the Appellate Court and as it is not one of pure law, we cannot allow him to raise it here. We consider it unnecessary to pronounce an opinion on the question decided by the Appellate Court. 2. We are of opinion that the 1st defendant was entitled to make the distraint even if he was not a registered proprietor under Section 134, Clause 2, of the Estates Land Act. As already stated, the arrear of rent was due for Fasli 1317. The whole of the rent was payable before the end of May 1908. A Muchilika had been executed by the plaintiff, Exhibit III, dated 31st January 1904, for a period including Fasli 1317. The 1st defendant was, therefore, entitled to distraint on the expiration of the month of May 1908. The Estates Land Act came into force only on the 1st July 1908. It is not disputed that under Act VIII of 1865, the 1st defendant would be entitled to make the distraint, if he did so before the Estates Land Act came into force; that right of distraint, in our opinion, was in no way affected by the Act subsequently coming into force, as no right previously acquired by, and vested in, the 1st defendant could be affected by Estates Act: See Section 8, Madras General Clauses Act I of 1891. The 1st defendant's primary right, no doubt, was to recover rent. But he had also a secondary right to recover it by means of distraint. We cannot accept the argument pf the learned Vakil for the appellant that that right-was one relating only to procedure. It did not relate to the procedure to be followed in any Court. It was a right vesting in the landholder himself. As already stated, it must be regarded as a secondary or subsidiary right which he had in order to enforce his primary right to rent. The distraint must, therefore, be held to be valid and the suit was rightly dismissed by the lower Appellate Court. We dismiss the second appeal with costs. Second Appeals Nos. 1030, 1031 to 1068 and 1178 and 1179' follow.

R. Parasurama Gownden And Ors. vs Sowcar Lodd Govinda Doss Krishna ... on 16 August, 1912

Madras High Court

$~9. *IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION(CIVIL) NO. 448/2011 ARCOTECH LTD. ..... Petitioner Through Mr. Sandeep Sethi, Sr. Advocate with Mr. Siddharth Bhatnagar, Ms. Sonia Dube, Mr. S. Chakraborty & Ms. Kanchan Yadav, Advocates. versus DIRECTOR OF INCOME TAX (RECOVERY) & ORS. ..... Respondents Through Mr. D.R. Jain & Mr. Sanjeev Sabharwal, Sr. Standing Counsel. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V.EASWAR ORDER ii) No interest and/or penalty be levied. iii) Condone the delay in filing of Income Tax Return for the AY 2005-06 under Section W.P. (C) No. 448/2011 Page 1 of 8 139 read with the section 80 of the Income Tax Act, 1961. iv) The provisions of Section 115JB should not % 01.11.2011 Arcotech Limited, earlier known as SKS Limited, has filed the present writ petition, inter alia, praying for following reliefs:- 2. During the course of arguments, it is stated that the petitioner is not disputing the applicability and application of Section 115JB of the Income Tax Act, 1961 (Act, for short), but the petitioner claims that in case benefit under Section 72 is granted to the petitioner, then the said benefit should be available to the petitioner in terms of sub-section 3 to Section 115JB of the Act. The aforesaid statement made on behalf of the petitioner is taken on record. 3. By the impugned order dated 19th January, 2010, the relief W.P. (C) No. 448/2011 Page 2 of 8 prayed for by the petitioner under Section 72 of the Act has been rejected for the following reasons: 4. It is apparent from the said order that the Director of Income Tax (Recovery) has held that the petitioner had given up their request for relief under Section 72 as the said Section was omitted from the request letter dated 17th July, 2009. There is merit in the contention of the petitioner that the aforesaid authority has misunderstood the stand of the petitioner and the aforesaid letter. We have also examined the letter dated 17th July, 2009. The said letter refers to several sections of the Act and concessions are prayed for, but it is stated that similar reliefs and concessions, which have been granted to others, should be sanctioned and granted to the petitioner company. Moreover, the petitioner in their earlier letter dated 20th W.P. (C) No. 448/2011 Page 3 of 8 November, 2008 had specifically mentioned and asked for relief and concession under Section 72 of the Act. In their subsequent correspondence dated 4th August, 2009 reference was made to relief and concession under Section 72 of the Act. The respondent authority had thereafter written a letter dated 10th August, 2009 asking for various details to examine and decide, whether claim for concessions or reliefs could be granted to the petitioner. In response to this letter, the petitioner had submitted details vide letter dated 15th October, 2009. It was stated in this letter that the scheme for rehabilitation was sanctioned by BIFR on 18th November, 2004 and the share capital of the company was de-rated to 20% and accordingly 80% of the share capital along with reserves and surpluses to the tune of Rs.41.69 crores were adjusted against accumulated losses. Further, the company had arranged for funds by selling for their assets and from sale of personal assets of the promoter and infusion of funds by the promoter to the extent of Rs.18.30 crores for relocating the machinery, construction of the factory building at the new plant site, de-commissioning of the plant and to augment the working capital. Along with this letter, the petitioner had enclosed projected cash flow statement, the then situation W.P. (C) No. 448/2011 Page 4 of 8 of cash availability etc. It is the contention of the petitioner that the cash flow statement was enclosed with the sanctioned scheme. Learned counsel for the petitioner has drawn our attention to the projected profitability statement enclosed at page 74 of the paper book as per which till the year ending 31st March, 2009, it was projected that the petitioner company would not be liable to pay any taxes. 5. We have highlighted the said aspects as it is the contention of the petitioner that these aspects have not been considered and examined by the respondent authorities while recording the second reason for rejecting the request for relief under Section 72 of the Act as it is stated that the petitioner company's net worth became positive in the year 2005-06 as per the statement of profit dated 24th June, 2009. Another contention raised by the petitioner is that the entire business and operations of the petitioner company remained suspended between the period 1996-2006 as the matter was pending before BIFR and the petitioner company had been declared a sick company. Thus, the petitioner could not claim benefit of carried forward losses as the matter was sub-judiced. 6. Learned counsel appearing for the respondent authorities W.P. (C) No. 448/2011 Page 5 of 8 has submitted that no direction was issued by the BIFR to grant concession or relief under Section 72 of the Act. In fact, no concession of this nature was envisaged in the draft scheme or stated in the sanction order. He has further submitted that once the petitioner company is earning profits since the assessment year 2005-06, no relief under Section 72 of the Act should be granted. It is further submitted that the company did not file any details to support their contention for relief or concession under Section 72 of the Act. 7. The draft scheme, as is placed on record, envisaged that the Central Government would consider waiver of income tax demand/interest and carry forward of business losses and depreciation and set off against future profit, if any, beyond nine years. The sanctioned scheme envisaged that the Central Government shall consider grant of usual tax and other reliefs and concessions to the petitioner company. Order dated 24th June, 2009 passed by the BIFR further records that the Bench had reiterated and directed the income tax authority and DGFT to implement the provisions of SS-04 with regard to relief and concessions as envisaged in paragraph E-IV(i) and (ii) on page 9 of SS-04. SS-04 refers to the sanctioned scheme and paragraph W.P. (C) No. 448/2011 Page 6 of 8 E-IV(i) relates to the request to the Central Government to consider grant of usual tax and other reliefs and concessions. 8. It may be clarified that we are not issuing any mandamus or direction to the respondent authorities to grant concession under Section 72 of the Act. What is required is that the respondent authorities must consider the request of the petitioner for grant of concession/relief under Section 72 of the Act in view of their contentions, the statement of profit and the cash flow statement. The respondent authorities while doing so should act objectively and fairly as is required and is expected from a statutory authority. As noticed above, the request has been wrongly rejected by recording that no prayer was made and the factual aspect has not been considered. We need not say any more on this aspect. 9. In view of the aforesaid discussion, we set aside the order passed by the respondent authority dated 19th January, 2010 to the extent relief to the petitioner under Section 72 of the Act has been denied. The said aspect will be reconsidered on the basis of details already submitted by the petitioner. Liberty is also granted to the petitioner to submit another representation within a period of fifteen days from today. It will be also open to the W.P. (C) No. 448/2011 Page 7 of 8 authorities to call for further details or information, if it is felt that this is necessary. It is clarified that this Court has not expressed any opinion on the question whether or not relief/concession under Section 72 of the Act should be granted to the petitioner as it falls exclusively within the domain of the respondent authorities. The respondent authorities will pass an order expeditiously and preferably within a period of four months from today. While examining the question of concession/relief under Section 72, the question of delay in filing of return and in case benefit under Section 72 is granted to the petitioner, whether the said benefit will be also available to the petitioner assessee in terms of sub-section 3 to Section 115JB of the Act, will be examined. 10. The writ petition and all pending applications are disposed of. DASTI. SANJIV KHANNA, J. R.V. EASWAR, J. NOVEMBER 01, 2011 VKR W.P. (C) No. 448/2011 Page 8 of 8

Author: Sanjiv Khanna

Arcotech Ltd. vs Director Of Income Tax (Recovery) ... on 1 November, 2011

Delhi High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11716 of 2011 Krishna Ballava Singh Versus The State Of Bihar & Ors ----------- 03. 29.07.2011. Put up on 2nd August, 2011 under the same heading. Sanjeev/- (Mungeshwar Sahoo,J.)

Krishna Ballava Singh vs The State Of Bihar & Ors on 29 July, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print SCR.A/1450/2010 1/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1450 of 2010 ========================================================= NARSINHBHAI KALAJI MALI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR ABHISHEK M MEHTA for Applicant(s) : 1, MS MANISHA L SHAH ASST. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 04/08/2010 ORAL ORDER1. Petitioner is the original accused, who is facing a complaint for cheque bouncing, lodged in the year 2004. He is aggrieved by the order dated 31.07.2009, passed by the Judicial Magistrate First Class, Deesa, below application Exhibit-49 in Criminal Case No. 1236 of 2004, as is upheld by the learned Additional Sessions Judge, by order dated 09.07.2010, passed in Criminal Revision Appeal No. 80 of 2009. 2. By the said application, the petitioner herein, desired that the cheque as well as certain documents produced by the complainant, be sent for hand-writing expert's opinion. That was on the premise that, though, according to the petitioner, the cheque contained his signature, the details filled up in the cheque as well as other documents produced by the complainant along with the cheque, were not in his hand-writing. 3. The learned Magistrate passed the impugned order, dismissing the application, observing that the petitioner has admitted his signature on the cheque. Previously also such an application was rejected on 09.04.2007, against which revision was preferred, which was came to be dismissed on 27.07.2007. Against that, the petitioner has not approached this Court. The statement of the petitioner under Section 313 of the Criminal Procedure Code was recorded on 11.08.2008. Thereafter, he has examined three more witnesses. In this context, the learned Judge was of the opinion that the petitioner is trying to delay the proceedings and only with that purpose, these applications were given. 4. The learned Sessions Judge did not find any reason to interfere and confirmed the order of the Magistrate. 5. I have heard learned Counsel for the petitioner and the learned APP, I do not see any reason to take a different view. Significantly, for this very purpose, the petitioner had previously approached the learned Magistrate, who had passed the order dated 09.04.2007, rejecting the said prayer, observing inter alia that the application is filed only for delaying the proceedings. Documents Exhibits-12, 13 and 14, on which the petitioner disputes his signature have been produced since long. 6. The learned Additional Sessions Judge, in the Revision Application, upheld the order of the Magistrate once again, observing that the petitioner is trying to delay the proceedings. 7. The learned Counsel for the petitioner has submitted that, after the above-mentioned orders are passed in the first round of litigation, the petitioner has been able to produce further material and would be in a position to make out a case for sending the disputed documents for hand-writing expert's opinion and such a request, therefore, ought to have been granted. 8. However, in the present case, in the previous applications no such stage was left open and the learned Magistrate as well as the learned Sessions Judge, finally and conclusively rejected his request for sending the documents for hand-writing expert's opinion. Both the courts were also of the opinion that the petitioner is trying to delay the proceedings. 9. The learned Counsel for the petitioner has relied upon a decision in Madhubhai Gandabhai Patel Vs. Joitaram Jividas Patel & Another reported in 2005(3)GLH 535. However, in the present case, in view of the above discussion, it is not possible to grant a fresh inning. 10. In view of the above, the petition is required to be dismissed. However, nothing, stated in this order, shall come in the way of the petitioner, seeking to establish before the Court below through the evidence that may be on record that the cheque was not issued for discharging legal debt, with respect to which I express no opinion. 11. Subject to above observations, the petition is dismissed. (AKIL KURESHI, J.) Umesh/     Top

Author: Akil Kureshi,&Nbsp;

Narsinhbhai vs State on 4 August, 2010

Gujarat High Court

IN THE HIGH COURT OF KARNATAKA AT Dated this the 15th day of September, 5 _ BEFORE THE I-ION'BLE MR. JUSTICE :1-I.N.i.i¢£--.c;i.A1VioI~:A1si 1' Cornpanv PetitiondNVo.71'7'3/ 10 1 " Company Apnlieation. _No,68§ / E BETWEEN: V A The B;1nkTof--N¥eW Meiion _ 40"' Floor . " " One Canada iSqu'a.re" .. London, E14 5AL, isngiand Repifesented b"y..itS '~ ' Co.nstit;_ute:i_ Attoliley-----« " V' Mt. Navneetfiingh ...Petitioner in Co.P.173/2010 ...App1icant in CA 689/2010 A V(.By M / s. AZB & Partners, Advocates) AND: ., 'f_*~ Cfanes Software Internationai Limited " _ A' Company incorporated under the Companies Act, 1956 % .,._\?'.7ith its registered office at Shankar Narayana Building, Block 1- 4"' Floor, #25, M.(}. Road Bangalore - 560 001 India ' ...Common Respondent!.\f""-' at The Company Petition No. 173 of 2010 is f_iled'r.1a,1nder Section 433(3) and (I) r/W Section 439(3) and Section-1]b) of the Companies Act, 1956 praying to wind upféheé respondent Cranes Software International Lirnited, having" its.,_registere'd4_ office at Shankar Narayan Building, Block..1.,_ __4F?1 'Floor, #25, M.G. Road, Bangalore-- 560 001, under' the provisioris:',.of'v.the5 3' Companies Act, 1956 and etc., The Company Application No. 689 of 20150 is filed under Section 433(e) and [f] r/wt Section "111-34(1) A ~(a]*.__a'nd "Section 439(1(b] of the Companies Act,"1.956 prayingto: appoint official liquidator High Court__ of Ka1:n_.ataka--._, or some, other fit and proper person as provisional ;1iqu.ida.tor"o_f the respondent with all powers under the Coinpanjgs1ACt,'"1,S56 and etc., These Co:npany:'petition_ Cornpany Application are coming on for;o'rtl;ers this day', the_Court_.made the following: The learned._ petitioner files a memo seeking withdrawalof th e peti~tison~;': 2. ' taken on record. Accordingly, petition tat"jgpherebyhfejecterifnsvfiaithdrawn. Consequently, C.A.689/IO not sLtruioe.._ for consideration and the same is hereby cciis missed'; 3 ~ . Sdfeé Ifidgé ksp/--

Author: H N Das

The Bank Of New York Mellon vs Cranes Software International ... on 15 September, 2010

Karnataka High Court

1. Amount paid by Westrex Equipments per hire-Pur- Rs. Ps. chase Agreement including Rs. 7,000 paid to defen- dants 1 and 2 (Exhibit P-120) .. 36,024-1-0 Amount paid to Westrex Company for other purchases like lenses, screen, etc. .. 20,115-7-0 2. Fire Extinguishers purchased (Exhibit P-33) .. 723-4-6 3. Electric Fittings paid to G.E.C. (Exhibit P-120) .. 4,758-5-0 Modi & Modi for fans and other electrical fittings, etc. (Exhibits P-41, P-47 & P-48) .. 2,917-0-6 Patel Electric Co. (Exhibit P-62) .. 5,045-12-0 4. Interior decoration including ceiling 10,690-4-0 5. Sanitary fittings .. 2,255-0-0 6. Furniture Pen Workers .. 30,443-15-0 Other furniture including office furniture .. 3,987-10-3 TOTAL .. 1,16,960-11-3. The entire seating arrangement was changed and except for a few items, the entire furniture had been replaced by new furniture which the plaintiffs purchased from " Pen Workers" the furniture company, in Bombay. As observed earlier, the plaintiffs changed the name of the theatre from " Sagar Talkies " to " Odeon Cinema ". In fact, even though the lease was executed on 3rd May, 1952, the plaintiffs did not screen any picture in the theatre immediately, but took up the Work of renovation, remodelling and improvement of the theatre, and it was only' on 27th June, 1952 that the first show commenced in the theatre preceded by a grand opening ceremony on the previous day on 26th June, 1952. JUDGMENT K.S. Ramamurthi, J. 1. The main point that arises for decision in this case is whether the plaintiff (hereinafter called the lessees) are entitled to the benefits and protection under the Madras Buildings Lease and Rent Control) Act, 1960 (referred to herein as the Act) as amended by Madras Act (XI of 1964), in respect of a building or a Theatre known as " Odeon Cinema ". This Cinema theatre belonged to two brothers, the first and the second defendant in equal shares and the second defendant, since dead, sold his half share to defendants 3 to 5 under a registered sale deed, dated 14th October, 1966. As certain objections were raised concerning the rights of the plaintiffs to obtain a renewal of the licence under the Madras Cinema Regulations, the Commissioner of Police, has been impleaded as the sixth defendant. 2. The relevant facts about which there is no serious controversy may be stated. The suit theatre which is now popularly known as " Odeon Cinema " belonged to defendants 1 and 2 and they were exhibiting pictures for several years in that theatre which Was then styled as " Sagar Talkies ". They had also obtained the requisite licence under the relevant Cinematograph Act, getting the licence renewed periodically. About the period April 1944-45 to April 1952, one Somasundaram Chetty was exhibiting pictures in this theatre either as a lessee or with the leave and licence of the defendants 1 and 2 (hereinafter referred to as defendants). The Sahni brothers, the seniors and elders of the present partners of the plaintiff's firm, Isherdas Sahni & Bros., who were refugees from Punjab negotiated for the lease of the said theatre for a period of five years, the negotiations took some concrete shape and the main terms of the lease Were embodied in an agreement executed by the parties i.e., the defendants and one R. N. Sahni (now dead). This was followed up by a regular lease deed, (with certain changes) Exhibit P-4, dated 3rd May, 1952, executed by the defendants and Karam Chand Sahini (who is also dead) representing the Sahni Brothers. Detailed reference will be made to the terms and conditions of the lease deed. It is sufficient to state at this stage that the lease was for a period of five years upto 30th May, 1957 on a monthly rent of Rs. 4,25O with a right of renewal, at the option of the lessees, for a further period of five years. Schedule B appended to the lease deed sets out the various items, machinery, electrical machinery, talkie equipment, fittings, furniture and other accessories which Were covered by the lease. The list is fairly exhaustive and detailed and mentions all the items. In paragraph 3-A of the lease deed, it is stated that out of the monthly rent of Rs. 4,250 Rs. 2,000 was to be the rent for the premises and the building, Rs. 1,000 hire for the furniture and Rs. 1250 hire for the machinery, electrical fittings, accessories and the talkie equipment With a specific mention that the lessees wanted to take the talkie equipment as a " Standby". A sum of Rs. 25,000 was paid by the lessees as advance stated to be as security for the articles hired to the lessees and that the advance of Rs. 25,000 shall be adjusted towards the rent and hire for the last six months preceding the termination of the lease. The several sub-clauses in Clause 5 contain the lessees covenants. Clause 5 (i) provides that alterations, improvements, additions to the building should be made by the lessees without causing damage to the building and that when they were so made, they Would become fixtures of the building and that the lessees would not be entitled to remove them at the termination of the lease, but that the lessors should be entitled to the same without any liability to pay any compensation therefor. Clause (f) provides that the lessees shall take proper care of the furniture and other fittings, machinery, talkie equipment and accessories and that if any damage is caused to the same, except by reasonable use and Wear, the lessees, shall replace the same or compensate the lessors for the value thereof. Clause 5 (7) provides that the lessee shall not dispose of or otherwise remove from the building (Without the consent of the lessors) any of the furniture, electrical fittings, fixtures which existed in the building at the time of the lease or may be hereafter (meaning after the lease) be provided upon the premises in substitution thereof except the talkie equipment. Clause 5 (p) provided that at the time of the determination of the lease, the lessees shall yield up the demised premises with the existing fixtures, electrical fittings, furniture, etc., set out in Schedules A and B appended to the lease or the substitutions thereof and that in default of doing so, the lessees shall pay Rs. 300 per day on such default. 3. It is unnecessary to advert to the terms of Exhibit P-2, dated 2nd April, 1952 which the parties put into Writing when the lease was agreed upon, as the regular registered lease deed Exhibit-P-4 which Was executed a month later embodies (with some modifications) in detail, all the terms and conditions of the lease, mentioned above. It is important to advert even at this stage to the two projectors with talkie equipments; (1) "Simplex" Projector and talkie equipment which was no longer in use and referred to as stand-by equipment; and (2) " Westrex" Projector with talkie equipment which was obtained under a hire-purchase agreement from Messrs. Westrex Company even during the time of the prior lessee, Somasundaram. As a result of and as part and parcel of the lease deed, Exhibit P-4 it was agreed between the parties that the lessees should pay to the lessors the instalments of hire-purchase paid up till then to Westrex Company and that the lessees should also continue to pay the entire future instalments as and when they accrued due. The substance of the arrangement was that so far as the Westrex Projector and talkie equipment were concerned, they are the properties of the plaintiffs. On this aspect, it is sufficient to refer to Exhibit- P-1, dated 25th March, 1952, the letter passed by Somasundaram to the defendants; Clause 3 of Exhibit P-2, dated 2nd April, 1952, and Exhibit P-3 a letter, dated 5th April, 1952 passed by the defendants to the plaintiffs; Exhibit P-74, dated 4th September, 1952, a letter by the Westrex Company, India to the defendants; Exhibit P-90 a transfer voucher showing a cheque, dated 28th October, 1952 given by the plaintiffs to the defendants for a sum of Rs. 7000 and Exhibit P-120 showing the instalments of payments made by the plaintiffs to the Westrex Company. By the end of 1954, the plaintiff became the full-fledged and absolute owners of this Westrex Projector and talkie equipment, they having paid to the defendants the sum of Rs. 7,000 and the entire balance of instalments, to the Westex Company. Exhibit P-120 extract shows that the plaintiffs, in addition to the price of the talkie equipment, have spent and incurred several items of expenditure with regard to the change of lenses and other component parts making a total of Rs. 59,500 towards the capital investment and expenses incurred under this head-Mr. Govind Swaminathan, learned Counsel for the defendants fairly conceded that so far as the Westrex talkie equipment Was concerned, the case could be dealt with on the footing that it belonged to the plaintiffs and that as per the conditions of the lease deed, the lessees would be entitled to remove and take them at the termination of the lease deed and that the lessors will not have any right or claim thereto. 4. To continue the narrative, the lessees took possession of the theatre and effected considerable improvements, spending large sums of money in connection with Various items, interior decoration, electrical fittings, sanitary fittings, furniture, gates, etc. From the extracts of the entries all culled out from the account books, it is seen that the plaintiffs have invested about Rs. 1,16,000 and odd under the various items. 5. In the initial stages of the trial, there was some controversy as to the exact date on Which the plaintiffs as lessees, screened of exhibited their first picture in the theatre. The defendants' case was that the plaintiffs screened a picture called " Notch " on and May, 1952 for a week. On the other hand, the case of the plaintiffs Was that immediately after the lease transaction was entered into, they plunged into their work of remodelling, improving and renovating the theatre, that it was only after the entire Work was complete that they had a grand opening ceremony on 26th June, 1952 by late Dr. M.V. Krishna Rao, the then Minister for Education and that the regular screening of the picture commenced only on 27th June, 1952. 'The evidence on the side of the plaintiffs is overwhelming and conclusively established that the opening ceremony function was on 26th June, 1952 and the first picture was screened only on 27th June, 1952. In the course of the arguments of learned Counsel for the defendants, I noticed that they did not seriously press this point. I will advert to the documentary evidence little later; it is sufficient to state at this stage as a part of the narrative, that the plaintiffs effected vast improvements and renovation in the structural, seating and sanitary arrangements in the theatre, practically replaced the entire furniture with new seating and other facilities-vide also Exhibit P-166, the extract of the news in the Indian Express issue, dated 28th June, 1952 containing the news of the function and the substance of the Minister's speech and the compliments paid by him about the enterprising work of the plaintiffs. I may also add at this stage that learned Counsel Mr. Govind Swaminathan, more than once, conceded that the plaintiffs who were experienced in this business line in Cinema had made this theatre a first class one spending huge sums of money including air conditioning of the entire theatre at a cost of two lakhs and more. . 6. The plaintiffs exercised their right of renewal, for a further period of five years as provided in the lease deed (Exhibit P-4 , by their letter Exhibit P-21, dated 24th October, 1956. This was immediately followed up by the Exhibit P-I22, dated 25th October, 1956, an agreement entered into between the parties to the effect that a new lease deed shall be entered into for a further period of five years with effect from 30th April, 1957 to 30th April, 1962, with an option for a further period of five years on the same terms provided a notice of six months is given by the lessees exercising their option on or before 31st October, 1961. This agreement Exhibit P-122 contained a clause that if the lessees put up an air-condition plant, the lessors shall have no claim or right thereto and that if the lessors were not prepared to pay the market value prevailing at the termination of the lease, the lessees shall be at liberty to remove the said air-condition plant. In pursuance of this, the second registered lease deed, Exhibit P-I24, dated 22nd April, 1957 came into existence. The main points in controversy centre round the effect and the operation of the terms and conditions of the second lease deed concerning the question of the character of the lease, Whether composite or otherwise, and I shall refer to these matters in greater detail later. It is necessary, however, to emphasise that the terms of the second lease deed Exhibit P-I24 are line by line Verbatim reproduction of the first lease deed, Exhibit P-4, except the necessary change in the dates and the period when the lease Would terminate. The curious feature that requires to be mentioned is that Schedule B of P-124 which sets out the machinery, talkie equipment, fittings furniture and other accessories is identical (without any change whatsoever) as the Schedule B appended to the original lease deed, Exhibit P-4, even though it is beyond controversy that the schedule in the second lease deed has no relation whatsoever to the conditions existing at the time of the second lease deed with regard to the furniture, with regard to the fittings, with regard to the electrical fittings, with regard to the sanitary arrangements etc. etc. Schedule B in the second lease deed is simply a mechanical parrot-like repetition. On the same day, the defendants had passed a letter, Exhibit P-I25, of crucial importance, to the plaintiffs, to the effect that item VI of Schedule B, meaning thereby, the stand-by talkie equipment, shall be retained by the plaintiffs, as their own, on the termination of the lease either in 1962 or on renewal in 1967 and that the defendants shall have no claim or right thereto after the termination of the lease. The old furniture which existed in the theatre and which were removed at the commencement of the lease, were kept in some portion of the premises and were sold by the plaintiffs in the end of April, 1962 for a sum of Rs. 1,400 vide Exhibit P-13O, dated 26th April, 1962 and Exhibit P-131, dated 9th May, 1962. In the meanwhile, the plaintiffs exercised their option by their letter, dated 29th August, 1961 (addressed to the defendants claiming a renewal for five years from 1st May, 1962 to 30th April, 1967 and under Exhibit P-129, dated 7th April, 1962 the defendants agreed to the aforesaid renewal for a period of five years till 30th April, 1967. A regular lease deed, however, does not appear to have been executed between the parties in view of the fact that the defendants had taken legal advice which was to the effect that no registered lease deed was necessary for the period 1st May, 1962 to 30th April, 1967 and that consent by the defendants given in their letter, dated 7th April, 1962 to the renewal of the lease for five years, Was. sufficient. 7. The next event, is the sale deed executed by the second defendant conveying, his half share in the theatre to defendants 3 to 5 under a sale deed, dated 14th October 1966 for a price of Rs. 3,70,000 (the sale deed has been filed, but not .marked as an. Exhibit as all the parties are agreed that the sale Was subject to all the obligations of the vendor in respect of the lease in favour of the plaintiffs. Here again, it is necessary to mention an important fact (which again is a matter of admission by all the parties) that the schedule to this sale deed concerning fittings, fixtures, furniture, talkie equipment, accessories, etc. etc., is a mechanical parrot-like repetition of the schedules in the two lease deeds, Exhibits P-4 and P-124 and that under the sale deed what is conveyed to the purchasers, as described in the schedule, is those old items only having no reference whatsoever to the actual factual position existing in the theatre on the date of the sale deed. The sale deed does not convey to the purchasers any possible right, if any, which the vendor may have in respect of the new furniture, fittings, accessories, renovations, fixtures, etc. which the lessees had brought into the theatre at the time of the commencement of the lease in May, 1962 as well as subsequently thereafter. As a result of the sale and subsequent correspondence, the lessees have agreed to and have become liable to pay one half of the rent to the first defendant and the other half to defendants 3 to 5, with the result that defendants 3 to 5 have stepped into the shoes of the second defendant. 8. Last in the chain of events, is the attempt made by the plaintiffs to get the licence renewed by the Commissioner of Police with effect from 30th April, 1967, the time-limit under the renewed lease P-124. The Commissioner of Police informed the plaintiffs by Exhibit P-148, dated 27th February, 1967, that the renewal of the licence would be considered only if a fresh lease deed extending the lease period beyond 30th April, 1967, was produced and a copy of this communication was also sent to the Commercial Tax Officer, Madras, as well as the Chief Electrical Inspector of Government of Madras. During this period , the plaintiffs took up the position that they were entitled to the protection under the Rent Control Act, that no lease deed as such from the lessors was necessary; while the lessors objected on the ground that the plaintiffs were not entitled to the benefits of the Rent Control Act. The letters written by the lessees to the Commissioner of Police, Exhibits P-150, P-151, P-152, P-154, P-155 and P-156 contain the aspects stressed by them before the Commissioner of Police and how the defendants were objecting to the renewal of the lease as a result of which the Commissioner of Police finally refused to renew this licence under Rule 13 of the Madras Cinemas Regulation Rules on the ground that the plaintiffs were not in lawful possession of the theatre. The result was, that : the plaintiffs were obliged to file the present action on 18th April, 1967, for establishing their rights as statutory tenants entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act, 1960 and their lawful possession of the theatre within the meaning of Rule 13 of the Madras Cinemas Regulations Act and also for an injunction against the defendants restraining them from interfering with the plaintiffs'' rights and enjoyment of the theatre. 9. It is not necessary to refer in detail to the written statements of the defendants. Their substantial objection is that the lease in question is a composite lease, not a lease of a mere building, within the meaning of the Madras Buildings (Lease and Rent Control) Act and that on the expiry of the lease in April, 1967, the plaintiffs were not entitled to any rights to continue in possession claiming rights as statutory tenants. 10. Before I proceed further, I may state one point (to clear the ground of some controversy which existed at the stage of pleadings). Learned Counsel for the plaintiffs accepted the position that the old furniture which existed in the theatre and which were removed by the plaintiffs were sold by the plaintiffs in the end of April, 1962, and realised a sum of Rs. 1,400 and that the statement in the plaint that the old furniture which were kept aside were removed by the lessors is not a correct statement. Again, the statement in the plaint that the stand-by equipment, Item No. VI, was not handed over to the plaintiffs under the lease deed is not quite correct. What had actually happened was that when in pursuance of the hire-purchase agreement, the Westrex projector was installed, the Simplex Projector had been dismantled and placed in a room in the theatre, and that was why it was referred to as stand-by equipment in the lease deed, and that that stand-by projector is not there now. In other words, so far as the stand-by equipment was concerned, the plaintiffs had a legal right and could have used the same in case there was any occasion arising if the Westrex Projector should give any trouble. The senior partners i.e., the Sahni Brothers, Karamchand Sahini and Roshanlal Sahni are now dead and there is no question of the plaintiffs withholding the evidence of any material witness. I may also refer to the Arc Lamps about which sonic stress was laid in the course of the evidence and arguments. Arc Lamps is necessary for the projector and it will work only with D.C. current. For generating D.C. current, there is a generator, dynamo and an electric motor. Instead of using the generator, the dynamo and the electric motor, for developing D.C. current, a rectifier can be used for converting A.C. current into D.C. current. The defendants case is that this generator to which particular reference was made in the Schedule B appended to the lease deed was being used by the plaintiffs even when they were using the Westrex talkie equipment at the time when the lease deed, Exhibit P-4 took effect, and it was only several years later, that the plaintiffs began using rectifiers giving up the generator, the dynamo and electric motor. The plaintiffs would, however, urge that all throughout right from the time the lease Exhibit P-4 took effect, the plaintiffs were using only rectifiers and never used the generator, the dynamo and the electric motor. It does not matter as to when exactly the plaintiffs started using the rectifiers in view of the fact that the schedule to the lease deed expressly takes in the generator carrying with it, the plaintiffs' rights to use the same if they liked and it is not the concern of the lessors, whether the plaintiffs used the generator and if so when. 11. It is not in dispute that by reason of the provisions of Madras Act (XI of 1964), the plaintiffs would be entitled to the benefits of the main Madras Buildings (Lease and Rent Control) Act (XVIII of 1960), provided they establish that (1) they are " tenants " under that Act and (2) tenants of a " building " within the meaning of the Act. The definition of "tenant" includes any person who continues in possession after the termination of the tenancy in his favour. " Building '' is defined as meaning any building or part of a building or shed let or to be let separately for residential or non-residential purposes including any furniture supplied by the landlord for use in such building (unnecessary portions omitted). 12. Learned Counsel for the defendants relied upon the Bench decision of this Court reported in Raja Chetty v. Jagannadhadas what is known as Maharani Talkies case-in support of the contention that the lease of the theatre in the instant case is governed by the principle of that decision and that the lease in the instant case is a composite lease to which the provisions of the Rent Control Act would not apply. In that case what was leased was the theatre and all the fixtures, fittings, cinematograph talkie equipment, machinery, furniture, scenery and things in, upon and above the said theatre specified in the inventory. The monthly rent and a hire was fixed at Rs. 3,200 made up of (1) Rs. 1,500 rent for the ground and superstructure, (2) Rs. 800 hire of furniture and (3) Rs. 800 hire of talkie equipment, machinery, fittings and fixtures. The lease also contained a clause that the lessees shall yield up and deliver to the lessors on the termination of the lease the demised premises together with the fixtures, fittings, talkie equipments, machinery, scenery, articles, etc. including the additions and the alterations, whether they maybe lessors' or lessees' fixtures taking in all effects which shall be brought upon the said theatre in addition thereto or substitution thereof. The lease was for a period of five years commencing from October, 1948. As the lessees committed default in the payment of rent in April, 1949 the lessors filed an application under the Rent Control Act for eviction of the tenant on the ground of wilful default in payment of rent. The Appellate Authority ordered eviction holding that the Act applied to the lease in question. In an application for the issue of a writ of certiorari this Court set aside the order of the Appellate Authority holding that the lease was a composite lease and was therefore outside the purview of the Act. Before the Bench it was urged that the lease deed must be split up as consisting of three separate transactions (a) the lease of the ground and superstructure for Rs. 1,600, (b) hiring of the furniture on a monthly hire of Rs. 800, and (c) a hiring of the talkie equipment, machinery and fittings on a monthly hire of Rs. 800. This argument was rejected by the Bench on the ground that this splitting of the rent in the lease deed was purely notional and nominal and was resorted to reduce the property tax liability and for other extraneous considerations and that the attempted division of the lease and reparation of the rights was in highest degree artificial, never contemplated by the parties. The Bench ultimately held that the lease was not a mere lease of the building and furniture of the sort covered by the definition in the Act, but a lease of a land and building together with the fixtures, fittings, "talkie equipment", machinery, etc. 13. Learned Counsel for the defendants also relied upon the Bench decision of this Court in Om Prakash Gupta v. Commissioner of Police (1960) 2 M.L.J. 50 : I.L.R. (1960) Mad. 490 where in respect of a lease of a cinema theatre with the building, furniture and equipment under similar circumstances (Rajakumari Talkies case) the same view was taken by the Bench of this Court consisting of Rajamannar, C.J. and Basheer Ahmed Sayeed, J. following decision in Raja Chetty v. Jagannadhadas . 14. Learned Counsel also drew my attention to the Bench decision of the Andhra Pradesh high Court in Venkayya v. Subba Rao (1956) An.W.R. 1093 : A.I.R. 1957 Andh. Pra. 619 Which dealt with the case of a lease of groundnut oil mill comprising besides the building thereon, the machinery, plant of considerable value installed in the building all being required and used for the purpose of manufacturing oil out of groundnuts and other oils seeds. The Andhra Pradesh high Court applied the principle of the decision of this Court in Maharani Talkies case as well as an unreported Bench decision of the Andhra Pradesh high Court Which dealt with a lease of a cinema theatre comprising the buildings, furniture and the equipment necessary for the exhibition of the films. Reliance Was also placed by learned Counsel for the defendants upon another Bench decision of the Andhra Pradesh high Court reported in A. N. Shah v. Annapurnamma in Which again, following the Bench decision of this Court, it was held that a lease of a picture house together with furniture, electrical fittings and other items Was a composite lease of the talkie house and cannot be split up as contracts of lease, contracts of hire and that it was not a lease of a building within the meaning of the Act The items of properties leased as noticed in that judgment appear to be of the same pattern as m the case in Raja Chetty v. Jagannathadas . The Bench was also of the view that the definition of the building includes only furniture and not " fittines " and therefore the lessee Would not be entitled to the protection under the Act In view of the Bench decisions of this Court, which are binding upon me it is unnecessary to refer in detail to the decisions of other Courts in which a contrary view was taken. I will only merely advert to the latest Bench decision of the Calcutta high Court in D. S. Jam v. Meghamaia Roy (1964) 68 Cal W.N. 1136 in Which it was held, following the earlier decision of the same high Court in Kali Prasad v. Jagadish Pada that the lease of a furnished and well-equipped cinema show house and the building, the furniture and the machines and the machinery etc., all constitute its essential and integral parts of the components, that they cannot be regarded separately or as distinct or different units, that they are all linked up together by the lease itself of the entire lease of the premises within the meaning of the West Bengal Premises Tenancy Act and the fact that different items covered by the lease deed belonged to different persons who granted the lease as joint lessors would not affect the applicability of the Act. The west Bengal Act used the expression "premises " which I think does not make any difference. It is true that in both the Bench decisions of the Calcutta high Court, no reference Was made to the earliest Bench decision of this Court in Raja Chetty v. Jagannathadas . 15. Even at this stage, it is necessary to refer to a recent unreported decision of Natesan, J., in Second Appeal No. 1544 of 1963 in Which the learned Judge after considering the precise scope of the Bench decision of this Court in Raja Chetty v. Jagannathadas and the Bench decision of the Andhra Pradesh high Court in A N. Shah v. A. Annapurnamma held that a lease of a cinema theatre with all furniture, fittings (electric and otherwise) and accessories without the talkie equipment)' Would be governed by the provisions of the Act as a lease of a building The learned Judge has examined, in detail, the provisions of the Act and the Rules framed in 1960 for the purpose of fixation of fair rent as well as the principle of the decision of the Supreme Court reported in Karnani Properties Ltd. v. Miss Augustin which dealt with a case arising under West Bengal Premises Rent Control Act In that case, S.A. No. 1544 of 1963, a cinema theatre known as Murali talkies situate in Arcot (North Arcot District) was leased for a period of five years and the lessor filed a suit in ejectment after the expiry of the period of five years and the question Was whether it Was a lease of a building governed by the Actor a composite lease coming within the principle of the decision in Raja Chetty v. Jagannathadas As I shall presently show, the decision of Natesan, J. directly applies to the facts of the instant case and with great respect, I am of the view, that it lays down correct law and ought to be followed. The fact that in that case the cinema theatre was situate not in a big city nor the fact that the monthly rent Was fixed at Rs. 200 nor even the fact that the items of furniture, electric fittings, fixtures, and other accessories are of less value or small in number cannot possibly affect the principle laid down therein. I find it impossible to accept the summary suggestion of Sri R. Ramamurti Iyer that, that Was a small theatre and that the principle in that case cannot furnish a proper precedent for the instant case. It is needless to observe that that approach is a. very dangerous and unsatisfactory way to appreciate the principles and the law laid down in that decision. After a detailed and careful scrutiny of the provisions of the Act and the Rules, the learned Judge has held that the fact that "building" in the Act has been defined as including furniture supplied by the landlord for being used in the building but not making any express reference to the fittings will not make any difference and that the lease of a building with the furniture and the fittings in such a building Would undoubtedly be a lease of a building coming under the definition clause. There are several provisions in the Act as well as the Rules framed thereunder in 1961 which leave no room for doubt and lead to the clear conclusion that the building under the Rent Control Act would take in the lease of a building along with the furniture, fixtures and the fittings in the same. In the first place, it may be noticed that the definition of " building " is an inclusive definition and it should be given the meaning or interpretation which would achieve the purpose of the Act and should not receive any restricted meaning Which would frustrate the very scheme or object underlying a beneficial or social legislation of this kind, and Would also exclude practically a major portion of the buildings from the purview of the Act vide Jivabhai Purshottam v. Chhagan Karson . It must also be borne in mind that the Act applies to buildings let for residential as well as non-residential purposes and any restricted interpretation of the word " building " would almost exclude from the operation of the Act, all buildings let out for non-residential purposes. If I may say so, the Act would be rendered inapplicable to all buildings let out for non-residential purposes if the definition of the building should exclude fittings and fixtures kept or attached to the building though, essentially for the use of the building. Section 3 deals with vacancies arising of buildings. Section 3, Sub-section (5) runs as follows : - If the building is required for any of the purposes, or for occupation by any of the officers specified in Sub-section (3), the landlord shall deliver possession, of the building and the fixtures and fittings in or on the buildings, in good tenantable repairs and conditions to the authorised officer, or to the allottee named by the authorised officer, as the case may be and the Government shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the authorised officer received notice under Sub-section (1) or Sub-section (2), the terms of the tenancy being such as may be agreed upon between the landlord and the tenant and in default of an agreement, as may be determined by the Controller. And the third proviso to Sub-section (5) provides that the fair rent shall be fixed in accordance with the provisions of the Act or in such manner as may be prescribed. Section 4 Which deals with fixation of fair rent provides that in the case of the fixation of fair rent for any non-residential building, allowance may be made for consideration of locality in Which the non-residential building is situated, features of architectural interest, accessibility to market, nearness to the railway station and such other amenities as may be prescribed and for a purpose for which the non-residential building is used. Reference may next be made to Section 17 of the Act which prohibits the landlord from cutting off or withholding of any of the amenities enjoyed by the tenant. What is important to note is the Explanation to that section which defines the expression " amenities " in the section as including supply of water, electricity, passages, staircases, lights, lavatories, lifts and conservancy or sanitary services. The importance of electric lifts in this context must be borne in mind. It is thus abundantly clear that there are several provisions in the Act which show that a building Will include furniture, fittings, fixtures and other amenities intended for the tenant's more beneficial enjoyment of the building. 16. When we come to the Rules, the same inference follows. The Rules provide for various matters including the fixation of fair rent in which allowance has to be for the various amenities provided in the building, residential and non-residential. Rule 7 provides that when the authorised officer fixes a fair rent he must have due regard inter alia to the common amenities such as water, sanitation, water taps, electric points, fans, staircases etc. This emphasises that a building tinder the Act Would necessarily take in the electric fittings. Explanation I to Rule 9 shows that the furniture, fittings and electrical fittings and other accessories are regarded as forming part of the building emphasising that what is leased is the lease of a building and not a composite lease as a lease of a building and a separate lease of the furniture, fixtures, fittings etc. It is necessary to extract hereunder rule No. 10 and rule No. 13, regarding allowances that are to be made for amenities provided thereunder while fixing the fair rent. "Rule 10.-Allowances to be made for amenities in respect of residential buildings.- When calculating the cost of construction of residential buildings, allowances shall be made for the following amenities in addition to those specified in Section 4 (2) 1. Air-conditioning ; 2. Side dados ; 3. Tube lights ; 4. Number of electric points ; 5. Fans ; 6. Plastic emulsion coating for walls ; 7. Compound walls; 8. Gardens ; 9. Wells ; 10. Overhead tank;' 11. Electric pump for water ; 12. Flush-outs ; 13. Porch ; 14. Ventilators ; 15. Fixed Wash basins ; 16. Fixed bath tubs ; 17. Playgrounds ; 18. Badminton Court and tennis Court; 19. Additional stair-cases ; 20. Sun-breakers. Rule 13 : -'Allowances to be made for amenities in respect of non-residential buildings. When calculating the costs of construction of non-residential buildings, allowances shall be made for the following amenities in addition to those specified in Section 4 (3). 1. Air-conditioning; 2. Lifts ; 3. Electric fans ; 4. Tube lights ; 5. Number of electric points; 6. Fans ; 7. Ventilators ; 8. Electric pump for water ; 9. Flush-out; 10. Fixed wash basins ; 11. Additional stair-cases; 12. Garden or vacant ground appurtenant to the building enjoyed by the tenant; and 13. Usufructs of trees, if any, enjoyed by the tenant. In arriving at the proper meaning of the Word " building " the popular, fair and common sense meaning has to be given to that Word as otherwise almost every building Would get de-controlled. If I may say so, it will be making non-sense of the Act to say that if a building With furniture and electric fittings and the amenities as provided in the Act and enumerated in the Rules is leased out, it is not a lease of the building. The fittings and the fixtures and the other amenities provided, are all related and referable to, and only to, the particular use to which the non-residential building is proposed to be put. Applying the tests propounded by the Supreme Court in Uttamchand v. S. M. Lalwani to Which detailed reference will be made later, in the instant case all the furniture and fittings Were provided for the more beneficial enjoyment of the building and not for the more beneficial enjoyment of any other thing, i.e., either the stand-by cinema equipment or the generator, even assuming that they should be considered as independent of the building and distinct objects of lease like the lease of machinery of Dal Mill. In this context reference must be made to the decision of the Supreme Court in Karnani Properties Ltd. v. Miss Augustine the principle of which has been applied by Natesan, J. That case arose out of an application filed by the tenant for the fixation of fair rent under the West Bengal Rent Control Regulation. The tenant Was occupying one of the flats which contained a number offans and plug points, and the tenant Was also entitled without any additional charge to the consumption of electric energy for lamps, fans, oven for cooking, laundry and refrigerators. There were also lifts in the building to the use of Which also the tenant was entitled. The landlord, in View of these many amenities, contended that the Rent Control Act Would not apply to the tenancy in question. From the decision of the Rent Control authorities (to which it is unnecessary to refer) the matter Went to the high Court which awarded relief in part and the landlord took up the matter to the Supreme Court. One of the substantial points which was argued before the Supreme Court was that the West Bengal Rent Control Act did not apply to the premises in question. In dealing with that question the Supreme Court pointed out that the definition of " the premises " (it is significant to note that the definition of " premises " in West Bengal Act is the same as in the Madras Act except in addition to the furniture, " fittings " also is included) is very wide and the fact that special amenities and facilities and conveniences were provided would not take the building out of the purview of the Act. The matter Was put in these terms at page 312: Under this head the question reduces itself to this : whether if by a stipulation between the landlord and the tenant the landlord agrees to provide for additional amenities like electric power for consumption and such other facilities the case is taken out of the operation of the Act. The Act is intended " to make better provision for the control of rents of premises ". It has defined" premises " in very wide terms, as pointed out above. Hence it is difficult, if not impossible to accept the contention that the Legislature intended the provisions of the Act to have a limited application, depending upon the terms which an astute landlord may be able to impose upon his tenants. In order fully to give effect to the provisions of the statute, the Court has to give them the widest application possible within the terms of the statute. Having these considerations in view, We do not think that the supply of the amenities aforesaid Would make any difference to the application of the Act to the premises in question. After referring to the relevant decisions in England, it Was further observed as follows: Their Lordships of the Court of Appeal repelled the contention that the additional payment Was not part of rent and held that the payment in respect of the additional amenities aforesaid was also part of rent within the meaning of the English Act which corresponds to the Bengal Act. Those English decisions are authorities for the proposition that " rent" included not only what is ordinarily described as rent in an agreement between a landlord and a tenant but also payment in respect of special amenities provided by the landlord under the agreement between him and his tenant. The term "rent" has not been defined in the Act. Hence the term must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, the term " rent' is comprehensive enough to include all the payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord, the conclusion is irresistible that all that is included in the term " rent " is within the purview of the Act and the Rent Controller and other authorities had the power to control the same. In view of these considerations we overrule the first contention raised on behalf of the appellant. It is clear that the term "rent" is comprehensive enough and very wide, and includes all payments agreed to be made by the tenant in respect of the enjoyment of the building and for all the amenities provided for the more beneficial and convenient enjoyment of the building. In other words the fact that the landlord provides additional amenities will not make the premises anytheless a " building " within the meaning of the act and the payment of money anytheless " a rent " within the meaning of the Act. From this decision it Will be at once apparent and evident that unless it is a lease of a " building " the Rent Controller will have no jurisdiction to fix the fair rent for otherwise, the parties will be bound by the terms of the tenancy and if the tenant or landlord desires a revision of the rent either should only go to the ordinary Courts of the land to enforce his or their rights, if any. I am of the view that it is necessarily and clearly implicit in this decision of the Supreme Court, that provision for various amenities will not in any way affect the character of the premises, seeing that all those amenities are in relation to building only. 17. I must next refer to the note of warning and the rule of law to be followed in the interpretation of and in giving effect to the terms of a lease entered into between a. landlord and a tenant. It is well settled that where the question is Whether the tenancy in question is governed by the Rent Control Act, it is not competent to the tenant to bargain and agree to give up his rights under the statute, and that any attempt to get over that restriction in the matter of freedom of contract (so far as the tenant is concerned). Courts will not permit nor recognise the tenancy agreements cleverly couched in an attempt to evade or avoid the applicability of the Rent Control Act. These Acts are remedial measures, legislations conceived for the protection and Welfare of tenants, to guard against unreasonable eviction and collection of excessive rents and the object of the legislation will be easily frustrated and defeated if the tenants are permitted to enter into contracts giving up the protection afforded under the Act. That is the reason why in all these statutes we find the non-obstante clause overriding any contract to the contrary. In all such matters, Courts have scrutinised the terms of the tenancy and found out the truth or the real bargain between the parties, ignoring, if necessary, the particular stipulation and the language employed in the lease deed. This aspect has also been emphasised in the decision of the Supreme Court referred to above, in which it was observed that (1) the question of the applicability of the Act cannot depend solely upon the terms Which an astute landlord may be able to impose upon his tenants. 18. In Ramalingam v. Gummurthi Reddy (1954) 2 M.L.J. 752 a Bench of this Court has pointed out that it was not open to a landlord to enter into a contract with the tenant bargaining for larger rights and greater privileges than those conferred under the act, i.e., the tenant cannot be bound by a contract involving a curtailment or deprivation of his rights under the Act. 19. In England this aspect of the matter denying freedom of contract to the tenants to agree to forego rights under the Rent Restriction Acts has frequently come up for decision in various aspects, particularly with regard to furnished premises and tenancies in which the landlord undertakes to render services in addition to letting out the premises. Reference may be made to the following statement of the law in 23 halsbury, 3rd Edition, page 722, paragraph 1467: Contracting out of the Acts. A tenant cannot contract out of his rights under the Rent Restrictions Acts. Thus he cannot bind himself to pay more than the proper rents. Similarly, so long as a statutory tenant remains in occupation he cannot by any contractual arrangement forfeit his rights to be protected, nor is it possible to incorporate into a tenancy a term Which in effect provides a ground for possession if it is unconnected with the user of the premises. Even if a tenant contracts to vacate the premises and later refuses to leave, the landlord cannot rely on the agreement but must show some ground on Which an order for possession may be made under the Acts. Where, however, the landlord and tenant agree that the tenant will Vacate the premises at a future date and that the landlord will then pay the tenant for giving up possession, the tenant is entitled, if the landlord later repudiates the agreement, to enforce it, as the agreement is not void on the grounds of the public policy, or Want of mutuality, or as an attempt to contract out of the Rent Restrictions Acts. The parties cannot be prevented by any estoppel from relying on their right under the Acts whether the estoppel, results from agreement or conduct, or, it stems, from a decision of the Court. From this it is seen that a statutory tenancy cannot by an agreement be converted to a mere contractual tenancy, and that in all these cases Courts will only look at the legal substance of the transaction and not to the form alone. It is sufficient if reference is made to the following decisions in England of vital relevance and significance to the instant case. I shall first refer to the well known case in Welch v. Nagy L.R.(1950) 1 K.B. 455. In that case during the currency of a lease of a furnished premises the tenant bought the furniture from the lessor though that itself would not convert the tenancy into an unfurnished one during the currency of that lease (for the purposes of the Rent Restrictions Act). But after the tenancy terminated and a new tenancy supervened and at a time when the furniture belonged only to the tenant by reason of his prior purchase, the landlord having no claim thereto, the tenant however proceeded to recognise the tenancy as one of a furnished dwelling house. The tenant also wrote a letter to the landlord on that basis, i.e., a tenancy of a "furnished dwelling house ". It was held that a tenant cannot, by representing himself as tenant under a fully furnished tenancy when the house was in fact let unfurnished, confer jurisdiction on the Tribunals functioning under the Act. The matter Was put thus by Asquith, J. at page 464: The Rent Restriction Acts compel the Courts to treat an unfurnished lease of a dwelling house within the statutory limits of rateable value in a certain Way. They are not to permit more than the standard rent and permit increase to be charged; nor (except under certain conditions laid down in the Acts) have they jurisdiction to make orders for possession. The Court must take these points even if the parties do not raise them, as they go to jurisdiction. The Court's power, on the other hand, to make orders for possession in the case of "substantially" furnished leases is left unfettered by the Rent Acts. In my view the parties cannot by, describing Whether by accident or design what is in fact an unfurnished tenancy as a furnished or substantially furnished one, alter the fact that the furniture is actually the tenant's and that such a tenancy cannot be furnished or substantially furnished one. To treat the tenant here as estopped from denying that the tenancy is unfurnished when it is in fact unfurnished is to confer on the Courts by the act of one of the parties a jurisdiction (namely, an untrammelled power to make orders for possession of premises in fact unfurnished) which Parliament has said that the Courts shall not have. Again at page 465 it is put thus: But when a new tenancy supervenes I see no reason why the Court should not have regard to the actual position as to ownership of the furniture; and if this is such that a furnished lease (let alone a substantially furnished one) is impossible, the Court must give effect to the rights which the statutes confer on a tenant under an unfurnished lease. I may also refer to the following observations of Cohen, L.J., at pages 223-224 in Regor Estates Ltd. v. Wright (1951) 1 A.E.R. 219: Looking at the lease in the present case purely by itself for the reasons, I have given, I should come to the conclusion that it Was an agreement for the payment of a premium so far as the £ 350 was concerned and not an agreement for the payment of additional rent. In dealing, however, with a matter of this class and the effect of a document relating to the Rent Restrictions Acts, We are not confined to the terms of the document, and we are bound to look at the transactions as a whole and consider whether it is within the prohibition of the Acts. In a different connection Uthwatt, J., made some observations in Samuel v. Salmon & Gluokstein Ltd. (1945) 2 A.E.R. 522, in which he makes it clear that We are not bound by the Vocabulary the parties have chosen to use. In that case he held that the premium Was rent. The facts are obviously so far from the present case that We cannot gain anything by referring to them, but Uthwatt, J., said: Land may be leased for a consideration which is not a rent in law or for a consideration which consists of or includes a rent. The parties may write the agreement in such terms as they please and, if so minded, may attach any label they wish to the payments agreed to be made by the lease. But when all that is done, it is for the law to decide on the effect of the document what payments are rent reserved and what not. No label can create a fact; a label may accurately describe a fact or it may misdescribe it, or may help to the solution of a doubtful question of interpretation'. Counsel for the tenant referred us to the decision in Rusk v. Matthews (1926) 2 C.B. 492, Where the parties had plainly attempted to evade the Rent Restrictions Acts by providing for weekly payments and calling them premiums in a separate document. On the facts of that case the Court had no hesitation in coming to the conclusion that there was a pure evasion of the Acts, within the mischief of the Acts, and therefore, the premium could not be enforced. In the same Volume, dealing with a similar aspect touching the freedom of contract in R. M. R. Housing Society Ltd. v. Combs (1951) 1 A.E.R. 16 at p. 21, Evershed, M.R. has given a note of warning that it Would be possible to frame a clause which would render the Act wholly in operative in every case and that the Court will not countenance any such agreement as that would amount to enabling the parties to do indirectly and in an oblique manner what the statute says they cannot do directly. In England in applying the provisions of the Rent Restrictions Acts with regard to furnished and unfurnished premises the question of the rent bearing a legitimate and reasonable proportion, to the character and the nature of the particular furniture provided by the lessor and in what proportion the rent should be allocated to the building as such and in what proportion to the amenities by way of furniture has frequently come up for consideration. There again, decisions have uniformly held that neither the landlord nor the tenant can couch the stipulation and specify the allocation of a rent in the lease deed which is unreal or artificial with a view to get over and evade the provisions of the Act. In other words, it has been held that Courts and tribunals will have jurisdiction to scrutinise the allocation of the rent, its bona fides and genuine character in relation to the actual facts and realities. Again, whenever the landlord attempted to secure from the tenant payments (other than and in addition to the rent payable) by way of money or other consideration, Courts have negatived such right, despite the language in which the document may be couched. The landlord had never been permitted to recover either money or other consideration from the tenant except the rent. Vide 23 halsbury, 3rd Edition, page 804, paragraphs 1583, and 1584. 20. I may lastly refer to the decision in Woods v. Wise (1955) 1 Q.B. 29, in which the distinction between " rent" and " premium" under the Rent Restrictions Acts came up for consideration and as to how far, the Court can determine the real substance of the matter, whatever may be the language in which the parties had couched the bargain. Evershed, M.R., at page 45 made the following interesting observation: I cannot for my part think that the arm of the law Would be so short as to disable it from dealing appropriately with such a case as that last suggested, if it appeared that the so called premium was, in truth and substance, nothing more or other than the rent quantified and provided for in ' an abnormal form'. The principles of these decisions will have a bearing in determining the allocation, of Rs. 1 ,000 as hire for furniture and Rs. 1 ,250 as hire for the machinery and electrical fitting in the two lease deeds, and in particular with vital significance in the second lease deed. Indeed Rajamannar, C.J., in the Bench decision has observed that such an allocation is merely nominal and sham resorted to for collateral purposes, like property tax, and Will not reflect the true bargain. While winding up the discussion of the English cases on this aspect of the matter, it is necessary to refer to the decision in R. V. Blackpool Rent Tribunal (1948) 1 K.B. 800, in which it was held that the landlord, merely by omitting all reference, to furniture in the tenancy agreement cannot prevent the applicability of the Act, when in fact it is the leasing of a premises with furniture. There, Goddard, L.C. J., pointed out that a landlord by merely leaving some chattel in the premises could not convert that into a dignified name of a piece of furniture, and that the fact that the tenant had a right to use certain articles would not, affect the matter. 21. The law is stated in these terms at page 902: Two cases under this Act have previously been before this Court R. v. Hamstead and St. Pancras Rent Tribunal, Ex. Parte Ascot Lodge, Ltd. (1947) 2 A.E.R. 12, and R. v. Croydon and District Rent Tribunal, Ex. P. Langford Property Co., Ltd. (1948) 1 K.B. 60. Both cases Were dealing with services, the provision of services having the same effect as the provision of furniture in giving a tribunal jurisdiction. In those cases the Court laid down that the only question was whether the tenant was contractually entitled to receive the services from the landlord, and not whether the landlord, in fact, supplied. the same as a matter of grace or convenience. In our opinion, it is quite possible that some different considerations may apply in the case of furniture. For instance, the landlord, merely by omitting all reference to furniture in the agreement, could not prevent the tribunal acquiring jurisdiction, if in fact what was let was a furnished house, of to use the words of the Act, a house in consideration of a rent Which includes payment for the use of furniture. At the same time it by no means follows that what was ordinarily an unfurnished letting Would be turned into a furnished letting because a chattel, which belonged to the landlord and could be dignified by the name of a piece of furniture, was left on the premises. The question would be whether the letting was in consideration of a rent which included payment for the use of furniture. From the above discussion it will be seen that while determining whether a lease governed by the provisions of the Act as a lease of a building or a composite lease the Court is not completely controlled or governed or bound by the terms of the lease. The Court, can, if necessary, and ought to scrutinise and ascertain the true bargain between the parties and as to how far an allocation or apportionment of the total rent under the several heads is genuine and has any true relation to the facts of the situation. If factually, no items exist Which Would make the lease a composite one the truth will have to be ascertained ignoring the recitals in the lease deed. In other words (assuming not accepting), if furniture and fittings would make the lease a composite lease the question whether the Furniture and the fittings actually existed as recited in the lease deed and whether they belonged to the landlord or to the tenant will have to be ascertained and also at the same time determine whether the recital of apportionment of the rent in relation to furniture and fittings was true-Again, if there is reference to the machinery or talkie equipment which Would make the lease a composite lease, the same scrutiny and investigation should be made by the Court concerning the factual position. 22. As the decision of the Supreme Court in Uttamchand v. S. M. Lalwani , has a vital impact upon the facts of the instant case, I shall now refer to the same before dealing with the two lease deeds, Exhibit P-4 and Exhibit P-124. In that case the question arose whether the lease of a Dal mill building with fixed machineries and accessories would be a lease governed by the M.P. Rent Control legislation. There too, the term " accommodation " was defined as any building including any furniture and any fittings affixed to such building (other portions omitted). The several clauses in the lease deed in that case showed that what Was leased was the machinery and the accessories which were affixed in the Dal mill building and the schedules attached to the lease enumerated fifteen items all attached to the machinery, i.e., Dal Mill. The argument on behalf of the tenant was that the lease in question was mainly of the building, and that incidentally the lease took in the machinery and that the value of the building was far more than the value of the machinery. It was also urged that subsequently, the machinery when found not in order was replaced at the cost of the lessee and that irrespective of the value of the building and the machinery, the dominant intention of the parties in entering into the transaction was not to enter into transaction in respect of the machinery as such but it was a transaction in respect of a building within the meaning of the Act. The Supreme Court held that the proper approach is to apply the test of the "dominant intention " of the parties. The Supreme Court observed that the fittings with the machinery could not be said to be fittings which had been fixed for the more beneficial enjoyment of the building but that they Were all fittings for the beneficial enjoyment of the machinery. It is significant to mention that the Supreme Court referred to Section 3(d) (y) (iii) of the M.P. Act to emphasise that in the Act those fittings referred to are fittings for the more beneficial enjoyment of the building. Elaborating this aspect, Gajendragadkar, C.J., made the following observations : h What then was the dominant intention of the parties when they entered into the present transaction ? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject-matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease, and it Was because the Mill Was intended to be let out, that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery Which was transferred to him. under the lease was found to be not very serviceable and that he had to bring in his own machinery Would not alter the character of the transaction. This is not a. lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious, that a Mill of this kind will have to be located in some building or another and so, the mere fact that the lease purports to be in respect of the building Will not make it a lease in respect of an accommodation as defined in Section 3 (a) (y) (3). The fixture described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object Which the lease was intended to cover and the building in Which the fixtures are located comes in incidentally. That is why we think the high Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies. 23. In applying the principle of this decision i.e. the theory of dominant intention, it may be noticed that in every one of these cases of these fixtures, fittings and amenities enumerated in the rules-vide Rule 13 concerning non-residential buildings (whether fixed in the ground or to the building or otherwise) they are only for the more beneficial enjoyment of the building. Surely, the building is not for the more beneficial enjoyment of these fixtures, fittings or furniture or other amenities like lift. In my view, this doctrine of the dominant intention can come into play only where there can be a plurality of objects of a lease; i.e., the enjoyment of use of the building as such and the enjoyment or use of the machinery or fixtures as such, as two distinct (separate) objects. One can visualise an oil mill, or a fertiliser factory a textile mill, or a soap factory; in all these cases we have the machinery or the fixtures, as well as the building which houses this machinery. If there is a lease, in one case the parties may be particular about the building alone; the lessee may take the building, dismantle and throw away the plant and instal some other new plant; or the lessee may be keen only about the machinery or the plant; it being a rare machine imported from foreign country. The building Would have become old and dilapidated or the lessee may like to remodel the building so as to get the maximum use of this rare plant. The result will be that the dominant intention of the lessee while taking the lease Would be to take a lease of this particular machinery or plant, his idea being to remodel of demolish the building and to put up a new one to house the machinery. Such a conception of the lessee, being predominantly keen, upon one only, of the two things, the other being incidental of very subordinate |s a necessary foundation for the applicability of this doctrine of dominant intention. 24. Let us take the instant case; the theatre building, the furniture and electrical and other fittings and the Simplex stand-by equipment and the Generator. At all stages of the discussion it is important to bear in mind, the crucial fact i.e., the main talkie equipment, the Westrex Projector, is that of the plaintiffs, and not covered in the lease deed at all. If that goes out it will be absurd and impossible to accept the contention that the lease of the building Was incidental, and the idea, to use the stand-by equipment, in a remote contingency on the temporary failure of the Westrex equipment, is the dominant intention. Let us next take the generator, i.e., the motor and the dynamo, which cannot by any means constitute the talkie equipment. There is one crucial aspect Which has been overlooked in the course of the arguments of the defendants. After all, the use of the generator, i.e., the dynamo and motor, is to generate D.G. current to feed the arc lamp on the plaintiffs' Westrex Projector. The plaintiff's case is, that they Were not using the dynamo and motor but were using a rectifier right from the beginning. The defendants have examined one Tukaram, D.W. I who gave evidence that in 1959 only the generator Was removed as it went out of order, and that till then the plaintiffs were using the same. There is no specific pleading to that effect and the crucial question Was put by Counsel for the defendants in the form of a blatant leading question as to the year in which there was a cessor of the use of the generator. When this witness was examined I formed the distinct impression that he had only hazy notions and could not give evidence with precision as to the dates or period when any particular event or events took place. The answers elicited in cross-examination reveal the unsatisfactory features of the evidence of this witness. This witness admits that the plaintiffs used a new arc lamp right from the beginning, i.e., the Westrex arc lamp. It is very likely and quite probable that the plaintiffs Were using the rectifiers right from the beginning. I am not prepared to accept the evidence of D.W. I. But, for the present discussion, that does not matter. Let me assume that the plaintiffs have been using this generator, dynamo and motor, for sometime, say five years 1952-1957. That does not improve the position of the defendants. I find it impossible to accept the argument that a generator which was used or which could have been used for the effective enjoyment of the plaintiffs' Westrtx Projector', (which projector, be it noted was not demised under the lease deed) would alter the character of the lease so as to take it out of the purview of the Act. To put it in other Words, if the generator Was used or intended to be used, only in connection with the property of the plaintiffs to enable the plaintiffs to make a proper and efficient use of their property belonging solely to them, that cannot possibly take the lease out of the Act. I have so far dealt With the stand-by equipment and the generator. 25. Then, what remain are only the furniture, fittings, fixtures, or amenities Under the Madras Act, read With the Rules, the items aforesaid have no independent existence, and they are by the statute regarded as amenities attached to the non-residential building. In the face of such statutory provisions the question whether the intention was dominant or subordinate or incidental with regard to the furniture and the fittings will not therefore arise. Even if it should arise I am unable to hold that the old furniture and the old electrical fittings which were removed and thrown away would have constituted the predominant object of the lease, the building and other things being subordinate or incidental. 26. I shall now examine the two lease deeds. I have already observed that the first screening of the picture by the lessees, plaintiffs, Was only on 27th June, 1952, and that right from the inception, the idea of the lessees was to remodel, renovate effect improvements, completely renew the furniture, completely renew the electrical fittings and substitute all the accessories and also provide for convenient sanitary arrangements to make the theatre a first class one and then start exhibiting the picture. I find no substance whatsoever in the contention of the defendants that the plaintiffs screened the picture called " Notch ' in the first week of May from 2nd May, 1952. They did not adduce any oral evidence and they only relied on Exhibit D-10, a letter from the advertisement department of the 'Hindu', to show that there was an advertisement dated 1st May, 1952 about the screening of the picture in Sagar Talkies from 2nd May, 1952. In the course of the cross-examination of P.W. 1, some questions Were put suggesting that this picture ' Notch ' was screened by the plaintiffs, which fact of course Was denied. 27. The documentary evidence which has been adduced on the side of the plaintiffs is simply overwhelming and it is simply amazing how in the face of such over-whelming documentary evidence, and on such flimsy worthless evidence on their part, the defendants raised and persisted in this plea. The documentary evidence consists; of the plaintiff;.' account books, the daily sales reports, box office sheets, which are i all maintained in the regular course of business and the authenticity of which is beyond any question whatsoever. They prove to the hilt, beyond any shadow of doubt that the first picture Was screened by the plaintiffs only on 27th June, 1952. The first sales report. Exhibit P-164, commences from 27th June, 1952. Exhibit P-167-the certificate given by the Commercial Tax Officer also shows that the plaintiffs started paying entertainment tax from 27th June, 1952, (from the date of the opening i of the cinema-note the words). This is corroborated by the box office statement, I Exhibit P-168 commencing from 27th June, 1952, and Exhibit P-169, the bank book, entries at pages 212, 230 and 234. Reference may also be made to Exhibit P-180, the letter written by the plaintiffs to the Commissioner of Police as early as 30th June, 1952 in Which it Was stated that though the plaintiffs took possession of the I cinema on 3rd May, 1952 the cinema was closed for renovation and decoration nearly two months from that date, and that the theatre Was reopened on 27th June, 1952 about three days prior to the Writing of that letter. The documentary evidence on the side of the plaintiffs is so overwhelming that I think it unnecessary to burden this judgment with a detailed reference to the same. The letters, Exhibit P-75, dated 11th September, 1952 written by the defendants to the plaintiffs place the matter beyond any doubt, and I must say that it is very extraordinary, how in the face of this letter, this contention was raised and lot of time was taken in cross-examination merely making suggestions at random, at the same time the defendants not adducing any positive rebutting evidence. This letter shows that an expenditure of Rs. 51-4-0 was incurred by the defendants towards advertisement charges of the proposed screening of the picture ' Notch ', that screening of the picture was stopped by the plaintiff and that the defendants should therefore be reimbursed. The records of the Police which have been produced in this case completely corroborate the plaintiffs' that there was no screening of the picture ' Notch ', by the plaintiffs. The police records also show that during that period the plaintiffs were taking steps to get a transfer of the licence in their favour, they had no licence in the first week of May, and secured it long afterwards. 28. Chitty Babu was then the manager of the theatre during that period. He has been attending several hearings of this suit, assisting the defendants in the conduct thereof. He has not been examined. On two occasions when Counsel for the plaintiffs made reference to the presence of Chitty Babu, in Court and his non-examination, I noticed that this Chitty Babu, skulked away, to which fact, Counsel for the plaintiffs and myself made reference in the course of the hearing itself. The advertisement report at the time of the opening ceremony of the theatre again show that there Was a function on 26th June, 1952 and the first screening commenced, only on 27th June, 1952. It is sufficient to refer to Exhibit P-166, the report in the 'Indian Express' dated 20th June, 1952. Apart from the inference to be drawn from the evidence adduced on the side of the plaintiffs, I do not see any reason why an adverse inference should not be drawn against the defendants for the non-examination of this Chitty Babu. This non-examination is deliberate withholding and suppression of the evidence not only on this aspect of the case but on other aspects as well and becomes very significant when it is remembered that it is this Chitty Babu who Was actively conducting the defence, much more than defendants themselves. 29. In view of this powerful evidence on the side of the plaintiff, I gained the impression that in the later stages of the argument learned Counsel for the defendants did I not press this point with the same vehemence and insistence that prevailed in the course of the hearing. Learned Counsel, Sri Govind Swaminathan fairly stated that the factual position has to be recognised that the first picture Was screened by the plaintiffs only on 27th June, 1952 and that during the two months period the I plaintiffs Were engaged in the renovation and improvement Work, as a result of which I the plaintiffs made the theatre a first class one. Learned Counsel however submitted that even so, the legal position Would not alter, because, the lease deed was executed and registered and took effect from 3rd May, 1952 and it was of no consequence to the defendants when exactly the plaintiffs started exhibiting the pictures in the '' theatre. That, that is the legal position is correct, but it has an important bearing; on the question of the proper understanding of the terms of the lease and the main object underlying thereunder. The entire furniture had been removed; the entire seating arrangement has been changed and costly furniture Was purchased and brought down from Bombay. The electrical fittings had been completely changed; lights and tube lights, electrical fittings, fans, fan points, light points have all been materially and substantially changed. Here again except for a few small items it is a complete change over. The other accessories, air cooler, fire extinguisher, advertisement tube lights, sanitary arrangement, etc. were all substantially new only. There has also been significant additions and improvement to the building, changing the front elevation and the appearance of the theatre. The senior partners of the plaintiffs are dead. The first defendant could have given evidence about the state of affairs in 1952, thereafter but he has not been examined and I am not satisfied that there is any justification for not examining the first defendant. The application to examine him (on commission) at the final stage, practically at the end or conclusion of the case, Was merely an attempt to get over the charge of non-examination of the first defendant. He is one of the main actors in this case in all the stages; and he ought to have been examined long ago. I have no hesitation in drawing the necessary adverse inference. 30. That these alterations, substitutions, remodelling and renovations took place With the knowledge of the defendants cannot be disputed. Indeed, learned Counsel for the defendants did not controvert that. They would only have it, that, in the absence of direct evidence to that effect, it cannot be said that these changes took place with the acquiescence or the consent of the defendants, i.e., proof of knowledge is not proof of consent or acquiescence. I am unable to accept this contention. No doubt, direct positive evidence of consent will be Very satisfactory. But that does not mean the Courts to totally put aside the inference flowing from probabilities and the normal course of conduct and actings of parties for a long period. Having regard to the long lapse of time, and death of all the actors on the plaintiffs' side, coupled With the non-examination of the first defendant, I think it will not be a Wrong or violent presumption but a legitimate, reasonable presumption to make, that the plaintiffs must have obtained the defendants' consent, express or implied, and or there has been an acquiescence of the defendants, express or implied in respect of all these changes which the plaintiffs have made. In this connection it should be noticed that the plaintiffs are refugees and as stated by learned Counsel, Sri Swaminathan, very experienced people in this cinema line. Cordial and friendly relationship existed between the parties at that time, and I find it impossible to visualise a situation, that all these changes, Would have been made by the plaintiffs, without any talk or conversation of exchange of suggestions and views between the parties, plaintiffs and defendants. 31. This inference based upon probabilities, I am adverting to, only to show that at the time when the lease Was entered into, the plaintiffs must have told the defendants about all these aspects, the schemes and the ideas of the plaintiffs to completely renew the furniture, to completely remove the old electrical fittings and fixtures and make a complete substitution, even if the plaintiffs, did not seek the defendants' consent as such, for that purpose. The crucial aspect which is necessary to be borne in mind, is that when the plaintiffs Were negotiating for the lease and executed the lease deed, at the same time, and even at the threshold, they had decided to make all these changes regarding furniture, electrical fittings, fixtures, etc. In that context, the inference is irresistible and lies on the surface, that the apportionment of the - under the various heads Rs. 1,000 hire for the furniture, Rs. 1,250 hire for the machinery and electric fittings and the stand-by equipment is wholly unreal and artificial, and the test of dominant intention propounded by the Supreme Court completely supports the plaintiffs' contention. 32. The stand-by equipment, had long ago been dismantled and this would not have happened if it could be of any service of use. The Westrex Projector is the plaintiff's own. The only use to which the plaintiffs could have put this "stand-by equipment" is on the contingency of the failure of the Westerx Projector which had been firmly fixed to the ground by bolts and nuts, and even if, the Westres Projector goes out of order, and could not be used, the stand-by projector cannot immediately thereafter be used. The shows will have to be closed till such time as the Westrex Projector is repaired and that is what the plaintiffs would first try to do. Only if the repair Work necessitates dismantling of the Westrex equipment, only then, the stand-by equipment will have to be used, and that too, can be used only by fixing the same to the ground by bolts and nuts. In that contingency, the Westrex Projector will have to be dismantled; the stand-by equipment will have to be affixed by bolts and nuts. For what period ? Till the Westrex equipment is repaired. Again the Simplex Will have to be dismantiled and the Wastrex affixed to the floor by bolts and nuts. It is fantastic to say that for such a remote, far fetched speculative contingency, the plaintiffs agreed to pay a huge rent per month, or the plaintiffs seriously considered that it was necessary for using the theatre. I have said enough to show that both the parties, and the plaintiffs in particular, could not have attached any serious significance to the stand-by equipment and the idea of their making use of it in the far-fetched contingency referred to above would never have been present in their minds at all. Further, the letter of even date Exhibit P-I25, passed by the defendants to the plaintiffs on the same date as the date of the second lease deed, Exhibit P-124 places the matter beyond any shadow of doubt, because under this letter the defendants have agreed that the plaintiffs themselves can take the standby equipment on the determination of the lease either in 1962 or after renewal in 1967, without the plaintiffs having to pay anything for this. This circumstance I consider, is decisive and constituted powerful evidence to show that the standby equipment did not and could not have entered into the minds of parties and their scheme of things as a matter of any significance, and that reference to this " stand-by equipments" is made in the body of the lease deed and the Schedule, only for convenient apportionment of the rent, Rs. 2,000 for one portion, for the buildings and the other portion, Rs. 2,500 for other items, so that the latter apportionment Would not enter into computation when the property tax is fixed or levied, as indicated by Rajamannar, C.J., in the decision referred to already, "for tax and oblique purposes." Otherwise, there is no meaning in making such pompous reference to the stand-by equipment, as if, it is of some value and as an inseparable part and parcel of the lease agreement Exhibit P-I24, to pass on the letter, Exhibit P-125 on the same date. 33. I have so far, discussed the matter on the basis that even at the inception the defendants were not only aware but had agreed to and acquiesced in the schemes and plans of the plaintiffs and the changes made by them to show that apart from the building, i.e., the theatre, the parties did not attach much significance to the furniture, fittings and the fixtures and the dominant intention was only to take a lease of the building. My conclusion Will be the same even if the true factual position were to be that the defendants had only knowledge of the plaintiffs' schemes, plans and vital changes made by them, there being no express or implied consent of the defendants thereto. Even this distinction of knowledge, as against consent and acquiescence, does not advance the position of the defendants. 34. Repeated stress Was made in the course of the arguments of the defendants that even if the plaintiffs did not intend to make any use of the stand-by equipment, of existing furniture, electrical fittings, etc. they Would not affect the position so-long as under the lease the plaintiffs had the legal right to use the same. The" question is not a legal right in the abstract, but the question of the dominant intention. The analogy of a motor car with a stepny tyre inside for use in emergency, 1 Which may not arise at all, but at the same time being of value and therefore always kept in the vehicle, though very attractive does not appeal to me in determining the true scope of the provisions of the Rent Control Act. At the risk of repetition it has to be stressed that furniture, fittings and fixtures and the dynamo and the motor both under the Madras Act and the Rules framed there under and under the principle of the decision of the Supreme Court in Karctni Properties Limited v. Miss. Augustine have to be held as forming part of the building. If so, it necessarily follows, the inclusion of the stand-by equipment (about which I have elaborately dealt With) will not alter the character of the lease. From the foregoing it has to be held that the lease, Exhibit P-4 of the year 1952 was not a lease of a Fully Equipped Cinema Theatre with The Talkie Equipment as of the kind dealt With in Raja Chetty v. Jagannadadas the Bench decision of this Court. 35. I shall now take up for consideration the second lease deed, Exhibit P-124 For the defendants it Was urged that it is this second lease deed which alone should form the primary and the sole basis for the decision in this case and the rights of parties should be decided on the basis thereof. Even so, I am unable to see how it improves their position; really the second lease deed makes the position worse and decisively against the defendants. As observed earlier, though vital changes in every conceiveble aspect of the theatre has taken place, all the clauses including the schedules in Exhibit P-124 are parrot-like mechanical, meaningless repetitions and reproductions. When the defendants had, at any rate, full knowledge of these Vital changes, the wholly unreal and artificial nature of the retention of the B schedule in Exhibit P-I24 is completely exposed. If the Court were to act and rely upon this parrot-like reproduction which is totally divorced from and having no relation whatsoever to the realities of the situation, the decision of the Court will be completely devoid of human element and if I any say so, it will not amount to a decision between human beings and upon their rights but a decision in a moot Court. Further, the second lease deed is a complete answer to the arguments so repeatedly stressed that the Court should take into account not the actual user to which the plaintiffs put those articles but their existence in the theatre and the mere right to use them. The situation in 1952 was totally different. The furniture, fittings and the fixtures were atleast factually existing in the theatre then in 1952. But in 1957, the situation was completely different. The old furniture had been removed and thrown away in a room. Old electric fittings, wire, etc., had been removed and thrown away as rubbish. The other fittings and fixtures and sanitary arrangements, everything had been changed, the old articles having no value whatsoever. The old rotten electric wiring and fittings and other materials which have been thrown away as rubbish could not have possibly entered into the minds of parties as of any consequence when they reproduced Schedule B. It is meaningless to say that the apportionment of Rs. 2,500 towards the hire for the furniture and the electrical fittings, etc., Was made in the second lease deed for a mere right to use them, when the whole thing had not only been removed and or thrown away, but had also been completely substituted by the plaintiffs at huge cost. It is unnatural in the extreme, even to speculate if there is room or scope for speculation that the plaintiffs would have agreed to pay Rs. 2,500 under this head for a mere right to use the items when they had put in new furniture and new electrical fittings at a heavy cost of their own. That the old furniture was useless and Was of no value has been proved by the fact that the old furniture despite the stiff bargaining fetched only Rs. 1,400. Vide Exhibits P-127, P-130 and P-131. These three documents contain reference to Chitty Babu and Venkataraman. Venkataraman was the previous manager of the defendants and he should have been examined by the defendants. There is no explanation for the defendants not having examined these two people. I have no doubt that if they had been examined their evidence Would have gone against the defendants. The very fact that the sale was in 1962, seven years after the furniture was removed, shows that none of the parties attached any value to this furniture. Every adverse inference Will have to be drawn from the non-examination of these people. It has to be held that neither of the parties attached any value to these old furniture, electric fittings and wirings. The dismantled broken pieces of old sanitary fittings and other accessories would have been in the normal course thrown away as rubbish and they do not deserve, any special treatment here. Indeed, I did not understand learned Counsel for the defendants-making any point about the electrical wirings and fittings which were removed. I have already observed that there was no substance in the point stressed by Counsel for the defendants With regard to the stand-by Simplex talkie equipment as in 1952. Even assuming merely for arguments' sake that there is any substance in the argument, the same cannot be applied at the time when the second lease took affect, because of the contemporaneous letter, Exhibit P-I25 passed by the defendants to the plaintiffs concerning this Simplex talkie equipment. I have already dealt With this aspect holding that after Exhibit P-125 much value cannot be attached for the inclusion of the stand-by equipment in the lease deed, and that its inclusion in the schedule is only for collateral tax purposes. 36. On this, aspect, a purely legal argument in the abstract was advanced, that despite Exhibit P-I25 the ownership of the simplex still inhered in the lessors and that the plaintiffs Would be entitled to take them only on the determination of the lease, and that till then, the defendants are the owners of the Simplex, and therefore the provision of appointment of the payment of a huge rent for the Simplex can be thus explained. This legal argument totally divorced from realities cannot be accepted. 37. There is another curious feature in the recitals in the D schedule under Exhibit P-124. They recite as though the identical pieces of furniture, electrical fittings, fixtures, and other accessories and sanitary arrangements are all factually existing and at the same time are all in the same place as they Were at the time of the first lease in 1952. Everything has been changed from start to finish and the B schedule has no place whatsoever. It Will be sheer mockery to rely upon this schedule and to somehow fit the lease into the framework of the principle of the decision in Raja Chetti v. Jaganndthadas . When Schedule B with regard to the furniture fittings and fixtures, goes out, as unmeaning what remains is the building and the dynamo and motor, i.e., the generator. I have already expressed my opinion that this generator, i.e., dynamo and motor, would be an amenity under the Madras Act and the Rules and their inclusion Would not possibly, make the lease a composite lease. In view of the decisions of the Supreme Court in Karnani Properties Limited v. Mis Augustine (1957) S.C.J. 177 : A.I.R. 1957 B.C. 300, and Uttamchand v. S. M. Lalwani A.I.R. 1965 S.C. 716, and the fact that the Westrex talkie equipment belongs to the plaintiffs, the decision in Maharani Talkies case must be confined to the facts of that case. Confronted with this factual situation of the meaningless, unreal and artificial Schedule B to the lease deed Exhibit P-124, learned Counsel for the defendants attempted an argument that by reason of Clauses 5 (f), (I) and (p) of the First Lease Exhibit P-4, the entire new furniture, electrical fittings, fixtures etc., Which have been substituted and brought into the theatre by the plaintiffs, have become the properties of the defendants and from this it is argued that the transaction should be understood as a lease of the building as well as all these items, furniture, etc., at any rate, from the date when the 2nd least Exhibit P-124 took effect. There are Various reasons why 1 am unable to accept this argument. In the first place, there is no reference whatsoever to these new items in Schedule B. It is not a case of there being no schedule at all, but there is the express Schedule B, items With pointed reference to the same in the body of the lease deed. In the face of that, I do not know under what principle or rule of law, the present Schedule B should be completely ignored and thrown overboard and notionally substituted out-right by the new items for which there arc no particulars even. If that Were the intention of the parties, that would have been mentioned in the second lease in the forefront and this meaningless Schedule B Would not have been reproduced. How can it be imagined that at the time of the 2nd lease, the parties did not bestow any thought about the vital changes which had already been made by the plaintiff. The parties, deliberately, were not prepared to refer to the new furnitures new fittings etc., brought in by the plaintiff. One reason is, the plaintiffs would not have readily agreed to include all these items in the Schedule which meant, unequivocal recognition of the title of the defendants thereto and a negation or extinguishment of the plaintiff's rights thereto. Further if the background and the circumstances under which and how the new things came into the theatre Were to be mentioned, the Municipal Authorities may not accept this artificial apportionment of the rent. Secondly, the ready assumption of the learned Counsel for the defendants, that under the provisions of the first lease deed, the lessor, had become the owners of all these items, is Wrong and lacks substance. A proper interpretation of the several clauses of the lease deed, in particular Clause 5 (l), (l) and (p) of Exhibit P-4, does not warrant any such view, as contended by the defendants. The relevant clauses on which reliance Was placed, may have to be extracted; Clause 5 (f) : The lessees shall take due and proper care of the demised buildings, furniture, and other fittings, machinery, talkies equipment and accessories and effects and keep them clean, in good repair and preserved from injury (except by accidental fire and from deterioration otherwise than by reasonable use and Wear thereof) and as far as possible forthwith to replace with articles of the same sort and equal value such as may be lost, broken, worn out, damaged or destroyed (except as aforesaid) or to compensate the lessors in damages for any omission or replace as aforesaid and to repair and make good such articles as may be damaged (except as aforesaid). Clause 5 (l) : The lessees shall not dispose of or let on hire or otherwise remove or suffer to be removed from the said buildings without the previous consents in writing of the lessors (except for the purpose of repair or alteration) and of the said fixtures, electrical fittings, furniture or any other articles or things of a like nature which may hereafter be brought upon the said premises in substitution therefor, except the talkie equipment. Clause 5 (p) : To yield up the demised land and buildings with the existing fixtures, electrical fittings and furniture etc., described in Schedules A and B hereunder or substitutions therefor at the expiration or sooner determination of the said term in good and substantial repair and condition (fair wear and tear as hereinbefore provided only excepted.) (Rest of this clause omitted as not relevant.) Clause 5 (e) deals with alterations and improvements to the buildings, under Clause 5. (f) the lessees are to take proper care of the demised buildings, furniture and fittings keep them in good repair and replace whenever they are lost or destroyed or become useless by Wear and tear. Such articles to be replaced are to be of the same sort and of equal value or in default the lessor is to be compensated in damages. Loss or damage due to accidental fire and deterioration otherwise than by usual wear and tear is excepted. Clause 5 (1) restrains the lessee from dealing with these furniture, fittings etc., already existing in the theatre or the substitutions therefor. Clause 5(p) enjoins the lessee to yield up to the lessor the demised premises with the existing fixtures, electrical fittings, furniture described in Schedule B or the substitutions therefor. I am of the view that the replacements of substitutions dealt with under these clauses are replacements or substitutions of articles of furniture which become useless or get damaged and worn out by ordinary use, wear and tear. The idea is that if some, articles of furniture get damaged or worn out by use, wear and tear, the burden thereof should be borne by the lessees as the wear and tear is due to the use of the furniture during the currency of the lease and the lessons should not be made to suffer for that. These clauses therefore would not apply to an out-right complete replacement of the entire furniture, fittings, fixtures etc., by the lessees. The use of words " the replacements must be of articles of the same sort and equal value such as may be lost or broken or worn out " emphasises this aspect. I shall make my meaning clear. Suppose the old furniture in 1952 consisted merely of ordinary chairs, ordinary benches and back benches and if the lessees removed all these items of furniture and replaced them by first class arm-chairs, with or without cushions, first class sofas etc., the lessors cannot claim these replacements at the time of the determination of the lease. At the same time the lessors, when the lease terminates will be clearly entitled to call upon the lessees to replae those ordinary chairs, benches and back benches which existed in 1952 or to pay the Value thereof at the prevailing rates on the date of the termination of the lease. But the lessors have no right to ask the lessees to yield up these new items of furniture. The context in which the word ' substitution ' or ' replacement' is used in the clauses of the lease deed tends to the same view. Further the restriction against disposal and removal as per Clause 5 (l) is only about removal of furnitures, fittings, etc., which may be " hereafter" be brought upon the said premises, With the result that this restriction contained in the second lease deed, Exhibit P-24, cannot apply to the things which had already been brought in during the time of the first lease. The expression ' hereafter cannot possibly refer to furniture etc., which, were already in the theatre at the time of Exhibit P-124. Again it is necessary to reiterate that the obligation to yield, up and deliver as per Clause 5'(p) is only with regard to the furniture, fittings and fixtures set out in Schedule B appended to the second lease deed. How can the lessors claim the lessees to deliver up, the items mentioned in its B Schedule and at the same time, claim "the new furniture, fittings, etc., because of Clause 5.(f), (l). and (p) ? Obviously the lessors cannot claim both. The express reference and, inclusion of the articles in Schedule B will necessarily exclude any right to the new items of furniture. If really the lessors thought that these Clauses (f), (l) and (p) in the lease deed. Exhibit P-124, applied to the entire new furniture and fittings etc., they could not possibly have been blind or ignorant of their rights. The replacements or substitutions, according to them, had already taken place and it Would have been easiest thing for the parties to have referred to all the new items in the place of the B Schedule, in the second lease deed of 1957. Absurdities, anamolies, want of cohesion between the first lease deed and the second lease deed have all arisen by the ill-drafting and by reason of the referene to the old B Schedule both in the body of the lease deed and the Schedules proper. When vital changes occurred in 1952, but yet significantly-and I must say deliberately-the parties avoided all reference to the new furniture, fittings etc., brought in by the plaintiffs, how can the defendants make any claim to items not included in the second lease deed ? If the question as to what the relative rights of the parties (the lessees and lessors) with regard to the old furniture , fittings etc., as well as to the new furniture, fittings etc., had been squarely posed and discussed between the parties at the time of Exhibit P-124, it would have been of course differently worded. Again if the lessors thought that it was axiomatic that the new furniture, fittings etc., became the property of the lessors, they would have straightway referred to all these items in the Schedule B and omitted the old Schedule. Is it not clear beyond doubt that the lessors did not think that they had any right to the new furniture and fittings ? Again even in the sale deed in favour of defendants 3 to 5 the new items are not mentioned. For all these reasons, I am clearly of the view that the clear intention of the parties was that the replacements and substitutions referred to in these clauses are the replacements and substitutions that Would be made in the normal course when items of furniture and fittings become useless by wear and tear and not the wholesale substitution. 38. Further the argument of learned Counsel for the defendants overlooks that if at all any rights had accrued to the defendants under the several clauses of the lease deed in respect of the new furniture, electrical fittings, fixtures etc., they are incomplete and inchoate and will operate only by way of restraints and restriction against removal or disposal and will not control the effect of the recitals in the second lease deed. .... 39. I am not prepared to assume that When the lessees had spent about Rs. 1 1/2 lakhs towards renovation, furniture, fittings, etc, they would have readily agreed to make a present of these items to the defendants. If I can speculate, I would rather think that if this question about these new additions had been squarely discussed the plaintiffs would have given up the idea of renewal and insisted upon their rights either for removal or to the compensation with regard to the new furniture, fittings etc. 40. Even assuming that all these new items ought to alternatively be handed over to the lessors at the determination of the lease, the ownership in these items will not however vest in the lessors during the currency of the lease. The several restrictions and restraints imposed upon the lessers under the several clauses of the lease do not make the lessors the owners of these items immediately they were brought into the theatre. The ownership therein will continue to vest in the plaintiffs till the lease is determined and they vacate. It is sufficient to refer to the principle of the decision of the Supreme Court in Dr. K.A. Dhairyawan and Ors. v. J.R. Thakur and Ors. . That case arose under the Bombay Rent Control Act. The lessee therein while taking the lease of the land from a temple for a period of 25 years at a tent of Rs. 50 per month had agreed (as part of the lease arrangement) to construct within six months from the date of the lease certain superstructures, shops and residential rooms and hand over the land and the superstructures to the temple on the determination of the lease without any right to compensation. The question directly arose as to the exact point of time when the ownership of there superstructures put up by the lessees vested in the lessors. The Supreme Court held that the superstructures, right till the point of determination of the lease, belonged to the lessees, the clause in the lease did not transfer the ownership in the buildings to the lessors While the lease subsisted. It was also held that the contract by the lessee in that case was a contract to the contrary within the meaning of Section 108 (h) of the Transfer of Property Act. The Supreme Court also observed that there was no warrant for the view that the buildings erected by the lessee on the land would immediately vest in the lessors or that the same should be deemed to have been demised to the lessees along with the land. The situation in the instant case is precisely the same. Here, all the several restraints and restrictions would only amount to the lessees having waived their rights or having contracted not to exercise their normal right to remove the furniture etc., which they are entitled to under Section 108 (h) of the Transfer of Property Act. It is necessary to reiterate again that this reasoning of mine is only on the assumption that the clauses and the several restraints and restrictions would apply to the new furniture, fittings etc. In that context it must be borne in mind that but for the several clauses in the lease deed the new furniture etc., brought into the theatre and attached to the earth by the lessees could well have been removed by them as their own. The peculiar doctrine of English law with regard to fixtures in general and the classification of the fixtures as landlord's fixtures and tenant's fixtures do not apply in India. Vide Mulla, Transfer of Property Act, 5th Edition, pages 693-694. This difference in the aspect of the law in India has also been adverted to in the decision of the Supreme Court referred to earlier vide also Venkatasubbiah v. Thirupurasundari I.L.R. . 41. It was also argued that these new items of furniture had been firmly affixed to the earth, that when removed serious damage Would be caused to them and that they could not therefore be strictly called furniture. In support, of this contention reliance was placed on the decision in Palser v. Grinling, and Property holding Co., Ltd, v. Mischeff L.R. (1948) A.C. 291. It is unnecessary to deal with the decisions in England on this aspect in great detail Which arose under the statutes in England. I am clearly of the view that furniture under our Acts and in the lease deed in the instant, case must be given its ordinary popular meaning. An article within the ordinary description of furniture will not cease to be a furniture merely because it is affixed to the earth, and it is not necessary that furniture should always be movable though generally articles of furniture are commonly moveable. I may in this connection refer to the following statement of the law in Gray v. Fidler L.R . (1943) 1 K.B. 694 at 713. For myself, I hope that County Court Judges incases of this kind, will never again think it their duty to decide as to each article whether it is a 'fixture 'or might, if it belonged to a tenant, be said to be removable as a 'tenant's fixture.' The word fixture is often loosely used, and not always with the same meaning. Its introduction into cases of this class serves only to confuse what should be a comparatively simple investigation. The question to be decided is not one of law. The word furniture has no esoteric significance. Expert evidence is not necessary to enlighten the Judge as to its meaning, nor ought he to be influenced by what other Judges have decided about other articles. I am not prepared to hold that these new chairs, sofas and chairs are not furniture merely because they are fastened to the earth by bolts and nuts. All the items of furniture which were installed in the theatre are substantial ones, made, manufactured and intended to bear and withstand rough use and it is difficult to hold that such strong, sturdy furniture, specially made to withstand such rough use would be seriously damaged if removed. Even if for any reason they could not be regarded as furniture they would only be fixtures. Even so, the lessee will be entitled to remove them and they will not become part of the leasehold property because, as observed earlier, the rules of English law do not apply. Even a petrol bunk installed in earth has been held to be not immovable property. It is sufficient to refer to the Bench decision in Mohammed Ibrahim v. Northern Circars Fibre Trading Co. (1944) 2 M.L.J. 60 : I.L.R. (1945) Mad. 304, in which the distinction was pointed out that even in the case of a machinery installed and attached to the land, the machinery will not become part of the land if the land and the machinery belonged to two different persons. Vide also Mulla, Transfer of Property Act, 5th Edition, pages 23 to 27. Under the general law and under the statute (Transfer of Property Act) it is the undoubted right of the lessees to remove all the new fittings, fixtures, furniture etc., brought into the demised property. If any contract to the contrary, taking away this valuable right of the lessees, is set up, that contract, will have to be strictly construed and if there should be any ambiguity or doubt in the language used, it must be resolved in favour of the lessees. This well established rule in the interpretation of the lessee's covenants should also be borne in mind. I am of the view that the several clauses deal only with the substitutions of items which would be damaged for usual wear and tear and would not apply to an out-right complete substitution. It may be, that the lessees may be liable, to the lessors for having removed the entire existing items but it does not necessarily follow that these new items, even though they are more valuable will belong to the lessors. Further, the several clauses in the second lease deed refer only to old furniture and fittings and they will not amount to a contract to the contrary, within the meaning of Section 108 (h) of the Transfer of Property Act, so far as the new items of furniture are concerned. The contract to the contrary within the meaning of Section 108 (h) of the Transfer of Property Act is only with reference to the items set out in B. Schedule and substitutions and replacements made therein after 1957 after 1962. 42. There is yet another aspect to which mention must be made. Under the Madras Rent Control Act Section 6 the landlord is prohibited from stipulating or receiving any premium or other like sum in addition to the rent in consideration of the grant or continuance or renewal of the lease. This restriction is imposed to prevent landlords from circumventing the policy of the Act, namely, the charging of exhorbitant and excessive rents. If the plaintiffs are entitled to the protection of the Rent Control Act at the time of the first lease in 1952 they are bound to pay to the lessors only the agreed rent and on the determination of the lease they Would be entitled to remove all the new furniture, fixtures etc., brought in by them to the theatre. If the several clauses of the lease deed, clauses 5 (f), (l) and (p) are construed as a contract to the contrary the lessors would be getting in addition to the rent the value of the new furniture, fittings etc., to which in the normal course, the lessees will be entitled. It is true that the section in terms refers to the bargain for the payment of any premium or like sum in addition, to the rent, and does not expressly deal with a bargain of this kind obliging the lessees to give up their right to the value of the lessee's fixtures and furniture. But that cannot affect the legal position. Virtually, what the lessors have bargained is extra payment of money representing the value of the lessees' fixtures at the time of the determination of the lease. That would clearly come within the mischief of Section 6. Any other view would completely defeat and evade the provisions of the Rent Control Act. For instance while letting out the ground floor of a building, whether residential or non-residential, the landlord may stipulate that in addition to the rent, say Rs. 200 per month, the lessee as part and parcel of the lease should agree to put up a building in the first floor at the cost of the lessee and hand over both the ground floor, and the first floor to the lessor on the determination of the lease, the lessee having no right of reimbursement or compensation for the expense incurred in putting up the first floor. If this argument is to be accepted that this additional obligation is not in the nature of a payment of premium of additional sum in cash but something in kind or service, in every case the lessor would bargain for such consideration of an anomalous kind and impose onerous obligations upon the lessee, with the result that the beneficial object of the legislation would be completely defeated and frustrated. Reference has already been made to the statement of the law in 23 halsbury, 3rd edition, page 804 paragraph 1853 in which this restriction under the English Rent Restrictions Acts had been applied not only to bargain for payment of an extra premium but also other obligations and covenants. The result is that these clauses in the lease deed to hand over to the lessors the new fittings, furniture etc., along with the demised premises would be inoperative and could not be enforced against the lessees in view of the provisions of the Rent Control Act. 43. I must also refer to another point repeatedly stressed in the course of the arguments, i.e., what was leased was not the building but a cinema business, taking advantage of the use of such an expression in Natesan. J's judgment as a ground of distinction. I say that that observation was made in that case in a totally different context. In the instant case there is no factual basis for such an argument. All the licences from the Police, Electricity Board etc., will have to be obtained by the lessees in their own names and they were acquired so by the plaintiffs. The plaintiffs completely changed the theatre and spent huge amounts for making it a first class theatre. They did not, immediately, after Exhibit P-4 took effect, continue or carry on the business as an unbroken one. There was a time lag of two months; even the picture 'Notch' advertised by the defendants was not screened, and that programme was stopped by the plaintiffs. Everything the plaintiffs did was on their own. They did not take over anything like a stock in trade, cash in chest, cash in the banks or any outstandings or book debts or any other asset belonging to the lessors as a going concern. The business was started, carried on and continued by the plaintiffs as their own, at their own cost and at their own risk with which the defendants had no concern. There is no kind of connection whatsoever between the defendants and the plaintiffs in the matter of the business activities of the plaintiffs. There is not even a question of the plaintiffs weaning away the customers of the defendants as in the case of other trades. Failure or the success of the business depends and depended upon the business enterprise and the capacity of the plaintiffs in securing and arranging to exhibit good pictures yielding good income. Even in the matter of the staff there has been a change over. There is only the single solitary fact that the defendants were originally using this building as a cinema theatre and that the plaintiffs too are putting the building to the same use. The position may pose a problem, on Which I express no opinion, if along with a lease of the theatre, the plaintiffs had also taken over any Outstanding Contracts for exhibition with distributors or producers entered into by the defendants or any other business commitments which the defendants might have already entered into long before and were pending at the commencement of the lease and also having operation subsequent to the lease, and at the same time the plaintiffs being obliged to continue and complete those commitments and transactions. Say for instance, if immediately prior to the lease, the defendants had entered into some distribution agreement for a period of two years with distributors on fixed hire or on a percentage basis for exhibiting certain pictures and had also received advances and as a part of the lease the plaintiffs had agreed to take up those transactions and the profit or loss accruing from the same. But there is no such feature in the instant case. From start to finish it is merely a lease of the building and any business which, the plaintiffs carried on was their own separate independent business. For all these reasons, I have no hesitation in rejecting this argument that What was leased was a cinema business. 44. Reference may also be made to another argument often stressed by Counsel for the defendants, that in judging the character of the lease the Various items, furniture, electrical and other fittings, fixtures, stand-by equipment, generator should not be considered independently in isolation, but all these items should be cumulatively taken into account. That is what I have done. Even so, I am unable to hold that it makes any difference or alters the character of the lease. After the decision of the Supreme Court in Karani Properties Ltd. v. Miss Augustine , and in view of the specific provisions of the Madras Rent Control Act and the Rules framed thereunder, particularly Rule 13, it is futile for the defendants to contend that the furniture, fixtures and the fittings should not be taken along with the building. When the statute and the rules provide that they form part of the building and should be taken together into account in fixing the rent how can it be urged that these items should be considered separately ? Such a perspective of approach will be directly contrary to the scheme and the provisions of this Act. It is this identical aspect which has been pointedly brought forth in the unreported decision of Natesan, J. Then what remains to be considered for this " cumulative theory ", if one may use that label, is only the generator and the stand-by equipment. If the installation of electric motor and pump to facilitate supply of Water in a furnished building (with all furniture and fitting) would not take the building out of the purview of the Act, I find it impossible to hold that the addition of a generator, dynamo and motor, to generate D. C. current. would alter the character of the building. Can it make any difference that in the one case in a furnished building with fittings, electric motor and the pump are provided for drawing water from the well by generating electric current while in the other case the dynamo and the motor are provided for generating D. C., current for the arc lamp ? Let us not forget in both the cases it is for generating electricity. I find it impossible to hold that the addition of this generator would alter the character of the building. I have already dealt with the significance of the stand-by-equipment. Even if all these items are taken into account " cumulatively " the result is the same and would not alter the character of the building. 45. It only remains to deal with the objection raised as to the maintainability of the suit and the award of the relief as prayed for by the plaintiffs in their plaint. Learned Counsel, Mr. Ramamurthy Iyer, contended that the question whether or not the plaintiffs were in lawful possession within the meaning of Rule 13 of the Madras Cinema Regulation Rules should be considered and decided only by the Commissioner of Police, the 6th defendant herein, that it is his exclusive jurisdiction and discretion, and this Court cannot express such an opinion. This argument was pressed with a certain amount of vehemence on the ground that the Bench decision of this Court which dealt with a cinema case, Om Prakash Gupta, v. Commissioner of Police I.L.R. (1960) Mad, 490 : (1360) 2 M.L.J. 50 warrants that view. This argument utterly lacks substance. Learned Counsel has relied upon certain observations therein completely divorced from the context and the proceeding in which they were made. In that case after the termination of the lease, the lessee wanted the licence to be renewed by the Commissioner on the ground that even though the lease had terminated his possessory title Was not only good as against everybody but good even as against the lawful owner, the landlord, that, till the landlord takes appropriate proceedings and recovers possession of the property from the lessee, the possession of the lessee must be held, as lawful possession within the meaning of Rule 13. The Commissioner refused to accept this standpoint and the matter came up in a proceeding under Article 226 of the Constitution. The argument before the Bench was that the Commissioner had misconceived his jurisdiction and that on the facts, the Commissioner should have held that the lessee's possession Was lawful so long as the lessee had not been dispossessed by the lessor in a separate proceeding of his own. It was argued all these facts i.e. the original grant of the lease, the termination of the lease, the lessee continuing in possession even thereafter, the absence of the lessor having taken any proceedings to evict the lessee, were more than sufficient to satisfy the Commissioner that the lessee's possession Was lawful within the meaning of Rule 13. That was the substance of the argument before the Bench which was not accepted. In the first place it must be noticed that this Bench decision was rendered in a proceeding under Article 226 and not in a regular suit. This Court pointed out the perspective of approach for defining the jurisdiction of the high Court under Article 226 with reference to the quashing of the order of the Commissioner under Rule 13, the manner of its exercise by him and the materials the Commissioner can rely upon for the purpose of making up his mind as to whether or not the applicant was in lawful possession of the theatre. The Bench pointed out that the Commissioner had to make same enquiry and must have some materials on the basis of which he can exercise his discretion and pass order under Rule 13, one way or the other. The broad lines of the scope of the enquiry by the Commissioner of Police are discussed in page 53 of this Bench decision. Ultimately the high Court observed that if the Commissioner of Police, at that stage, in a summary enquiry, under Rule 13 had taken into consideration the relevant aspects and reached the conclusion that a particular party had not satisfied the Commissioner that the former Was in lawful possession it was not within the province of the high Court under Article 226. to substitute its own view on the same material and interfere with the exercise of the discretion by the Commissioner. It is in that context the following observations were made by Rajamannar, C.J. Here the rule expressly says that the evidence, which the applicant has to adduce to show that he is in lawful possession of the site, building and equipment should be ' to the satisfaction of the licensing authority.' If an applicant produces certain documentary evidence, but the Commissioner is not satisfied, on such evidence that the applicant is in lawful possession of the site, building and equipment, he can refuse to grant the licence. Will it be open to this Court in the exercise of special jurisdiction conferred by Article 226 of the Constitution "to say that the licensing authority should have been satisfied by the documentary evidence produced, as showing that the applicant is in lawful possession of the premises and equipment? There may, we concede, exceptional, cases where this Court might hold that the order of the licensing authority is prima facie perverse. To give an extreme example : suppose there is a judgment of the Supreme Court, declaring that the applicant is in lawful possession of the premises and that judgment is produced before the licensing authority but the authority nevertheless, says that he is not satisfied that the applicant is in lawful possession, this Court would interfere. Barring such exceptional cases, we think that it does not lie within the province of this Court to examine the correctness of the view taken by the licensing authority in the case of each applicant as to whether he is or is not in lawful possession of the premises and equipment. The limited purpose for which and the context in which these observations were made must be borne in mind. This Bench decision and the observations extracted above are not authority for the position that a party aggrieved by the decision of the Commissioner of Police has no right to file a suit and establish his right to possession of the building, when the rival claimant in the proceedings before the Commissioner denied such a right. In fact, the pointed reference, to the instance of a decision of the Supreme Court which the Commissioner should take into account shows that the learned Chief Justice clearly recognised the right of an aggrieved party to get an adjudication in a civil Court. The decision of the Supreme Court on the right of the tenant is bound to be taken note of by the Commissioner of Police. It is absurd to suggest that a judgment of the high Court will not have the same effect. The reference to the judgment of the Supreme Court is only illustrative. The substance of the observations of the learned Chief Justice is that the Commissioner of Police, while acting under Rule 13 and exercising discretion is bound by the decision of a civil Court if such a decision is rendered as between competing claimants. In this case it is a statutory right. In other cases, the dispute may arise on intestacy or upon rights flowing under a gift, or will or rights flowing under a sale deed, in all of which there may be controversy between the applicant and some other party and the Commissioner of Police may entertain an honest doubt under Rule 13 about the merits and demerits of the rival contentions of the parties, and for that very Reason may decline to issue the licence. In such a situation I am not able to visualise what else could the aggrieved party do except to come to a civil Court and establish his fight to the property. I do not understand learned Counsel for the defendants denying the fight of the party to come to Court, in such situations. I cannot see what difference it would make when it is a dispute with regard to right under a will or a gift deed or an intestacy or where it is a right arising out of the provisions of a statute. As I could not follow the argument which I found to be unintelligible I just put the following simple problem to learned Counsel of a particular situation of a landlord with half a dozen rowdies threatening the tenant that if the latter did not vacate the premises whether residential or non-residential within a certain time, say within a week, the landlord along with the rowdies would forcibly enter into the premises, throw away the articles of the lessee and take forcible possession of the premises. I asked the question whether in such case, it would not be open the tenant to file a suit immediately and ask for a permanent injunction against the landlord and also a declaration of his rights under the statute, the right to continue in possession as a statutory tenant. Learned Counsel, Sri Ramamurthy Iyer, appeared to realise the untenability of the stand taken up by him and did not seriously pursue this line of argument. It is at that stage Mr. Jagannatha Rao, learned Counsel for the other defendants, said that his clients were seriously pressing this point but no further arguments were advanced by him. In the instant case it is beyond dispute, and not in controversy, that the defendants had disputed the claim of the plaintiffs. They successfully resisted the proceedings before the Commissioner of Police and consequent thereof, the plaintiffs failed in their effects to get a renewal of the licence from the Commissioner. The defendants assumed the same attitude in their interlocutory application, as well as in the suit. I am unable to see what more or what further was required to entitle the plaintiffs to file the suit in the case of this undoubted denial of the plaintiffs' rights. If the Court were to countenance to any extent, this contention of the defendants that the lessees will have no right to institute a suit the entire Act would be defeated by powerful and influential landlords who will take the law into their own hands, forcibly eject or push out the tenants and the latter will be without remedy. I have no hesitation in holding that the legal position is not so absurd. In my view the point is so basic, fundamental and established that I think it unnecessary to refer to precedents in which suits were entertained and declarations given upholding the rights of tenants like permanent rights of occupancy etc. I see no substance whatsoever in the objection that the pleadings and the reliefs prayed for do not cover the award of such relief of upholding the rights of the tenants under the Rent Control Act. From a reading of the plaint as a whole, with particular reference to the averments concerning the events which preceded the suit, I have no doubt that what the plaintiffs seek in the instant case is to establish that they are statutory tenants entitled to continue in possession of the property under the provisions of the Madras Rent Control Act, and that the building in question is a building within the meaning of the Act. I find it impossible to hold that the main relief asked for in the plaint is to ask this Court to function as a Commissioner of Police exercising jurisdiction under Rule 13, Such a contention is based on an incorrect understanding of the averments in the plaint and the substance of the reliefs asked. 46. On the findings reached I do not see any legal bar in awarding to the plaintiff reliefs in paragraphs 21 (1) and 21 (2). At this stage it is necessary to mention that the 6th defendant, the Commissioner of Police, was represented by Counsel who was present throughout the proceedings. Learned Counsel for the 6th defendant, even at the threshold represented to this Court on behalf of the Commissioner, that the latter has not any objections of his own, and that he would abide by the decision of the Court. All the objections about the frame of the suit, which I have observed are useless and untenable, were raised only by Counsel for the other defendants and not by the Commissioner of Police. The correspondence which passed between the plaintiffs and the Commissioner of Police shows that there is no other questioner objection and the only matter on which the Commissioner required clarification was whether the plaintiffs could be deemed to be in lawful possession of the building within 'Regulation Rules. Now that by this judgment this doubt has been cleared and clarified in favour of the plaintiffs by reason of their right to possession being upheld, the Commissioner will have to issue the licence to the plaintiffs as there is no longer any question arising for further scrutiny under Rule 13 before the Commissioner. In other words this Court expects the Commissioner of Police to immediately implement the result of this adjudication and issue the licence to the plaintiffs. 47. On issues 1 and 2 it has to be held that the lease in favour of the plaintiffs is governed by the Rent Control Acts and that the plaintiffs are entitled to the benefit thereunder. In view of this, finding on Issue No. 2 is unnecessary. On issue 3 I find that all the items mentioned in the lease deed were handed over to the plaintiffs at the time of the lease in 1952. It is unnecessary to express a distinct finding on issue No. 5. The plaintiffs have filed an extract showing the items purchased and the investment made by them. All the items of expenditure and investment are vouched by the entries in the account books. It is only after culling out entries from the accounts that the extract had been prepared. On issue 61 hold that all the new items of furniture, fixtures and fittings as soon as they were installed or replaced did not form part of the lease. Issue 7 I find in favour of the plaintiffs. No such agreement has been proved by the defendants. Issues 8 (a) and (b) : I do not see any reason why the suit is not maintainable and why this Court has no jurisdiction I find the issues in favour of the plaintiffs. On Issue 4 I hold that the plaintiffs are entitled to contend that the items mentioned in the lease deed were not handed over to them or leased to them. There is no legal bar when the question is about the applicability of the provisions of the Rent Control Act. I have already referred to the decisions in which it has been held that if furniture had not been really supplied by a landlord the fact that it is so stated in the lease deed will not preclude the tenant from saying that such furniture was not supplied nor preclude the Court from finding out the truth dehors the recitals in the lease deed. 48. The result is there will be a decree in favour of the plaintiffs against the first defendant and defendants 3 to 5 that the plaintiffs are statutory tenants under the Madras Rent Control Act and they are in lawful possession of the theatre and that they are entitled to be in possession of the theatre, Odeon Cinema. There shall also be an injunction against defendants 1, 3 to 5 as prayed for in plaint paragraph 21 (2). There is no ,need to pass any formal decree as against the 6th defendant as his learned Counsel has agreed that the 6th defendant will accept and abide by the decision of this Court. The plaintiffs will be entitled to their costs. The hearing of the case has been protracted and arguments were spread over for several days I fix the costs of the plaintiffs at Rs. 7,000, Rs. 4,500 towards the Court-fee paid and Rs. 2,500 towards Counsel's fee and out fees. This decree shall be a joint and several decrees against defendants 1 and 3 to 5; In view of this the final order dated 28th April, 1967 passed by this Court in Application No. 904 of 1967 appointing the plaintiffs' partner as Receiver and directing the plaintiffs to pay a sum of Rs. 10 000 shall stand vacated and the plaintiffs are not liable to pay for the month of January 1968 and thereafter anything more than the original agreed rent of Rs. 4 500 per month. 49. At the time of the institution of the suit, the plaintiffs applied for and obtained interim injunction in Application No. 904 of 1967. After the defendants entered appearance and when the application was disposed of on merits, this Court by its order dated 28th April, 1967 vacated the interim injunction and appointed the plaintiffs, by their partner, V.N. Sahni, as Receivers of the suit theatre and at the same time directed that a sum of Rs. 10,000 should be paid by the plaintiffs, Rs. 5 000 to the first defendant and Rs. 5,000 to defendants 3 to 5 at the same time mentioning that the said sum of Rs. 10,000 shall, not be accounted for in any way by the defendants. The order passed by this Court, set out the reasons and the circumstances for passing the same. I have held that here after the plaintiffs are bound to pay only the agreed rent of Rs. 4,500. The plaintiffs are at liberty to pursue their remedies if any, by way of restitution or otherwise for the excess payments which they have made in pursuance of the order of this Court in Application No. 904 of 1967 while the matter was sub judice. I do not express any opinion whatsoever about the merits of any such proceeding which the plaintiffs may initiate if so advised.

Author: K Ramamurthi

Isherdas Sahni And Brothers By ... vs Rajah V. Rajeswara Rao And Ors. on 22 December, 1967

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 620 of 2011() 1. HAMZA, AGED 40 YEARS, S/O.ALAVI, ... Petitioner 2. BASHEER, AGED 30 YEARS, S/O.SRAJU, 3. KUNJI MOHAMMED, AGED 20 YEARS, 4. K.YOUSUF, AGED 54 YEARS, S/O.ALAVI, Vs 1. STATE OF KERALA THROUGH THE ... Respondent For Petitioner :SRI.SUNNY MATHEW For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :08/02/2011 O R D E R V. RAMKUMAR, J. ......................................... B.A. No. 620 of 2011 .......................................... Dated this the 8th day of February, 2011. ORDER Petitioners who are accused Nos.1 to 4 in Crime No.604 of 2010 of Cherplachery Police Station, Palakkad for offences punishable under Sections 143, 147, 148, 324 and 308 r/w Section 149 I.P.C., seek anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. After evaluating the factors and parameters which are to be taken into consideration in the light of paragraph 122 of the verdict dated 2-12-2010 of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2010 (4) KLT 930), I am of the view that anticipatory bail cannot be granted in a case of this nature, since the investigating officer has not had the advantage of interrogating the petitioners. But at the same time, I am inclined to permit the petitioners to surrender before the  B.A. No. 620/2011 2 Investigating Officer for the purpose of interrogation and then to have their application for bail considered by the Magistrate or the Court having jurisdiction. Accordingly, the petitioners shall surrender before the investigating officer on 21.02.2011 or on 22.02.2011 for the purpose of interrogation and recovery of incriminating material, if any. In case the investigating officer is of the view that having regard to the facts of the case arrest of the petitioners is imperative he shall record his reasons for the arrest in the case-diary as insisted in paragraph 129 of Siddharam Satlingappa Mhetre's case (supra). The petitioners shall thereafter be produced before the Magistrate or the Court concerned and permitted to file an application for regular bail. In case the interrogation of the petitioners are without arresting them, the petitioners shall thereafter appear before the Magistrate or the Court concerned and apply for regular bail on the same day or the next day. The Magistrate or the Court on being satisfied that the petitioners have been interrogated by the police shall, after hearing the prosecution as well, consider and dispose of their application for regular bail preferably on the same date  B.A. No. 620/2011 3 on which it is filed. In case the petitioners while surrendering before the Investigating Officer have deprived the investigating officer sufficient time for interrogation, the officer shall complete the interrogation even if it is beyond the time limit fixed as above and submit a report to that effect to the Magistrate or the Court concerned. Likewise, the Magistrate or the Court also will not be bound by the time limit fixed as above if sufficient time was not available after the production or appearance of the petitioners . This petition is disposed of as above. Dated this the 8th day of February, 2011. V.RAMKUMAR, JUDGE. rv  B.A. No. 620/2011 4

Hamza vs State Of Kerala Through The on 8 February, 2011

Kerala High Court

Gujarat High Court Case Information System Print FA/1377/1981 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1377 of 1981 ========================================================= VRAJRAYJI R GOSWAMI - Appellant(s) Versus BALDEV UDESING PARMAR - Defendant(s) ========================================================= Appearance : MR GM JOSHI for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8,1.2.9 None for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 21/07/2008 ORAL ORDER By efflux of time, the appeal has become academic. Hence, the appeal stands disposed of. Liberty to apply in case of difficulty. [K.S. JHAVERI, J.] /phalguni/     Top

Author: Ks Jhaveri,&Nbsp;

Vrajrayji vs Baldev on 21 July, 2008

Gujarat High Court

JUDGMENT 1. The Income-tax Appellate Tribunal, Delhi, has referred the following question of law under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the opinion to this court : "Whether in respect of the assessment year 1974-75 the Tribunal has been in error in holding that the Income-tax Officer can derive mandate from Section 186(1) of the Income-tax Act only in respect of the orders passed under Section 185(1)(a) of the Act and once the provisions of Section 185(1)(b) are invoked Section 186(1) of the Act simply cannot be brought to play any role ?" 2. Briefly stated the facts in the present case are as follows : 3. The respondent is a firm. For the assessment year 1974-75, the Income-tax Officer rejected the application filed by the respondent for grant of registration on the ground that it had not filed information about formation of partnership to its constituent and further that the information was given to the State Bank of India, as late as on September 25, 1975, though the instrument was executed on December 26, 1973, incorporating certain changes. The order passed under Section 185(1)(b) of the Act was reversed by the Appellate Assistant Commissioner in the appeal preferred by the respondent. The Appellate Assistant Commissioner directed the Income-tax Officer to grant registration. This order was accepted by the Revenue. The registration was granted. Subsequently, proceeding under Section 186(1) of the Act was initiated by the Income-tax Officer in respect of the assessment years 1974-75 to 1978-79 and vide order dated March 30, 1982, the Income-tax Officer had cancelled the registration for all these years. In the present reference we are only concerned with the assessment year 1974-75. The order cancelling registration was challenged by the respondent in appeal before the Appellate Assistant Commissioner. He allowed the appeal by relying on a decision of the Assam High Court in the case of Rameswar Goenka v. ITO [1970] 77 ITR 421. The Revenue's appeal before the Tribunal has failed. 4. We have heard Sri Shambhu Chopra, learned counsel for the Revenue, and Sri Gaurav Mahajan, learned counsel appearing for the respondent-assessee. 5. Learned counsel for the Revenue submitted that the provision of Sections 185 and 186 operate in different fields. While under Section 185 registration is to be granted, under Section 186 it can be cancelled on the happening of the circumstances, mentioned therein. The proposition tendered by learned counsel for the Revenue cannot be disputed, but the provision of Section 186 of the Act cannot be invoked by the assessing authority in case where the registration has been granted in compliance with an appellate order. The judicial doctrine as also the hierarchy is to be followed. In this view of the matter we are of the considered opinion that the Tribunal has not committed any error in upholding the order of the Appellate Assistant Commissioner vacating the order of cancellation of registration passed under Section 186(1) of the Act. 6. In view of the foregoing discussions, we answer the question referred to us in the negative, i.e., in favour of the assessee and against the Revenue. However, there shall be no order as to costs.

Commissioner Of Income-Tax vs Deokinandan Om Prakash on 30 September, 2004

Allahabad High Court

Gujarat High Court Case Information System Print CR.MA/13838/2005 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 13838 of 2005 ========================================================= SHRI ANANG K.TRIPATHI - Applicant(s) Versus THE JOINT DIRECTOR & 3 - Respondent(s) ========================================================= Appearance : MR MS TRIVEDI for Applicant(s) : 1, MR NIGAM R SHUKLA for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. PUBLIC PROSECUTOR for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/09/2008 ORAL ORDER Prima facie it appears that though the complaint is filed in the year 1995, still after a period of eight years, chargesheet is not filed. S.O. to 11/9/2008. To be placed in First Board. Registry is directed to show the name of Mr.Y.N. Ravani, learned advocate for the respondent No.1 ? Central Bureau of Investigation. [M.R. SHAH, J.] rafik     Top

Author: M.R. Shah,&Nbsp;

Shri vs The on 8 September, 2008

Gujarat High Court

Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 11750 of 2010 Petitioner :- Deepak Bharadwaj Respondent :- State Of U.P. & Others Petitioner Counsel :- Rohit Singh Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J. Hon'ble Naheed Ara Moonis,J. Heard learned counsel for the petitioner and learned A.G.A. appearing  for the State.  The relief sought in this petition is for quashing of the F.I.R. registered at  case crime no.208 of 2010, under Sections 420, 467, 468, 471 IPC, P.S  Madrak, District Aligarh.  The Full Bench of this court in Ajit Singh @ Muraha Vs. State of U.P. &  others (2006 (56) ACC 433) reiterated the view taken by the earlier Full  Bench in Satya Pal Vs. State of U.P. & others (2000 Cr.L.J. 569) that  there can be no interference with the investigation or order staying arrest  unless cognizable offence is not ex­facie discernible from the allegations  contained in the F.I.R. or there is any statutory restriction operating on  the power of the Police to investigate a case as laid down by the Apex  Court in various decisions including State of Haryana Vs. Bhajan Lal &  others   (AIR   1992   SC   604)   attended   with   further   elaboration   that  observations   and   directions   contained   in   Joginder   Kumar's   case  (Joginder Kumar Vs. State of U.P. & others (1994) 4 SCC 260 contradict  extension to the power of the High Court to stay arrest or to quash an  F.I.R. under article 226 and the same are intended to be observed in  compliance   by   the   Police,   the   breach   whereof,   it   has   been   further  elaborated,   may   entail   action   by   way   of   departmental   proceeding   or  action under the contempt of Court Act. The Full Bench has further held  that it is not permissible to appropriate the writ jurisdiction under Article  226 of the constitution as an alternative to anticipatory bail which is not  invocable in the State of U.P. attended with further observation that what  is not permissible to do directly cannot be done indirectly.  The  learned counsel  for  the petitioner  has  not  brought  forth  anything  cogent or convincing to manifest that no cognizable offence is disclosed  prima facie on the allegations contained in the F.I.R. or that there was  any statutory restriction operating on the police to investigate the case. Having scanned the allegations contained in the F.I.R. the Court is of the  view   that   the   allegations   in   the   F.I.R.   do   disclose   commission   of  cognizable   offence   and/therefore   no   ground   is   made   out   warranting  interference by this Court. The petition is accordingly dismissed. Order Date :- 5.7.2010 Mustaqeem.

Deepak Bharadwaj vs State Of U.P. & Others on 5 July, 2010

Allahabad High Court

[Section 27] [Complete Act]

Central Government Act

Court No. - 54 Case :- APPLICATION U/S 482 No. - 22762 of 2010 Petitioner :- Rajesh Chauhan And Others Respondent :- State Of U.P. Petitioner Counsel :- A.K. Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J. Heard learned counsel for the applicants and the learned A.G.A. The applicants, through the present application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this court with the prayer that their bail application in case crime no. 159/2010, under Sections 498-A, 323, 504 I.P.C. and 3/4 D.P. Act, P.S. Cholapur, district Varanasi be ordered to be considered expeditiously without unnecessary delay by the court below. After hearing learned counsel for the applicants and learned AGA this application is disposed off with a direction that if the applicants surrender within three weeks from today their bail application shall be decided expeditiously, if possible on the same day after giving opportunity to the prosecution in the aforesaid crime number for the aforesaid offences. With the aforesaid direction this application is finally disposed off. Order Date :- 13.7.2010 AKG/-

Rajesh Chauhan And Others vs State Of U.P. on 13 July, 2010

Allahabad High Court

JUDGMENT 1. The Income-tax Appellate Tribunal at the instance of the Revenue, referred the following question under Section 256(1) of the Income-tax Act, 1961, for the opinion of this court ; " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in directing that two assessments should be made, one for the period prior to change in the constitution of the firm and another for the period after the change in the constitution of the firm ?" 2. The facts as found by the Tribunal are that the previous year of the assessee a registered firm ended on October 24, 1974. On March 31, 1974, Smt. Naini Bai and Sri Ramanand retired from the firm and the firm was reconstituted by the remaining four partners who also admitted some minors to the benefits of the partnership. The assessee claimed before the Income-tax Officer that on retirement of Smt. Naini Bai and Sri Ramanand, the partnership was dissolved on March 31, 1974, and a new partnership came into existence from April 1, 1974, consisting of the remaining four partners and four minors, admitted to the benefits of the partnership. On that basis, the assessee claimed that two assessments, one for the period up to March 31, 1974, and another for the remaining period, i.e., from April 1, 1974, to October 24, 1974, be made. The claim of the assessee was not accepted by the Income-tax Officer who made one assessment for both the periods. The appeal of the assessee filed before the Appellate Assistant Commissioner failed. 3. The assessee then further appealed to the Appellate Tribunal which relying on CIT v. Shiv Shanker Lal Ram Nath [1977] 106 ITR 342 (All) and Badri Narain Kashi Prasad v. Addl. CIT [1978] 115 ITR 858 (All) [FB] accepted the assessee's contention in appeal and directed the Income-tax Officer to make two assessments, one for the period up to March 31, 1974, and another for the remaining period. 4. The question for consideration is whether the law laid down in the aforesaid cases still holds the field. In CIT v. Ramesh Biscuit Factory [1994] 205 ITR 205, a Bench of this court in which one of us (Om Parkash J.) was a member, held that the law laid down in the cases of Shiv Shanker Lal Ram Nath [1977] 106 ITR 342 (All) and Badri Narain [1978] 115 ITR 858 (All) [FB] is no longer good law, inasmuch as these cases were overruled by a Full Bench of this court in Vishwanath Seth v. CIT [1984] 146 ITR 249. 5. Then, it was argued before us by counsel for the assessee that the Full Bench decision in Vishwanath Seth's case [1984] 146 ITR 249 (All) was disapproved and must be deemed to have been overruled by the decision of the Supreme Court in Wazid Ali Abid Ali v. CIT [1988] 169 ITR 761 and, therefore, on that basis, the order of the Appellate Tribunal cannot be reversed. We do not agree with this contention. A similar submission was made before a Division Bench of this court in CIT v. Indralok Picture Palace [1991] 188 ITR 730 and then the Bench observed in para 3 as under (at page 731) : "This very contention, it appears, was urged before and considered by a Bench of this court in CIT v. Basant Behari Gopal Behari and Co. [1988] 172 ITR 662. The Division Bench was of the opinion that the said decision of the Supreme Court cannot be treated as having overruled the Full Bench decision in Viswanath Seth's case [1984] 146 ITR 249 (All). The said decision is binding upon us." 6. The same Division Bench further observed in the same paragraph (at page 731) : " Even otherwise, we agree with the reasoning of the said Division Bench. The decision of the Supreme Court was rendered with reference to the language of Sub-section (7) of Section 184 which is materially different from the language of Sub-section (2) of Section 187. We, therefore, agree with the Bench decision in CIT v. Basant Behari Gopal Behari and Co. [1988] 172 ITR 662 (All) that the Full Bench decision of this court in Vishwanalh Seth's case [1984] 146 ITR 249 is and continues to be good law even today." 7. Following the decision in Basant Behari Gopal Behari and Co. [1988] 172 ITR 662 (All) and Indralok Picture Palace [1991] 188 ITR 730 (All) we hold that the Full Bench decision in Viswanath Seth's case [1984] 146 ITR 249 (All) still holds the field and continues to be good law. 8. Following the Full Bench decision in Viswanath Seth's case [1984] 14G ITR 249 (All) the view taken by the Appellate Tribunal is certainly erroneous. In the case of reconstitution of the firm not two but one assessment has to be made on the firm as it stood at the end of the year. 9. We, therefore, answer the question referred to this court in the negative, that is, in favour of the Revenue and against the assessee. 10. The records of this case will be sent down within fifteen days from today to enable the Appellate Tribunal to pass an order conformably to our order.

Commissioner Of Income-Tax vs Ram Jas Rai Askaran Das on 23 November, 1995

Allahabad High Court

JUDGMENT K.S. Paripoornan, J. 1. At the instance of the Revenue, the Income-tax Appellate Tribunal, Cochin Bench, has referred the following two questions of law for the decision of this court : "(a) Whether, on the facts and in the circumstances of the case, the assessee is entitled to and the Tribunal is right in directing/in allowing weighted deduction in respect of interest on packing credit ? (b) Whether, on the facts and in the circumstances of the case, the Tribunal without considering the case on merits and without proper, relevant and independent findings is right in allowing the claim solely relying oh a decision of the Madhya Pradesh High Court ?" 2. The respondent, an assessee to income-tax, is a limited company engaged in the business of export of coir products. We are concerned with the assessment year 1980-81. The accounting period ended on December 31, 1979. The assessee was keeping its accounts on mercantile basis. The return submitted by the assessee for the year 1980-81 disclosed a profit of Rs. 7,42,870. The assessee had claimed weighted deduction under Section 35B of the Income-tax Act, 1961, in respect of interest on packing credit amounting to Rs. 1,61,385. The Income-tax Officer disallowed the claim. In appeal, the Commissioner of Income-tax (Appeals) relied on the Special Bench decision in J. Hemchand and Co.'s case (1 S. O. T. 150) and disallowed the claim. In further appeal before the Appellate Tribunal, the claim was allowed. The Appellate Tribunal stated in paragraph 4 of its order dated February 24, 1989, thus : "The last item is in regard to interest on packing credit. The amount is Rs. 1,61,384. This issue stands squarely covered by the decision of the Madhya Pradesh High Court in the case of CIT v. Vippy Solvex Product Pvt. Ltd. [1986] 159 ITR 487. Following the same, we direct that weighted deduction shall be allowed in respect of interest on packing credit." 3. Aggrieved by the decision of the Appellate Tribunal and on the request of the Revenue, the Income-tax Appellate Tribunal, Cochin Bench, has referred the above two questions of law for the decision of this court. 4. We heard counsel for the Revenue, Mr. P.K.R. Menon, and also counsel for the respondent-assessee, Messrs. Menon and Pai. 5. Counsel for the Revenue submitted that the order of the Appellate Tribunal is laconic and contains no reasons. Counsel characterised the order of the Appellate Tribunal as a casual one and there has been no application of mind. It was argued that in the case of CIT v. Vippy Solvex Product Pvt. Ltd. [1986] 159 ITR 487 (MP), the Appellate Tribunal held, on the basis of a certificate issued by the concerned bank to the effect that the assessee had maintained with it an export packing credit amount and advances were made available only when the parties submitted a copy of the export contract entered into with the foreign party and other evidence, that the expenditure was incurred in connection with export. In this case, there is no finding by the Appellate Tribunal whether the expenditure was incurred in connection with the execution of a contract for the supply of goods outside India. What is more, without a proper finding, the Appellate Tribunal was in error in directing weighted deduction to be allowed in respect of interest on packing credit. Counsel for the respondent-assessee sought to sustain the order of the Appellate Tribunal by stating that the Appellate Tribunal had given the decision that the assessee is entitled to the relief which, by implication, means that there is a finding by the Tribunal that there are proper records, including a certificate, to show that the assessee had maintained an export packing credit account and advances from the account were given only for the purchase of raw materials for manufacturing goods to be exported out of India. The Appellate Tribunal has not in terms entered any finding in view of the decision of the Madhya Pradesh High Court. 6. We are of the view that the plea of the Revenue should succeed. We have extracted paragraph 4 of the Tribunal's order wherein the Tribunal had given relief in regard to interest on packing credit amounting to Rs. 1,61,384. There is no finding on the question of fact as to whether the expenditure was incurred in connection with the execution of a contract for the supply of goods outside India. Such a finding is essential before the claim is accepted. In the absence of a clear finding, a mere reference to the decision of the Madhya Pradesh High Court in Vippy Solvex Product Private Ltd.'s case [1986] 159 ITR 487 is irrelevant and of no consequence. We, therefore, hold that the Appellate Tribunal was in error in allowing the claim for weighted deduction in respect of interest on packing credit without clearly entering a finding as to whether the expenditure was incurred in connection with the execution of a contract for the supply of goods outside India. We hold so. 7. We, therefore, answer question No. 2 in the negative and hold that the Appellate Tribunal was wrong in allowing the claim solely by referring to the decision of the Madhya Pradesh High Court. We answer question No. 1 in the negative and hold that the Appellate Tribunal was not justified in allowing weighted deduction in respect of interest on packing credit. Before doing so, the Tribunal should enter a specific finding on an evaluation of the evidence that the expenditure was incurred in connection with the execution of a contract for the supply of goods outside India. We answer question No. 1 in the negative, against the assessee and in favour of the Revenue. The references are answered as above. The Appellate Tribunal shall restore the appeal to file and consider the appeal on the merits and pass fresh orders. 8. A copy of this judgment, under the signature of the Registrar and the seal of this court, shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench, forthwith.

Author: K Paripoornan

Commissioner Of Income-Tax vs Aspinwall And Co. (Travancore) ... on 1 July, 1993

Kerala High Court

JUDGMENT Krishna Saran Srivastav, J. 1. This is defendant's revision against the order passed by the Subordinate Judge, Addanki, in IA No. 460/1990 in AS No. 18/1987, whereby the application of the petitioner-defendant for amendment of the written statement has been rejected. 2. The respondent-plaintiff obtained a money decree against the petitioner-defendant. Being aggrieved by the said judgment and decree, the petitioner-defendant preferred appeal bearing No. AS 18/1987. On 8-10-1990, the petitioner-defendant filed an application for amendment of the written statement under Order 6, Rule 17 of the Code of Civil Procedure, stating that the plaintiff is not a small farmer as per the provisions of the Act 7 of 1977 and the Act 45 of 1987, that this defendant is a small farmer and cultivator and has no other source of income except agricultural income and that as such the suit debt, even if proved to be true, is not valid and binding and hence the suit debt is abated as per the provisions of the aforesaid Acts. 3. The respondent-plaintiff denied the allegations made by the petitioner-defendant in the application for amendment of the written statement and pleaded that he had already alleged in the plaint that the defendant is not a small farmer entitled to the benefits of the Acts, but the petitioner-defendant has not contradicted that allegation and, therefore, he should not be permitted to amend the written statement by filling of lacunae. 4. The lower appellate Court rejected the application for amendment of the written statement mainly on the ground that it has been filed belatedly. 5. Feeling aggrieved by the impugned order, the defendant has preferred this revision. 6. It is urged on behalf of the petitioner that the merits of the proposed amendment should not be considered for permitting or not permitting the concerned party to amend the pleadings. It is further urged that merely on the ground of delay in filing the application for amendment, it should not be disallowed. Because the Act of 45 of 1987 had come into force with effect from 1-1-1988, the question of taking protection under the said Act was not available during the pendency of the suit. 7. On the other hand, it is submitted by the learned Counsel of the respondent-plaintiff that the petitioner-defendant had testified before the trial Court that he owns Ac. 20 of wet land and Ac.10 of dry land and, therefore, he is not entitled to get the benefit under the Act 45 of 1987. The proposed amendment application has been filed two years after the date of the enforcement of the Act 45 of 1987 and, therefore, the lower appellate Court has rightly rejected the application for amendment of the written statement. 8. The application for amendment of the written statement has been disallowed during the pendency of the appeal and without hearing the parties to the appeal on merits. The lower appellate Court has mentioned the arguments of the learned Counsel of the defendant and the contention of the learned Counsel of the plaintiff in Paras 5, 6 and 7 of its order and in the concluding line of the impugned order, it has stated that the application for amendment has been filed very belatedly and, therefore, there is no merit in the petition and dismissed the same in Para 8 of its Order. The lower Appellate Court has not given reasons for reaching the conclusion that the proposed amendment of the written statement is not necessary for deciding the real question in controversy and/or whether it will cause injustice to the plaintiff-respondent. The lower appellate Court did not state whether it has heard the appeal on merits. 9. It is beyond comprehension how the appellate Courts are able to decide the applications for amendment when they have no idea whatsoever about the merits of the appeal. After the appeal is heard on merits, then the lower appellate Courts should decide whether the application for proposed amendment should be allowed or not. The question whether a party should be allowed to amend its pleadings at the appellate stage cannot be decided until the appeal is heard on merits, because after hearing the appeal on merits, the lower appellate Court can effectively decide whether the proposed amendment is necessary or not for deciding the question in controversy between the parties to the appeal as also whether the application is bonafide or not. 10. The question whether the petitioner-defendant was a small farmer on the date when the Act 7 of 1977 and/or Act 45 of 1987 had come into force, appears to be an important question to be decided and for that whether necessary particulars in the proposed amendment have been given or not is to be considered after hearing the merits of the appeal as this factor is important to conclude whether the proposed amendment is necessary or not. 11. For the foregoing reasons, the revision is allowed. The impugned order is set aside and the lower appellate Court is directed to decide the application for amendment in the light of this order after hearing the appeal on merits. In the circumstances of the case, the parties are directed to bear their own costs of this revision petition.

Author: K S Srivastav

Chinthala Singaiah vs Boppudu Lakshmamma on 23 August, 1996

Andhra High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 1624 of 2010() 1. SUMESH, S/O.SUNDARAN, PULLAMPALLI ... Petitioner 2. SUNDARAN, S/O.RAGHAVAN, -DO- -DO- Vs 1. S.I. OF POLICE, KARELLAKULANGARA ... Respondent For Petitioner :SRI.RASHEED C.NOORANAD For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :05/04/2010 O R D E R V. RAMKUMAR, J. ----------------------------------- Bail Application No. 1624 of 2010 ---------------------------------- Dated this the 5th day of April, 2010. O R D E R Petitioners who are accused Nos. 1 and 2 in Crime No.89 of 2010 of Kareelakulangara Police Station for offences punishable under Sections 452, 326 and 294(b) r/w Section 34 I.P.C., seek anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. Anticipatory bail cannot be granted in a case of this nature. But at the same time, I am inclined to permit the petitioners to surrender before the Investigating Officer for the purpose of interrogation and then to have their application for bail considered by the Magistrate having jurisdiction. Accordingly, the petitioners shall surrender before the investigating officer on 16-04-2010 or 17- 04-2010 for the purpose of interrogation and recovery of incriminating material, if any. The petitioners shall thereafter appear before the Magistrate who on being satisfied that the petitioners have been interrogated by the police shall consider and dispose of their applications for regular bail preferably on the same date on which it is filed. This petition is disposed of as above. Dated this the 5th day of April, 2010. V.RAMKUMAR, JUDGE. rv 

Sumesh vs S.I. Of Police on 5 April, 2010

Kerala High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/12/2009 Coram THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.(MD)No.986 of 2009 M.Syed Sagubar Sathiq .... Petitioner Vs 1.The Principal Chief Engineer Water Resources cum Chief Engineer (Public) Public works Department, Chepauk, Chennai. 2.The Executive Engineer (Public) Building Construction and the Administration Theni District. 3.The Superintendent Engineer Public Work Department Building Construction and Administration No.2 Madurai District. .... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned letter No.S.34/24559/07 dated 31.12.2008 on the file of the respondent No.1 and quash the same as illegal and directing the respondent No.1 to appoint the petitioner as a Junior Assistant or any other competent post under him on compassionate ground. !For Petitioner ... Mr.T.Lajapathi Roy ^For Respondents ... Mr.V.Rajasekaran Special Government Pleader :ORDER Mr.V.Rajasekaran, learned Special Government Pleader has taken notice for the respondents. By consent of both sides, the Writ Petition is taken up for final hearing at the stage of admission. 2. The petitioner has come forward with this petition seeking for the relief of Writ of Certiorarified Mandamus to quash the impugned letter No.S.34/24559/07 dated 31.12.2008 on the file of the first respondent and to direct the first respondent to appoint the petitioner as a Junior Assistant or any other competent post under him on compassionate ground. 3. The case of the petitioner is that his father was working as a Record Clerk under the third respondent herein died on 23.11.1980, while he was in service. At that time, the petitioner was eight months old infant. Subsequently on 04.10.1994, the mother of the petitioner sought for the relief of appointment of the petitioner on compassionate ground by submitting an application dated 14.10.1994. On 08.02.1995, the first respondent sent a letter to the mother of the petitioner advising her to apply after attaining the age of majority of the petitioner. The petitioner attained the age of majority on 15.06.1998 and preferred a representation, dated 25.07.1998, seeking for the relief of compassionate appointment. The third respondent sent the communication on 26.11.1998, to the first respondent recommending the claim of the petitioner for appointment on compassionate ground as a Clerk by referring G.O.Ms.No.120 dated 26.06.1995, which provides for the appointment on compassionate ground. As there was no further action, the mother of the petitioner sent another representation on 14.10.2001. On 08.10.2001, the third respondent requested the first respondent to obtain a suggestion from the Government regarding the appointment of the petitioner. On 16.10.2001, the second respondent sent a communication to the mother of the petitioner stating that the petitioner would be given appointment after getting proper order from the first respondent. But on 22.08.2003, it was informed by the third respondent that new appointment on the basis of compassionate ground was banned by the Government in G.O.No.212/p.c./dept/dated 29.11.2001. On 20.02.2006, the second respondent informed the mother of the petitioner that the ban was lifted. 4. The Chief Engineer, PWD Department, Chennai sent a letter to the petitioner asking his consent for appointment to the post as a Typist or Junior Assistant. On 30.04.2007, the petitioner expressed his consent for such appointment. But in spite of all these communications, the first respondent passed the impugned order dated 31.12.2008, rejecting the claim of the petitioner for the appointment on compassionate ground on the ground that the petitioner has not preferred his application seeking for the appointment within a period of three years from the date of death of his father. Aggrieved against the said order, the petitioner has been constrained to approach this Court with the aforesaid prayer. 5. Mr.T.Lajapathi Roy, learned counsel for the petitioner contended that the petitioner preferred an application well within the period of three years after attaining the age of his majority and as such the impugned order is liable to be quashed. It is contended that the period of three years is to be reckoned only from the date of the petitioner attaining majority as the father of the petitioner died on 23.11.1980 and the petitioner attained the age of majority only on 15.06.1998 and the petitioner preferred a representation immediately on 25.07.1998. It is pointed out that even prior to the date of attaining majority, the mother of the petitioner preferred an application on 14.10.1994, seeking for the relief of compassionate appointment of the petitioner. Therefore, it is contended that the impugned order is unsustainable. 6. Heard Mr.V.Rajasekaran, learned Special Government Pleader on the submissions made by the learned counsel for the petitioner. It is submitted that the claim of the petitioner was rejected earlier on the ground of ban of making fresh appointments and later by passing the impugned order on the ground that the petitioner has not submitted his application within a period of three years from the date of death of the deceased viz., the father of the petitioner. Therefore, it is contended that there is no infirmity or illegality in the impugned order. 7. I have carefully considered the rival contentions put forward by either side and also perused the materials available on record. 8. The fact remains that the father of the petitioner was working as a Record Clerk in the third respondent and he died while he was in service on 23.11.1980 and at that time, the petitioner was a minor. It is pertinent to note that the mother of the petitioner preferred an application as early as on 14.10.1994 seeking for the relief of appointment of the petitioner on compassionate ground. But the first respondent through his communication dated 08.02.1995, advised the mother of the petitioner to prefer an application after the petitioner attaining the age of majority. It is seen that the petitioner attained the age of majority on 15.06.1998 and within a period of three years from that date, he has preferred his representation on 25.07.1998 itself claiming for the appointment on compassionate ground. The second respondent also recommended to accept the claim of the petitioner as per his communication dated 25.07.1998 to the third respondent. Again on 26.11.1998, the third respondent sent a letter to the first respondent recommending the claim of the petitioner for appointment as a Clerk on compassionate ground, by referring the G.O.No.120 dated 26.06.1995, which provides for the appointment on compassionate ground within a period of three years from the date of death of the government service. 9. As there was no further progress, the mother of the petitioner preferred yet another representation dated 14.10.2001. On 16.10.2001, the second respondent sent a communication to the mother of the petitioner stating that the claim is under consideration and progress. But on 22.08.2003, the third respondent informed the mother of the petitioner that there was a ban as per G.O. in G.O.No.212/p.c./dept, dated 29.11.2001 for making fresh appointments. Again on 20.02.2006, the second respondent informed the mother of the petitioner that such ban was lifted. 10. The Chief Engineer, (Building), PWD Department, Chennai, sought for consent of the petitioner for appointing the petitioner as Typist or Junior Assistant and the petitioner consented for the same. But in spite of all these sequence of events and communications, the first respondent passed the impugned order on 31.12.2008 rejecting the claim of the petitioner on the sole ground that the petitioner has not preferred the application within a period of three years from the date of the death of his father. 11. It is pertinent to note that the said order is in printed form. There is absolutely no reference whatsoever in respect of the previous communication sent by the respondents 1 to 3. It is seen that the petitioner was a minor at the time of the death of his father on 23.11.1980. It is pertinent to note that the petitioner attained the age of majority on 15.06.1998 and he immediately preferred an application on 25.07.1998 well within the period of three years from the date of attaining his age of majority. 12. In a catena of decisions, this Court has categorically held that the period of limitation of three years is to be reckoned from the date of attaining the age of majority. It is worthwhile to refer the said decisions as hereunder: (i) 2006 (9) SCC 195 (SYED KHADIM HUSSAIN v. STATE OF BIHAR) in which the Hon'ble Apex Court in a similar matter has held hereunder:- "The widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application, he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application. As the widow had submitted the application in time, the authorities should have considered her application. As eleven years have passed, she would not be in a position to join the Government service. This is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstances for which the appellant would be dis-entitled to be considered for appointment. In the peculiar facts and circumstances of this case, the respondent authorities are directed to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months." (ii) 2009 (4) MLJ 424 (R.D.RAJESH KANNA v. CHAIRMAN-CUM-MANAGING DIRECTOR, NATIONAL INSURANCE CO., LTD.,) (iii)"This Court in T.Meer Ismail Ali.T. Vs. The Tamil Nadu Electricity Board, Chennai reported in 2004 (3) CTC 120 held as follows; "I am, therefore, of the view that the petitioner's case deserves consideration inasmuch as he had diligently made a claim once in the year 1997 and thereafter, immediately after attaining the age of 18, in the year 2000 and in such circumstances, rejection of his application on the ground that it was not made within three years was not justified." (iv)This Court in another decision in Selvi R.Anbarasi Vs. Chief Engineer (Personnel), T.N.E.B., Chennai reported in (2006) 2 M.L.J., 2006 held as follows; "The learned counsel for the petitioner submitted that a similar issue, rejecting the compassionate ground appointment on the ground that the application was submitted beyond three years and the same was rejected earlier on the ground that the petitioner therein has not completed 18 years of age, was considered by this Court in W.P.No.1584 of 2001 and this Court held that the applications having been made within a period of three years and the same having not been considered on the ground that the petitioner therein was not 18 years of age at that time, the subsequent application cannot be rejected on the ground that the application was submitted within three years. The learned Judge directed the respondents not to treat the second application as an application for compassionate appointment, but it is to be treated as continuation of the application originally submitted. The said judgment is reported in T.Meer Ismail Ali Vs. Tamil Nadu Electricity Board through its Chairman, and others, (2004) 3 C.T.C. 120. This Court, ultimately, directed the respondents to give compassionate appointment to the petitioner therein." (v)This Court in yet another decision in A.Neppolian Vs. The Chief Engineer (Personnel), T.N.E.B. Chennai and another reported in MANU/TN/9306/2006 held as hereunder; "(c) In W.P.No.8154 of 2002 (A.Govindan v. The Chief Engineer (Personnel), TNEB, Chennai and Anr.) the Hon'ble Mr.Justice N.V.Balasubramaniam, by order dated 9.4.2002 allowed similar writ petition with a direction to treat the application submitted as within the time. (d) The Hon'ble Mr. Justice P.D.Dinakaran by order dated 23.9.2003 in W.P.No.19673 of 2003 (J.Jayakaran v. The Superintending Engineer, Theni Electricity Distribution Circle, Theni) allowed the writ petition and directed the TNEB to pass orders granting compassionate appointment. Paragraph 5 in the said order reads as under; "It is true that when an application was made for employment of the petitioner, i.e., on 23.05.2002, the petitioner was only a minor, but not qualified. But he had attained majority on 02.06.2003 and therefore, the respondent Board, having kept the application of the petitioner for employment on compassionate ground under consideration, ought to have considered the case of the petitioner for suitable employment without rejecting the same on technical reason, by the impugned order dated 18.06.2003. Since B.P.No.146 dated 13.10.1995 prescribes only a maximum period of three years for consideration of the application for appointment on compassionate ground, the respondent shall consider the request of the petitioner for employment on compassionate ground and pass appropriate orders within twelve weeks from the date of receipt of copy of this order, if the petitioner is otherwise qualified for suitable post." (vi)Lastly a Division Bench of this Court in The Chief Engineer/Personnel, T.N.E.B., & another Vs. S.Suder reported in MANU/TN/0635/2009 was held as follows; "4.In the judgment reported in 2001 Writ L.R. 601 in the case of "Ramadoss. D. v. The Chief Engineer, T.N.E.B", this Court (D.Murugesan, J) directed the consideration of the application made within a period of three years after attaining the majority by placing reliance on the very same Circular in B.P.No.46, dated 13.10.1995. 5.Subsequently, in the judgment reported in 2002(4) L.L.N. 1132, (D.Murugesan, J.), in the case of "P.Ravi v. Chief Engineer (P), T.N.E.B.", also, the very same Circular was relied upon and the application for appointment on compassionate grounds was directed to be considered. 6.Justice P.D.Dinakaran, has also taken the very same view by following the very same Circular dated 13.10.1995, in W.P.No.19673 of 2003, in the order dated 23.09.2003, in the case of 'J.Jayakaran v. The Superintending Engineer, Theni Electricity Distribution Circle, Theni" and the application for appointment on compassionate grounds was directed to be considered. 7.Justice K.Govindarajan has also taken the same view in Writ Petition No.13099 of 2003, order dated 30.10.2003, in the case of "G.Muthamilselvan v. The Chief Engineer (Personnel) and Anr." 8.Justice F.M.Ibrahim Kalifulla has also taken the same view in the decision reported in Manu/TN/0337/2004, 2004(3) CTC 120, (2004) 4 MLJ 238 in the case of "Meer Ismail Ali. T. v. The Tamil Nadu Electricity Board". We are told that the order in the said case of "Meer Ismail Ali" was confirmed in the Writ Appeal by the Division Bench in W.A.No.4008 of 2004, by judgment dated 1.12.2004 and as against the said judgment dated 1.12.2004, the Special Leave Petition in Civil Appeal No.6387 of 2005, was also dismissed by the Supreme Court, by judgment dated 4.4.2005. 9.Similar question came up for consideration before a Division Bench of this Court in Writ Appeal No.3050 of 2003 in the case of "Indiraniammal v. The Chief Engineer (Personnel) and Anr." and by judgment dated 08.03.2005, the Division Bench set aside the impugned order therein in rejecting the request of the petitioner therein for appointment on compassionate grounds and directed the Board to consider the application. 10.There cannot be a controversy in view of the settled position of law that appointment on compassionate ground is not automatic, as it would amount to back door entry to a post, by-passing the Rules to be followed for such appointment. Nevertheless, to tide over the financial constraints of a family due to sudden demise of the breadwinner of a family, the State Government or its undertaking or for that purpose, any employer, would be entitled to frame Scheme/Rules for such appointment by prescribing the conditions as well as the eligibility. Hence, the request for appointment on compassionate grounds would be considered with reference to the Scheme/Rules or any of the provisions framed for the said purpose, either by the Government or by the employers, as the case may be. 11.In the case on hand, the father of the respondent while he was working as Wireman in the Office of the Assistant Engineer, TNEB, Kazhuvanthilai, Kanyakumari District, died due to illness on 07.03.1998. At the time of the death of his father, the respondent was 15 years old and for the purpose of making application for appointment on compassionate grounds, he should have completed 18 years. Hence, he could not make any application for appointment on compassionate grounds. By placing reliance on B.P.No.46, dated 13.10.1995, he made application on 3.9.2002, within a period of four days from the date of his attaining majority, i.e., 18 years. That application was rejected on the ground that the same cannot be entertained as per the Circular in vogue on the date of the application. Presumably, the order of rejection was passed on the basis of the Memo, dated 6.4.2002. 12.As we have already referred that the application for compassionate appointment is maintainable by a person within a period of three years after he/she attains the majority, irrespective of the fact that the breadwinner died while such person was a minor in terms of the proceedings of the Board in B.P.No.46 dated 13.10.1995. This position is not in dispute. We may also once again refer to the fact that following the very same Board proceedings in B.P.No.46, dated 13.10.1995, consistently, this Court had taken the view that the application seeking for appointment on compassionate grounds, has to be considered in the event when such applications are made within a period of three years after he/she attains the majority." 13. The principles laid down by this Court and as well as by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case, as in this case also, the petitioner preferred the application seeking for the appointment on compassionate ground well within the period of three years as the petitioner attained the age of majority on 15.06.1998 and the application was submitted on 25.07.1998. Therefore, this Court is of the considered view that the impugned order is liable to be quashed. Accordingly, the Writ Petition is allowed and the impugned order of the first respondent in his letter in S.34/24559/07 dated 31.12.2008 is hereby set aside. Consequently, the respondents are hereby directed to appoint the petitioner in respect of any suitable post as per his eligibility. It is made clear that the above said exercise should be completed within a period of twelve weeks from the date of receipt of a copy of this order. No costs. RR To 1.The Principal Chief Engineer Water Resources cum Chief Engineer (Public) Public works Department, Chepauk, Chennai. 2.The Executive Engineer (Public) Building Construction and the Administration Theni District. 3.The Superintendent Engineer Public Work Department Building Construction and Administration No.2 Madurai District. 

M.Syed Sagubar Sathiq vs The Principal Chief Engineer on 22 December, 2009

Madras High Court

1. This is a revision by Devichand against the order of the Civil Judge, Pali, and arises in the following circumstances : "I am directed to say that the pending cases may remain at Pali, and be dealt with by the Civil Judge, Pali." We Mud that there was a report from the District JUDGMENT Wanchoo, C. J. The applicant is defendant in a suit pending in the court of Civil Judge, Pali, since 1954. The suit relates to Tahsil Bali. On the 1st March 1955, jurisdiction over Tahsil Ball in cases triable by a Civil Judge was transferred from the court of the Civil Judge, Paii, to the court of the Senior Civil Judge, Sirohi. Consequently, the applicant made an application to the Civil judge, Pali, that he no longer had jurisdiction to decide the suit, and that only the Senior Civil Judge Sirohi had such jurisdiction. This contention was based on the Civil Judge, Pali, losing jurisdictidn even over pending cases when the work relating to Bali Tahsil was transferred by a notification issued by the Government to the court of Senior Civil Judge, Sirohi. The application was dismissed by the Civil Judge, and he has relied on the order of this Court dated the 23rd of April, 1955. 2. We do not think it necessary to decide in this case whether after the notification of the 1st of March, 1955, the Civil Judge, Pali, lost jurisdiction even over pending cases in his court relating to Bali Tahsil as there is an order of this Court, which, in our opinion, concludes the matter. It has been urged by learned counsel that the order, on which the learned Civil Judge has relied, is not a judicial order of transfer, but an administrative order, and therefore is not valid. We are of opinion that there is no substance in this submission of learned counsel. 3. Under section 24 of the Code of Civil Procedure, it is open to the High Court either on the application of any of the parties or of its own motion to transfer any suit, appeal or other proceeding from one court to another. Where the High Court transfers a proceeding on its own motion, it is not necessary for the High Court to give notice to parties. Transfers take place in two ways. Firstly, a transfer may be ordered on the application of a party. In such a case, notice is issued, parties are heard, and an order is passed. Secondly, a transfer may be ordered by the District Judge, or the High Court on its own motion. In such a case no notice to any party is required, and the transfer is generally for administrative reasons. But even though the transfer may be for administrative reasons, the order of transfer is still an order under section 24, and therefore a judicial order. We have looked into the file of this Court relating to the order which was issued on the 23rd of April, 1951, and on which the Civil Judge has relied. The order was in the form of a letter from the Registrar of this Court to the District Judge, and was to this effect- Judge, Paii, in connection with pending cases, and what should be done about them in view of the notification of Government, dated the 1st of March, 1955. The letter of the District Judge was placed belore the two of us, and we ordered that suits etc., pending before the Civil Judge, Pali, should remain with him and be disposed of by him. This order, in our opinion, amounted to a transfer by the High Court, of it own motion, of such cases to the court of the Civil Judge, Pali, even assuming that the result of the notification of Government, dated 1st of March, 1955, was that the pending cases of Bali Tahsil stood transferred to the Senior Civil Judge, Sirohi. The form, in which the order was conveyed to the Civil Judge, namely by a letter, is, in our opinion, immaterial. The substance of the matter is that the question whether pending cases should be disposed of by the Civil Judge, Pali, or by the Senior Civil Judge, Sirohi, in view of Government notification, dated the 1st of March, 1955, was considered by a Bench of this Court, of which both of us were members, and we passed an order for administrative reasons that the cases would remain with the Civil Judge, Pali. That order is, in our opinion, an order under section 24 of the Code of Civil Procedure under which it can be properly passed. 4. There is, therefore, no force in this application, and it is hereby dismissed.

Author: C Wanchoo

Devichand vs Rikhab Chand And Anr. on 20 October, 1955

Rajasthan High Court

Gujarat High Court Case Information System Print CR.A/718/2007 41/ 75 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 718 of 2007 With CRIMINAL APPEAL No. 994 of 2007 With CRIMINAL APPEAL No. 1440 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI AND HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= Whether Reporters of Local Papers may be allowed to see the judgment ? To be referred to the Reporter or not ? Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? Whether it is to be circulated to the civil judge ? ========================================================= ABDUL SALIM ABDUL MUNAF SHAIKH ALIAS SALIMBHAI & 1 - Appellant(s) Versus NARCOTICS CONTROL BUREAU & 1 - Opponent(s) ========================================================= Appearance : MR DJ BHATT for Appellant(s) : 1 - 2. MR KT DAVE for Opponent(s) : 1, MR DEVANG VYAS, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 27/01/2010 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) These three Criminal Appeals arise out of a judgment and order rendered by learned Addl.Sessions Judge, 2nd Fast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1 of 2003. In Special NDPS Case No.1 of 2003, five accused persons, namely, Ketan @ Kanabhai Somabhai Patel, Habibkhan Usmankhan Pathan, Abdul Salim Abdul Munaf Shaikh @ Salimbhai, Nituben Abdul Salim Abdul Munaf Shaikh and Smt.Naseebbanu Yusufbhai Pathan came to be tried for the offences punishable under Sections 8(c), 20(b)(ii)(c), 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act , for short). At the end of the trial, the accused No.1 Ketan @ Kanabhai Somabhai Patel, accused No.2 Habibkhan Usmankhan Pathan, accused No.3 Abdul Salim Abdul Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh came to be convicted for the offences punishable under Sections 8(c), 20(b)(ii)(c), 25 read with Section 29 of the NDPS Act and each of them was sentenced to undergo R.I of ten years and fine of Rs.1 Lac each and in default of payment of fine, S.I for one year. Moreover, the accused No.3 Abdul Salim Abdul Munaf Shaikh @ Salimbhai, accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh and accused No.5 Smt.Naseebbanu Yusufbhai Pathan came to be convicted for the offences punishable under Sections 8(c), 20(b)(ii)(b), 25 read with Section 29 of the NDPS Act and each of them was sentenced to undergo R.I for seven years and fine of Rs.50000/- each and in default of payment of fine, S.I for one year. The sentences of imprisonment were ordered to run concurrently. 1.1 Original accused No.2 Habibkhan Usmankhan Pathan filed Criminal Appeal No.11 of 2007 challenging the impugned judgment and order rendered by the trial Court. However, during the pendency of said appeal, Habibkhan Usmankhan Pathan expired, and, therefore, Criminal Appeal No.11 of 2007 stood abated. 1.2 Criminal Appeal No.718 of 2007 is preferred by original accused No.3 Abdul Salim Abdul Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh; Criminal Appeal No.994 of 2007 is preferred by original accused No.1 Ketan @ Kanabhai Somabhai Patel and Criminal Appeal No.1440 of 2008 is preferred by original accused No.5 Smt.Naseebbanu Yusufbhai Pathan under Section 374 of the Criminal Procedure Code ( Cr.P.C. , for short) challenging their conviction and sentence recorded by the trial Court. Mr.Sahajanand Sachidanand Singh, serving as Intelligence Officer, Narcotic Control Bureau, Ahmedabad ( NCB, Ahmedabad , for short) on or about dated 23.5.2002 received a secret information to the effect that the accused No.1 Ketan @ Kanabhai Somabhai Patel resident of 101, Chitrakoot Apartment, Navsari dealing in contraband substance Charas was to receive large quantity of Charas at his residence, and thereupon, the secret information which Mr.S.S.Singh received at about 10.30 am in the morning on 23.5.2002 came to be reduced into writing by him and the copy of the same was forwarded to his immediate superior Officer. Pursuant to such information, it was decided to conduct raid at Navsari. On 26.5.2002, during night hours, Intelligence Officer Mr.S.S.Singh, Intelligence Officers Mr.Vikram Ratnoo, Mr.Pavansinh Gajesinh Tomar and Mr.Umesh Jayantkumar Pathak left Ahmedabad for Navsari, and at Navsari they stayed in circuit house. On next day, i.e. on dated 27.5.2002, during early morning hours at 7 am, two Panchas, namely, Hormez Firoz Avari and Mukesh Shankarrao Gole were called. They were apprised about the secret information received by Intelligence Officer Mr.Singh. Preliminary panchnama was drawn in the circuit house. Thereafter all the above referred Intelligence Officers along with two Panchas and Police Officers went to the house of the accused No.1 Ketan Patel. It is the prosecution case that in the house of accused No.1 Ketan Patel along with him, accused No.3 Abdul Salim @ Salimbhai and one absconding accused Mahmad Ramzan Kaliyari @ Ramzanbhai were found present. The Officers apprised them with the secret information received in this case and expressed their intention about the search and seizure. It is further the prosecution case that the accused were also apprised of their right of search to be conducted in presence of Gazetted Officer or any Magistrate, to which the accused stated that they have no objection if the search is conducted by the members of the raiding party. During the course of their personal search, nothing objectionable was found out. However, when his house was searched, from the room of the house, four packets containing contraband substance Charas came to be found. It is further the prosecution case that since the room was very small, and, therefore, it was decided that the weighing, packing and sealing etc. of the muddamal should be done at circuit house. In the house of the accused No.1 Ketan Patel, after concluding the panchnama containing search, seizure and recovery part of the contraband substance, the members of the raiding party along with Panchas and the above-referred three accused came to the circuit house, Navsari, where the contraband substance was weighed. The gross weight turned out to be 13 kgs. and 295 gm. However, the net weight turned out to be 12 kgs. and 899 gm. Samples were collected and were packed and sealed. Final part of the panchnama regarding drawing, weighing, sealing and packing of the samples and the remaining part of Charas was drawn in the circuit house. It is further the prosecution case that Intelligence Officer Mr.Singh recorded statements of accused No.1 Ketan Patel, accused No.3 Abdul Salim @ Salimbhai and the absconding accused Mahmad Ramzan under Section 67 of the NDPS Act. During the course of recording of statements, it transpired that out of the 13 kgs. Of Charas, accused No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1 Ketan Patel to collect 4 Kg. of Charas and accused No.2 Habibkhan Pathan, resident of Baroda was to be sold 9 kgs. of Charas. From the statement of accused No.3 Abdul Salim @ Salimbhai, it was further revealed that he himself and his wife accused No.4 Nituben, who were residing at Ahmedabad, were dealing in contraband substance like Charas and accused No.3 Abdul Salim @ Salimbhai used to purchase Charas from accused No.1 Ketan Patel and the Charas to accused No.1 Ketan Patel was supplied by absconding accused Mahmad Ramzan. Upon receipt of such information, through the statements recorded under Section 67 of the NDPS Act, a message was conveyed to Intelligence Officer, Ahmedabad Mr.S.J.Lodha and upon receipt of such message, Mr.S.J.Lodha called two Panchas, namely, Harshad Jadavji and Hitesh Doliwad and at about 1.30 pm on 27.5.2002, Mr.S.J.Lodha together with other Officers of NCB and the above named two Panchas left their NCB office and went to the house No.B/31/Kubernagar, Ahmedabad and the accused No.4 Nituben along with one aged lady and one boy came to be found present in the house. She was informed about the secret information and she was also informed that the search was required to be conducted. She was apprised of her right to have the search conducted in presence of Gazetted Officer or any Magistrate, to which she stated that she had no objection if the search was conducted by the Officer of the NCB. Though from her personal search, nothing objectionable was found, but, from the house Charas came to be found, its gross weight was found to be 550 gm. and the net weight found to be 523 gm. Samples were collected from the Charas and same were duly packed and sealed. Panchnama to that effect was drawn which was signed by Panchas and the Intelligence Officer Mr.Lodha. 2.1 Samples collected from Navsari and from Ahmedabad were sent to FSL as well as CRCL, Delhi. The reports of FSL and CRCL, Delhi revealed that the samples contained contraband substance Charas. 2.2 Intelligence Officer Mr.Ratnoo lodged criminal complaint against the appellants herein as well as against the co-accused on dated 28.11.2002 in the Court of learned CJM, Navsari. Since the offence was exclusively triable by the Special Court (Court of Sessions), the learned CJM, Navsari committed the case to the Special Court, Navsari, which was registered as Special NDPS Case No.1 of 2003. The learned trial Judge framed charge against all the accused including the appellants original accused Nos.1, 3, 4 and 5 to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined seven witnesses and produced relevant documentary evidence. After the prosecution concluded its oral evidence, the learned trial Judge recorded further statements of the accused persons, including appellants accused under Section 313 of the Cr.P.C. and the appellants accused in their further statements denied generally all the incriminating circumstances put to them by the trial Court and stated that they were falsely implicated in this case. They have expressed their desire to examine the defence witnesses. Thereupon the defence witnesses, namely, D.M.Valvi and Rameshbhai Buddhabhai were examined. However, before the defence witnesses were examined, the appellant accused preferred an application, Exh.255, requesting the trial Court to examine the FSL witnesses as Court witnesses. Said application was allowed and FSL witnesses Rajeshkumar Mehta and Jan Mahmad Fakirbhai Mansuri were examined. 3.1 After considering the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge came to the conclusion that the offence committed in Ahmedabad well as at Navsari were part and parcel of the same transaction and the outcome of the same conspiracy hatched by the accused. The trial Court further came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt on the basis of the recovery of large quantity of contraband substance as well as on the basis of the statements of the accused recorded under Section 67 of the NDPS Act. The trial Court ultimately, recorded the conviction of the appellants accused and awarded the sentence as hereinabove referred to in this judgment, which has given rise to the above-referred three criminal appeals. We have heard the submissions made by learned advocate Mr.R.M.Agrawal and learned advocate Mr.D.J.Bhatt for the appellants original accused Nos.1,3,4 and 5 and we have heard the submissions of learned advocate Mr.K.T.Dave for the respondent NCB and learned A.P.P. Mr.Devang Vyas for respondent State of Gujarat. On behalf of the appellants accused, it is submitted that the clubbing of two different offences, namely, the alleged recovery of Charas in Navsari and alleged recovery of Charas in Ahmedabad and to try all these different offences together, under one trial at Navsari, has caused prejudice in the defence of the accused. As a mater of fact, both are different and distinct offences and should have been tried separately. 5.1 It is further submitted that the original accused Nos.1, 2, 3 and 4 came to be convicted for the offence of recovery of Charas at Navsari and original accused Nos.3, 4 and 5 also came to be convicted for the offence relating to recovery of Charas at Ahmedabad. It is, therefore, submitted that if the trial Court intended to consider all the offences arising out of the same transaction and in furtherance of the common conspiracy, then the conviction of original accused Nos.3 and 4 recorded twice i.e. for the offence which took place at Navsari and for the offence which took place at Ahmedabad is bad in law. It is, therefore, submitted that for the same offence, the original accused Nos.3 and 4 are convicted twice. 5.2 It is submitted on behalf of the appellants accused that as per the evidence of the prosecution, at the time when the raid was effected at the house of the accused No.1, only the accused No.3 and absconding accused Mahmad Ramzan along with accused No.1 were present. Admittedly, the prosecution did not adduce any evidence to show that the house wherein the raid was carried out, at Navsari, was either owned by the accused No.1 Ketan Patel or that it was in his exclusive possession. Moreover, admittedly, the house was not either owned or possessed by appellant accused No.3 Abdul Salim @ Salimbhai. Therefore, it is submitted that the prosecution failed to prove that the appellants accused Nos.1 and 3 were in conscious possession of the Charas. That admittedly, at Navsari, accused Nos.4 and 5 were not present, yet, for Navsari offence, accused No.4 is held responsible. 5.3 It is further submitted that considering the letters signed by Intelligence Officer Mr.Vikram Ratnoo addressed to FSL, Exhs.172 and 174, there is a difference of weight about the contraband substance allegedly recovered at Ahmedabad. It is further submitted that so far as the recovery of contraband at Navsari is concerned, Panch Hormez in his evidence submits that the total weight of the contraband Charas was about 12 kgs. whereas as per the prosecution case, it is 13 kgs. and 295 gm. It is therefore, submitted that the discrepancy about the contraband substance is fatal to the case of the prosecution. 5.4 It is further submitted that as per the CRCL report, the purity of THC in the Charas allegedly recovered from Ahmedabad is 4.1% and it is 3.7% of purity of the Charas recovered from Navsari. In this connection, CRCL reports Exhs.184 and 185 were pressed into service. Accordingly, it is submitted that if the total weight of the contraband substance is considered, in light of the percentage of purity, it comes to the limit of small quantity. It is, therefore, submitted that alternatively, if the prosecution case is believed to be true, and if it is held that the prosecution successfully establishes the involvement of the accused in this offence, then the offence which can be said to have been committed is pertaining to the small quantity, and as per Section 20(b)(ii)(a) of the NDPS Act, the maximum sentence prescribed is six months imprisonment or with fine which may extend to Rs.10000/-. Therefore, it is submitted that in the instant case, the appellants have undergone more sentence than what is prescribed for small quantity and accordingly, the appeals may be allowed. 5.5 It is further submitted that considering the alleged recovery of contraband substance Charas from Navsari, as per the prosecution case, the weighing, packing and sealing of the samples etc. were undertaken at circuit house, though the contraband Charas was allegedly recovered from the house of the accused No.1 Ketan Patel. Drawing our attention to the evidence of Panch Hormez, it is submitted that the measurement of the room in circuit house and the measurement of the room of the house of the accused No.1 Ketan Patel is almost identical. Thus, the very act of the NCB Officers in carrying out the weighing, sampling and sealing of the contraband Charas at circuit house is doubtful. As per the NCB guidelines, the seizure, search, recovery of contraband substance and its weighing, sealing and packing should have been made at one place and that place should be the place from where the recovery was made. 5.6 On behalf of the appellants - original accused, it was strenuously alleged that no reliance can be placed upon the so-called statements of the appellants allegedly recorded under Section 67 of the NDPS Act. It is submitted that though on paper their arrest is shown to be at later point of time, but at the time when the statements were allegedly recorded, they were in custody of the NCB Officers. Thus, no reliance can be placed upon the statements recorded while the appellants were in custody of the NCB Officers. It is further submitted that the statements allegedly recorded under Section 67 of the NDPS Act are outcome of coercion, threat, undue influence and promise. It is submitted that there is no dispute that appellants, barring appellant original accused No.5 Smt.Nassebbanu Yusufkhan Pathan, retracted their confessional statements at the time when their further statements were recorded under Section 313 of the Cr.P.C. Further, the appellant original accused No.5 Smt.Nassebbanu had sent writing from jail alleging that her statement was recorded after adopting coercive tactics by the Officers of the NCB. 5.7 About the statements recorded under Section 67 of the Act, it is submitted that the conviction cannot be recorded solely on the basis of the bare statement. The statement is required to be corroborated by other evidence on record. It is further submitted that in the instant case, so far as appellant accused No.1 Ketan Patel is concerned, nothing is recovered by the NCB Officers, which would suggest that the house from where the contraband Charas came to be recovered was either owned by him or that he was either tenant in the premises or that it was in his exclusive possession. So far as the appellant accused No.3 Abdul Salim @ Salimbhai is concerned, admittedly, the house from where the contraband Charas came to be recovered, was not either owned or possessed by him. Even if the prosecution case as it stands is believed, that at the time of search and seizure, he was found in the company of accused No.1 Ketan Patel in his house, thereby it cannot be said that the contraband Charas allegedly found from the house was within his conscious possession. Accused No.3 Abdul Salim @ Salimbhai is also convicted for the offence of possession of contraband substance Charas, which was recovered from Ahmedabad. Admittedly at the time when the raid was conducted at Ahmedabad, he was already under arrest in connection with Navsari offence and was in custody of the NCB Officers. So far as the appellant accused No.4 Nituben wife of Abdul Salim @ Salimbhai is concerned, admittedly at the time when the NCB Officers raided the house of the accused No.1 Ketan Patel at Navsari, she was not present in the house. She was in her house at Ahmedabad. There is no nexus whatsoever between the contraband substance Charas allegedly recovered at Navsari and allegedly recovered at Ahmedabad. Their quality etc. are totally different. Admittedly, the NCB Officers did not collect any material to show that the house from which the contraband substance Charas was recovered at Ahmedabad was either owned or belonged to accused No.4 Nituben. So far as the appellant accused No.5 Smt.Naseebbanu is concerned, admittedly, she was not present at Navsari, when the house of accused No.1 Ketan Patel was raided, she was even not present in the house of appellant accused No.4 Nituben, when her house was raided. Nothing was recovered from the house of appellant accused No.5 Smt.Naseebbanu. That, thus, the bare statements without any support of corroborative evidence cannot be considered as substantive piece of evidence to base the conviction. 5.8 About the appellant accused No.4 Nituben, it is further submitted on behalf of the appellants that as emerged from the seizure panchnama, at the time when the raid was carried out in her house at Ahmedabad, over and above herself, one lady Chayaben and one male member were present. Despite this, prosecution booked only the respondent accused No.4 Nituben in connection with this offence. 5.9 About the Navsari raid, on behalf of the appellants, it is submitted that as per the prosecution case, the Charas allegedly recovered was weighing about 12 kgs. The appellant accused No.3 Abdul Salim @ Salimbhai had come to the house of the appellant accused No.1 Ketan to buy Charas weighing about 4 kgs. as per the prosecution case, yet, no money was found from his possession which was sufficient towards the payment of consideration. That, thus, the prosecution case that the accused No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1 Ketan Patel for the purpose of purchasing 4 kgs. of Charas cannot be accepted. Even as per the prosecution case, no delivery of Charas weighing 4 kgs. was made by accused No.1 Ketan Patel to accused No.3 Abdul Salim @ Salimbhai at the time when the raid was conducted. 5.10 On behalf of the appellants it is submitted that as per the prosecution case, more number of persons are involved in the alleged conspiracy and trafficing of Charas, yet, out of them, only the appellants are booked by the prosecution. 5.11 It is further submitted that the prosecution is supposed to prove that the contraband substance recovered is Charas. In the instant case, the prosecution failed to prove that the substance recovered is Charas as defined under the NDPS Act. 5.12 It is submitted that the manner of recording the further statements of the appellants under Section 313 of the Cr.P.C. is faulty. Almost identical questions were put to all the appellants accused and identical replies were incorporated in the statements. That, thus, the said examination is not in confirmity with law and the same is against the purpose of enacting Section 313 of the Cr.P.C. 5.13 Assailing the impugned judgment and order rendered by the trial Court, on behalf of the appellants, it is submitted that the trial Court erred in holding that the prosecution case is proved by taking resort to the presumptions contained under Section 35 and Section 54 of the NDPS Act. That the trial Court misread the provisions regarding the presumptions, and there cannot be a presumption of guilt under Section 35 and Section 54 of the NDPS Act. Basic facts are required to be proved by the prosecution. If the prosecution proves beyond reasonable doubt that the contraband substance was in the exclusive and conscious possession of the appellants, then only the necessity to draw the presumption contained under Section 35 and Section 54 of the NDPS Act would arise. In the instant case, the prosecution failed to prove the basic facts and, therefore, trial Court committed error in arriving at the conclusion that the guilt of the appellant accused is very well established on the basis of such presumptions. 5.14 Learned advocates Mr.Agrawal and learned advocate Mr.Bhatt for the appellants relied upon certain judgments delivered by the Hon'ble the Apex Court, which shall be discussed in this judgment at relevant place. Ultimately, it is submitted that these appeals may be allowed and the judgment and order rendered by the trial Court be set-aside and the appellants accused be acquitted of all the charges levelled against them. Learned advocate Mr.Dave for the respondent NCB and learned A.P.P., Mr.Vyas, for the respondent State vehemently opposed these appeals. It is submitted that the trial Court rightly appreciated the evidence on record and rightly came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt. The trial Court rightly conducted the single trial in connection with the recovery of Charas effected at Navsari as well as recovery of Charas effected at Ahmedabad. Our attention was drawn to Sections 178 and 223 of the Cr.P.C. as well as Sections 25 and 29 of the NDPS Act read with Section 8(c) of the NDPS Act. It is submitted that the recovery of contraband substance Charas from the house of appellant No.1 at Navsari and from the house of appellant No.4 from Ahmedabad is part and parcel of same transaction and conspiracy. In furtherance of the conspiracy and the same transaction, the offences at Navsari and at Ahmedabad were committed. That, therefore, the trial Court rightly undertook the exercise of common trial and rightly recorded the conviction of the appellants. 6.1 It is submitted that the prosecution furnished clear and cogent evidence in the form of FSL report as well as considering the oral evidence of FSL Officers, it is clearly established that the contraband substance recovered from Navsari and from Ahmedabad is Charas as defined under Section 2(iii) of the NDPS Act. That considering the definition of 'Cannabis(Hemp)' defined under the NDPS Act and considering the overall evidence on record, it clearly transpires that the THC percentage can never be the decisive factor to come to the conclusion that the substance is 'Cannabis(Hemp)'or not as defined under the NDPS Act. No minimum percentage of THC is suggested in the definition, whereas in the case of opium as defined under Section 2(xv) of the NDPS Act, it is clearly provided in the definition of opium that the substance cannot be termed as opium, if it does not include any preparation containing not more than 0.2% of morphine. No such rider is there in the definition of 'Cannabis(Hemp)' defined under Section 2(iii) of the NDPS Act. Moreover, it is submitted that the contraband substance Charas is a natural substance and not a manufactured drug. Nothing emerges from the evidence on record that the Charas was blended with any neutral substance. Therefore, it is submitted that the contention regarding the purity test raised by the appellants, is not required to be considered. The trial Court, therefore, rightly recorded conviction of the appellants accused No.1, 3 and 4 for the possession of Charas of commercial quantity and rightly recorded the conviction of appellants accused No.3, 4 and 5 for possession of intermediate quantity of Charas. The contention, therefore, raised on behalf of the appellants that the appellants should have been convicted regarding the small quantity cannot be considered. 6.2 About the statements recorded under Section 67 of the NDPS Act, on behalf of the respondents it is submitted that the trial Court rightly relied upon those statements. Nothing emerges from the record that the statements were outcome of any coercion, threat or promise administered by any of the NCB Officers to the appellants. The appellants accused No.1, 3 and 4 during the course of entire trial did not make any attempt to retract the confessional statements. Their statements were recorded before their arrest. After the recording of those statements, ultimately, they were arrested. There is no dispute that so far as appellant accused No.5 Smt.Naseebbanu is concerned, she had sent a writing through jail stating her intention to retract the confession, but, thereafter, nothing was done on her part to support her allegation that her confessional statement was outcome of any coercion. It is submitted that all the four appellants accused were produced before concerned Judicial Magistrate First Class within 24 hours after recording of their confessional statements under Section 67 of the NDPS Act and none of them made any complaint of ill-treatment against any of the NCB Officers and none of them stated before the concerned Judicial Magistrate First Class that their statements were recorded under coercion. That the statement of appellant accused No.1 Ketan Patel was recorded by PW-1 Mr.S.S.Singh, Intelligence Officer, the statement of accused No.3 Abdul Salim @ Salimbhai was recorded by the same Intelligence Officer Mr.Singh, statement of appellant accused No.4 Nituben was recorded by Intelligence Officer Mr.Lodha, examined as PW-3 and the statement of appellant accused No.5 Smt.Naseebbanu was recorded by the Intelligence Officer Mr.Lodha. The Officers who recorded the confessional statements have been examined as witnesses in this case by the prosecution and considering their evidence, it is duly established that the statements of the appellants were voluntarily made and that they were free from any coercion or undue influence or promise. It is further submitted that mere fact that at the time when their statements were recorded, they were in custody of NCB Officers, cannot be considered that they were under any detention after arrest. The appellants were duly summoned by the NCB Officers and thereafter, their statements were recorded. Before recording the statements, the appellants were informed that they were not bound to make any statement and that their statements may be used against them and against other persons. 6.3 It is further submitted that though no corroboration is required to the statements recorded under Section 67 of the NDPS Act, but, in the instant case, statements of the appellants are corroborated by the evidence of the recovery of contraband article Charas as well as the evidence of NCB Officers and Panchas examined in this case. 6.4 On behalf of the respondents, it is submitted that as emerged from the evidence on record, entire transaction was on credit basis. The appellants were knowing each other and the evidence suggests that the payment was made through Angadia. Therefore, mere fact that at the time of personal search of the appellants, no sufficient money was recovered, which would have been sufficient to meet with the price of the Charas, that itself cannot be considered to be a ground to disbelieve the entire case of the prosecution considering the peculiar facts and circumstances of this case and the evidence on record. 6.5 It is submitted that as a matter of fact there is no discrepancy in weight of the contraband substance, which would render the entire prosecution case a suspicious one. It is further submitted that throughout the trial, the muddamal was kept available before the trial Court and considering the evidence of the material witnesses examined by the prosecution, it clearly transpires that the packets containing the samples etc. were shown to them and they identified the muddamal. 6.6 About the further statements recorded under Section 313 of the Cr.P.C., it is submitted that no illegality or any irregularity is committed by the trial Court in recording the further statements of the appellants. Nothing is suggested that any incriminating evidence used by the trial Court for recording the conviction was missed by the trial Court while recording the further statements of the appellants . The incriminating evidence used by the trial Court while recording the conviction was put to the appellants in their further statements recorded under Section 313 of the Cr.P.C. 6.7 On behalf of the respondents it is submitted that this being the first appeal wherein question of law and question of fact can be considered and in that perspective, the statements of the appellants recorded u/s.67 of the NDPS Act need to be appreciated, coupled with the fact that even during the course of hearing of these appeals, no ground is made out to come to the conclusion that the statements are outcome of any coercion, threat or any promise. 6.8 Learned advocate, Mr.Dave, for the respondent NCB and learned A.P.P., Mr.Vyas, for the respondent State of Gujarat, referring to the provision contained under Section 8(c) of the NDPS Act submitted that to produce, manufacture, possess, sale, purchase, transport, warehouse, use, consume, import interstate, export interstate, import into India, export from India or tranship in narcotic drug or psychotropic substance is expressly prohibited and the contravention so far as Charas is concerned, is made punishable under Section 20 of the NDPS Act. Our attention was drawn to Section 25 of the NDPS Act wherein any person who is owner or occupier or having the control or use of any house, room etc. knowingly permits it to be used for the commission of offence punishable under this Act is made punishable under Section 25 of the Act. Our attention was drawn to Section 29 of the Act which pertains to punishment for abetment and criminal conspiracy. In Sub-section 1 of Section 29 of the Act, it is clearly provided that 'whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and not withstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. (emphasis supplied). Therefore, it is submitted that considering the facts and circumstances of the case and evidence on record, the trial Court rightly came to the conclusion that all the appellants accused are guilty of the offences punishable under Sections 20, 25 r/w. Section 29 of the NDPS Act. 6.9 Learned advocate, Mr.Dave, for the respondent NCB and learned A.P.P., Mr.Vyas, for the respondent State relied upon certain judgments rendered by Hon'ble the Apex Court which shall be discussed in this judgment at relevant time. Ultimately, it is submitted that these three criminal appeals may be dismissed. We have examined the record and proceedings in context with the submissions made by the rival sides. At the outset, as emerged from the evidence on record, the Intelligence Officer NCB, Mr.Singh on 23.5.2002 received a secret information while he was in his office at Ahmedabad. Considering the evidence of PW-1 Mr.Singh, Exh.41, at about 10.30 a.m. in the morning, he received the information on telephone that in the house of accused No.1 Ketan Patel situated at 101, Chitrakoot Apartment, Kadiawad, Navsari, Charas is stored and that said Ketan Patel is dealing in Charas and within short period, he is to receive consignment of Charas at his residence. Said information was reduced into writing and was forwarded to his immediate superior. Exh.45 is the letter and the information which Mr.Singh received, which was reduced into writing by him was annexed with the letter, Exh.45. On this aspect of the matter, on behalf of the appellants, it was submitted that the prosecution should have produced the original writing containing the information. Now, considering the provisions contained under Section 42(2) of the NDPS Act, it is clearly provided that the concerned Officer who received the information and which he has reduced into writing, then he shall within 72 hours send a copy thereof to his immediate superior Officer. Under such circumstances, in the instant case, we are of the considered opinion that the mandatory requirement laid down u/s.42 of the NDPS Act cannot be said to have been violated. Moreover, in the case of Hamidbhai Azambhai Malik Vs.State of Gujarat reported in 2009(1) GLR 828, Hon'ble the Apex Court discussing the provisions contained u/s.42 of the NDPS Act, has observed that under Section 42(2), such empowered officer who takes down any information in writing or records the grounds under provisio to Sec.42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent, it is mandatory. 8.1 Thus, in light of the evidence on record, it cannot be said that in the instant case, there is total non-compliance of the mandatory requirement laid down under Section 42 of the Act. As stated above, considering the evidence of PW-1 Mr.Singh and the document, Exh.45, in the case, the mandatory requirements are duly and fully complied with. Further considering the evidence of Mr.Singh, it transpires that on 26.5.2002, he himself and other Officers of the NCB left Ahmedabad for Navsari and they reached Navsari at about 10 p.m. on 26.5.2002 and they stayed in Navsari circuit house. On behalf of the appellants, it was submitted that the defence has examined defence witness Dattubhai Valvi at Exh.270 and according to his evidence, at the relevant time, Mr.Valvi was serving as Clerk in Navsari circuit house and he has produced the extract of register containing the names of the guests in the circuit house and nothing emerges that the two rooms, namely, room No.7 and room No.8 in the circuit house were booked either in the name of Intelligence Officer NCB Mr.Singh or in the name of any the Intelligence Officer. We have carefully gone through the evidence of Mr.Valvi recorded at Exh.270 and the extract of guest register, Exhs.271, 272 and 273. Apparently, it is clear that, in the register, name of Mr.Singh or the name of any Intelligence Officer NCB, Ahmedabad does not figure out. Mr.Valvi in his cross-examination, clearly admits that the primary duty to make entries in the register is of his manager. However, he is serving as clerk and only in the absence of Manager, sometimes, he performs the duty to post necessary entries in the register. He further admits that he may not be present at the time when all the entries in the register were posted. Moreover, it has come on record that from 26.5.2002 till 29.5.2002 room Nos.7 and 8 were booked in the name of Mr.N.V.Chauhan PSI (ATS) and from 26.5.2002 to 29.5.2002 said rooms were occupied by NCB Officer Mr.Singh and other Officers of the raiding party. 9.1 Further considering the evidence of PW-1 Mr.Singh, on 27.5.2002, at about 6 a.m. in the morning, two Panchas, namely, Hormez Avari and Mukesh Shankarrao Gole were called in the circuit house. They were apprised about the secret information, and the raid at the residence of accused No.1 Mr.Ketan Patel was arranged. In his evidence, he narrated the entire facts regarding the raid. According to him, he himself, along with other Officers of the raiding party and Panchas as well as local Police Officer went to 101, Chitrakoot Apartment, Kadiawad, Navsari after drawing preliminary panchnama in the circuit house. Accused No.1 Ketan Patel opened the door and in the room of the house, two more persons were found seated and they were accused No.3 Abdul Salim @ Salimbhai and absconding accused Mahmad Ramzan. Officers of the raiding party introduced themselves to the trio and apprised them about the information which was received. The accused Nos.1 and 3 as well as the absconding accused Mahmad Ramzan were apprised that search was required to be conducted and if the search is required to be conducted in presence of any Gazetted Officer or Magistrate, then the accused have option, to which they stated that the Officers of the raiding party can carry on the raid. The personal search of the accused persons was conducted, but nothing objectionable was found. Thereafter, the room was searched and four packets were found out. Upon field testing, it was found that each packet contained Charas. Though on behalf of the appellants, attempt was made to suggest that provisions contained under Section 50 of the NDPS Act have not been duly complied with. However, considering the evidence of Mr.Singh, the mandatory requirements laid down u/s.50 of the NDPS Act have been duly and fully complied with. Moreover, considering the case of Megh Singh Vs.State of Punjab (2003)8 SCC 666, Hon'ble Apex Court discussing the mandatory requirements laid down u/s.50 of the NDPS Act has observed that the applicability of Section 50 of the NDPS Act arises only in case of personal search of a person. But, where the accused was found to be in possession of gunny bags, the search of such bags did not attract Section 50 . In the instant case, the contraband substance Charas was found from one attach?, which was lying in the room. No objectionable substance was found from the person of any of the three accused persons. However, as stated above, despite this, in the instant case, the requirements under Section 50 of the NDPS Act have been duly and fully complied with. Moreover, considering the evidence of PW-1 Mr.Singh, it transpires that during the search conducted in the room, the attach? containing four packets of Charas was found. The next procedure which was required to be carried out was to weigh the substance, preparation of samples and the packing and sealing of samples and packing and sealing of remaining contraband material. Mr.Singh deposed that the room was small enough to carry out the remaining procedure and, therefore, with the consent of the accused, they came back to circuit house, Navsari. In the circuit house in room Nos.7 and 8, weighment of Charas was made and gross weight of the substance was found to be 13 kgs. and 295 gm. whereas the net weight was 12 kg. and 899 gm. The samples were collected and were packed, sealed, and affixed the slips containing signatures of the Panchas. 10.1 On behalf of the appellants, it was vehemently argued that the sealing and packing of samples etc. should have been done at the place from where the contraband substance Charas was found. According to them, the substance should have been weighed in the room from where it was found and the remaining procedure about collection of samples, packing and sealing etc. should have been done in 101, Chitrakoot Apartment, Navsari. It was vehemently submitted that thus the standing instruction of NCB regarding collection of sample etc. have been violated. Our attention was drawn to the case of Khet Singh Vs.State of Union of India reported in AIR 2002 SC 1450. In paragraph 10 of said judgment, Hon'ble the Apex Court has observed that the instructions issued by the NCB, New Delhi are to be followed by the officers of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law . It is observed that it is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. There cannot be any dispute regarding the principles established by Hon'ble Apex Court in this respect. However, in the instant case, considering the evidence of PW-1 Mr.Singh, he has assigned reasons as to why the packing and sealing procedure was not conducted in the house of the accused No.1 Ketan Patel and why after conducting the search and seizure in the house of accused No.1 Ketan Patel, it was decided that the subsequent procedure should be conducted in circuit house, Navsari. The reason assigned by Mr.Singh is that considering the size of the room, they thought it fit to carry out the subsequent procedure in the circuit house. According to him, in that respect, the accused also consented. In this connection, if the panchnama, Exh.52 is considered, it is clearly stated that after search and seizure was conducted, it was decided to carry out further process regarding weighment of the contraband substance, the collection of samples, their packing etc. in circuit house, Navsari. Moreover, in this connection, if the evidence of Panch Hormez Firoz, PW-2 examined at Exh.125 is considered, he categorically supports the contents of the panchnama, Exh.52. According to him, from the attach? lying in the room, the four packets of Charas were found out. He further deposed that since the house of the accused No.1 Ketan Patel was small, and, therefore, Officers of the raiding party decided to carry out the task of sampling, sealing etc. in circuit house, Navsari. He further deposed that for that purpose, accused gave their consent. In this regard, if the evidence of Officers of the raiding party, namely, PW-5 Mr.Vikram Ratnoo, examined at Exh.158 and Mr.U.J.Pathak PW-7, examined at Exh.218 is considered, they also categorically corroborated the evidence of PW-1 Mr.Singh in all material particulars. Moreover, we will discuss about the statements of the accused recorded under Section 67 of the NDPS Act and their evidential value in detail in this judgment later on, but at this juncture, considering the statement of accused No.1 Ketan Patel, recorded u/s.67 of the NDPS Act, produced at Exh.59, he stated that at the time when his house was searched, his mother had gone to meet his mother's sister and he requested that his house may be locked and the key may be handed over to his neighbour before leaving the house for circuit house, so that his mother may not know about the illegal activity he was doing in the house. Thus, according to his statement, the mother of accused No.1 Ketan Patel was to arrive at any time and his mother was not knowing about the illegal activity he was doing, and, therefore, he requested that before going to circuit house, his house may be locked and the key may be handed over to his neighbour so that his mother may not be shocked. This aspect is also required to be considered as to why the Officers after seizure of the contraband substance from his house decided to perform other formalities not in the house itself, but in circuit house, Navsari. Therefore, in the instant case, we do not find any reason to come to the conclusion that since the contraband substance Charas was not weighed at the place from where it was seized and the other procedure, namely, collection of samples, their packing and sealing etc. was not carried out at the place of the seizure, that would render entire prosecution case a doubtful one. We do not find any reason to come to the conclusion that any procedural illegality or irregularity have been committed by the Officers of the raiding party in this respect. Considering the evidence on record, it clearly transpires that NCB Officer PW-1 Mr.Singh recorded the statement of accused No.1 Ketan Patel on 27.5.2002, which is produced at Exh.59, he also recorded the statement of accused No.3 Abdul Salim @ Salmibhai on 27.5.2002, which is produce at Exh.58. Considering the evidence of NCB Officers examined in this case and the statements, Exhs.58 and 59, it was revealed that accused No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1 Ketan Patel to collect 4 kgs. of Charas. It was further revealed that 9 kgs. Of Charas was to be delivered to accused No.2 Habibkhan Pathan (now deceased) at Vadodara. So far as accused No.3 Abdul Salim @ Salimbhai is concerned, it was further revealed that he was residing in Ahmedabad along with his wife accused No.4 Nituben and both husband and wife were doing business of selling Charas. The activity was conducted in his house at Ahmedabad. Immediately, on 27.5.2002, said information was passed on to Intelligence Officer Mr.Lodha at Ahmedabad. Considering the evidence of PW-3 Mr.Lodha, examined at Exh.128, upon receipt of such information, while he was in NCB Office, Ahmedabad, two Panchas, namely, Harshad Jadavji and Hitesh Doliwad were called. The Panchas were apprised about the information received and that the raid was required to be conducted at B/31/Kubernagar, Ahmedabad. On 27.5.2002 at about 1.30 p.m. Mr.S.J.Lodha, other Officers of the NCB along with the Panchas left the NCB office, Ahmedabad after preparing preliminary panchnama, for B/31/Kubernagar, Ahmedabad. That reaching to the place of the information, the accused No.4 Nituben Salimbhai, wife of accused No.3 Abdul Salim @ Salimbhai was found in the house. She was informed about the secret information received in this behalf and she was further informed that the search was required to be conducted and if she desires the search to be conducted in presence of Gazetted Officer or Magistrate, then she had the option, however, she did not opt for the same and stated that the search could be conducted by the Officers of the NCB. From the personal search, nothing objectionable was found, but there was a cupboard in the room and from the cupboard, one parcel was found. When the parcel was opened, a blackish green substance was found. Conducting the field testing, it was found to be Charas. Gross weight of Charas was 556 gm. and its net weight was 523 gm. Two samples were collected and the same were duly packed and sealed. Seizure panchnama, Exh.129 was drawn. The evidence of PW-3 Intelligence Officer Mr.Lodha, Exh.128 is duly corroborated in all material particulars by the evidence of Panch PW-4 Harshad Jadavji, examined at Exh.150 and the panchnama, Exh.129. On behalf of the appellant, it was strenuously submitted that the prosecution miserably failed to prove a very important fact that the premises at the Navsari from where four packets of Charas were seized and the premises at Ahmedabad from where also Charas was seized, were either owned by the accused No.1 Ketan Patel and accused No.4 Nituben Salimbhai or that they were in exclusive possession of the respective premises. However, in this respect, considering the evidence of the NCB Officers and the Panchas, so far as Navsari raid is concerned, it has come in evidence that at the time when the raid was conducted in 101, Chitrakoot Apartment, Kadiawad, Navsari, accused No.1 Ketan Patel was found in the house and it was he who had opened the door. Considering the secret information, Exh.45, it clearly transpires that the information was containing the name of the accused No.1 Ketan Patel and that he was to receive the consignment of Charas at his house 101, Chitrakoot Apartment, Navsari. Moreover, in this respect, considering the statement, Exh.59 of the accused No.1 Ketan Patel recorded u/s.67 of the NDPS Act, it is explicitly stated that in the house, accused No.1 Ketan Patel was residing and the same was used for storing the contraband substance and the same was distributed from said house. 13.1 So far as Ahmedabad raid is concerned, considering the evidence on record, when the Officers of the raiding party along with Panchas reached to the place of information i.e. B/31/Kubernagar, Ahmedabad, accused No.4 Nituben, wife of accused No.3 Abdul Salim @ Salimbhai was found in the house. Furthermore, in this respect, considering the statement of accused No.3 Abdul Salim @ Salimbhai, Exh.58 recorded u/s.67 of the NDPS Act and the statement of accused No.4 Nituben, Exh.131, recorded u/s.67 of the NDPS Act, not only they admitted the possession of the house in Ahmedabad, but, they stated that they were doing the business of selling Charas in the house. When such is the situation, we are of the considered opinion that the prosecution successfully established the nexus between the accused No.1 Ketan Patel and the house at Navsari and the nexus between accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben with the house in Ahmedabad. The contention, therefore, raised on behalf of the appellants that the prosecution failed to adduce any evidence to connect the accused persons with the respective premises, deserves to be discarded. However, on behalf of the appellants, reliance was placed upon the case of Om Prakash @ Baba Vs. State of Rajasthan, 2009 AIAR (Criminal) 818. Considering the facts of the said case, the concerned Police Officers had gone to the house of appellant Om Prakash not on the basis of any prior information regarding any contraband substance under the NDPS Act, but to arrest one accused, namely, Pankaj. However, while conducting search in the house, huge quantity of Charas, opium and Gaanja were recovered. Moreover in said case, a prosecution witness PW-3 categorically deposed that the house from where the contraband substances were recovered belonged to another person and not the appellant Om Prakash. There was no evidence of any exclusive ownership of Om Prakash of the house. Ultimately, Hon'ble the Apex Court came to the conclusion that the ownership and possession of the house and the place of recovery was uncertain. Now, the facts of our case are totally different. As stated above in our case, all the witnesses examined by the prosecution including the Panchas categorically connected the respective accused with the respective premises raided by them. Furthermore, in the instant case, the raid was carried out pursuant to the clear and cogent prior information connecting the respective accused with the respective premises. Under such circumstances, as stated above, in the instant case, the contention raised by the appellants that the prosecution failed to establish their connection with the respective premises deserves to be discarded. As stated above from the evidence on record, the purpose as to why at the time of the raid accused No.3 Abdul Salim @ Salimbhai was found in the house of accused No.1 Ketan Patel is duly established. On behalf of the appellants a contention was raised that the accused Nos.1 and 3 cannot be said to be in conscious possession of Charas lying in the house at Navsari. To deal with this submission, as stated above, at the time when the raid in Chitrakoot Apartment was conducted, both the accused along with absconding accused Mahmed Ramzan were found in the house. The evidence on record as well as the statements recorded u/s.67 of the Act of the accused reveals that the accused Nos.1 and 3 were not strangers to each other. In past they had a transaction of Charas. However, on behalf of the appellants, reliance was placed upon the case of A.K. Mehabood Vs.Intelligence Officer, Narcotics Control Bureau (2001)10 SCC 203. Considering the facts of the said case, it reveals that appellant Mehaboob was present in the house of co-accused Naushad and at that time a raid was conducted in the house of co-accused Naushad and 251 gm. of brown-sugar had been recovered, statements of the accused u/s.67 of the NDPS Act were recorded. So far as the appellant A.K.Mehaboob was concerned, his statement u/s.67 of the NDPS Act, did not contain any incriminating material, which would involve him either in a conspiracy or in an abetment for the offences committed by the other accused. Moreover, from his statement it was revealed that he was only informed by co-accused Naushad that brown-sugar could be supplied to him and, therefore, he went to the house of Naushad in response to that. Nothing revealed that appellant Mehabood parted with any money as consideration of the contraband article. Hon'ble the Apex Court further noted that price of 1 kg. of brown-sugar ranges from Rs.75,000 to Rs.95,000/-. It was observed that if the appellant Mehaboob had gone to purchase it, it cannot be believed that he would have gone without any cash with him. The facts of our case are totally different. The statements of the accused recorded u/s.67 of the NDPS Act, in the instant case, contained clear inculpatory materials. Moreover, in the instant case, there is nothing that on 27.5.2002, when the accused No.3 Abdul Salim @ Salimbhai was found in the house of the accused No.1 Ketan Patel, that was the first meeting with Ketan. The materials available on record reveals that in past there was transaction of Charas between them. It is true that during the personal search of accused No.3 Abdul Salim @ Salimbhai, small cash amount was found. Considering the statement recorded u/s.67 of the NDPS Act, it clearly reveals that the transaction was on credit. It further reveals that, in past, amount of consideration was sent by Angadia (carrier). Thus, the facts of the instant case are completely different than the facts and circumstances and the evidence on record in A.K. Mehaboob's case. On behalf of the appellants it was urged that in the instant case, the prosecution evidence reveals discrepancy in weight of the contraband substance. In this respect, so far as Charas recovered from Navsari is concerned, as per the oral evidence of NCB Officers and the seizure panchnama, Exh.52, the gross weight of Charas was 13 kgs. 295 gm. and the net weight was 12 kgs. and 899 gm. However, Panch PW-2, Hormez Firoj in his deposition, Exh.125 says that four packets were seized, one packet was weighing approximately 980 gm., 2nd packet was containing approximately 20 gm. to 25 gm. less than 4 kgs. and the 3rd packet contained approximately 3 kgs. of Charas. Then he says that the total weight comes to approximately 13 kgs. He further deposed that the four packets contained in all 135 round shaped lumps (laddu). On behalf of the appellants it was submitted that considering the evidence of Panch Hormez regarding the weight of the contents of each packet, the total comes to about 12 kgs. Now, in this respect, as stated above, Panch PW-2 Hormez in his evidence deposed about approximate weight of the contents of each packet. As admitted by him, he signed the panchnama, Exh.52 wherein it is stated that the gross weight of contents of these four packets was 13 kgs. and 295 gm. and the net weight was 12 kgs. and 899 gm. When such is the situation, we do not find any material discrepancy about the weight in the oral evidence of Panch PW-2 Hormez and in the Panchnama, Exh.52. 16.1 About Ahmedabad recovery, our attention was drawn to two communications, Exhs.172 and 174 addressed to one witness Moin Bapu @ Gaande Bawa of Ahmedabad dated 4.7.2002 and 26.7.2002 respectively by Intelligence Officer PW-5 Vikram Ratnoo, examined at Exh.158. In his communication Exh.172 dated 4.7.2002, it is stated that the communication was pertaining to inquiry about the seizure of 536 gm. of Charas from accused No.4 Nituben whereas in the communication dated 26.7.2002, Exh.174, it is stated that it pertains to inquiry about seizure of 556 gm. of Charas from accused No.4 Nituben. Now, in this case, considering the seizure panchnama, Exh.129, drawn at Ahmedabad in the residence of accused No.4 Nituben and the evidence of Investigating Officer PW-3 Mr.Lodha examined at Exh.128, it clearly transpires that upon weighment of Charas recovered from the house of accused No.4 Nituben, it was transpired that its gross weight was 556 gm. and net weight was 523 gm. In the communications Exh.172 and 174, weight stated comes to 536 gm. and 556 gm. respectively. Both the communications are effected by Intelligence Officer Mr.Vikram Ratnoo. Vikram Ratnoo is PW-5, examined at Exh.158 and we have carefully considered his evidence and during his entire cross-examined, nothing emerges that his attention was drawn to the communications, Exhs.172 and 174 about the discrepancy in weight. Moreover, the discrepancy in weight is well explained, if the evidence of Intelligence Officer Mr.Lodha along with Exh.129 panchnama is considered. 16.2 On behalf of the appellants reliance was placed upon the case of Rajesh Jagdamba Avasthi Vs. State of Goa (2005)9 SCC 773. As per the facts of said case, from the shoe of right foot of the accused 100 gm. of Charas was found which was sealed in envelope 'A', but when the envelope 'A' was opened by FSL, the weight of the substance was found out to be 98.16 gm. From the shoe of left foot of the accused, 115 gm. of Charas was found and the same was sealed in envelope 'B', but when the envelope 'B' was opened, it was found that the weight of the Charas was 82.54 gm. The High Court recorded conviction of the accused regarding the possession of Charas of 100 gm., which was sealed in envelope 'A' discarding the discrepancy in weight in respect of the contents of the envelope 'B' is not considered. Hon'ble Apex Court recording acquittal of the accused held that the discrepancy in weight was not minor discrepancy. No explanation was forthcoming from the evidence on record, regarding the discrepancy. Now, the facts of our case are totally different. As a matter of fact in the instant case, there may not be any material discrepancy about the weight of the contraband substance. So far as Navsari raid is concerned, in the oral evidence of Panch Hormez, he only stated about the approximate weight of the Charas recovered from the house of accused No.1 Ketan from Navsari. So far as Ahmedabad raid is concerned, considering the communications Exhs.172 and 174 addressed only to a witness by Intelligence Officer Vikram Ratnoo, the discrepancy, if any, in the weight of the contraband substance Charas recovered from the house of accused No.4 Nituben from Ahmedabad pales into insignificance because the available evidence on record reveals exact gross weight and exact net weight of the Charas recovered from the house of accused No.4 Nituben. On behalf of the appellants relying upon the case of E.Micheal Raj Vs.Intelligence Officer, Narcotics Control Bureau reported in (2008)5 SCC 161 it was submitted that in the instant case, as per the report of CRCL Delhi, Exh.184 regarding the purity of Charas allegedly recovered from the house of accused No.4 Nituben, the THC percentage is assessed as 4.1% whereas in the report, Exh.185 of the CRCL Delhi, the Charas allegedly recovered from the house of accused No.1 Ketan contained THC percentage of 3.7%. Therefore, it is submitted that if at all the case of the prosecution is accepted, as it stands and the involvement of the accused is established, yet, considering the total weight of the contraband substance and the percentage of THC arrived at by CRCL, Delhi, together with table contained in the notification attached to the Act and especially considering the Sr.No.23 pertaining to Charas, the small quantity is upto 100 gm. and commercial quantity is above 1 kg. of Charas, and, therefore, it is submitted that in the instant case, the trial Court should have recorded the conviction keeping in mind the small quantity. It is, therefore, submitted that about the small quantity, the sentence prescribed under Section 20 of the Act is imprisonment for six months or fine which may extend to Rs.10000/- or with both. It is, therefore, submitted that the appellants have already undergone more sentence than what was prescribed for possession of small quantity. Now, in this respect, first of all considering the definition of Cannabis (Hemp) contained under Section 2(iii) of the NDPS Act about Charas, it is defined as the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish . Thus, in the instant case, contraband substance Charas was in its natural form and was not a manufactured drug as defined in Section 2(xi) of Section 2 of the NDPS Act. In Charas, the separated resin may be in any form, whether crude or purified. Furthermore, we have considered the definition of opium defined under Section 2(xv) of the Act and it is defined that the 'opium' means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but, does not include any preparation containing not more than 0.2 percent of morphine. Now, so far as Charas is concerned, no fixed percentage of THC is prescribed in the definition of Charas like the percentage of morphine prescribed for opium. In this respect, considering the evidence of FSL witness Mr. Jan Mahmad Fakirbhai Mansuri, examined at Exh.263 in this case, in his cross-examination, he has rightly opined that it is not necessary for ascertaining whether a substance is Charas or not that it should contain a specific percentage of THC. Moreover, in the instant case, neither from the report of FSL nor from the report of CRCL, Delhi, it is revealed that in the Charas recovered from Navsari and from Ahmedabad, any neutral substance was mixed. Under such circumstances, the contention raised on behalf of the appellants that considering the percentage of THC, the quantity of Charas falls within small quantity and, therefore, the appellants should have been convicted accordingly for possession of the contraband substance of small quantity is devoid of any merits. Thus, the facts and circumstances and evidence on record in our case are totally different from the facts and circumstances of the case of E.Michael Raj relied upon by the appellants. The evidence further reveals that soon after the seizure of the contraband substance Charas, the samples and the remaining quantity of Charas duly packed and sealed were deposited in NCB godown. It is further revealed that the samples were received by FSL and CRCL in packed and sealed condition. During the course of evidence of witnesses, muddamal was shown to them and the same was duly identified. When such is the situation, the contention raised by the appellants that there was any possibility of tampering with the muddamal deserves to be discarded. The submission made on behalf of the appellants that since some of the NCB Officers of the raiding party like Mr.Vikas Ratnoo, did not claim travelling allowance and dearness allowance, and, therefore, the fact that for the purpose of carrying out raid at Navsari, they travelled from Ahmedabad to Navsari and that they stayed in Navsari for couple of days should not be believed. We do not consider such submission to be a material one, which would render the entire prosecution case a doubtful one. Mere fact that some of the Officers did not claim any TA and DA can be said to be insignificant. As revealed from the evidence on record, the Officers travelled in official vehicles and not by train or bus. Therefore, there was no question of claiming any TA. Claim for DA may not be compulsory. The evidence on record clearly suggests that the Officers of the NCB came to Navsari and carried out raid at the house of the accused No.1 Ketan Patel. About the Ahmedabad raid, it was submitted on behalf of the appellants that over and above accused No.4 Nituben in the house, one lady and one male member were found, yet, only Nituben is arraigned as co-accused. We do not find any substance in the submission for the simple reason that it has come on record that both the accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben were dealing in Charas and they were collecting Charas and were selling Charas. Mere presence of one another lady and a male member of the family in the house cannot be said to be a material circumstance to connect them with the crime. Over and above the recovery of Charas from the house of accused No.4 Nituben, there is her statement recorded by competent Officer under Section 67 of the NDPS Act. The argument made on behalf of the appellants regarding the statements of the accused recorded u/s.67 of the NDPS Act requires to be dealt with at some length. It is submitted that though on record, the prosecution tried to submit that the statements were recorded before arrest, but as a matter of fact, the accused were already under custody of NCB when their statements were recorded. It is further stated that the statements were recorded under the coercion and the statements were not the voluntary statements of the accused. It is further stated that though the appellant accused No.1, 3 and 4 during course of recording of evidence, did not retract their confessional statements, but in their further statements recorded under Section 313 of the Cr.P.C., they clearly retracted their statements. So far as accused No.5 Naseebbanu Pathan is concerned, it is submitted that even during the course of trial, she had forwarded the writing through jail, stating that her statement was recorded by using coercive tactics. Moreover, it is submitted that the bare statement can never be a base for conviction. If the statement is found to be free from any coercion, undue influence or promise and is found to be voluntary, then also, the same is required to be corroborated by other evidence on record. 21.1 Now, as revealed from the evidence on record, so far as appellant accused No.1 Ketan Patel is concerned, on 27.5.2002, his statement, Exh.59 was recorded by Intelligence Officer PW-1 Mr.S.S.Singh. The statement was recorded in Navsari circuit house. As revealed from his evidence, the statement, Exh.59 is in the handwriting of the accused Ketan Patel himself. So far as appellant accused No.3 Abdul Salim @ Salimbhai is concerned, his statement was recorded on 27.5.2002, Exh.58 by Intelligence Officer PW-1 Mr.S.S.Singh at Navsari circuit house. The statement of appellant accused No.4 Nituben Salimbhai was recorded on 27.5.2002 at NCB office, Ahmedabad by Intelligence Officer PW-3 Mr.S.J.Lodha, which is produced at Exh.131 and Mr.S.J.Lodha also recorded further statement of Nituben on 28.5.2002 at NCB office, Ahmedabad, which is produced at Exh.137. PW-3 Mr.S.J.Lodha also recorded statement of appellant accused No.5 Nasibbanu on 28.5.2002 at Ahmedabad NCB office which is produced at Exh.135. Except the statement, Exh.59 of accused No.1 Ketan Patel, the rest of the above-referred statement are in the handwriting of the concerned recording Officers. The concerned Officers have also recorded the statements of accused No.2 Habibkhan (now deceased) as well as of absconding accused Mahmed Ramzan as well as two witnesses of Angadia firm. At present we are concerned with the statements of the appellant accused persons. We have taken into consideration even the original statements of the appellant accused produced at Exhs.58, 59, 131, 135 and 137 from the record and proceedings of the trial Court. In connection with those statements, the concerned Intelligence Officers who recorded those statements were examined as witnesses in this case. We have carefully gone through the evidence of the Intelligence Officers, namely, PW-1 Mr.S.S.Singh and PW-3 Mr.S.J.Lodha. From their depositions, it clearly reveals that before recording those statements, the concerned accused was apprised of the facts that he was not bound to make any statement and if he makes any statement, same can be used against him and against other persons. If we read those statements, opening paragraph clearly reveals that the maker of the statement was apprised about the same. Furthermore, considering those statements of the appellants accused, it further transpires that the statements contained minute details regarding their family and their academic background which can be said to be only within the exclusive knowledge of the maker only. This rules out the possibility of concoction. If at all the Officer of NCB intended to concoct a false statement, such statement would not have contained such material which was within the exclusive knowledge of the maker of the statement. All the above-referred statements containing more than one pages bear signatures of the respective appellants accused persons as well as countersigned by the respective Officer, who recorded statement. The bare reading of Section 67 of the NDPS Act reveals that an empowered Officer as empowered u/s.42 of the Act may during the course of an inquiry in connection with the contravention of any provisions of this Act, call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder. He may require any person to produce or deliver any document relevant to the inquiry. He may also examine any person acquainted with the facts and circumstances of the case. 22.1 Considering the case on Kanaiyalal Vs. Union of India (2008)2 SCC (Cr.) 474, Hon'ble Apex Court dealing with the provisions contained u/s.67 of the Act held that the statement contemplated u/s.67 of the Act, is not the same as statement under Section 161 of the Cr.P.C. . The Hon'ble the Apex Court further held that the consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In para 41 of the judgment, Hon'ble the Apex Court, considering the similar provisions in other statutes held that at the stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him, he could be made an accused subsequently . It is further held that as long as such statement was made by the accused at the time he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operated nor would the provisions of Article 20(3) of the Constitution be attracted . Moreover, considering said case, it further transpires that the confessional statement was retracted by the accused immediately after its recording. Hon'ble Apex Court about the retraction of confessional statement in para 47 of the judgment observed that though an appilcation was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial, so as to water down the evidential value of said statement . Ultimately, in the said para 47, Hon'ble the Apex Court held that since a conviction can be maintained solely on the basis of such confession made u/s.67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant. 22.2 Now, applying the ratio laid down by the Hon'ble the Apex Court in Kanaiyalal's case, it becomes clear that while appreciating the evidence in form of statement u/s.67 of the Act, the prime duty of the Court shall be to ascertain as to whether statement is voluntarily made by the accused or not. In the instant case, considering the overall evidence on record, nothing emerges that the statements are outcome of any coercive tactics adopted by the concerned Officer of the NCB. Though it is submitted that so far as the appellant accused No.5 Naseebbanu is concerned, through jail, she forwarded an application to the Court of learned CJM retracting her confession. Nothing is pointed out as to ultimately, what was the order passed by the concerned Court in said application. Moreover, it transpires from the evidence on record that at the time when the statements of the appellants accused were recorded they were not arrested. Though statements of appellant accused Nos.1 and 3 were recorded at Navsari circuit house and the statements of appellants accused Nos.4 and 5 were recorded at NCB Office, Ahmedabad, but at that time, they were not arrested by the concerned NCB Officers. Considering the ratio laid down in Kanaiyalal's case, it is observed by Hon'ble Apex Court that at that stage, the person concerned is not an accused and that he may be said to be in custody . Mere custody does not mean that said person is duly arrested and kept in custody. To put it differently, in the instant case, nothing is revealed that the statements are post arrest confessional statements of the appellants. In the instant case, the evidence on record further reveals that after recording of their statements, the accused were produced before concerned Judicial Magistrate. Nothing comes out from the evidence on record that at that time any of the accused made any complaint against any of the Officers of the NCB about the ill-treatment meted out to the accused or any coercive tactics adopted by the Officers while recording their statements. After the oral evidence led by the prosecution was concluded, the trial Court recorded further statements of the accused and during the course of their further statements recorded u/s.313 of the Cr.P.C., the accused retracted their confessional statements. It is further pertinent to note that in the oral evidence of concerned Intelligence Officer who recorded the statements, nothing is revealed that any coercive tactics were adopted while recording the statements. Considering their depositions on this point, no effective cross-examination appears to have been made on behalf of the accused and almost similar was the situation if Kanaiyalal's case is considered. The trial Court in the impugned judgment, therefore, rightly came to the conclusion that the appellant accused made voluntary statements under Section 67 of the NDPS Act. We have independently examined such conclusion arrived at by the trial Court and we are satisfied that the trial Court rightly came to such conclusion. On behalf of the appellants, case of Noor Aga Vs. State of Punjab reported in 2008(9) SCALE 681 was relied upon. However, considering the facts and circumstances of the said case, appellant Noor Aga, when he arrived at the airport, at that time, concerned Customs Officer carried on search of the belongings of the appellant and contraband substance was found. In the said case, the prosecution did not produce the physical evidence before the trial Court particularly the sample of the purported contraband material. No independent witnesses were examined. There was huge discrepancy in the evidence of official witnesses in regard to search and seizure. The confessional statement of the appellant was recorded u/s.108 r/w.Section 138(B) of the Customs Act, 1962. In that background, Hon'ble Apex Court allowed the appeal and recorded acquittal of the appellant. Now, in the instant case, no such infirmities are there as were there in Noor Aga's case. We do not find any material discrepancy in the evidence of the NCB Officers examined in the instant case. Moreover, in the instant case, the concerned NCB Officers recorded the statements of the appellants accused u/s.67 of the NDPS Act. 23.1 On behalf of the appellants, case of Union of India Vs.Bal Mukund & Ors. 2009(2) Supreme 170 was relied upon. In said case, the statements of the appellants accused were recorded u/s.67 of the NDPS Act. Considering the facts of said case, Hon'ble Apex Court considered the infirmities in the prosecution case. There was outright non-compliance of the mandatory provisions contained u/s.42 of the Act. During the course of trial before the trial Court, the confessional statements were retracted. It was further observed that the confession of accused u/s.67 of the NDPS Act does not bind his co-accused. In said background and considering the peculiar facts and circumstances of the said case and the infirmities emerged from the evidence on record, Hon'ble Apex Court held that the conviction should not be based merely on the basis of a confessional statement without any independent corroboration. Now, the facts of our case are totally different. In our case, as stated above, no mandatory requirements laid down under the Act have been violated by the NCB Officers. Nothing transpires that the evidence of the NCB Officers suffers from material discrepancy or infirmity. In the instant case, there is nothing that the statement of co-accused is used while recording the conviction. All the appellants accused individually made their statements u/s.67 of the NDPS Act before the concerned authorities. 23.2 Under such circumstances, considering the facts and circumstances of the instant case and considering the facts and circumstances and evidence in Kanaiyalal s Case (supra), we are of the considered opinion that the statements recorded under Section 67 of the NDPS Act of the appellants accused deserve to be considered. Nothing transpires that the statements are outcome of any coercion, undue influence or any promise. On behalf of the appellants case of Raju Premji Vs.Customs NER Shillong Unit reported in 2009 AIAR (Cr.) 531 is relied upon. However, considering the facts of the said case, which was arising under this Act, the search of accused persons was conducted without complying with Section 50 of the Act. The accused persons were not actually found in possession of any contraband. Moreover, when the statements of accused persons were recorded, they were in police custody. Hon'ble the Apex Court in paragraph 19 observed that statement made by them while in custody of Police Officer would be inadmissible in evidence. In paragraph 23 of said judgment, Hon ble Apex Court further observed that where a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case . Thus, the facts of our case are totally different. In the present case, nothing transpires that at the time when the statements of the appellants accused were recorded under Section 67 of the Act, they were in police custody or that they were actually arrested. To put it differently, there is nothing that statements were post arrest statements. 23.3 On behalf of the appellants, judgment dated 21.12.2009 delivered in Criminal Appeal No.488 of 2006 with Criminal Appeal No.568 of 2006 with Criminal Appeal No.799 of 2007 delivered by this Court (Coram: A.L.Dave and H.N.Devani, JJ.) in the case of Zarina Gulam Haji Bhat & Ors. Vs. State of Gujarat & Ors. Is relied upon. However, considering the facts of said case, it transpires that original accused No.1 Abdul Sheikh was intercepted by NCB Officers while he was driving the truck and from the secret compartment of the truck, Charas was seized. In his statement recorded u/s.67 of the NDPS Act, he only stated that he was to deliver Charas to accused No.2 Suresh Gupta and accused No.3 Zarina at Mumbai. The statement did not reveal any further details of Suresh and Zarina. The statement was recorded in NCB Office Ahmedabad on 6.1.2002 and on next day i.e.7.1.2002, Suresh and Zarina were picked up from Bombay. It further transpires from the facts of said judgment that Zarina was already undergoing a sentence and she was already confined to jail in Bombay. The statement of accused No.1 Abdul Sheikh did not contain any details except the first name of Suresh and Zarina. The NCB Officer who picked up co-accused Suresh and Zarina was not examined as witness. This Court, therefore, came to the conclusion that it was not safe to convict a person on the basis of statement of co-accused only when their initial identity and thereby nexus with the crime is not properly established. Under such circumstances, ultimately, the conviction of accused No.1 Abdul Sheikh recorded by the trial Court was confirmed and his appeal came to be dismissed. However, the appeal preferred by appellant original accused No.2 Zarina Gulam Haji Bhat and appellant original accused No.3 Suresh Gupta came to be allowed and they were ordered to be acquitted. The facts of our case are totally different. In the instant case, the statement of accused No.1 Ketan Patel recorded in 1st point of time on 27.5.2002, Exh.59 contained all the details regarding co-accused. So far as accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben are concerned, they are husband and wife. Accused No.3 Abdul Salim @ Salimbhai was found in the house of the accused No.1 Ketan Patel. The raid was carried out at Navsari. Accused No.3, Abdul Salim @ Salimbhai in his statement, Exh.58 provided all the details about the name and full address of his wife accused No.4 Nituben and accordingly, the Intelligence Officer PW-3 Mr.Lodha raided the house of accused Nos.3 and 4 at Ahmedabad and Charas was recovered. Statement u/s.67 of the Act of accused No.4 Nituben was also recorded subsequent to the recovery of Charas from her house at Ahmedabad. On behalf of the appellant accused No.5, Naseebbanu, it was vehemently submitted that so far as accused No.5 Naseebbanu Pathan is concerned, she is convicted by the trial Court solely on the basis of her statement, Exh.135 allegedly recorded by Intelligence Office of NCB PW-3 Mr.Lodha on 28.5.2002. Nothing objectionable was recovered from her or from her house. However, perusing the evidence of NCB Officers examined in this case, together with the statement of accused No.4 Nituben, recorded u/s.67 of the Act, Exh.137, it clearly transpires that the Charas which was seized from her house was supplied to her by accused No.5 Naseebbanu. In her statement, Exh.135, she identified the accused No.4 Nituben as the lady to whom Charas was supplied by her. She further stated that prior to this, for about 10 times, Charas was supplied by her to accused No.4 Nituben. We have seen that all the statements of the appellant accused persons, including the statements of accused No.5 Naseebbanu are voluntarily made by them and the statements are not outcome of any coercion, threat or promise. It is pertinent to note that accused No.5 Naseebbanu is not convicted merely on the basis of statement of co-accused No.4 Nituben. Her own statement was also recorded. Her statement also gets corroboration by the evidence regarding the recovery of Charas from the house of accused No.4 Nituben, which, before a week she had supplied to Nituben. In the result, we are, therefore, of the considered opinion that the trial Court rightly relied upon the statements of the appellants accused recorded under Section 67 of the NDPS Act. On behalf of the appellants, it is submitted that as per the prosecution case, Charas was recovered from Navsari as well as from Ahmedabad. It is submitted that about the Charas recovered from Navsari, a separate trial should have been conducted in the competent Court at Navsari and about the Charas recovered from Ahmedabad, again a separate trial should have been conducted at Ahmedabad, but in the instant case, a joint trial was conducted at Navsari even regarding the recovery of Charas from Ahmedabad. It is further submitted that the original accused Nos.1,2,3 and 4 came to be convicted for the offences regarding Charas recovered from Navsari as well as the original accused Nos.3 and 4 were again convicted regarding the recovery of Charas from Ahmedabad. That, thus, the joint trial itself was material irregularity committed by the trial Court and recording conviction of original accused No.3 Abdul Salim @ Salimbhai and original accused No.4 Nituben twice can be said to be further irregularity as well. Now in this connection, considering the facts of the present case, it clearly transpires that the initial information was received by the concerned Officer of the NCB regarding Charas in the house of accused No.1 at Navsari. At the time of the raid being carried out in the house of accused No.1 at Navsari and when the Charas was found from his house, at that time accused No.1 Ketan Patel, accused No.3 Abdul Salim @ Salimbhai and absconding accused Mahmed Ramzan were found. From the statements of the accused Nos.1 and 3, it was revealed that accused No.4 Nituben, resident of Ahmedabad and the wife of accused No.3 Abdul Salim @ Salimbhai was also dealing in Charas at Ahmedabad and as a matter of fact, the accused No.3 Abdul Salim @ Salimbhai had come to Navsari at the place of accused No.1 Ketan Patel for the purpose of getting 4 kgs. of Charas. On the basis of said statement, raid was conducted at Ahmedabad and from the house of accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben, Charas was found. The trial Court in the impugned judgment held that the offence was continuous offence and the offences which were committed though at different places, but in the course of the same transaction. In this connection, considering the Sub-clause (d) of Section 178 of the Cr.P.C., it is provided that where it consists of several acts done in different local areas, It may be inquired to or tried by a court having jurisdiction over any of such local areas. Moreover, Sub-Clause (d) of Sectoin 223 of the Cr.P.C. prescribes that person accused of different offences committed in the course of the same transaction, may be charged and tried together. Moreover, in the instant case, it is pertinent to note that the trial Court recorded conviction of the appellant accused persons regarding offences arising under the NDPS Act read with Section 29 of the Act. Relevant part of Section 29 of the Act runs as under:- Section 29 Punishment for abetment and criminal conspiracy (1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. A person abets..... In the instant case, as emerged from the evidence on record, the offence which was committed at Navsari and the offence which was committed at Ahmedabad were part and parcel of a criminal conspiracy regarding trafficking of Charas by the appellants accused. The trial Court in the impugned judgment assigning cogent and convincing reasons, discarded the identical contention raised on behalf of the accused that the joint trial was illegality. Considering the facts and circumstances of the case as well as the relevant provisions contained under the Cr.P.C. and the NDPS Act, as discussed above, we do not find any illegality or any irregularity in the conclusion arrived at by the trial Court that the joint trial was permissible and cannot be termed to be illegality. When such is the situation, we are of the considered opinion that the conviction recorded by the trial Court so far as original accused No.3 Abdul Salim @ Salimbhai and original accused No.4 Nituben regarding the offence of recovery of Charas at Navsari and the offence of recovery of Charas at Ahmedabad cannot be said to be illegal. It is further pertinent to note that original accused No.5 Naseebbanu is not convicted for the offence of recovery of Charas at Navsari. Considering the overall evidence on record as well as the statements of the appellants accused recorded under Section 67 of the NDPS Act, nowhere it emerges that she was in any respect connected with the Charas recovered at Navsari. Her conviction is recorded by the trial Court only regarding the offence pertaining to the Charas recovered at Ahmedabad. On behalf of the appellants it was further submitted that if the statements of the appellants recorded under Section 313 of the Cr.P.C. are considered, almost identical questions were put to all the accused irrespective of fact whether particular question was relevant to particular accused or not and thereby a prejudice was caused to the accused. We have minutely taken into consideration the further statements of the accused recorded by the trial Court under Section 313 of the Cr.P.C. However, considering the further statements, it appears that entire material emerged from the evidence on record and used against them was put to all the accused persons, and nothing is specifically indicated that any material ultimately used by the trial Court while recording the conviction of the accused was not put to him and he was not given any opportunity to explain such material and his conviction was recorded. However, we do not find any illegality or any infirmity committed by the trial Court while recording the further statements of the accused under Section 313 of the Cr.P.C. On behalf of the appellants, it was submitted that the trial Court misinterpreted the provisions regarding the presumption contained under Section 35 and Section 54 of the NDPS Act. Section 35 of the Act pertains to presumption of culpable mental state and Section 54 pertains to presumption from possession of illicit articles. It is submitted that straightway presumptions cannot be raised and initial burden lies upon the prosecution to prove its case beyond any reasonable doubt. In this connection, considering the facts and circumstances and evidence on record in the instant case, we are of the considered opinion that the initial burden about proving the case beyond any reasonable doubt has properly been discharged by the prosecution. The prosecution proved beyond reasonable doubt the nexus and connection of the appellants accused with the contraband article Charas. Once the initial burden is discharged, the trial Court rightly raised the presumption regarding the culpable mental state and the presumption contained under Section 54 of the Act. Considering the provisions contained under Section 54 of the Act, it is clear that once the prosecution adduced evidence, connecting the accused with the contraband substance under the Act and the evidence is found to be beyond any reasonable doubt, the burden shifts upon the accused to satisfactorily account for said possession. In the instant case, the only defence raised by the appellants accused is of bare denial. To put it differently, the presumption contained under the Act has not been duly rebutted by the accused. In light of the entire above discussions, therefore, we are of the considered opinion that the trial Court rightly recorded the conviction of the appellants accused for the offences charged against them. The appellants accused Nos.1, 3 and 4 are convicted of the offences pertaining to commercial quantity of contraband substance Charas and the trial Court, therefore, rightly awarded the minimum sentence prescribed under Section 20(b)(ii)(c) of the NDPS Act and rightly awarded the sentence of R.I for ten years and fine of Rs.1 Lac. 30.1 Moreover, along with appellant original accused No.5 Naseebbanu, the appellants accused Nos.3 and 4 are convicted of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act regarding the recovery of Charas at Ahmedabad from their house. The Charas recovered was more than the small quantity, but lesser than the commercial quantity as prescribed under the NDPS Act. As discussed above in this judgment, the trial Court rightly recorded conviction of appellants accused Nos.3 and 4 for intermediate quantity of Charas recovered from their house at Ahmedabad and rightly awarded the sentence accordingly. The trial Court has also directed that the sentences of imprisonment shall run concurrently. However, so far as appellant accused No.5 Naseebbanu Pathan is concerned, her conviction is recorded for the offence under Section 20(b)(ii)(B) of the NDPS Act wherein no minimum sentence is prescribed and the said offence is punishable with R.I for a term which may extend to ten years and with fine, which may extend to Rs.1 Lac. She is convicted for the offence of recovery of Charas which was though more than small quantity, but lesser than commercial quantity. It is further pertinent to note that pending the appeal, appellant original accused No.5 Naseebbanu Yusufkhan Pathan by order dated 18.9.2008 in Criminal Misc.Application No.10718 of 2008 came to be released on bail and her sentence was ordered to be suspended and at the time when she was released on bail, she had already undergone imprisonment of six years and three months out of the total imprisonment of seven years awarded to her. Learned advocate Mr.Agrawal for the appellant accused No.5 Naseebbanu stated at bar that she had already deposited the amount of fine of Rs.50000/- awarded by the trial Court. Considering the facts and circumstances of the case, it would be in the fitness of the things, if the sentence of imprisonment awarded to her by the trial Court is altered to the period already undergone by her in jail. The appellants are also convicted for the offences punishable under Section under Sections 25 and 29 of the NDPS Act. However, no separate sentences are provided for the offences and they are punishable with the punishment provided for principal offences. Accordingly, for principal offences, the trial Court has awarded the sentences in accordance with the quantity of Charas seized, as discussed above. In the result, the appeals preferred by appellants accused Nos.1, 3 and 4 bearing Criminal Appeal Nos.718 and 994 of 2007 are devoid of any merits and deserve dismissal. The appeal preferred by appellant accused No.5 deserves to be partly allowed only to the extent of the sentence, maintaining her conviction recorded by the trial Court. For the foregoing reasons, Criminal Appeal No.718 of 2007 and Criminal Appeal No.994 of 2007 stand dismissed. Criminal Appeal No.1440 of 2008 is partly allowed. The conviction of appellant original accused No.5 Smt.Naseebbanu Yusufkhan Pathan recorded by learned Additional Sessions Judge, 2nd Fast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1 of 2003 for the offences punishable under Sections 8(c), 20(b)(ii)(b), 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is maintained. However, the sentence of imprisonment of R.I for seven years awarded to the appellant original accused No.5 Smt.Naseebbanu Yusufkhan Pathan is altered to the period already undergone by her in the jail, maintaining the order of fine. Since she has already deposited the fine, she is not required to surrender to jail. Her bail bonds shall stand cancelled. (Ravi R.Tripathi, J.) (J.C. Upadhyaya, J.) (binoy)     Top

Author: Ravi R.Tripathi,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp;

Abdul vs 2 Criminal on 27 January, 2010

Gujarat High Court

1 AT BANGALORE } Dated this the 19m day ofJunc, 2003 M am:-can: um nomm an wmcn D WriiPeg;'g'onNo. 1 sm. MANJUNATHA HOUSING __ co---o?3RA'rIvE SOCIETY L'l'D,W._,__ BASAVANAGAR, HALYAL-. Row, ' - DHARWAD. DI-IARWAD 13:s*m:t,=':é ' _ _ . BYI'I'SSECRETjARY,- F'E'I'!'I'}ONER %%%% ' {i€'»yMVs§-igg , Adm] 1. THE Joi'rs*Ij%:2a:disffR.aR{:ii? cc-o1?EieA1*:?JE: socrmgs, BELGAUM DI*«ii'SIQN,_ " ._ Vi;.'A'I'~E HUCHAWA MITTALKOD, AGED 6? YEARS, I'-'€~_lO If:'O..BB 39, K1-LB. COLONY, KA'J.'AL.,BYRASANDRA, R.'I'. NJKGAR, .. " Lg.NGALoRE -- 560 032. RESPONDENFS Smt. Asha M. Kumbaragerimath. HCGP for R1; Decpti, Sri. Pramod, Advs. hr Sri. K.V. N as Sri. Kcmpcgowda, Advs. For R2] made'.oI:.e_V_ gtounds before the tribunal, the dismissed the appeal and _ __petilioner~society is compelled to file the ll preserlt petition. " respondent is represented by Ms Asha M __ learned Government Pleader and the 3 member with interest at the rate of 18% p.21. aggrieved by this order, thepetitioner had " appeal to the tribunal and the tribunal Q the appeal also, the petitioner-socie';t'$rlAll1;.<;;lls 3. Appearing for the petifiofielig» learned counsel, ie per se bad for the reasoztthat had in fact offered an but he did not lltlierelwas no question of allotting register should not have awardedllirttereetlat of 18% p.a.; that though i V' 'j:_iris<iiction"e* A "seeking relief in respect of a proper caiiseg' " V iientzeti this writ getition is dismissed with cost of Rs it /-- H (Rupees five thousand only) payable by the petitioner to the second respondent, which is to be ii deposited before this court by the petitioner and on such 4 second respondent-member is represented / s Pramod and Deepthi, appearing on behair j Narasimhan. 5. The matter is fiivoious, examination in writ lien oft the opinion that the Wieis' to refund the amount deposited iiseeoqfiei,':r¢:§:3;3ndent--member, which was with interest at the rate" order is found not meritixig xépjjeilate tribuzlal, I do not find tvith the impugieci orders in writ j1ufisdietie_:i1.'..'.*Wi%itiiietifion is more an abuse of Writ 0%/.o S deposit, is permitted to be Withdrawn by ti1e §§coI1d respondont through his cotmsoi. The cost _ or deposited by the petitioner V' today, failing which, the registxja cartificate in favour of the second 1*t::§po;V1c{eAii'£-,_'1\?'or 3 . of the cow; as though it is a decree COUIT.

Author: D.V.Shylendra Kumar

Sri Manjunatha Housing Co ... vs The Joint Registrar on 19 June, 2008

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 35151 of 2008(I) 1. DEEPTHY.V.S, ... Petitioner Vs 1. THE CHIEF REGISTRAR OF BIRTHS AND ... Respondent 2. KOLLAM CORPORATION, 3. THE REGISTRAR OF BIRTHS AND DEATHS, For Petitioner :SRI.S.SANTHOSH KUMAR For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :06/02/2009 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 35151 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th February, 2009. J U D G M E N T The petitioner's husband Manikantan is employed in Dubai. In the wedlock, a child by name Anupama was born on 5-2-2000 in Nani Memorial Nursing Home at Kollam. The petitioner originally obtained Ext. P1 birth certificate on 31-10-2000 in respect of her child. She lost the original of the same, which prompted her to file another application, which resulted in issue of Ext. P2 birth certificate dated 20-2-2001, original of which is no longer with her. Again the petitioner applied for and obtained another certificate, in which there were serious mistakes in the material particulars regarding father's name etc. Therefore, the same was returned immediately for correction. The petitioner's grievance now is that birth certificate is not being issued to the petitioner and the 3rd is insisting on the petitioner producing the original of Exts.P1 and P2 as a condition for issuing the same, which are not available with the petitioner. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: 2. A counter affidavit has been filed in which it is stated that certain mistakes have occurred in the matter without correcting which the birth certificate as desired by the petitioner cannot be  W.P.C. No. 35151/2008. -: 2 :- issued now. Therefore, counsel for the 3rd respondent submits that if the petitioner files an appropriate application for correction, the same would be considered and a corrected birth certificate as desired byo the petitioner would be issued to the petitioner without delay. In the above circumstances, the writ petition is disposed of with the following directions: The petitioner shall forward a proper application with all details for appropriate correction as desired by the petitioner in the birth register. The 3rd respondent shall consider the same in accordance with the circular issued by the Government on the subject as also the decisions of this Court in Sivanandan v. Registrar of Births & Deaths, [2007 (3) KLT 721] and Varghese v. Director of Panchayat, [2008 (2) KLT 278] as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of the application. Sd/- S. Siri Jagan, Judge. Tds/ 

Deepthy.V.S vs The Chief Registrar Of Births And on 6 February, 2009

Kerala High Court

"' """"' V' """"""""'*" "N" '-V"!-'».Vr RHKWHINM mur: t-uunu ur nancmuann 3-nu:-1 uousu or-' KARNATAKA HIGH COURT OF KARNATAKA HIGD-1 COU IN TEE I-IIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 19m my OF JANUARY, PRESENT 'rm; HG:-mLE MR. JUSHCE I{.SI2EE1}E1§,'§I:A€Vl?§§L§3.._A ; AND '11-m Homnm ma. Jumtca % szo LATE Immsmmg «rams » % g 1; % we mmuarmmmzkwmaa MY?-GEE' , MYSDRE D1813.' ' (BY SR1 : ; AIIN} _M._fi;~H§LT;?aARAJH s;c:A%mnrcmnm A .31 YEf23!.I2f3,33RiVE1'€: %%yyRIO%HEW MODEL Hcxxszz ASHOKPURAM x mfimzs. '-ELIAOI-IAI%D KHASIM ; 55 YEARS T Rm 101, 22113 snag 31213 CROSS, M.G.ROAD UDAYAGRI MYSORE-19. -. -u . . ...... ........:.V_,..V:... nnnauniunn ruun Luuxl or KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH cou 3. HATIOKAL INSURANCE COMPANY RAMASWAMY CIRCLE msonz. REsPc>Hz>Em~s"% kT%% (BY sm : B.C. SEETHARAMA RAG, ADV FOf¥:i?3}::. *7 -um-vac-mu '11-as mm mm Ins A1735)' AGAINST THE mmmm Am) '-A'WAI'<EE_:J % 2.11.2002 PASSED IN MVC*HC_). 104199 F1iLE _ > OF THE 1 ADDL. cxvn. m1z.1:m,;%%&%%MAm., msozm, PARTLY CLAIM PETITION FOR C.0.!\@EHSATI0ll 'SEEKINQ ENHANGELENT opconmnsarnox. ' THIS Mm £:.m.aI1§t:{¢c:i%: «mm. THIS DAY. uunmm agmgggm; r;m;%:+*<:Lmwmca:-- Ne.1 and notice to I€:J_. L3~ ed with App11ca' tinn for a¢1§yaf'12a daya is allowed and delay is Pfititianer S a paaa.e:ngm' in a bus V r with frae::turc c-f mvical and Petitiana was inpa5m1t in tlm hospital for montfm am alas book tz-aawent in HMHANS. BecaunaofinjurytaoewicaIand7&vm'tibm,t1'w %/

Author: K.Sreedhar Rao S.N.Satyanarayana

Chikkamadaiah S/O Late Kenchaiah vs M N Nagaraju S/O Manchaiah on 19 January, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 16754 of 2009(R) 1. SUNITHA K.K., ... Petitioner Vs 1. A.S. RAMESH, S/O.SUKUMARAN, AGED ... Respondent For Petitioner :SRI.SUNIL NAIR PALAKKAT For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT The Hon'ble MRS. Justice M.C.HARI RANI Dated :06/07/2009 O R D E R R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * W.P.(C).No.16754 of 2009 ---------------------------------------- Dated this the 6th day of July 2009 J U D G M E N T (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr // True Copy// PA to Judge  W.P.C No.16754/09 3  W.P.C No.16754/09 4 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009  BASANT,J The short grievance of the petitioner in this writ petition is that E.P.No.60/06 has not been received with the expedition which it requires. Report of the learned Judge of the Family Court was called for. The report dated 30/6/2009 has been received. The learned counsel for the petitioner submits that now notice has been ordered on 01/07/2009 and the petitioner is taking necessary steps as directed by the Family court. Earlier, such specific directions were not there and that is what obliged the petitioner to come to this court, submits the learned counsel for the petitioner. 2. The learned counsel for the petitioner submits that in the light of the steps subsequently taken, the petitioner does not want any further directions in this writ petition. There may only be a direction that E.P.No.60/06 must be disposed of as expeditiously as possible. W.P.C No.16754/09 2 3. We find merit in the said request. With the direction/observation that the Family Court must make every endeavour to dispose of E.P.No.60/06 as expeditiously as possible, at any rate, within a period of six months from the date on which a copy of this judgment is placed before the learned Judge, this writ petition is dismissed. 4. Communicate a copy of this judgment to the court below. The court below shall report compliance to this court.

Sunitha K.K vs A.S. Ramesh on 6 July, 2009

Kerala High Court

JUDGMENT Curgenven, J. 1. The plaintiff sued to establish his right as hereditary trustee of the Sri Papavinasaswami Temple at Vikramasingapuram village in Ambasamudram Taluk of the Tinnevelly District and for certain consequential reliefs. The plaint alleges that the temple committee, the 1st defendant, in disregard of the plaintiff's hereditary right as trustee, had held that he had vacated office under Section 51 of the Madras Hindu Religious Endowments Act and had appointed the 2nd defendant as sole trustee of the temple. The learned Subordinate Judge of Tinnevelly has found that a suit of this character is barred by the provisions of the Act above referred to, and this is the sole question which we have to decide in appeal. 2. There is ample authority for the view that a suit to establish a personal right of this character does not fall within the terms of Section 92 of the Code of Civil Procedure. It is true that in Subramania Pillai v. Krishnaswami Somayajiar (1919) I.L.R. 42 M. 668 a suit by two out of three trustees of a temple for a declaration that the appointment by the devasthanam committee to fill a vacancy in the third trusteeship was invalid was held to fall under that section; but this decision was not approved in the Full Bench case, Appanna Poricha v. Narasinga Poricha (1921) I.L.R. 45 M. 113 : 41 M.L.J. 608 (F.B.) in which it was held that the class of suits contemplated in Section 92 was one representative in character, one or more persons being enabled by it to sue on behalf of the public and sanction being required as a precaution against wasteful litigation. The learned Judges who decided that case referred with approval to the elaborate judgment of Woodroffe, J., in Budree Das Mukim v. Chooni Lal Johurry (1906) I.L.R. 33 C. 789 where the principle underlying the section has been explained and illustrated. So far as a suit is brought by a plaintiff in his individual capacity as a trustee to enforce his individual claim to be such trustee, it does not lie within the scope of the section. Mr. T.M. Krishnaswami Aiyar, who recognises that the authority of the Full Bench case is fatal to his position upon this point, contends that it has been superseded by the judgment of the Privy Council in Abdur Rahim v. Mahomed Barkat Ali (1927) L.R. 55 I.A. 96 : I.L.R. 55 C. 519 : 54 M.L.J. 609 (P.C.), but I cannot find that that decision does more than set at rest the question of the mandatory nature of the section, it being, decided further that Sub-section (2) does not extend the scope of Sub-section (1). A reference to the arguments on behalf of the respondents in that case will show that it was conceded that a suit in respect of a private right, where no breach of trust is alleged, may be maintained without the sanction of the Advocate-General. 3. Turning now to the Madras Religious Endowments Act, we have to see whether such a suit is barred by any of its provisions. The Act provides for the institution of suits, or for reference to a Court, in a number of circumstances--see, for instance, sections 55 (4), 57, 63, 65 and 67--and then ensues the more general Section 73. It is admitted that if the suit is barred it must be by the terms of this last section. It runs as follows: (1) The Board or Committee having jurisdiction over any math or temple or any person having interest and having obtained the consent of the Board may institute a suit in the Court to obtain a decree- (a) appointing or removing the trustee of a math or excepted temple, (b) vesting any property in a trustee, (c) declaring what proportion of the endowed property or of the interest therein shall be allocated to any particular object of the endowment, or (d) granting such further or other relief as the nature of the case may require. (2) Sections, 92 and 93 and Rule 8 of Order 1 of the First Schedule of the Code of Civil Procedure, 1908, shall have no application to any suit claiming any relief in respect of the administration or management of a religious endowment and no suit in respect of such administration or management shall be instituted except as provided by this Act. 4. It will be seen that the first part of this section is modelled very closely upon Section 92 of the Civil Procedure Code, some of the reliefs which may be sued for under the terms of Section 92 being reproduced verbatim while others are provided for elsewhere in the Act. It is not possible, I think, to contend successfully that a class of suits to which Section 92 would not relate can be brought within the scope of this first part of Section 73; nor indeed does the plaintiff here ask for any of the reliefs which it contemplates. The argument addressed to us depends upon the construction of the closing words of Sub-section (2), "no suit in respect of such administration or management shall be instituted except as provided by this Act." Now in the first place it appears to me very doubtful whether a suit by a trustee to establish his hereditary right to his office is a suit in respect of the administration or management of the religious endowment to which the trustee-" ship appertains. It is a suit relating to a personal right, and though upon its decision may depend the question whether or not the plaintiff continues in office as trustee, that question is not one arising out of the administration of the trust, as for instance where a trustee is removed for breach of trust or mismanagement. The suit raises no issue as to the manner in which the trust property has been administered or should in future be administered. From that point of view, too, it will not fall within the terms of Section 92 of the Civil Procedure Code, a provision which was designed to deal with every aspect of the management of endowments. As in Budree Das Mukim v. Chooni Lal Johurry (1906) I.L.R. 33 C. 789, so here, no directions are necessary for the administration of the trust. In dealing with the question whether a suit by hereditary muktesars for a declaration that certain persons were not properly appointed trustees fell within the provisions of Section 92, it. was held by the Bombay High Court in Nilkanth Devrao v. Ramkrishna Vithal (1921) I.L.R. 46 B. 101 that the section did not apply because it provided only for two cases (l) either there must be an alleged breach of any express or constructive trust, or (2) the direction of the Court must be deemed necessary for the administration of any such trust. This, I think, affords some authority for the view that a suit of this character in not one in respect of the administration or management of the endowment. For this reason alone I do not think that Sub-section (2) of Section 73 of the Act opposes any bar to the institution of a suit like the present. 5. Even assuming, however, that the qualification attached to such suits as the sub-section deals with is satisfied in the present case, a further question arises as to the meaning of the phrase "no suit .... shall be instituted except as provided by this Act." Mr. T. M. Krishnaswami Aiyar wishes us to read the phrase as meaning "no suit shall be instituted unless it is provided for by this Act," so that, since there is no express provision authorising such a suit, no such suit can lie. The alternative view offered is that the words mean no more than that "no suit shall be instituted contrary to the provisions of this Act". At first sight the former construction may perhaps be thought the more natural meaning of the words, a meaning which, except that "provided for" stands in the place of "provided" is to be attached to similar language in Section 404 of the Criminal Procedure Code. I am not prepared to say that "provided for" and '"provided" convey exactly the same meaning. But the real difference to notice, I think, is that Section 404 of the Criminal Procedure Code deals with the right of appeal and that right is created by the Code itself, whereas the right of a trustee to sue existed prior to the Religious Endowments Act and can only be restricted, not created or extended, by its terms. It is a well-accepted principle of construction that a provision of law should receive a strict interpretation when it is sought by it to oust the ordinary jurisdiction of the Civil Court. (Ali Muhammad v. Hakim (1928) I.L.R. 9 Lah. 504 (F.B.) and Leach v. Rex (1912) A.C. 305). In spite therefore of the similarity of language I do not think that the meaning of Section 404 affords a safe guide in the present instance. It is then argued that on the view that the words mean no more than that the Act must be examined to see if such a suit is barred the words are mere surplusage, which is no doubt true; and that to construe them as the appellant desires would allow certain suits to be brought, as for instance, for a scheme, which had previously been restricted by Section 92, Civil Procedure Code. The example given is a doubtful one, as it us arguable that by affording an alternative remedy the Act impliedly bars such a suit. Per contra--if the section is read as the respondent proposes, the example of the present case is sufficient to show that it would create an absolute bar to any suit for the establishment of personal rights of the greatest importance to the person affected, and which have been perhaps in the enjoyment of his family for centuries. I am unable to believe that the drafters of the Act intended, not indeed to qualify by conditions the ordinary right of resort to the Courts in such a case but to exclude it altogether. Therefore, I think that, if the language of the section is open to two alternative constructions, it is permissible to select that one which avoids such a result. This may be done by applying to the words "except as provided by this Act" the sense of "contrary to the provisions of this Act," which, I think, they may well have been intended to bear. This is the construction which has been placed upon them by Wallace, J., in Alagappu Chettiar v. Arunachallam Chetty (1926) 97 I.C. 480. The learned Subordinate Judge has referred to a decision of my own as adopting the opposite view. The observations in that case must be read in the light of the circumstance that neither party contended for the position now assumed by the appellant; so that, it being granted that the suit fell either under Section 73 of the Religious Endowments Act or under Section 92 of the Civil Procedure Code, the only question which I had to decide was under which provision it would fall. 6. My conclusion accordingly is that the Court had jurisdiction to entertain the suit. As my learned brother agrees with me, we allow the appeal, set aside the decree and remand the case for trial upon the further issues and disposal in due course: Costs would abide the result. The appellant will be entitled to a refund of the Court-fee paid on the Memorandum of Appeal. Cornish, J.--I agree.

Author: Curgenven

His Holiness Srila Sri Vythilinga ... vs The Temple Committee Through Its ... on 18 February, 1931

Madras High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-20968 of 2009 (O&M) Date of decision : 23.9.2009 Dalbir Singh ....Petitioner Versus State of Punjab ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Mr.R.S.Bains, Advocate for the petitioner. Mr.B.B.S.Teji, AAG, Punjab for the State. .... MAHESH GROVER, J. 23.9.2009 (MAHESH GROVER) JUDGE dss Pursuant to the orders dated 3.8.2009 the petitioner has since joined the investigation to the satisfaction of the Investigating officer which fact has not been controverted by the learned counsel appearing for the State on instructions from ASI Jarnail singh. Having regard to the aforesaid fact that the petitioner has since joined the investigation to the satisfaction of the Investigating officer, the present petition is allowed and the interim directions dated 3.8.2009 are hereby made absolute till the filing of the challan subject to the condition that the petitioner continues to comply with the provisions of Section 438(2) Cr.P.C.

Dalbir Singh vs State Of Punjab on 23 September, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8648 of 2010 INDRADEO CHOUDHARY Versus THE STATE OF BIHAR & ORS ----------- AMIN/ (Ajay Kumar Tripathi, J.) 2 03/02/2011 Let this matter come up in top 20 cases after six weeks. In the meantime, learned counsel for the State will seek instruction as to the reason for non payment of salary to the petitioner and file counter affidavit.

Indradeo Choudhary vs The State Of Bihar &Amp; Ors on 3 February, 2011

Patna High Court - Orders

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Author: Mohan Shantanagoudar

K V Srinivasa vs The Bangalore Development ... on 11 December, 2009

Karnataka High Court

[Section 116(1)] [Section 116] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print FA/744219/1999 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 7442 of 1999 With FIRST APPEAL No. 7464 of 1999 With FIRST APPEAL No. 7467 of 1999 With FIRST APPEAL No. 7471 of 1999 With FIRST APPEAL No. 7476 of 1999 With FIRST APPEAL No. 7477 of 1999 ========================================================= STATE OF GUJARAT - Appellant(s) Versus RAVAL CHAMPABEN MOHANBHAI - Defendant(s) ========================================================= Appearance : MS TRUSHA PATEL, AGP, for Appellant(s) : 1, MR GAURANG H BHATT for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 18/07/2008 ORAL ORDER1. All these appeals which are filed under section 54 of the Land Acquisition Act, 1894 (the Act for short), read with section 96 of CPC, are directed against common judgement and award dated 11th December 1993 rendered by learned Assistant Judge, Sabarkantha at Himmatnagar in Land Reference Cases Nos.2052 of 1989 to 2087 of 1989. 2. In these cases the lands of village Sabli, Taluka Idar, District Sabarkantha have been acquired for the purpose of Guhai Jalagar Yojna. 3. This Court, in First Appeal No.7301 to 7305 of 1999 and other allied matters has considered the references arising out of the very same group of land references. In those cases also the acquired lands are similarly situated in the same area and the acquisition was also for the very same purpose. The aforesaid appeals have been dismissed by this Court vide judgment and order dated 15th June 2001. Since the issue involved in these appeals are squarely covered by the said decision, for the very same reason these appeals are required to be dismissed. Accordingly for the reasons stated in the aforementioned judgment, these appeals are dismissed. No order as to costs. [K.S. JHAVERI, J.] ar     Top

Author: Ks Jhaveri,&Nbsp;

State vs Raval on 18 July, 2008

Gujarat High Court

Court No. - 24 Case :- SERVICE BENCH No. - 10030 of 1988 Petitioner :- Priya Darsha Malviya & Others Respondent :- State Of U.P.& Others Petitioner Counsel :- Sri. S.P.Shukla Respondent Counsel :- C.S.C. Hon'ble Rajiv Sharma,J. Hon'ble Dr. Satish Chandra,J. Heard learned counsel for the petitioner and learned Standing Counsel. Learned counsel for the petitioner submits that by efflux of time, the writ petition has rendered infructuous. Accordingly, the writ petition is dismissed as infructuous. Order Date :- 18.1.2010 Ajit/-

Priya Darsha Malviya & Others vs State Of U.P.& Others on 18 January, 2010

Allahabad High Court

[Section 6] [Complete Act]

Central Government Act

[Section 8] [Complete Act]

Central Government Act

JUDGMENT K.S. Puttaswamy, J. 1. On a reference made by one of us (Puttaswamy J.), this case was posted before us for disposal. 2. For the assessment year 1975-76 relevant to the previous year ending on March 31, 1975, the petitioners who are agriculturists did not file their return within the time permitted by section 18(1) of the Karnataka Agricultural I.T. Act, 1957 (Karnataka Act No. 22 of 1957) ("the Act"), before the Agricultural Income-tax Officer, Dharwar (A.I.T.O.), for which reason that officer issued them a notice under section 18(2) of the Act, calling upon them to file their return, to which also they did not respond. In that view, the A.I.T.O. issued a proposition notice to the petitioners under section 19(4) of the Act, on December 5, 1977, fixing the date of hearing as December 14, 1977, which was however served on them only on December 30, 1977. But the A.I.T.O., without noticing the non-service of the said notice on the petitioners before the hearing date, completed a best judgment assessment against them on December 27, 1977 (Ex. B) under the Act. Against the said order of the A.I.T.O., the petitioners moved the Commissioner of Agricultural Income-tax ("the Commissioner") in a revision under section 35 of the Act, who on March 9, 1979 (Ex. D), has rejected the same as not maintainable. In this petition, under article 226 of the Constitution, the petitioners have challenged the orders made by the Commissioner and the A.I.T.O. 3. Sri R. B. Guttal, learned counsel for the petitioners, contends that the revision petition filed by his clients before the Commissioner under section 35 of the Act, was maintainable and, therefore, he was bound to entertain the same and deal on merits. 4. Sri S. Rajendra Babu, learned Government Advocate, appearing for the respondents, in justifying the order of the Commissioner, contends that section 35 of the Act only confers suo motu power of revision on the Commissioner and that too only to rectify orders that are prejudicial to the interests of the Revenue and not otherwise. 5. The Commissioner has rejected the revision petition filed by the petitioners as not maintainable on the ground that the order of the A.I.T.O. challenged by them was not prejudicial to the interests of the Revenue. 6. Section 35(1) of the Act, which confers power of revision on the Commissioner that is material for our purpose reads thus : Section 35. "Revision Commissioner or Joint Commissioner of orders prejudicial to Revenue. - (1) The Commissioner or Joint Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any authority subordinate to him is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." 7. This section in terms does not provide for a revision to an assessee who is aggrieved by an order made under the Act. On the other hand, this section only confers a suo motu power of revision on the Commissioner and that too when he finds that the order of his subordinate is prejudicial to the interests of the Revenue and not otherwise. The Commissioner is not conferred with a general power to interfere with all orders of his subordinates at the instance of each and every person. The power conferred by section 35(1) of the Act is a limited power and can be exercised by him if the circumstances specified therein exist in conformity with other provisions of the same section. If the Legislature in its wisdom restricts the power of revision, it is not open to this court or the Commissioner to enlarge the same and hold otherwise. We are, therefore, of the view that the Commissioner was justified in holding that the revision filed by the petitioners was not maintainable and in not dealing with the same on merits. We see no merit in the contention of Sri Guttal and we reject the same. 8. Sri Guttal next contends that the A.I.T.O. acted illegally in completing his assessment though the proposition notice had not been served on the petitioners before the hearing date specified in the same. 9. Sri Rajendra Babu sought to support the order of the A.I.T.O. 10. In their revision, as also before this court, the petitioners have asserted that the proposition notice dated December 5, 1977, fixing the date of hearing as December 14, 1977, had been served on them only on December 30, 1977, which assertion is not denied by the respondents. In the absence of such a denial, we must necessarily accept this plea of the petitioners and examine their case on that basis. Even otherwise, we find no ground to hold otherwise. 11. When once we hold that the proposition notice had not been served on the petitioners on or before the hearing date fixed in it, it necessarily follows that it was not open to the A.I.T.O. to complete his assessment before the actual service of that notice on the petitioners and giving them necessary opportunity to file their objections and state their case. Without any doubt, the procedure adopted by the A.I.T.O. is in contravention of the provisions of the Act and the principles of natural justice. From this, it follows that the original assessment order made by the A.I.T.O., which is manifestly illegal, is liable to be quashed. 12. Sri Rajendra Babu suggests that the petitioners be directed to file their objections to the original proposition notice received by them within a reasonable time and then also appear before the A.I.T.O. on a date to be fixed by this court to enable him to redetermine the matter in accordance with law. Sri Guttal prays for 45 days' time from this day for filing objections of the petitioners and for 60 days' time for their appearance before the A.I.T.O. We are of the view that this request of Sri Guttal is fair and reasonable. 13. In the light of our discussion above, we make the following orders and directions : (i) we quash the assessment order dated December 27, 1977 of the A.I.T.O. and direct him to restore the proceedings to its original file; (ii) we grant time to the petitioners to file their objections, it any, to the original proposition notice received by them before the A.I.T.O. on or before September 13, 1985. We direct the petitioners to appear before the A.I.T.O. on October 8, 1985, and produce all such material that they propose to produce in support of their case and the A.I.T.O. is free to complete his assessment on that day or any other date that may be fixed by him; (iii) we direct that the security, if any, furnished by the petitioners in pursuance of the interim order made by this court shall be kept in force till the assessment proceedings are completed by the A.I.T.O. We also direct the A.I.T.O. to regulate the refund and recoveries in conformity with the assessment order to be made by him. 14. Writ petition is disposed of in the above terms. But, in the circumstances of the case, we direct the parties to bear their own costs. 15. Let this order be communicated to the respondents within 15 days from this day.

Author: K Puttaswamy

Shivaputrappa Channappa Mungoli ... vs Agricultural Income-Tax Officer ... on 30 March, 1985

Karnataka High Court

15. We have come across a case of a father, who had lost his wife when his minor son was only three years. He had a television set. He used to go to his office for job and his minor son was being looked after in a Creche. After office hours, he used to bring his son home. He had to do all household work. Recently, he had Incidences of Crimes committed _______________________________________________________________________________________________________ Sr. State/UT Rape Kidnapping Dowry Torture & Abduction Deaths (Cruelty by husband and his relatives) _______________________________________________________________________________________________________ 1 2 3 4 5 6 _______________________________________________________________________________________________________ States: 1. Andhra Pradesh 854 571 396 2295 2. Arunachal 28 25 0 3 3. Assam 441 600 13 293 4. Bihar 823 524 296 483 5. Goa 7 9 0 16 6. Gujarat 290 620 105 1563 7. Hariyana 198 240 191 351 8. Himachal Pradesh 110 178 4 140 9. Jammu & Kashmir 123 316 0 11 10. Karnataka 279 320 170 1159 11. Kerala 193 105 9 550 12. Madhya Pradesh 2801 971 354 1815 13. Maharashtra 1275 912 519 7105 14. Manipur 6 67 0 1 15. Meghalaya 32 14 0 0 16. Mizoram 37 8 0 0 17. Nagaland 1 2 2 0 18. Orissa 364 221 169 361 19. Punjab 108 112 117 87 20. Rajashtan 1002 2276 298 2277 21. Sikkim 8 4 0 0 22. Taminadu 265 441 83 247 23. Tripura 61 32 6 45 24. Uttar Pradesh 2021 2860 1977 3943 25. West Bengal 743 773 85 3037 _______________________________________________________________________________________________________ Total (STATES) 12070 12201 4795 25783 _______________________________________________________________________________________________________ Union Territories: 26. A & N Islands 4 4 1 3 27. Chandigarh 9 41 3 14 28. D & N Haveli 2 5 0 7 29. Daman & Diu 0 0 0 0 30. Delhi 261 741 132 136 31. Lakshadweep 0 0 0 0 32. Pondicheri 5 6 4 3 _______________________________________________________________________________________________________ TOTAL UTs. 281 797 140 163 _______________________________________________________________________________________________________ TOTAL ALL INDIA 12351 12998 4935 25946 _______________________________________________________________________________________________________ Courtesy from "Crime in India- 1994" By National Crime Records Bureau Ministry of Home Affairs, Government of India, New Delhi. against Women during 1994 _______________________________________________________________________________________________________ Molestation Sexual Importing Immoral Incident Total Harassment/ of girls Traffic Representation Eve-teasing (Upto 21 Years) (Preve.) of (Prohi.) Act Act _______________________________________________________________________________________________________ 7 8 9 10 11 12 _______________________________________________________________________________________________________ 2185 3710 6 264 38 10319 28 1 0 0 0 85 184 13 1 0 0 1545 432 75 3 8 129 2773 21 11 0 15 0 79 1017 97 34 3 45 3775 356 426 3 1 13 1779 356 426 3 0 0 737 237 213 0 0 0 901 1059 94 0 2013 88 5282 679 3 0 54 16 1609 6362 1158 23 4 21 13509 3007 541 41 163 5 13568 8 0 0 4 0 86 11 0 0 01 0 58 32 0 0 0 0 78 1 0 0 0 0 6 955 122 2 8 11 2213 60 8 21 1 5 520 1505 49 28 26 1 7462 31 0 0 0 0 43 935 1195 3 4825 17 8011 95 0 1 0 0 240 2891 2216 0 6 0 15914 1295 17 0 34 0 5984 23772 9968 166 7430 389 96576 18 5 0 0 0 35 17 40 0 0 0 124 1 0 0 0 0 15 0 0 0 0 0 0 291 116 1 102 0 1780 0 0 0 0 0 0 18 367 0 15 0 418 ________________________________________________________________________________________________________ 345 528 1 117 0 2372 ________________________________________________________________________________________________________ 24117 10496 167 7547 389 98948 ________________________________________________________________________________________________________ sold out his television set because of the excessive viewing by his minor son. When questioned about his excessive watching the television programmes, son replied that "what for this is being show-not for viewing?" Due to this the father in order to prevent his son becoming victim of evil influence of T.V. shows was constrained to dispose of T.V. set!! The father also instructed his neighbours not to allow his minor son to watch television. In fact, these days it is an experience of many that it is not at all possible for a family sitting together to watch any programme on the television because of the excessive vulgarity. 16. In this view of the peculiar facts and circumstances of the case as discussed above, in our opinion, there appears to be more than sufficient and adequate reasons to reduce the sentence. Accordingly, the impugned judgment and order requires to be suitably modified. 17. In the result Criminal Appeal No. 726 of 1995 is partly allowed. So far as conviction for the alleged offence of rape under Section 376 of I.P.C. is concerned the same is confirmed, however, the impugned order of sentence is modified that from 7 years to 2 years R.I. Further, so far as conviction for the alleged offence under Section 452 is concerned, the same is confirmed, and the sentence of two years awarded by the trial Court is confirmed. So far as the sentence of fine is concerned, the said order is confirmed. So far as Criminal Appeal No. 912 of 1995 for enhancement of sentence is concerned, the same stands dismissed. JUDGMENT K.J. Vaidya, J. 1. The enigmatic problem which incidentally we have been called upon to resolve in these two appeals, one of which is for the enhancement of the sentence is a question-"Whether and when in the midst of an intense rampant, unabated, psychic pollution challengingly, spreading like the forest fire all around in the society and in particular engulfing and victimizing the unguarded young generation of slippery age making them prone to commit crimes because of the mesmerizing uncontrolled obscene films exhibiting sex and crime day in and day out beamed through the channels on the TV and the Government as if unconcerned with this doing nothing about it, can the unwary victim of such psychic pollution inflicted disease be punished and if at all punished savagely for the alleged offence of rape for 7 years? Over and above and apart parents, has indeed the Government no public duty rather accountability to its citizens to take care of their psychic health by controlling and preventing the causes spreading the most contagious disease? What for this purpose, what indeed the Women Action Groups do effectively to prevent, regulate and control the production of indecent films and the pornographic literature being televised committing shameless continuous affront and outrage on modesty of the women, young girls and even girls of tender age to protect their modesty, dignity and honour? In fact, what indeed all the so-called sensible and prudent members of the society and the social reformists and action groups are doing to meet with and eradicate the psychic virus spread through vulgar T.V. culture? Is mere condemnation of blue film exhibition in theatres, T.Vs. and drama is enough without there being any supplementary concrete action by the law enforcing agency in this regard? Whether mere enactments of certain special Acts by the Parliament such as (i) The Indecent Representation of Women (Prohibition) Act, 1986, (ii) The Commission of Sati (Prevention) Act, 1987, (iii) Andhra Pradesh Devdashis (Prohibition & Dedication) Act, 1988, (iv) The Medical Termination of Pregnancy Act, 1971, (v) The Maternity Benefits Act, 1988, (vi) The National Commission for Women Act, 1990, (vii) Dowry Prohibition Act, 1961, (viii) Adding Section 304-B (Dowry-death) in I.P. Code, (ix) Adding Section 498-A in I.P. Code (cruelty by husband), (x) Adding Sections 113(A) (Presumption as to the abetement of suicide by married women), 113-B (Presumption as to dowry-death) and 114-A (Presumption as to absence of consent in certain prosecutions for rape) in the Indian Evidence Act, (xi) Immoral Traffic (Prevention) Act, 1956 and many others, can be said to be "be all and end all" of the matter in face of increasing crimes against girls and women which can certainly be attributed to very great extent to dirty film culture polluting innocents, impressionable young ones? These indeed are some of the most vexed and vital and accordingly disturbing questions where almost all appear to be at total loss to understand as what to do and accordingly, we feel that judicial discretion, rather that wisdom on the point involved warrants, mandates us to discharge our duty to the society by specifically observing something which may ultimately flood-light the neglected issue awakening the social spirit and the Government to attend to it now or never before it is too late!! 1.1 We at the very outset of this judgment make it clear that the constraints under which we have been called upon to highlight, resolve and recommend remedy to the problem, if possible, is not at all any justification or crime committed by accused out of his immaturity being victim of blue film culture but it is entirely because the State ultimately not satisfied with 7 years R.I. filing an appeal for the enhancement of sentence and the learned A.P.P. still further insisting upon not to reduce the sentence of the young accused, where he in our opinion cannot be held wholly accountable but for the contributory psychic pollution which has taken toll of him and takes toll of many such other unwary young accused persons of our age, that we have undertaken this detailed exercise. 2. In order to appreciate the aforesaid questions as to in what background and context the same arise, it is indeed first of all necessary to succinctly narrate the prosecution case as it gets reflected in the charge (Ex. 2) and the circumstances leading to filing of the present two appeals. 2.1 It is the prosecution case that on 6-4-1990 in between 12-00 hours and 13-00 hours accused-Dharmendra committed rape on Anupama aged about 13 and half years in her house, situated at Samratnagar, Ishanpur, Ahmedabad. On the basis of this allegation, the complaint (Ex. 22) came to be filed by PW-2 Anupama before PW-6 Laxmanbhai Rupabhai Damor, P.I. Vatva Police Station, Ahmedabad. After the investigation was over, the accused came to be charge-sheeted to stand the trial for the alleged offences punishable under Sections 376 and 452 of the I.P.C, before the Sessions Court at Ahmedabad. 3. At trial, the accused pleaded not guilty and claimed to be tried. His case was that of total denial. The trial Court accepting and relying upon the evidence brought on record that of PW-7 Dr. R.I. Patel, convicted the accused for the offence of rape under Section 376 of I.P.C. sentencing him to suffer R.I. for 7 years and to pay a fine of Rs. 1,000/-, and in default, to undergo further R.I. for two months. So far as the offence punishable under Section 452 of the I.P.C. is concerned, the accused was sentenced to suffer R.I. for two years, and to pay a fine of Rs. 500/- and in default to undergo further R.I. for 15 days. Both these substantive sentences were ordered to run concurrently. It is this order, which is challenged before us by way of two Criminal Appeals No. 716 of 1995 and 912 of 1995. The first one is by the accused against his order of conviction and sentence while the second one is by the State of Gujarat for the enhancement of sentence. 4. When this matter was called out, Mr. Ashok Shah, the learned Advocate appearing for the appellant-accused fairly submitted that so far as the order of conviction is concerned, he was indeed not in a position to challenge the same and accordingly he would like to confine himself only to submissions on the point of sentence, which is quite harsh and unjust in view of the age of the accused and the victim girl which at the relevant point of time was of 20 and 13 years respectively, and secondly, and more particularly in view of an Affidavit filed before this Court by PW-2 Anupama, wherein she has gracefully stated that she is already married and she has condoned the act of the accused as it happened in spur of moment because of the tender age and immaturity. For this purpose, Mr. Shah has first of all invited our attention to the order passed at the admission stage on 15-11-1995 by one of us (my learned brother D.G. Karia, J. sitting as a single Judge). The said order reads as under: Admit. Affidavit by the prosecutrix-Anupama Shambhubhai Shah dated November 13, 1995, is produced which is taken on record. As regards correctness of the contents of the affidavit, it is ascertained from the prosecutrix who is personally present in the Court today. Mr. A.D. Shah, learned Advocate for the appellant undertakes to provide paper-book within 10 days from today. In the facts and circumstances of the case, the appeal is fixed for final hearing in the week commencing from 27th November 1995. Thereafter, Mr. Shah has invited our attention to the affidavit filed by PW-2 Anupama, wherein in substance it is stated that the accused Dharmendra is already married and having a wife and minor child of two years. Under the circumstances, according to Anupama, if Dharmendra was made to suffer the entire period of R.I. of 7 years, that will consequently adversely recoil upon the happy marital life prospects of his wife and the only child which will shatter and ruin their lives. She has further admitted that the unfortunate incident took place because of tender age and immaturity. Not only that but after the alleged offence, about more than five years have already passed. The accused is the only bread-winner in his family and that there is none in his family to take care of his old parents also! Under the circumstances, sympathizing with the accused, PW-2 Anupama has stated that neither she nor her family members are in any way interested in seeing the married wife and the minor child of the accused placed in a pitiable helpless condition. She has further stated that though this case is not compoundable, still however, she heartily prays this Court to reduce the sentence imposed upon the accused, as a result of which he and his family members could be saved from the prolonged agony of separation, uncertainty and losing the warmth, shelter and the companionship of each other. She has further assured this Court that because of the rape committed by the accused, she is in no way further prejudiced or harmed as now she is happily married and merrily passing her married life. 5. In support of the aforesaid submissions to reduce the sentence, Mr. Shah has relied upon three decisions of the Supreme Court and one of this High Court. All these decisions are on the point of reduction of sentence in the alleged cases of rape by young accused round about the age of 20 years. They are (Tubing v. State of Haryana); (Premchand v. State of Haryana); (Raju v. State of Karnataka); and (4) 1991(2) GLR 1243 (Budhiyo Chhagan Vaghari v. State of Gujarat). On the basis of the aforesaid submissions, Mr. Shah finally urged that taking into consideration the peculiar facts and circumstances of the case, this Court should take a lenient view of the matter and release the accused with whatever sentence he has undergone. According to Mr. Shah, the accused has undergone his period of imprisonment for one year and two months which is sufficient to meet the ends of justice. 6. As against the above, Mr. Nigam Shukla, the learned A.P.P. submitted that looking to the gross facts, the sentence imposed upon the accused should not be reduced and that too reduced to the extent of the sentence undergone. The learned A.P.P. further submitted that the minimum sentence prescribed for the offence of rape is 7 years, and that the sentence essentially being the discretion of the trial Court, merely because prosecutrix has tendered the affidavit, that is no ground to take a lenient view of the matter. The learned A.P.P. further submitted that if such practices of affidavit by prosecutrix are introduced and entertained, it may encourage some scheming, unscrupulous accused persons to forcibly obtain the same and get away lightly with reduced sentence!! The learned A.P.P. further vehemently submitted that the virus of rape is fast escalating in the society and if too liberal view of violent sex-crime like rape while imposing the sentence is taken, then the deterrent impact of the imprisonment getting blunted out, it will fail to deter the sex-hungry wolves, maniacs in the society victimizing the innocent girls and the girls of tender age. Once the Court takes a liberal view, according to the learned A.P.P., that will set an unfortunate bad precedent where the decision of this Court will be shown to the trial Court where it failing to differentiate case and case, may lightly let off the accused, and as a result, the most important punitive object of deterring the offender to commit such crimes in future as well as the like minded persons who are prone to commit such crimes will get lost. The learned A.P.P. further submitted that the instances of crime, rape, etc. are increasing mainly because of the movies exhibited in theatres and on T.V. channel. The learned A.P.P. further submitted that of late there are certain late night T.V. Programmes where there is one channel known "Plus 21 channel" which exhibits pictures for adults which is alleged to be pornographic capable of corrupting the weak and impressionable minds particularly of younger generation, which is otherwise banned by the Government is openly exhibited!! It is also alleged before us that some such "Play-boy" channel displaying sex-vulgarity is exhibited in U.S.A. also!! The learned A.P.P. submitted that he is saying so on the basis of a newspaper report, viz., Sunday Observer published from Bombay. On the basis of all these submissions, the learned A.P.P. finally urged that taking into consideration the gravity and seriousness of offence, the sentence imposed deserves to be enhanced, if not, then at least in no case there is any justification to reduce the same, as prayed for on behalf of the accused. 7. Now having heard the rival contentions on the point of reduction and enhancement of sentence, we at the very outset, would like to disallow totally baseless and misconceived apprehension of the learned A.P.P. that if the sentence in the instant case is reduced, it will set an unfortunate bad trend and precedent. We remind the learned A.P.P. of the settled legal position that on the point of sentence, there can never, never be any precedent. A Judge while imposing the sentence has to look to the peculiar facts and circumstances of that particular case, in his hand, and it is only when he is satisfied that the case calls for liberal view regarding the sentence, then on some illuminating guidelines from the higher Courts only the Court takes that particular view. In this view of the matter, the submission of the learned A.P.P. that this Court ought not to reduce the sentence, on the ground of bad precedent being totally misconceived, we accordingly summarily reject the same. Similarly, there is indeed no substance in the apprehension of the learned A.P.P. that if Court starts accepting affidavit of the prosecutrix for reduction of sentence then it will encourage some overbearing, head-strong criminal to procure at any cost such affidavit and escape with the lighter, sentence. The reason is before accepting and relying upon such affidavits of prosecutrix recommending lighter sentence, the Court before which matters are pending always verifies not only the truthfulness and genuineness of affidavit but in a given case also direct the concerned Investigating Officer to carry out discreet inquiry whether it was voluntary or was obtained under any fraud, duress or any other sort of coercion and black-mailing. This would be clear from two decisions of this Court reported in [(XXXIV(1) ] 1993(1) GLR 810 (State of Gujarat v. Rajput Bhikhaji Kaluji and Ors.) (2), [(XXXI(2)] 1990(2) GLR 856, (Mahipatsinh Panchaji Jadeja v. State of Gujarat). 8. This now takes us to three core questions in these appeals, viz., firstly, whether any case is made out for the enhancement of sentence or vice versa for the reduction of the same? Secondly, if either way yes, then what would be the just and proper order of sentence, and thirdly, whether and when a State which to some extent as alleged is quite oblivious to its duties to the problem of mental health of the people and in particular to that of unwary youth continuously being influenced, victimized and obsessed by obscene film and pornographic literature perennially streamed through some of the T.V. channels, polluting their clean consciousness, has it indeed any right to urge and press for the enhancement of sentence!! 8.1 To answer above questions, let there be before us the relevant circumstances pressed in service for the reduction of the sentence already undergone. On careful and anxious perusal of the affidavit filed by the victim girl PW-2 Anupama, what we can read in-between the lines is that the offence of rape took place because of their tender age and immaturity!! This statement in the affidavit in a way is quite indicative of perhaps she was a consenting party though undoubtedly the consent will not make any difference because PW-2 Anupama at the relevant time was only 13 and half years of age. We wish we are wrong in drawing inference by reading in-between lines, though it is difficult to resist this inference!! However, in her affidavit before this Court, PW-2 Anupama has shown her heart-felt concern and anxiety about the married life of the accused and the shattering blow that it will get as a result 7 years rigorous imprisonment to his innocent wife and a minor child who has not committed any wrong!! We make it clear that merely because the accused is married or is having a minor child or he is the sole bread-winner of the family and/or that he has old parents, these facts and such other circumstances may or may not be a good ground for taking a lenient view of the matter in all cases, but undoubtedly in the first place her admission that the incident in question took place because of their tender immature ages and in the second place her voluntary, true, genuine and graceful pardon to the accused are too going to the root vital circumstances which has surely clicked our conscience to take a reasonable rather slightly lenient view of the matter while awarding the sentence as we would not certainly like any person to be a victim of the circumstance to be further victimized by continuing him to undergo the substantive sentence of R.I. for 7 years. 8.2 In the case, it indeed cannot be ruled out that the accused becoming victim of the blind sex-instinct where his flooding, over-pouring upsurge in weak-moment of tender age overtook him, making him further blind, childish and indiscreet and/or may be further because of some bad company and/or because of the obscene magazines and the dirty obscene films electrified in each house that has probably led him to commit rape on PW-2 Anupama! This spreading of the most contagious, insatiable (barring few exception) quite an explosive sex desire appear to be now turning into chronic psychic epidemic in the society!! This is bound to catch unwary young generation of slippery age and immaturity to be readily afflicted with chronic disease like eve-teasing, molesting, kindnaping and abducting girls, blackmailing them to marriage and/or have illicit sexual intercourse, rape, turning into violent rape, gang-rape, paedophilia in other words child-rape even, which all of us are terribly scared to think or dream of even! No doubt, ordinarily, person should be discreet enough to resist such base desires, temptations but some may not be that capable to doso more particularly young person of the tender, immature impressionable age. Life experience tells us that we shall have to take into account quite unguarded highly sensitive, emotional, passionate, readily inflammable nature of many of our younger ones, wherein the ordinary discretion, maturity and wisdom is if not totally at some loss, will surely take some time to be ripe enough and blossom to the fullest extent to become immune to be incombustible. Further, regarding the sex-passion it is continuously fanned by dirty obscene magazines and movies. This is an indisputable and so far unremedied situation and accordingly howsoever high that society may think of its ideal state but if the sex and crime culture spreading situations are not taken care of, nothing could be substantially done to prevent sex crimes being committed, repeated and gradually increasing in the Society! Under such volcanic tell-tale eruptible circumstances, if a girl aged 13 and a boy aged 20 afflicted with in-built irresistible sex-instinct, outward sex-virus and infatuation, on seeing each other in weak, unguarded moment, unable to control, get sexed and commits some indiscreet act, which of course is highly reprehensible, illegal, and undoubtedly punishable with the sentence of imprisonment, but then should this Court also be oblivious to the said conspicuous circumstances and be blind and mechanical in matter of imposing excessive sentence upon accused, who is required to be pitied more than ruthlessly condemned? More particularly, what indeed the accused could do when all around in the Society, the psychic atmosphere stands increasingly polluted and degenerated and he like many other young-ones becoming the unconscious victim of the same, and further when the Government which is otherwise duty-bound and accountable to control all such sorts of pollutions including the psychic pollution, does just nothing of the sort to prevent: (i) sale of obscene magazines, (ii) the production and exhibition of obscene films containing the nude dances with vulgar, double meaning songs in the pictures and (iii) the advertisement exhibiting indecent representation of women!! Sex has always remained the weakest point of mankind, quite easy to inflame and blind persons often even aged one on any slightest pretext and opportunity than in that case what to talk about younger ones, who have no experience of life at their back! The fact that the sex-instinct is something overpowering and uncontrollable even by persons beyond the age of 50s or 60s needs no more further comments. It is such a weakest point where as narrated in our mythological scriptures (our invaluable, inexhaustible wisdom treasure of para-psychology!!) many a times even highest "Tapasvis" have fallen down lured by sex-lust and if we want the illustration, it is the case of great Vishvamitra and Menka! In fact, it is rightly said the sex lies hidden like a fire in the wood! It is also further rightly said that the sex desire is like dry gun-powder which on even slightest pretext could be sparked off and has potentiality to get exploded. There are stories in our Puranic Shastras where some Saints on merely seeing even the sex play of birds and fishes getting provoked were lured down to sexual plane!! What we ultimately want to say and emphasis here is the fact that where the sex itself is the weakest aspect in human personality which can be further easily inflamed and set ablaze making a person to commit rape and pae asphilia even on slightest sexual provocation and further when this aspect is continuously fuelled and inflamed by the continuous inflammable stream, rather river of the obscenity all around, how are we to find fault with the girl of 13 years and a boy of 20 years, when they admit that whatever happened, it happened because of the tender age and immaturity!! It is a known and accepted fact that the invasion by Satellite television channels and the resultant proliferation is spelling doom for the Society!! Where indeed will it end no one knows as self-esteemed, self-styled intelligent and scientific minded members of the Society which perhaps know the deleterious evil effect of hot, blue T.V. culture, but unfortunately is suffering from the psychological parkinsonism unable to hold itself steady, stand, walk, speak, grip anything or do anything to cryhalt to its ugly invasion. Mind well, we are here not to condone their quite grave and serious act of indiscretion looking to the nature of serious offence and more particularly in view of the nature of evidence in support of it! In fact, having regard to an unimpeachable prosecution evidence brought on the record, we are bound to confirm the impugned judgment and order of conviction passed by the learned trial Judge, even if Mr. Shah had not fairly conceded on that point, as the facts alleged and ultimately stand proved is an outright act of raping the minor girl by the accused where even if consented by the victim girl could not take it out of the purview of an offence punishable under Section 376 of the I.P. Code. Further still, we do not want to propose any blind proposition of law that simply because one sees the dirty movies, and stands sex-provoked one gets indirect permission and/or exemption or justification rather a licence to commit such offences. No, that can never be the case. But at the same time, when it precisely comes to the question of judicially determining the just and proper quantum of sentence, the said factors can certainly never be ignored rather shall have to be precisely taken discreet care of. Further, in this regard, we also believe that in the existing set of circumstances in the society, where our unwary youth is increasingly exposed to and alarmingly leaning more and more towards drugs addiction, sex and all sort of crimes, etc. under the unfailing evil influence of blue films channels, etc. to control and tame such misguided youths, by way of quite hard and impressive lessons to them in life also somewhat stringent sentence with taste of bitterness and deterrence is required to be administered. This is to always remind and thereby impress and deter the concerned offender and some such other future offenders, by teaching that life of crime ultimately never pays and invariably rebounds leading to the imprisonment and thereby also social condemnation. 9. Incidentally, at this stage, it will certainly not be out of place to take the realistic stock of the situation of a sorry pass to and through which our urguarded, misdirected younger one's are subjected to and passing by. To blame anyone, and for that purpose, youth of the country is very easy, but to understand the unfortunate pitiable plight of them and their victimizing circumstances and further show them the way enabling them to get out of the rut is little difficult. It is here where the judicial awareness and wisdom is on the real test and has to play distinct role while reaching the ultimate conclusion of guilt and/or the quantum of sentence to follow as a consequence of conviction. We further believe that no Judge would ever be able to do the real and substantial justice, if he is just unable to lift himself out of narrow compass of law and facts, unless he calls in aid the wisdom and pragmatism, the quint essence borne out of the life experience, what in a word or two could be described as an approach of just and reasonable man known as a prudent man!! Accordingly, on appreciating their (accused and the prosecutrix) existing victimizing conditions and distinctly dwelling deep down upon it, quite sympathetically, the prejudice, wrath and anger otherwise generated against them because of their indiscreet criminal acts the same to quite great extent automatically gets evaporated and cooled down with the wisdom whispering in our ears to be little pragmatic and considerate while deciding the question of sentence. Now moment you ask what is that realistic slock of the situation to which our young ones are unfortunately subjected to and accordingly has misfortune to cross by, the answer to this on the one hand is the growing distances between the spouses themselves and as parents, between them and their children in the matter of their personal attention and care and on the other hand the rampant psychic pollution unabatedly spread by some T.V. channels, and pornographic magazines victimizing the unwary younger ones with the most contagious and disastrous disease, viz., the violence and indiscreet sex indulgence. Indecent films with sex and crime as main theme and pornographic literature of late as is alleged had crossed all bounds of decency to have rough and ready lessons for crimes, sex and flirtations trespassing in most of our houses and clubs. The problem has aggravated further deep-down because of the television era where more often than not, more than some good things of life being projected what is quite rubbish and objectionable is continuously projected polluting culture, more particularly quite innocent young budding generation our-tomorrow's India!! These society ruinous lessons are daily repeated and incessantly hammered, trespassing and storming practically all residences and clubs!! What young generation watches on television just readily seeds the crime and sex in their innocent minds, making them schemingly, mischievous, desperate and ultimately dangerous on the one hand playing with their own destiny unfortunately having no life experience of the ultimate deleterious consequences upon their lives to withstand and encounter the same and on the other hand with the lives, liberty, honour and dignity of women, and girls subjecting them to all sorts of sexual harassment!! These seeds of sex and crime gets further nurtured and sprouted in co-education. Some of the schools and colleges more than the educational institutions have as if turned into avenues of practicing the film culture full of lust, sex and all sorts of crime of eve-teasing, black-mailing, molesting girls, kidnapping and abducting them in a filmy way and committing rapes also as readily learn from and inspired by indecent films and pornographic literature. Be it a bus-stop, railway station or any road and street, road side Romeos harassing girls is not uncommon!! Now every thought is like a seed. One seed has the potentiality to develop into the forest. Similarly, good or bad thoughts are productive or counter-productive of good or bad things. We quite know that thoughts are ultimately capable of and accordingly have brought about many kinds of revolutions in the world. The Gandhian thought brought about peaceful political revolution making British quit India and achieving Freedom. British "Divide and Rule" policy catching hold of some Muslim the fundamentalists, brought about Pakistan. In Russia, Marxists Leninists thought brought about violent October Revolution!! China also under the great leadership of Mao Tse-Tung brought about revolution based on the communist philosophy. Likewise, revolutionary thoughts of Shankeracharya, Gautam Buddha, Mahavir and many more such other great Saints brought about great spiritual revolution in life of many! Similarly, scientific thoughts, researches and discoveries had brought about the agricultural, industrial and surgical in fact all sorts of technical revolutions throughout the world including sending a man to Moon and of late now even to Mars!! This would be further clear from the two wise sayings reflecting the powerful effect of axiomatic psychological truth of seeing and hearing upon a person in their turn giving birth to thoughts and these thoughts in turn sparking off action, building up character reaping the fruit of destiny sweet or sour, depending upon the quality of the seed or thought planted. At this stage, please relax and understand the potentially of seeing and hearing, generating the under-current thoughts and actions and their consequential good or had results in life. The first one is "sow your thought and reap you action. Then sow your action and reap your hobby. Sow your hobby and reap your habit. Sow your habit and reap your character, and finally, sow your character and reap your destiny!!" This is what a simple thought generated or seeded in the minds out of seeing and hearing which is capable of development or destruction of the character and/or the ultimate destiny of a person!! Similarly, in Brihadaranyaka Upnishad (IV 4.5), it is stated-to quote, "You are what your deep driving desire is. As your desire is, so your will. As your will is, so your deed. As your deed is, so is your destiny." Similarly, Mr. Leland R. Hinsie, M.D., Professor of Psychiatry, College of Physicians and Surgeons, Columbia University, in his book The Person in the Body-An Introduction to Psychosomatic Medicine" in Chapter five "Psychological versus Organic sex" has observed. "The old proverb, 'As ye sow, so shall yea reap' should be supplemented by another saying, "As is sown by others so yea reap"!! The first proverb places all the responsibility upon the reaper. To be sure, he is entitled to his share, but he is by no means the product of only his own seeds. What he reaps is a resultant of seeds from many other sources also"!! In Chapter Six on "The Search for Recognition". Mr. Leland E. Hinsie has further observed that--"It is the belief of many investigators that sexual issues begin to form a part of child's life early in infancy and the sex has acquired considerable status by the time the infantile period is concluded, that is around the fifth year of life!! Likewise learned Bhagvat Acharya. Shri Rameshbhai Oza, in his one of learned discourse on "Shrimad Bhagvat" observed that the first thought-impression received in the early morning and the last thought-impression received while on way to sleep at the end of all activities at night makes rather determines the quality of life and character of an individual. Shri Oza is quite right because when a person wakes up in morning by and large these days daily newspaper reports of social, political turmoil, excitement spills over his conscious. At night also, when he retires to bed mostly seeing T.V. programme. The quality of programme, we know what it projects!! Now neither in beginning of the day nor at the end of activity at night time, most of the persons begin or end their day with some good, noble, positive, inspiring thoughts, about peace, prosperity, morality and ethical building. The obvious and unavoidable result of all these, we know in the society, which is increasing unhappiness, sickness, mental disturbance and disorder borne out of free lance indulgence in sex and crime!! Why it is so? What is the psychological, scientific reason behind this? The answer to this is when a person wakes up in the morning his chit, consciousness is comparatively quite pure, still and well composed and accordingly it is in totally receptive mood. Accordingly, the impressions thrown over it by newspaper report or T.V. programme leaves strong impressions and generates continuous ripples borne out of it going deep down into the sub-conscious ultimately affecting, prompting, motivating activity, similarly at night also when tired and further when eyes getting tired and exhausted after seeing Television when one retires to bed the mind once again on its inward journey to silence and peace carries unconsciously with it impressions and ripples of the last seen things which ultimately gets deep seeded in sub-conscious to sprout into actions on earliest available opportunity!! Thus, both morning and night time impressions whether good and constructive or bad and destructive always and invariably plays most decisive role in moulding one's life ultimately shaping the character and destiny of an individual in turn of the society and country!! That is how bearing in mind this psychological principle rather the great psychological wisdom our Rishis, that in the early morning our wise forefathers used to pray "Let me hear and see what is pure and beneficial". Let only and noble thoughts come from all directions (Vedas). Now what our Vedas and Upnishadhas said ages back is approved and affirmed by the western Psychologists also who tell us that a person learns consciously and unconsciously as well and over and above many other factors such as inherited predisposition, family influences, friendship and association influences, operant conditioning, deservational learning which plays its part in formation of the human personality. To this, the latest major contributory factors are powerful medias like T.V., radio, press and literature. Consciousness according to Mr. McNeil is awareness of one's own sensations, perceptions and thoughts. In fact, "the learning is key process in human behaviour. It pervades everything we do and think"-say Morgan and King. Similarly, another Psychologist, Clifford T. Morgan has stated that "learning is any relatively permanent change in the behaviour which occurs as a result of experience of practice". He has also stated that the process of interpreting sensations making them meaningful is called "perception". Further, still, according to Mr. G.W. Allport "personality is the dynamic organization within the individual of those psychophysiology systems that determines his unique adjustments to his environment". Further according to Mr. Hilgard, "Psychological motives are influenced primarily by learning and the kind of society in which individual is raised." Still further, according to Mr. Hilgard, "Emotions can activate and direct behaviour in the same way biological drives do." Once again according to the Hilgard and Atkinsons: "Adult behaviour and the personality characteristics are influenced by events that occur during the earlier years of life." The saying "Child is the father of man" reflects this continuity between the childhood and adult. Psychologists also tell us that hypnosis also play quite a distinct role in producing the changes in consciousness by putting suggestions to the mind of person to be hypnotized. When people see pictures, more particularly younger ones, the tempting story, captivating dialogue, melodious music, love luring songs, exciting and provocating sex scenes, indulgence and crime just drop suggestions, stir-up their emotions making them prone to translate suggestions into action which catches them unaware like fish in the net!! During the process whatever a person just listens, sees and feels working as a subtle suggestion, it enters deep-down to his consciousness and sub-consciousness prompting him up to adopt, act and react to the said suggestion and these suggestions ultimately acting as a remote control to canalize and influence his thoughts and actions in particular direction for a particular thing takes control of him. This is how our businessmen through this sharp, subtle psychological device of mesmerizing and enslaving consumers' mind in its first stride, make them to react to their suggestions of luring, gradually preparing and ultimately pushing them to purchase the advertised items, be it fridge. T.V., radio, soap, dress, cosmetics, even the tooth brush and paste and what not!! and ultimately in its second and ultimate stride when a person goes to purchase a particular item, he from his made believed world believes that he is the master of choice and accordingly purchases particular thing but the real fact rather the starting truth is before he purchases a thing, his capacity to think, mental choice and scale of preference stands already mesmerized, influenced and brought under control by the mesmerizing advertisements and pre-purchased to have been left with any free-will which he can claim as his own while purchasing goods!! This is the power of subtle suggestions, gobelian propaganda, brain washing activity carried on by medias, where a person can be easily brain washed, coaxed, duped and chained and enslaved by any trickery of thoughts and crimes. This is what the atomic power of thought projected through suggestions is capable of capturing the mind and will of ordinary human being!! In the context of this indisputable, universal psychosomatic truth if we look, at the increasing number of offences in our society against the women like eve'snteasing, indecent gestures made to girls, molesting girls, kidnapping, abducting and black-mailing and compelling girls to marry even against their wishes, cases of rape and gang rapes, adultery, murder, dacoity and various other sorts of crimes, the question arises as to from where all these come? Out of nothing? Undoubtedly, No. As already, stated above, it comes from some of the alleged totally irresponsible, perverse, unscrupulous, anti-cultural film producers, cheap actors and actresses, models who for their so-called cheap personal popularity and get quick rich money making mentality, selling themselves to the vulgarity, who under their subtle scheming device or disguise in name of entertainment and art like Trojan Horse carries in it concealed army of psychic germs invading and destroying the moral figure of the society, in particular, our unfortunate, unguarded youth where the girls and women are the maximum victims at their hands!! The most shocking and surprising part of the story is women actresses acting against the interest of girls and women of their own gender by allowing themselves to be stupidly filmed and screened to any vulgar, filthy indecent scene and often even naked sexual acts!! More than misbehaviour of some of the actors and actresses in the film, there is perhaps comparatively greater and growing apathy on the part of women organizations also in making some determined counter-efforts to persuade this indecent sex-dolls to conduct themselves in orderly way and stop all nonsense and stupidity!! Excessive exhibition of sex indulgence, pornographic substances, including vulgar, indecent and dual meaning expressions, visual or verbal, duly incorporated and edited beyond the digestive power of imagination and shown in the latest indecent movies, magazines and advertisements cause to have a heart-burning impact on the tender minds of our younger generation, more particularly, the girls, women, teenagers and tiny tots. They are tempted to be tried in such a manner by the generation in toto without having foreseen its after-effects on their character and destiny as an individual ultimately becoming quite problematic to the Society. The tempestuous scenes shown in the motives, advertisements and serials with unscrupulous money-minded producers, actors/actresses or models, leads rather drives the younger generation mad to relentlessly adopting such visuals in their mind, which have an adverse result! Ultimately, the tender minds are the scape-goats and the poor parents are the most miserable aggrieved lot repenting upon the indiscreet thinking and behaving of their wards! For this, parents themselves have to thank themselves as it seems that, at least, some parents are just careless or for whatever reasons unable to exercise desired control over their wards. They do not know what their wards are actually doing after they are out in schools, colleges and other educational institutions, etc. The main discussions amongst these young ones at these educational temples are mostly concentrated upon heroes, heroines, villains and dirty dances of films, serials etc. A serial based upon a good moral and family background may not be finding place for discussion in these gatherings!! But, the vulgar brake, shake, jerk dance scene with exhaustive or exuberant settings having over-excessive jerking actions, breast exposures, mouth to mouth kissing, rolling over and over embraced to each other, with petticoat lifted a bit, singing sex-crazy vulgar songs are being discussed in its entirety with full of interest and excitement!! This is bound to be! In very nature of things, psychologically this is bound to happen! In fact, more and more our younger ones of the impressionable age goes on witnessing more and more pornography and crimes, the curiosity kindled thereby is further kindled and excited to know more and more about it and ultimately translate the same into action as if to have satisfaction of some big achievement! At this stage, unfortunately, there is indeed none to warn and impress upon our younger ones that what is seen in the films is not a reality, but a mirage which gives appearance of water, but never quenches thirst howsoever long you may run dying after it. Similarly, unfortunately, filled and thrilled with such visuals, both girls and boys are blindly following the same which ultimately results into deterioration of moral, mental and physical health and the consequent turmoil to be suffered by them, their parents as well as the Society!! 10. Prior to the invasion of television, satellite channels, etc. the crime rate of rape, robbery, theft, dacoity, murder, kidnapping, black-mailing and demanding ransom, etc. was comparatively very less not only in this culture-oriented country but even in the West. May be because of the fact that such visuals shown on cinema probably, the only medium-were random; the extremity was honestly censored, there were honest accountable Censor Boards and the people and society were quite apprehensive of the law and its strict course of action. Now, the increase in population coupled with the change in life style to some extent as well as the invasion by satellite channels having full of indecent and ugly films, advertisements and serials and the availability of pornographic literature, lead the generation, more particularly, the younger generation, i.e., the tiny tots and the teenagers to travel beyond the limits of our culture and to do anything and everything they wanted without any fear. Who is there to censure-the Censor Board-as alleged apparently yielding to the pressure of powerful Cine Producer's lobby where the honesty and integrity of such Board has become a matter of guess and big question mark by many? Where is that eternal vigilance and counteractions against indecent film producers' lobby and shameless actors and actress from the Society? Is it not true that more than the aggressors, exploiters and the terrorists, it is the community which shamelessly and in silence suffers such aggression, exploitation and terrorism without any resistance and counter-revolt is responsible more guilty to claim any sympathy? 11. Adding oil to the fire is the so-called fashion mania crept into our society at present due to the advancement of the media, as aforesaid. The television channels, cinemas and literature exhibiting such fashion parades by the so-called models in bare minimum clothing who as alleged are ready to do anything and everything forgetting the culture, only for the purpose of minting money, create havoc in the younger generation, more particularly, the teenagers. The younger generation blindly imitates the models who were in such fashion garments (not even upto the thigh level) and half-breast shown upper jackets, etc., are the show for the teen-age boys and even the onlookers, staring at them, uttering some comments, till they disappear from sight! In certain cases, they follow the girls also and do some indecent acts!! The already upset, troubled and excited tender generation keep the visuals in their minds as they are, and tempt them to do anything as entertained by the mind, at the spurt of a time. The test as to how much grown up and matured the society is, is its awareness, and vigilance combined with determined action to relentlessly resist the evil influences narrating medias and ultimately root it out before doing any further damage and destruction to our generation, and thereby the future of our country. 12. The crime rate is also becoming increasingly alarming due to the latest foreign channels as well. Showing late-night movies, serials, etc. also sow the destructive seeds of crime and sex in the minds of the kids. The culture, indigestible to the culture of our country is being put in and hammered. As aforesaid, the main victims are younger generation! Compared to our indecent and vulgar cinemas and serials with half-naked bodies and dual meaning expressions, it is reported that the production coming from the outside world is shamelessly full naked!! Nodoubt, the time-slot allotted to such visuals is late-night so as to deter the kids from not viewing them. But nobody knows, whether the kid has slept or not, when such programme is being shown and when the parents are asleep! The thinking power of the younger generation is lessened and they are most interested in seeing the visuals and making such visuals blindly to practical! No doubt the parents cannot escape their duty, but more than the parent, the State is the foremost parent to take responsibility and care of younger generation, which is going to determine the character and destiny of tomorrow's India!! 13. T.V., films, radio, newspapers, advertisements, dramas are powerful medias to influence, educate and give direction to the people. Through striking banner-lines, captivating words, dialogues, gestures, songs, music, good or bad side of life get itself projected through aforesaid medias and ultimately taking driver's seat in the mind of the people shapes and directs their ultimate character and destiny good or bad. The ordinary techniques adopted by those medias are: (i) repetition, (ii) exaggeration, (iii) identification, (iv) appeal to authority, (v) appeal to prevailing discontent, (vi) the influence of slogan. All these, standing by themselves, are indeed quite good if canalized for the constructive purpose of rebuilding tomorrow's India. But unfortunately it is an experience of many that mostly the canalization is in wrong and destructive direction where it has tended to make people more criminal, more anti-social, more vulgar, more lifeless, more insincere, more dishonest, more sexual and more and more vulgar and shameless far away from the cultural and ethical values of life. What is to be done then? Should these medias be banned? No. Because this can as well as profitably utilized for the value-based cultural and ethical revolution in Society ultimately improving the future prospects of peace and prosperity of the country!! In fact, gun which is unfortunately aimed at innocent unwary victims of the society the direction of it is just required to be reversed against those who are vomiting anti-culture pollution. In the first instance, this is quite enough but this can be done provided only if the Government is potent, sincere and capable of resisting and bringing under control "lobby pressure". And in the second instance after taking preventive steps, Government should equally embark upon value-based programmes aimed at uplifting the society from dirty cesspool of irresponsibility, vulgarity and criminality to place it on the highest predestal of our glorified past heritage. We know that so far as defending the territorial integrity, sovereignty and the economic prosperity of the country is concerned, the Government is quite good and conscious enough to have a strategy and planning for its defence and development but unfortunately the very same strategy and planning of defence and development for on the one hand stopping the moral erosion and on the other promoting moral values in the country are concerned (which only can ensure the. better, best and tomorrow. Healthy, Peaceful and Prosperous India), the Government is comparatively found to be quite weak and unconcerned!! This is where the Society stands betrayed and let down by the Government!! This cannot be ignored any further because what is the meaning of the territorial integrity and spending for its defence where its inhabitant are not protected from internal aggression, rather psychic terrorism committed day-in and day-out by indiscreet crime and sex shown on T.V. disturbing the even and peaceful tempo of the social life!! Further still, what is the meaning of Constitutional protection to minors, girls and women, where no care is taken to prevent and destroy the sources motivating eves-teasing, kidnapping and abduction of girls, blackmailing them, rapes, murders and assaults on women and making younger generation turn more and more towards to be criminal. Under the circumstances, we think rather strongly feel and firmly believe that it is high time that we, as a cultured responsible, accountable members of the society, have to think over and dynamically apply and act to do the needful to save on the one hand the honour and dignity of girls and women and on the other hand future and well being of our younger generation as a whole, before they are ruined and lost for ever!! We simply cannot stand a thought even, to find some day our Society, made up of grown up criminals and sexual terrorists, continuous hazard and menace to girls and women members of the Society and-that also, to our dearest wards and younger generation turning into! We need a society of gentlemen and gentle-women in spirit and not in mere look, where it blossoms like pretty flower and spreads sweet fragrance of virtue all round!! Undoubtedly, because the Government as often alleged, appears to be quite wooden on this front against such nefarious activities carried on by powerful lobbies, has shown no concern whatsoever to snub this nonsense in the society. Under the circumstances, unless the sharp powerful, effective public vigilance and public opinion is aroused and relentlessly upsurges, revolts and asserts itself with the unflinching determination, and further still, relentlessly followed with a determined action of going to the logical end against the crime generators to wipe out provocative crime and the sex scenes from the films and television, taking tough stand against irresponsible film producers, germ career channel owners, and even the passive Censor Board there is indeed no other way to compel the Government to resolutely work for its people. In this regard, and complacency on the part of any one of us this generation is going to destroy all good things of life which makes the life peaceful and happy and thereby meaningful and worth living. We must know rather understand that universal, exceptionless grant principle of "Cause and Effect"!! Nothing happens or comes out of nothing!! Rather, all causes precedes effect. That means if you want to take care of effect, always take care of cause. It is said that, "sins of the parents visit their children". In this regard, sins are not necessarily constituted by action alone as even omission on the part of any person to do anything to prevent any wrong being committed in the society is also equally a sin. The worst sin of this generation is totally unconcerned and wooden attitude in dealing with perverse film producers, actors and actresses, continuously exhibiting sex-indulgence and all sorts of crimes making the society in particular budding generation of our sexually perverse and criminal in all respect. And it is this sin which is bound to visit out posteriors shattering their family and social life!! This is going to result in torampant increasing criminal activities of murder, eves-teasing, molesting, kidnapping, abducting, black-mailing young girls making them agree to marry, dacoity, rapes, so much so that if the anti-social onslaught is not thwarted in time, the prostitution in every home would be the order of the day because of the excessive sexual indulgence and the vulgar culture of the permissive society approach, brainwashing the younger one. To have a rough and ready picture in escalating crime score in the country, we deem it proper to produce hereunder a Chart showing incidence of crimes committed against women during the year 1994. Incidences of Crimes committed against Women during 1994 (See Table on next page) 14. In view of the aforesaid discussion, we believe that the time is indeed quite ripe for all sensitive, sensible and the responsible people just to think, rather feel what would be the meaning of the trumpeted glorified economic prosperity brought about by our Space Age or the Computer Age or the Age of Super Technical Advancement today and much more in the days to come, when the social life would be rendered full of discontent, frustration, bitterness and all sort of suffering and miseries from all sorts of psychic and physical ailments, and ultimately, in the end, placeless, purposeless and broken down with obscenity, vulgarity and crimes totally eclipsing the moral, cultural values for which our country proudly stood. If an unfortunate trend of curse of pornographic films and magazines will continue without any effective check by the Government, we just shudder to think and imagine what further curse will the twenty-first century bring to our people!! Do we want our Society of the type which cannot sleep without taking the sleeping-pills and/or down with the frustration ultimately end their lives by committing the suicide, as it is increasingly happening in the West!! If not, let us not waste any time to do the needful in the matter at the earliest.18. While parting, as Constitutional functionaries, we would be simply failing in our duties if we do not bring it to the notice of the highest authority in the Central Government as well as the State Government that something radical is required to be done and done at once without losing any further time to prevent continuous erosion of our culture, victimizing our younger ones, resulting into recurring down right assault and affront upon the respect, dignity, honour and safety of our young girls and women by our generation, young and old, provoked and motivated by objectionable sex crime scene electrified on T.V. and films. Everybody knows it that many a times obscene films which are illegal and punishable under the law are exhibited freely and fearlessly as if no Government taking the care of the culture and people is existing? This we are tempted to say so because our Parliament in recent past only has enacted the Indecent Representation of Women (Prohibition) Act, 1986. We are not aware whether the law enforcing agency has taken any serious note of such an important Act to register the offences for the alleged indecent representation of the women against any person! This we say so because we do come across some such prima facie indecent representation of women in advertisements and some vulgar dances, scenes and songs exhibited in films often acted in real life in school, colleges, near bus-stops, ladies hostel, garden, markets which goes on without any let or hindrance from the law enforcing agency! This particular Act has been specially enacted to prohibit indecent representation of women or depriction in any manner appealing to the baser instinct of young and old corrupting their minds! In this regard, Sub-clause (c) of Section 2 of the said Act defines "indecent representation of women" which reads as under: Section 2(c). "indecent representation of women" means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals. The above definition/meaning of the indecent representation of women ex facie would make it clear that many films and advertisements clearly come within the sweep of the offence under the Act!! Similarly. Sections 3 and 4 of the said Act pertain to the prohibition of advertisements containing indecent representation of women and publication of books, pamphlets, films, etc. For contravention of Sections 3 and 4 same is made punishable under Section 6 of the said Act on first conviction with the imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lac rupees. For these offences even the companies under Section 7 of the Act can be prosecuted committing offences under Sections 3 and 4 of the Act. Further, these offences by virtue of Section 8 of the said Act are made cognizable and bailable. If the law enforcing agency honestly, sincerely and vigorously implements the provisions of the aforesaid Act, particularly in view of the provisions for the minimum sentence for the second and subsequent offence, much headway indeed could be at once achieved in stalling the insavory situation created by pornographic literature and films, exhibiting vulgar sex dance, music, poisoning the minds of younger generation, who in turn turn out to be a curse to girls and women in society by committing all sorts of atrocities on them. If the concerned law enforcing agency fails to discharge its duty strictly enforcing the relevant law, enlightened citizens must protest and revolt against them till the time it is brought to the sense of enforcing law in right earnest. In fact, it is the duty of every District Magistrate, District Superintendent of Police and the concerned Commissioner of Police to see that in each and every Taluka, there is a special and effective Girls-women Protection Cells, enforcing relevant laws enacted for the protection of girls, women and young lads with iron-hand. In this regard, it is for the Chair-person of national Women Commission to take up this suggestion from the Court in her right earnest and see that it is effectively implemented. If we want to save the country from the aggression, rather terrorism upon our Indian culture, if we want to save the youth of our country becoming stupid sex-addict, if we want to provide safety and security to honour and dignity of girls and women from the roadside Romeos and maniacs, and if we want to save the country from continuous erosion of high values and in particular replacing the bravery in youth by substituting it by the vulgarity and impotence, the Government must act with a firm resolve and determination to meet with this evil. As a matter of fact, many a times, a question does arise when we see obscene movies, whether there is any Censor Board worth the name or has it become passive or is purchased, as alleged by people? Who will censor the Censor Board? The Government for this purpose shall have to recall guts and courage to itself to meet with the challenge of powerful lobbies of film producers and persons who are running channels on T.V. We hope and trust that these observations of us will be taken serious note of not only by the Prime Minister and his other Cabinet colleagues, but also by responsible women action groups and particularly the Chair-person of National Commission of Women under the said Act of 1990. We honestly believe that the Chair-person of N.C.E.W.F. is quite active and doing the needful in the direction. However, it appears that if anything in particular in the matter of indecent representation of women in advertisements and films, etc., if not done anything by it, then we request the said Commission to focus its attention and that too on war footings on the offences against girls and women on the questions raised and discussed above by taking necessary stem steps against all concerned for gross abuse of the film exhibition in theatres and T.V. channels. We believe, rather are convinced, that perhaps worst than the danger of atomic radiation, as the result of some irresponsible periodic atomic tests endangering the overall existence of human species on the earth, is the danger of fatal psychic virus of sex and crime incessantly spread by some unscrupulous, perverse money-minded film producers, directors, actors, actresses, etc. and the publishers of pornographic literature. And accordingly, therefore,, let there be no mistake about this in understanding the problem involved. In this view of the matter, perhaps more than any importance and urgency of Comprehesive Test Ban Treaty (C.T.B.T.) there is equally urgent and imperative need to have global consensus to have effective checks and control on irresponsible persons and medias continuously radiating evil thoughts, songs and vulgar scenes, victimizing our generation, making them anti-socials, destroying peace and has money in the community, more than that committing act of atrocity and terrorism or minor children and women. In fact, here the fundamental question which goes to the root is the basic human right of girls,m women and younger generation of tender ages of protection from psychic pollution and vulgarism continuously tending to criminalise and voluptuousize the society. If appropriate steps are not taken to prevent the exhibition of the obscene films and advertisements and models more particularly on T.V. in the right earnest one will not be surprised if the lessons in the art of crimes and prostitution may turn our sons daughters and sisters in all the houses having T.V. channels into rank criminals and prostitutes because the actors and actresses are projected to be idols, heroes and heroines, sex-king and sex-queen in the society and the senseless generation applauds and apes their action in life identifying themselves with some such cheap heroes and heroines, committing all crimes against girls and women! Sex and crime addiction in our younger generation is fast spreading crossing the danger line, which is going to be worst than drug addiction!! 19. For the maintenance of law and order, the Judges of High Court, as a Constitutional functionary, have a special and definite role to play! The reason is that during his tenure as a Judge, he comes across thousands of such cases where he finds numner of offences of the particular type repeatedly taking place, which if the reasonable care is taken by the law enforcing agency and the Legislature taking suitable steps to prevent particular type of crime, can prevent the same. For this purpose, the Legislature enacts substantive and procedural laws and accordingly entrusts the duties to the law enforcing agencies. But it is a matter of common knowledge that these duties by the statutory functionaries are performed in routine, impersonal and many a time in quite casual and in perfunctory manner!! When a person commits a crime, the same is registered as an offence, the investigation takes place, the charge-sheet is filed against the accused to face trial before the trial Court where he ultimately stands convicted or acquitted as the case may be. The Legislature, after passing a particular Act obviously rests contended when the Act is passed leaving the rest of the enforcement part to the law enforcing agency. The law enforcing agency, in its turn discharges its duty by investigating and filing the charge-sheet and the Court also, in its turn, just appreciates the evidence and convicts or acquits the accused. This is being done in the routine manner by the Legislative, Executive and Judiciary, but then, in-between these important limbs of the State, there indeed appears to be none to take the overall stock of the situation as to just in what possible manner such crimes can be prevented right from its source, if not fully prevented, at least controlled and reduced. At this juncture, if the High Court also decides the case confining itself strictly to the appreciation of evidence, interpretation of the relevant law or the rule resolving bipartite issues the case-wise that may be enough, but society-wise no contribution. Who will do this? In this regard, we believe that it is only the High Court Judge who is at such a vintage point of opportunity from where instead of mechanically deciding the case, should express himself as to what ought to be done to prevent the crime being committed also more particularly where victims on mass scale are minor girls, women, etc. There is none else to take the stock of the situation. It is for this special reason that while giving a judgment, in appropriate cases, once a while the High Court Judge has to see that not only justice is done in between the parties, but he also expresses his onw view on the basis of which, the attention of the legislature and executive and the public spirited social organizations can be invited as to what is required to be done and at least, something is done if not totally to prevent the crime being committed then at least regulated and reduced to the minimum!!! It is with this irresistible noble urge in mind and impelled by the sense of duty that we at our fagend of the career, even at the cost of perhaps being little prolix, have seized this opportunity to discharge our debt to the society as High Court Judges towards our daughters, sisters and the grandchildren like younger generation, the unwary, unfortunate victims of abuse of T.V., films and pornographic literature! May be some other may hold a different view about the necessity to elaborately discuss on the subject going beyond the facts and law of the case at hand, but we in our discreet opinion, have found it to be quite relevant, just and proper, in the overall public interest to fully express ourselves on causes and effect environmental theory of crimes on the society so as to keep under control the crime rate and in particular harassment and all sorts of cruelty to girls and women in the society. In that view of the matter, let not authorities forget two wisest sayings having a direct bearning of cause and effect on the society, viz., "As you make your bed, so you must lie on it" and "It is an ill-wind that blows nobody and good". We once again, speaking for ourselves, believe that it is far better to hopefully concentrate, cultivate and dedicate to good health, physical, psychic and moral rather than ultimately worrying on gradually losing the same and desperately treating the disease. 20. At the end, having appreciated the ultimate deleterious impact of the cause and effect of the diseased thoughts generated by witnessing and reading the pornographic films and magazines-brainwashing and moulding the sex-lunatic and criminal behavioural pattern of the society and in particular of the immature young buddies, the most obvious question that arises is that having diagnosed the disease, what prescription is needed to control and eradicate the same before it proves to be chronic, irremediable and ultimately fatal? The rough and ready prescription is short term preventive and long run the resistance and health boosting action oriented planning. Now who can do it? Undoubtedly, in the first place, the Government, failing which in the second place, quite vociferous, enlightened and effective public opinion and equally vigilant follow up action from the people!! 20.1 First then, how the Government can do it? In this regard, the first step would be of forming the special ministry for the purpose, known as 'the Ministry of psychic and physical health, moral values and the personality development". This in turn should have three special wings, viz. (1) the preventive cell, (2) the moral values development cell (3) and the liasion cell monitoring the actions and progress of both wings-and ultimately submitting noting for the desired prompt action and ultimately seeing that the proposed action is materialised!! 20.2 The Preventive Wing: This Wing shall consist of two units, viz., intelligence and follow up legal action till its logical conclusion. The intelligence branch shall collect of its own information regarding the pornographic films and magazines and consequently like army patrolling the frontiers of the country must constantly look after: (i) the kind, extent and degree of psychic pollution, (ii) what are the sources and/or medias, persons involved and responsible for abusing medias, corrupting, sexualising and criminalising the society? (iii) for the past obscene films and magazines who were the producers, directors, actors and actresses, models, publishers, etc. etc., (iv) to collect those films and destroy them, (v) who was the President and Member of the Censor Board, who gave certificarte to exhibit pornorgraphic dances, scenes in the picture? (vi) to take appropriate action against the concerned delinquents. For this, if the need be, the Parliament to protect the interest of the weaker sections of the Society, viz., girls, women and children must pass appropriate special Act with Special Law Enforcing machinery and special Courts also. 20.3 Value-based, national construction oriented personality development wing: This Wing shall dedicate and accordingly focus itself on shaping the ideal character and personality of younger generation. That will cover subjects right from K.G. to the post-graduate course. It will concentrate on physical, mental, moral and spiritual development of the individuals. For this purpose, this Wing must have a Brain Pool Committee of experts on Yoga, all sorts of other exercises and sports. The second Committee must consist of the Secretary, Information and Broadcasting, Doordarshan aided by Top psychologists, psychiatrists of the country who can advise the Government as to in what ideal manner it can systematically educate and train people by producing value-based inspiring constructive films, which can ultimately bring about happy-home and in turn, peaceful and responsible Society. The private film producers and Doordarshan, and other people also can be motivated to produce moral boosting, nation-building films which in turn produce a ideal Indian human being. This process must be relentlessly go on. These programmes on working days should televised between 6-00 a.m. and 8-00 p.m. to 11-00 p.m. to go deep down in consciousness of our younger generation. To catch their attention, younger ones should be motivated by attractive prizes-live freeship in schools, colleges, hostels, study tours, etc. This can be done by the gifts offered by the advertisers. 21. Many a limes, so many objectionable scenes are given clear-chits under the name of Art. But what is displayed by way of Art whether it is art or not is to be appreciated in the light of the result it produces on the tender mind. If what is claimed to be artistic, ultimately depraves a man and affects his/her behavioural pattern reducing them vulgar, immoral, then to treat something as an Art is nothing but a self-deception. The ultimate test for anything projected in the films or published in the magazines is an "art" or clearly obscene and illegal is whether the situation scenes, dresses, dialogues, songs, dresses are capable of influncing and thereby depraving the behaviour of person likely to result into harassment to girls and women. While appreciating the obscenity aspect, Court must have pragmatic and sensible approach of ultimate effect on the mind of younger impressionable buddies. Art in that sense, cannot be appreciated in absolute and isolated sense. No Court can be permitted to take risk in absolving an accused on the ground of particular work in the field, etc. is an art, if its ultimate fall-out is vulgar, creating problems for minor boys, girls and women, ignoring altogether social interest. 22. It is, quite indisputable fact that no country, rather no Government, which ignores the interests of minors, girls and women, apart can ever have peace and progress would suffer from anarchy and destruction. The author of Crime in India 1994, in Chapter 7, under caption "Crime Against Women" highlighting the plight of the women, has rightly observed that "The gender difference and bias, perceived as existed globally places women all over the world at various disadvantageous positions. The most painful discrimination of women is the physical and psychological violences perpetuated on them. Notwithstanding the equality guaranteed through Constitution, for many women life is stalked by various threats of violence. The threat of violence on women mainfests right before their life begins, continues to scare the early life, follow in the married life as domestic violence, endangers as victims of rapes and worse than that end in murder or suicides in some cases. The recent U.N.D.P. report states that even under law the equality of women is not yet assured in many societies let alone in practice. It further adds, "Although violence stalks women lives laws can do little unless present cultural and social values change." In this context, the issue of crime and violence against women is serious social problems. The rights exclusive to women even puts the problem, subject of offensive behaviour against woment be it against their body or against their sensibility as crime against women. In the very same Chapter, in para 7.1.2, it further observed that "In India, women are guaranteed equality, freedom, opportunity and protection by the Constitution and several legislations, nonetheless continue to be victims of domestic violence, family violence, violence in the community and at work places. Illiteracy, ignorance, lack of awareness, poverty, added with traditional oppressions and customs, place the Indian women at uneven status/environment." Similarly, in Chapter 8, under caption-"Crime against Children", highlighting the plight of children, it is observed-"Universally, children, the would-be citizens of tomorrow, are disadvantaged in one significant respect. That they are defenseless, both mentally and physically. The nature, perhaps, has ordained so. The far-reaching changes due to scientific, technological and economical advanceents have greatly impacted the life styles, social needs and specifically social values. Born and brought up under conflicting conditions, the status of children, particularly the orphaned, lone, uncared, weaker are open for exploitation and they fall easy victims to several crimes perpetrated against them. Innocence, lack of experience, exposure, improper care/guidance are some of the contributing factors for their vulnerability and external influences. Crimes against children those involving violence, physical and mental such as child abuse, forced labour and childrostitution are becoming matters of serious concern nationally as well as internationally." To this can be certainly added the most destructive role played by the medias, corrupting and criminalising the minds of younger generation making them vulgar and training them instrumentalising-to harass girls and women! With this picture presented to all concerned, we are hopeful that something would be done by the Government and the people to call halt to the pornographic films and literature, motivating free sex and crime indulgence in the Society under the name, cover and camouflage of art. The task to some may appear tall talk, but cannot be abandoned. In words of Lao-Tze, the great Chinese visionary: "A journey of a thousand miles must begin with a single step." 23. The Registrar is directed to forward a copy of this judgment to-(1) The Prime Minister, Union of India, New Delhi; (2) The Governor of Gujarat, Gandhinagar; (3) Secretary, Legal Department, State of Gujarat, Gandhinagar; (3) Minister for Information and Broadcasting New Delhi; and (4) Chairperson, National Commission for Women, New Delhi and (5) The Chairman, Gujarat Judicial Academy, Ahmedabad, for information and necessary actions at their respective ends.

Author: K Vaidya

Dharmendra Dhirajlal Soneji vs State Of Gujarat on 4 September, 1996

Gujarat High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALOR'E--.»j DATED THIS THE 28"' DAY OF OCTOBER,__23fl1Q'VV':l. _ : BEFORE THE HON'BLE MRJUSTICE MOHAVMASJ:§§_A£~§TA!x§A~?;'§CU'[§:AR. wan Pggrrrxom NO}3_20.49/;2'Oi'Q BETWEEN: L' H.T.Shanmukha S/o.iate Thimmappa Aged 37 years , : . ":;r5'Crd3ss Road" R/o.APMC, Quairte Haiipete, Kad'u'r'f_F(}s_A:.:f3 " .: .. . Chikamangakur-::_D§.st. » ' .."PETITIONER (By sr;;'H.N.'vewé5~,¢,aqF£§r, ,) V AND: 'A V V VT M 1. Smt,.E.Sf'i'deX/I V _ W.}.{o. H~.T.Shat'.~--mukhé: Aqeci-,"L27"~--yea rs V A .' '=R7e._No..4_28.._.v 3" Cross, V7"'T.M'e._Ean »Ro[ac}3 'H' B!ock, _ '-Rama !<'r«i.,shn_'a " N a g a r ' W/S0r€*'2?3AT'L Baiafiitbvha Shanmukha .. ,D/o.H.T.Shanmukha _ Aged 6 years R-,"o.No.428, 3" Cross 7"" Main Road, 'H' Biock, Ramakrishna Nagar Mysore--23 Since minor rep.by her Mother Srnt.E.Sridevi, The 15' respondent .. RESPONDEE'i-\J:"i"E'.&jV'ri.: This writ petition is fiied y.under'~Arti_cies 22_S"an'd of the Constitution of India, praying to. quash'V_th.e..i,nte_r%irn order dated 6.8.2010 vide An'vnyexure--E,~--._pa.ss.ed"gby" the Court of the jiudge, Family Court at iiiysore' on I.A.iNo.1 in C.Misc.No.15/O9, with costs ofrthis' writ"petition',"etc. This writ petition Corning':'for.:_p--reiirn_i_nary hearing, this day the Court'--njadeAi:h'e-foliowing:4; «V Riespondyentgiiii'os";'1V,AV'and"2-are the wife and minor daughter it of' respectively. The re|ati_enship*bietweeri. the parties is not in dispute. .."'SinVC'e:' i..the"i*.._petitiVoher neglected to maintain the have fiied petition under Section of..__v'CrA..1'P.iC. claiming maintenance. During the ._inte__rreg*num, interim maintenance was prayed. After 'ie'ari:ng, the Court below has awarded the interim iv maintenance of ?2,S00/~ in favour of the first respondent and €1,500/-- in favour of the respondent. 2. This Court does not find u'e_rror*- impugned order, inasmuch afsathe amount ivavv'ard_VeVd..3to% the respondents cannot be 3ys.axijd:__t'o,_VgAbe'fuinrleasbnable under the facts and case. As could be seen..vf.r:c;>:i*-.<.a_ lftnnfexure-D, the gross salarsi/ffxéfr the month of March,:vi'20'l*i5A:':/iyis"a'nd~"Vtake--home salary is %1o,o2si/.--k{ vTiheipik§éj§oirid_i'arespondent is aged about six years and siiud:yiVn.g-- in'v.th'e First standard at Mysore. In =7:V'"p.aragAraiph--13A ofivvthev impugned order it is ciearly first respondent--wife though was _ serving i.__virn-fierfiiance Company, has left the job since JJ'anfuary"*';2.01G. She is no ionger in service. In view of 'above, the amount of '$32,500/~ and i"1,500/- H _.-4m awarded by the Court beiow to respondents 1 and 2 respectiveiy, cannot be said to be on the higher Hence, no interference is caiied for. _.\Mrvi4t=pef.itiora3 faiis and accordingiy same is disnéissedl» " _ " é

Author: Mohan Shantanagoudar

H T Shanmukha vs Smt E Sridevi on 28 October, 2010

Karnataka High Court

FA/95/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 95 of 2007 ========================================================= NATIONAL INSURANCE CO LTD - Appellant(s) Versus MITISHABEN WD/O TAKHATSINH G CHAUHAN & 4 - Defendant(s) ========================================================= Appearance : MR SUNIL B PARIKH for Appellant(s) : 1, RULE SERVED for Defendant(s) : 1 - 4. RULE NOT RECD BACK for Defendant(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/07/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) As per Office Note R & P has not received with the Paper Book and the respondent No.5 is unserved. Mr. Sunil Parikh, learned Advocate, appearing for the appellant, states that fresh Notice be issued to respondent No.5, which shall be served through Registered Post A.D. at the expenses of the appellant. Upon his request, fresh Notice be issued to the respondent No.5 returnable on 4th August, 2008, shall be served through Registered Post A.D. (A.M.KAPADIA,J.) (Z.K.SAIYED, J.) sas

National vs Mitishaben on 7 July, 2008

Gujarat High Court

Gujarat High Court Case Information System Print SCA/6573/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6573 of 2010 ========================================================= DHARMESHBHAI MANIBHAI PATEL & 3 - Petitioner(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR VM PANCHOLI for Petitioner(s) : 1 - 4. MR JANAK RAWAL, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/06/2010 ORAL ORDER After arguing for some time, Mr.V.M.Pancholi, learned counsel for the petitioners, states that he may be permitted to withdraw the petition with a view to filing an appropriate application before the appropriate Court. In view of the above statement, permission to withdraw the petition, as prayed for, is granted. The petition is disposed of as withdrawn. (Smt.Abhilasha Kumari, J.) (sunil)     Top

Author: Abhilasha Kumari,&Nbsp;

Dharmeshbhai vs State on 27 August, 2010

Gujarat High Court

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

Central Government Act

IN THE HIGH COURT OF KARNATAKA, cIRcy:1*:f AT DHARWAD. DATED THIS THE 25TH DAY QJFfA,NQVEEflB"L?TR:v,. $2503'. { ' x " PRESENT,' Q ' THE HOBPBLE MR.JUS'i'1 c}3 . H L % , THE HQNBLE MR. GOWDA M.F.Av;*E'+$>.::1032.:}:/§G(}§';f" BETWEEN _ KARNATAKA NEE:?3:AVAR'I. NIGA1\.&"LTD REPREsENTE:1"JB3"' 41T"S.A%M.Ap:AC»1NG I>mEC:1*oR N0. 1, COFFEE _BC)fA_F<D VBUEDING, 4TH FLOOR, %DR;B.§-2;AMssEDKAR VEEDHI, BANGALORE 0.1 APPELLANT - .-(By..'S}i.§5RIKAN'i'H;J«;--BfiAT : V.Y.KUMAR) A:€D%k?fi%A&%k'% % 1.' . % sR1 SQETYAWAN MAHARUDRA CHOUGULA FR/Ci HEREKUDI, CHIKODI, BELGAUM % " " 9' S13-EHAGWAN MAHARUDRA CHOUGULA ~ _ "39:/0 HIREKUDI, CHI§{C}QI,BjElLGAU1\/E " 3."; '}'HE SPECIAL LAND ACQUSITION OFFICER HZDKAL DAM, HUIGCERL . . . RESPONDENTSA 'A (By Sri.S N i+~IA'1'I'i FOR R1 R2) (SR1 C.S..PA'I'IL, GGW. AIDV. FOR R3) MFA FILED U/s.s4(1) OF LA ACT AGAINST" JUDGMENT AND AWARD DATED 19/11/200§""PASS_E'.f; IN LAC No.82/04 ON THE FILE OF *:%HEA%JVc§v*:LM"--T PARTLY ALLO~'~§VIN'G 3735; " . JUDGE(SD) - CHHIODI, REFERENCE PE'I'I'i'ION :FOR*. '_ COMPENSATION. This Appeal coming 611.Vfor "~hé§atfingV v ' SREEDHAR RAO, J., delivered ti*1:f;"'fG1}o$vii1g:a " I.A.No.2 is e{1}{f:ved;;A 1;)§:.fa3::VA6Vi"_:22O «gays in fimg the Sri «f;5I""'t}:1e Government. land acquired for the purpose, of §foIz su"1ir3tiGn 6uf a 4::-anal. The LAO awarded I-'j'__V.¢e1fi1é:e;.i::is;'~itioi3.«at fI:é""i€;1te of Rs.25,()O0/- per acm. The considered the lands as having NA 2 _ compensation at the rate cf Rs. 1 1/ -, 12/; Rs. 15/ -- per sq.ft Iifldfii' three categories. The Nimvari Nigam Ltd. (for short, 'KNNLU has filed VT : " appeal chaflengng the compensation granted as excessive ' A. and else contend that the land has no NA potential. 2. The awanfl of the LAO discloses opinion of the panchas Show that the va1ue:'_:6f' 'the: ranges between Rs.25,()0O/- The LAO has relied upon the sales soid in the years 1997 to~'1§3-9.9 notification. The sales statist_ii:s:__disclese'-- ihe lands are sold at Rs.25,O0C)'f;"to"--_Rs;32';O'§)(§)'4:'per acre. The lands are dry leads. '1A'i1e'>1ié"3'.:1i:eA.§'o:f' ;r.1i:1e:1:'e§st1*atio17; of the dry lanés e:sif.;';1x¢dM%;:t Rs.33,000/- per acre foiijzhe __ -- ' 3. 'A 0:1 the other hand, have pr0€11;1ee{1.the re¢¢:rds'%=:o show that the lands hearing as 451/1, 395/2, 394/213, 213/3, 328/1 and RS viliage are converted for Non.- L' Agflei}§tt;efsl' The said lands adjoin the lands in " :q2ie'st,i{31i§" The claimants have also produced evidence to --.T.'.~si1p*e*'AAtI1at RS 1570.388 is converted to Nor;-Agficulmral V. ' "flpefirpose, house sites are formed by one Padaiale, each site measurcing 39' X 40' is sold for Rs.4'7,{)0O/-. The sale deed _ We,sE§.V of plot No.20 dated 17.2.1999 is marked as _f1'he preliminary notification in respect of the is issued in the year 200:, S11i}vej,:'1:.4I"4A<;s.'23{)<':)_'.i;~3.: * village limits of Hirekudi viilage, '§={§}¥vev€r,' the certified copy of the 1t:;ap discloses that RS No.38-8 is situate1n§m;:diate1y'«a;i;oming Chikk0di-- Miraj road. 'line said" ' v--i$l_téV$ Chikkodi than Hirekudi. %r:?;e .(V'i{2e€dv.¢'31§§§:::f§%ir;:Vi1:ié§S" that RS mass is situate __ 9%.; Hirekudi village and' adgoms The lands in question are situate: Afa:+41'_offfrqxjaAVA'C}§i1;i:£§di --- Miraj Road to the North»-« A claimants have produced records to Show '.t}1VéE.:.+t29iE:'aié:;.if1ti$'é.djoi11ing the lands in qz_1ests'.e1"1 have been 'ti; NoI;«Agicultura1 purpose. The said lamis are x V' »zi1S°<;«..ésit1::ate to the Wes: of Chikkoéi -~ Mirag Road, quite far ' from West. of Chikkodi ~--~ Miraj Road, and they are '4 Wa11::i1{>st situate in the micidle between Himkudi village and Chikkodi ~-- Mira} Road. Coznsiderifig the lccation of RS 5 No.388 and the lands in question, we find that RS No.1-388 has no comparison to the lands in question. The claimants have also not preduced any §Bat€I'ia}..'t£§:."«5:lihQW that in the NA converted lends any plots have.'feeeiA'1i and sold. The Reference Court has».mainly V' sale deed E3x.P.29 pertainirig to 1:23 eoessltoeeae£e;mm.g the value. If the sale doeeeient isle absolutely no credible material-~te"L_eSee'ss the";3;1eIl:{et value of the lands in questionll' -j'Phei*ex'*i$*Ijeeiiixateriai either Way to Show Whether lands do really have NA poierniiel or conversions are manipulated ;e;e£ieiApe:.iefiv pf the acquisition. There is absolutely available on record for this Court [to detefmifie the just and preper compensafion. 'lelaé.ime.z"1t;s have also net let in convincing evidence he __'*pregve the market value. Oniy one witness is examined 'V V heavy reliance is placed on Ex.P.29, the sale deed of a plot in RS Ne.388. In View of the paucity of evidence, we do not feel that it is just and proper to fixing the market value of the lands in T' interests of justice anti interests '- it and necessary that the order of the Refe1*e1§;Ce is L' be set aside, the matter to itemandedi. -xizhezifiefereneei Court for flesh eoI1side1"atio_tim;at;ti:. eecordance with law. The paI*t;iesV_ adduce further 6. that a considerable time theWt)a1*ties are denied of the compenisatien, 'wee as an interim measure, KNNE,' " eompensatien at the rate of per acre inclusive of the award made by the The deposit to be made Within four V V' _ weeks. are permitted to withdraw the amount .ede}t:Qsited: It is directed that the Reference Couxt shall of the ease within three months. it is clarified that the Reference Court need not be influenced by any of the factual observations made regardizlg the location. of the lands and petential. Al} the contentions are kept open: __ ' it is further clarificzd that in; féS1jt;:;t".Qf-: KNNL has already dep0sit;ed_3._'Sufi:-c;f=Rs. acre, no further deposit be Refund of Court 3%.? iuége nvb.

Author: K.Sreedhar Rao& Gowda

Karnataka Neeravari Nigam Ltd vs Sri Satyawan Maharudra Chougula on 25 November, 2008

Karnataka High Court

8. In the result the writ petition is accepted, the impugned orders are quashed, however, we make no order as to costs. Send down the records to the Superintendent of Taxes, Dibrugarh, for disposal of the case according to law and the directions set out above. JUDGMENT K. Lahiri, J. 1. What is the decisive factor, the terms of the written contract or the interpretation put by the parties to the contracts to ascertain whether the goods sold were "exempted goods" under Section 7 of the Assam Sales Tax Act, 1947, for short "the Act", read with Schedule III to the Act ? In our opinion the written contract speaks eloquently the nature and character of the goods sold or purchased and whether the goods fall within or outside the purview of the items enumerated in Schedule III to "the Act". The question whether the goods fall in any of the items of the schedule can be best decided by the taxing authorities on a proper appreciation of the terms of the contract. 2. This writ petition stems from an order of assessment dated 17th December, 1970, rendered by the Superintendent of Taxes, Dibrugarh, under Section 17(3) read with Section 19A of "the Act" and the appellate order dated 16th March, 1971, of the Assistant Commissioner of Taxes, Assam at Jorhat. 3. The petitioner is a registered partnership firm which carried the business of supplies of various materials to the Director of Supply and Transport, NEFA, against orders placed by the said administration. According to the petitioner it received orders for supply of "meat" to the administration. It has been averred by the petitioner that on acceptance of the tender of the petitioner a written contract was executed by it with the NEFA administration. On execution of the contract the petitioner supplied "meat". It is stated that one of the conditions of the tender was that "meat" should be the produce of healthy, well-nourished stock of animals. The animals had to be passed by the representatives of the Director, as fit for slaughter. The petitioner was to produce the animals for inspection and examinations before they were slaughtered. According to the petitioner the supply orders were for meat. It has been averred that the terms and conditions of the contract in the tender form were that one-half of the actual weight of the live animals would be taken to be "meat" received or receivable from such animal and the same ratio was taken to be the weight of the meat for the purpose of supply. In exercise of the power under Section 19A(1) of "the Act" the Superintendent of Taxes, Dibrugarh, issued notice dated 29th May, 1970, initiated the proceedings for escaped assessment. In the course of the said proceedings the Superintendent issued notice dated 20th August, 1970, calling upon the petitioner to show cause why the sale or supply made by the petitioner to the Direction should not be treated as sale of live animals or "meat on hoof" and taxed accordingly, and also asked the petitioner to show cause why deduction which had been claimed by the petitioner under Section 7 of "the Act" read with item 11 of Schedule III to "the Act" should not be disallowed. The petitioner showed cause and asserted that it supplied "meat" which was covered by item 11 of Schedule III to "the Act". The petitioner also furnished copy of the relevant contract to the Superintendent of Taxes, vide annexure IV to the petition. However, by the impugned order dated 17th December, 1970, the Superintendent of Taxes, Dibrugarh, assessed the petitioner on the turnover treating the goods sold as "meat on hoof", i.e., "live animals", and not meat. The Superintendent held that "meat on hoof" was not covered by the exemption granted by item 11 of Schedule III. A notice of demand was issued for Rs. 13,993.74 for the return period. The petitioner preferred an abortive appeal which was dismissed on a technical ground. It is worthwhile to recall at this stage that the Superintendent of Taxes decided that live animals were sold to the Director, NEFA, on the basis of and relying solely on the opinion expressed by the Director of Supply, NEFA. The Superintendent of Taxes had asked the Director whether the assessee had actually supplied "meat on hoof", i.e., live animals, or he had supplied "flesh" or "meat". The Director opined that "meat on hoof" was supplied. On the foundation of the opinion, the Superintendent was satisfied that the dealer had supplied live goats and held that they were not covered by item 11 of Schedule III. 4. The petitioner has urged that "meat" was an exempted goods specified in item 11 of Schedule III to "the Act" whereas "live animals" were not. The validity of the orders of the authorities have been questioned by the petitioner on the ground that the authority decided that the goods sold were live animals and not flesh or meat on the opinion of the buyer and not on scrutiny of the terms of the contract which the authority was bound to consider and as such the authority failed to exercise jurisdiction vested in it by law and deprived the petitioner of his valuable right of exemption to be taxed confined by under the statute. 5. There is no wrangle at the Bar that under Section 7 read with item 11 of Schedule III to "the Act" no tax is leviable on sale of "meat". However, the decision was taken by the authority that the goods sold were live animals on the basis of the statement of the Director, the buyer. In our opinion the oral statement of the parties to the contract are nebulous, may irrelevant where written contract exists. The only decisive factor to decide the issue is the written contract. To adjudge the nature and character of goods supplied the terms of the contract are conclusive. It appears from the tender form that supplies might have been in respect of "meat" and/or "dressed meat". 6. We are of the opinion that the determinative fact to adjudge whether "live animals"/"meat on hoof" or flesh/meat were supplied by the petitioner could be adjudged only on the correct reading of the contract between the assessee and the Director. We are also of the view that if the price paid by the buyer was on the basis of the meat content of the animals, in that event it must be treated as supply of "meat". It appears from the terms of the tender forms that the price paid by the buyer was on the basis of the meat content of the animals, i.e., 50 per cent of the weight of the animal was taken while calculating the price of "flesh"/meat, or "dressed meat". The correct procedure to determine the question as to whether the live animals were sold or meat or flesh were sold should be based on true construction of the terms of the contract. We are of the firm opinion that in order to decide what was sold by the petitioner to the buyer, would depend on the reading of the contract between the parties. 7. In Daffadar Bhagat Singh & Sons v. Joint Excise and Taxation Commissioner, Punjab, Patiala [1976] 37 STC 527 (SC); AIR 1976 SC 2544, their Lordships have held as under: ...Counsel for the respondents submitted that 'meat on hoof in army vocabulary meant the live animal. Whether what was sold by the appellants to the army authorities as meat on hoof was really meat, or it was live animals that were sold, would depend on a correct reading of the contract between the parties. ...On behalf of the appellants extracts from the contract were handed over to us, but the counsel for the respondent seemed to think that there were other terms in the contract regarding skins, for instance, which have a bearing on what was sold. We are, therefore, not in a position to decide for ourselves what exactly was, the contract between the parties...As we feel that the question can be answered only on a proper appreciation of the terms of the agreement between the appellants and the army authorities, the case must go back to the High Court for disposal of the matter according to law on a consideration of the relevant contract;.... It follows that when a written contract exists the decision as to whether animals or meat" were sold should be determined by the taxing authorities on the basis of the terms of the contract. No other extraneous consideration or opinion should be taken into consideration. In the instant case the authority below did not at all look at the contract, although it was very much before it. We hold that the question could be resolved only on a proper appreciation of the terms of the agreement between the dealer and the buyers. We are constrained to hold that the impugned order was "a purported decision" and not a "real decision". The decision was based on extraneous ground leaving aside the real determinative factor. We therefore quash the impugned order and remit the matter to the Superintendent of Taxes, Dibrugarh, for disposal according to law. The copy of the contract filed by the dealer is with the Superintendent, on perusal thereof, the Superintendent shall dispose the matter at an early date after serving due notices to the parties. We would observe that while considering the moot question, the Superintendent shall consider as to whether price paid by the buyer was on the basis of the meat content of the animal or the price was fixed per animal and thereafter determine as to whether the goods supplied fall in item 11 of Schedule III to "the Act".

Author: K Lahiri

Bhattacharjee Brothers vs Superintendent Of Taxes And Ors. on 15 June, 1984

Gauhati High Court

Gujarat High Court Case Information System Print SCA/1278/2011 8/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1278 of 2011 For Approval and Signature: HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE G.B.SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= SARJEET SINGH MAIDHAN - Petitioner(s) Versus UNION OF INDIA THROUGH SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR VAIBHAV A.VYAS for PARESH UPADHYAY for Petitioner(s) : 1, None for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 18/02/2011 ORAL JUDGMENT (V.M.Sahai, J.) Sreeram. (G.B.Shah, J.)     Top (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. The short question that arises for consideration in this Special Civil Application is that if the petitioner is declared a deserter in State of Assam and his representation is rejected at Gaya (Bihar), whether the cause of action to sue would be available to the petitioner to file Special Civil Application, in Gujarat High Court on the ground that he is a resident of State of Gujarat? 2. The petitioner was enrolled in the Indian Army as a Constable on 18.11.1987. He was promoted on the post of Naik. While he was in service as Naik 'C' Coy 521 ASC Battalion, Assam, he was granted leave with effect from 11.4.2006 to 16.5.2006. He overstayed after 16.5.2006 and did not return for joining Army at Assam. Therefore, he was declared deserter as he was absent from duty from 16.6.2006. The petitioner's mother Dakha started claiming regularisation of debit balance of deserter before the ASC, Records (AT) (Paharpura), Gaya, Bihar. The aforesaid authority informed Dakha that the certificate duly signed and counter-signed by District Soldiers Army Welfare Office be written, so that action may be taken. Similar letters were also sent on 27.5.2008 and 30.11.2008. The petitioner wrote a letter to the aforesaid authority on 21.11.2008 claiming pension and other retiral benefits. On 15.4.2010, the petitioner claimed pension and other retiral benefits from the office at Gaya (Bihar). He was informed on 18.4.2010 that those soldiers who are declared deserter are not paid pension. For other amounts he may write to the President of India, Central Government. Thereafter, the petitioner filed Special Civil Application No.3223 of 2010 before this Court, which was dismissed on 29.3.2010 as pre-mature. In this application the petitioner has prayed for quashing of the communication dated 28.4.2010 denying pension and has prayed for pension and other terminal benefits. 3. We have heard Mr.Vaibhav A.Vyas, learned counsel holding the brief of Mr.Paresh Upadhyay, counsel for the petitioner. 4. By 15th Constitutional Amendment Act, 1963, Clause (1-A) was added to Article 226(1) which was re-numbered as Clause (2) by the 42nd Constitutional Amendment, 1976. The effect of the amendment was that writ jurisdiction of the High Court was extended to those cases also where only a part of cause of action had arisen within the territorial jurisdiction of a High Court. It is necessary to extract Clause (2) of Article 226 of the Constitution which reads as below:- "226(2) Power of High Courts to issue certain writs.- The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." Section 20(c) of the Code of Civil Procedure and Article 226(2) being pari materia, it is necessary to extract Section 20(c) which reads as under:- "20. Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- xxx xxx xxx xxx (c)the cause of action, wholly or in part, arises." The expression "cause of action" has not been defined in any Statute. Cause of action means that the person or authority to whom the High Court is empowered to issue must be within the territorial limits of the High Court and even a small fraction of right to sue accrued within the jurisdiction of the High Court. In other words, the cause of action wholly or in part must had arisen within the territorial jurisdiction of the High Court. "Cause of action" is the bundle of facts which taken with applicable to them, gives the petitioner a right to relief against the respondent. 5. The Apex Court in Kusum Ingots & Alloys Ltd. vs. Union of India and another (2004) 6 SCC 254 held that the cause of action would accrue at the place where the appellate/revisional order was passed, even though part of cause of action had arisen. 6. In the case of Mosaraf Hossain Khan vs. Bhageeratha Engg.Ltd. and others (2006) 3 SCC 658, the facts were that the appellant filed a complaint in West Bengal alleging dishonour of cheque issued by respondent Company which had registered at Head Office at Ernakulam in Kerala for the amount due for supply of stone chip in connection with the construction work of major bridges in the State of West Bengal. Summons was issued by CJM, Birbhum, West Bengal. Kerala High Court in a writ petition stayed the proceedings before the CJM. The Supreme Court held that the registered Head Office was at Kerala, the cheque was issued from Kerala and payment of dishonoured cheque was sent from Kerala were not relevant facts for holding that a part of cause of action arose within the territorial jurisdiction of Kerala High Court. Similar view with regard to cause of action had been taken by the Apex Court in Om Prakash Srivastava vs. Union of India (2006) 6 SCC 207, Alchemist Ltd. and another vs. State Bank of Sikkim and others (2007) 11 SCC 335, and Eastern Coalfields Ltd. and others vs. Kalyan Banerjee (2008) 3 SCC 456. 7. The expression "cause of action" is the entire set of facts that gives right to an enforceable claim. It is understood to mean a situation or facts that entitles a party to maintain an action in a Court. But whole or part of cause of action must arise within the territorial jurisdiction of the High Court. In order to entertain a writ petition or special civil application under Article 226(2), the High Court has to be satisfied from the entire facts pleaded in support of cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. Facts which have no bearing with the dispute involved in the case would not confer territorial jurisdiction on the Court. 8. Now, we may examine as to whether residence of the petitioner in State of Gujarat which confer jurisdiction on this Court wholly or partly though the petitioner was declared a deserter while he was in service in State of Assam and his representation made to the authority at Gaya, State of Bihar was rejected at Gaya. In Daya Shankar Bhardwaj vs. Chief of the Air Staff, New Delhi and others (AIR 1988 All. 36, the Division Bench held, "A right of action is the right to enforce a cause of action. A person residing anywhere in the country being aggrieved by an order of government Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Art.226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the government or authority and not by residence of the person aggrieved." 9. The decision of the Apex Court in Dinesh Chandra Gahotri vs. Chief of Army Staff and another (2001) 9 SCC 525 was considered by the Full Bench of Allahabad High Court in Rajendra Kumar Mishra vs. Union of India and others (2005) 1 U.P.Local Bodies & Education Cases 108. The Full Bench in paragraph 17 relied on the decision of the Apex Court in Oil and Natural Gas Commission vs. Utpal Kumar Basu (1994) 4 SCC 71, wherein it was held as under:- "Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against, whom the direction, order or writ is issued is not within the said territories. The expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial". 10. The Full Bench came to the conclusion that place of residence of petitioner at District Ballia in State of Uttar Pradesh would not confer territorial jurisdiction on Allahabad High Court the petitioner was dismissed from service in Court Martial proceedings in State of West Bengal and as even part of cause of action had not arisen in State of Uttar Pradesh and the writ petition was not maintainable. 11. In view of the discussions made above, we are of the considered opinion that since the petitioner was declared as deserter while he was in service at Assam, either the High Court at Guhati would have jurisdiction or where the petitioner's representation was rejected, i.e. at Gaya (Bihar), Patna High Court would have jurisdiction, but High Court of Gujarat would not have territorial jurisdiction as no cause of action wholly or in part has arisen in Gujarat. The argument of counsel for the petitioner that since the petitioner was residing in Gujarat State, therefore, on the ground of residence, he is entitled to maintain this Special Civil Application, is liable to be rejected. 12. In the case in hand, the petitioner was declared deserter in State of Assam, his representation was rejected at Gaya in State of Bihar. No part of cause of action had arisen in State of Gujarat, therefore, this Special Civil Application is dismissed with liberty to the petitioner to approach the appropriate authority or legal Forum.

Author: V. M. G.B.Shah,&Nbsp;

Sarjeet vs Union on 18 February, 2011

Gujarat High Court

Gujarat High Court Case Information System Print CA/1850/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR AMENDMENT No. 1850 of 2010 In SPECIAL CIVIL APPLICATION No. 9563 of 2004 ========================================================= COSMOS TEXTILE MILLS (P) LTD - Petitioner(s) Versus CHIEF ENGINEER GUJARAT ELECTRICITY BOARD & 1 - Respondent(s) ========================================================= Appearance : MS SUDHA R GANGWAR for Petitioner(s) : 1, None for Respondent(s) : 1, MR NK MAJMUDAR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 17/02/2010 ORAL ORDER Heard. In view of the averments made in the application, the same is granted in terms of para 3(a)(b). The application stands disposed of accordingly. The learned counsel for the applicant shall amend the cause title accordingly. Registry is directed to list the main matter for hearing on 24.02.2010. [K.S. JHAVERI, J.] /phalguni/     Top

Author: Ks Jhaveri,&Nbsp;

Cosmos vs Chief on 17 February, 2010

Gujarat High Court

Gujarat High Court Case Information System Print LPA/742/2006 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 742 of 2006 In SPECIAL CIVIL APPLICATION No. 4230 of 2001 ========================================================= A.K.SINHA - Appellant(s) Versus MANAGER-AIRPORT AUTHORITY OF INDIA - Respondent(s) ========================================================= Appearance : M/S THAKKAR ASSOC. for Appellant(s) : 1, MR SV RAJU for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 15/03/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) Learned counsel Mr. A.B. Pandya states that Mr. Chetan Pandya is appearing on behalf of Mr. S.V. Raju. He prays that the matter may be adjourned to 29th March 2011. List on 29th March 2011. (V.M. SAHAI, J.) (G.B. SHAH, J.) omkar     Top

Author: V. M. G.B.Shah,&Nbsp;

A.K.Sinha vs Manager-Airport on 15 March, 2011

Gujarat High Court

CENTRAL INFORMATION COMMISSION Appeal No.3107/ICPB/2008 F. No. PBA/2008/00376 November 24, 2008 In the matter of Right to Information Act, 2005 - Section 18 [Hearing on 07.11.2008 at 12.00 noon through Video Conferencing between New Delhi-Puducherry-Yanam] Appellant: Mr. P. Veerappan Public authority: Industrial Development (Power) Department Mr. S. Alphonse, US (Power) & CPIO Parties Present: For Respondent: Mr. S. Alphonse, US (Power) Mr. P. Veerappan-Appellant FACTS: The appellant has sought information under RTI Act by his letter dated 9.11.2007 addressed to the PIO/Under Secretary (Power), Government of Puducherry, Puducherry regarding action taken by the Sectt. On his appeal petition submitted under C.C.S. (CCA) Rules, 1965 and other details. The PIO by his reply dated 19.12.2007 has denied the information under section 2(f), 8 (1) (e) & (j) of the RTI Act, 2005. Not satisfied with this reply the appellant preferred an appeal before the first AA on 14.1.2008 and the AA has upheld the decision of PIO vide his order dated 1.2.2008. Aggrieved with this decision, the appellant preferred this appeal before the Commission on 8.2.2008. Comments were called for from the public authority vide letter dated 12.5.2008 and the same were received from Under Secretary(Power) on 2.6.2008. This case was taken up for hearing on 7.11.2008, which was attended by the appellant from Yanam and the Under Secretary (Power) attended the hearing representing the Department from Puducherry. DECISION: 2. I have gone through the RTI application and other replies received in this connection. The case was deliberated in detail during the hearing. During the hearing the appellant has stated that his juniors have been promoted to next post without considering his name and in this connection he has submitted an appeal to the appellate authority, viz., Under Secretary to Govt. (Power) and he wanted to know the action taken on his appeal. Whereas the PIO has stated that this information is not covered under definition of information and hence rejected the appeal. This interpretation of the PIO is not correct. The PIO has been directed 1 to intimate the appellant the present status of the appeal as to the action taken on it within 15 days from the date of receipt of this decision. In these lines the appeal is disposed of. Let a copy of this decision be sent to the appellant and PIO. Sd/- (Padma Balasubramanian) Central Information Commissioner Authenticated true copy : (Prem Singh Sagar) Under Secretary & Assistant Registrar Address of parties : 1. Mr. S. Alphonse, US (Power) & CPIO, Industrial Development (Power) Department, Chief Secretariat, Puducherry. 2. Mr. P. Veerappan, No. 6, 132/11, K.V. Sub Station Quarters, Mettacur, Yanam-533464 2

Mr. P. Veerappan vs Industrial Development (Power) ... on 24 November, 2008

Central Information Commission

ORDER S. R. Chauhan, J.M. 1. This appeal by Revenue for asst. yr. 1993-94 is directed against the order of CIT(A), Jodhpur, dt. 19th September, 1994, whereby he cancelled the penalty levied by AO under s. 271B. The AO had levied the penalty holding that the assessee had not obtained audit report within specified time. The learned CIT(A) cancelled the penalty holding that IT return was filed late along with audit report and so the audit report was delayed as it could not be separated from the return and be filed without submission of return. He also observed that the chartered accountant had also confirmed in his statement/examination that he had prepared the audit report in time. 2. We have heard the arguments of both sides and also perused the record. 3. The learned Senior Departmental Representative of Revenue has also furnished written submission and we have gone through the same. We have also gone through the cited decisions, copies of which have been furnished before us. 4. The only issue raised by the Revenue before us disputes the cancellation of penalty imposed by AO under s. 271B. The learned Senior Departmental Representative has contended that the assessee's turnover being more than Rs. 40 lacs it was necessary for the assessee to have its accounts audited under s. 44AB before the specified date which, in this case, is 31st October, 1993. He has contended that it was also necessary for the assessee to obtain audit report under s. 44AB on or before the specified date, i.e., 31st October, 1993; and equally it was also necessary for the assessee to furnish report of audit under s. 44AB on or before 31st October, 1993. He has contended that such a requirement already existed under s. 44AB r/w s. 271B and s. 139(6A), as they stood at the relevant time. He has also referred to the decision of Hon'ble Rajasthan High Court in the case of Abhay Kumar & Co. vs. Union of India & Ors. (1987) 164 ITR 148 (Raj). As against this, the learned authorised representative of assessee has contended that the issue is covered by a decision of this Bench, dt. 4th May, 2000, in ITA No. 247 (Jp) of 1994 in the case of Asstt. CIT vs. Shanker Lal Agarwal, a copy of which has been placed on record. However, as the learned Senior Departmental Representative contended that the decision of Hon'ble jurisdictional High Court in the case of Abhay Kumar was not considered by the Bench in its earlier decision, so the arguments of both sides were heard in detail. The learned authorised representative of assessee has contended that various Benches of Tribunal have been consistently holding that for the assessment years prior to 1st July, 1995, the furnishing of audit report under s. 44AB was not necessary nor, in turn, the penalty under s. 271B was leviable for default of non-furnishing of the same. He has contended that the requirement of furnishing of audit report under s. 44AB has come in the statute s. 44AB w.e.f. 1st July, 1995, and prior thereto the only requirement under s. 44AB was regarding getting the accounts audited and obtaining the report of the said audit. He has contended that for assessment years prior to the amendment in s. 44AB which has come into operation w.e.f. 1st July, 1995, no penalty under s. 271B can be levied for any failure to furnish the report of audit under s. 44AB or for any delayed furnishing of the audit report. He has cited V. Kathirvel vs. ITO (1999) 63 TTJ (Mad) 500. He has contended that while interpreting taxing statutes the Court cannot make good the deficiencies in the statute and that Court must interpret the statute as it stands and in case of doubt in a member favourable to the taxpayers. He has cited CIT vs. Shaan Finance (P) Ltd. (1998) 231 ITR 308 (SC). 5. We have considered the rival contentions as also the materials placed on record together with the cited decisions. We may note that in s. 44AB the word "furnish" regarding audit report under s. 44AB has been inserted w.e.f. 1st July, 1995, and that earlier thereto the words in s. 44AB were "to obtain". As such so far as the provision of s. 44AB is concerned, it did not provide for furnishing of audit report under s. 44AB at any time prior to 1st July, 1995. The assessment year under appeal being 1993-94, that is, prior to amendment of s. 44AB vide the Finance Act, 1995, which became operative w.e.f. 1st July, 1995, the position of law under s. 44AB remains that as mentioned above as being prior to 1st July, 1995. Accordingly, evident as it is, the provision of s. 44AB, as it stood prior to 1st July, 1995, required only the getting of accounts audited within the specified date and also the obtaining of audit report under s. 44AB within the specified date. Furnishing of audit report under s. 44AB was not a requirement under s. 44AB prior to 1st July, 1995, and the said requirement has come under s. 44AB only w.e.f. 1st July, 1995, which did not exist prior thereto, nor, in turn, in asst. yr. 1993-94, the one under appeal. As such during asst. yr. 1993-94 the provision of s. 44AB, as it stood at the relevant time, did not require the assessee to furnish the audit report under s. 44AB. 6. Now coming to the provision of s. 139(6A) the same may, for advantage, be quoted here as under : "139(6A) Return of Income : Without prejudice to the provision of sub-s. (6), the prescribed form of the returns referred to in this section and in cl. (i) of sub-s. (1) of s. 142 shall in the case of an assessee engaged in any business or profession also require him to furnish the report of any audit referred to in s. 44AB .........." 7. In the above provision the words "the report of any audit" were inserted in this provision by amendment vide Finance Act, 1988, w.e.f. 1st April, 1989, and the words "referred to in s. 44AB" were inserted by amendment vide Finance Act, 1995, w.e.f. 1st July, 1995. It may be recalled that the audit reports may be under various provisions of IT Act, 1961, as for example ss. 12A(b), 32AB(5), 80HH, 80HHC, 80HHE, etc. etc. So the provision of s. 139(6A) as amended by the Finance Act, 1988, w.e.f. 1st April, 1989, as it existed prior to 1st July, 1995, required only the furnishing of audit report along with return and the said audit report was not the only one under s. 44AB but there were so many other audit reports also under various sections, a few of which have just been mentioned above. As such the said provision (as it stood prior to 1st July, 1995, required the various audit reports to be furnished to the AO along with the return of income and the provision did not prescribe any earlier specific date for furnishing the audit report. We may also note that in case the audit report was not furnished along with the return of income as required under s. 139(6A) the return was to be treated as defective and the AO was under an obligation under s. 139(9) to require the assessee to rectify the defect and thus provide the assessee an opportunity for removing the defect. However, if the assessee did not rectify the defect even after affording the assessee an opportunity, the result would have been that the return would be treated as an invalid return. In the instant case, however, there is no material on record to show that the AO had given any notice of defect in the return to the assessee requiring the assessee to remove the defect of non-furnishing of the audit report with the return. As such even if there were non-compliance of s. 139(6A) due to non-furnishing of audit report under s. 44AB along with the return, the penalty under s. 271B cannot justifiably be levied for the said default/defect or else the same would violate the principle of natural justice, inasmuch as no notice under s. 139(9) for rectifying the defect in return seems to have been given. 8. Besides, the issue is worth considering from another aspect as well. Assuming that even if the defect notice under s. 139(9) for rectifying the defect in the return in respect of non-filing of the audit report along with the return of income as required under s. 139(6A) were issued and still there were non-compliance on the part of the assessee inasmuch as the assessee did not rectify the defect nor did the assessee file the audit report, the leviability of penalty under s. 271B for the aforesaid default of s. 139(6A) still remains question marked for the reason that the penalty under s. 271B is leviable in some specific situations. In order to appreciate the same we may quote the relevant portion of s. 271B, as applicable prior to 1st July, 1995, as under : "obtain a report of such audit as required under s. 44AB or furnish the said report along with return of his income filed under sub-s. (1) of s. 139 or along with the return of income furnished in response to notice under cl. (i) of sub-s. (1) of s. 142." 9. A perusal of the above provision makes it clear that the penalty thereunder is leviable for the following defaults : (i) failure to obtain report of audit under s. 44AB; (ii) failure to file report of audit under s. 44AB along with return of income which is filed under s. 139(1); and (iii) failure to file report of audit under s. 44AB with the return of income which is filed in response to notice under s. 142(1)(i). 10. As such it is clear from the above analysis that under s. 271B as it stood prior to 1st July, 1995, the penalty leviable was for default of obtaining audit report under s. 44AB or for filing of audit report along with return of income when return was furnished either under s. 139(1) or in compliance of notice under s. 142(1)(i). No penalty under the above provision was however, leviable when the return of income was filed under s. 139(4). This view is also supported by V. Kathirval vs. ITO (supra) cited by the learned authorised representative of assessee. 11. We may also note that the penalty provided under s. 271B does not embrace, within its fold, the default of any requirement regarding furnishing of audit report under some other provisions of the Act. For drawing this conclusion we may lay emphasis on the words of s. 271B as used in the portion thereof quoted hereunder : "report of such audit as required under s. 44AB" 12. The resultant position, that emerges logically, is that the default of requirement under s. 139(6A) does not seem to attract the mischief of s. 271B when the return was filed under s. 139(4). The non-compliance of s. 139(6A) may, however, attract the penalty under s. 271B, for non-furnishing of the audit report under s. 44AB only in situation specified in s. 271B as mentioned at items (ii) and (iii) above, and in no other situation. In this context we may also note that in s. 139(6A) the words "referred to in s. 44AB" qualifying the audit report have been inserted by amendment vide Finance Act, 1995, w.e.f. 1st July, 1995. The reference of s. 44AB in respect of audit report did not exist in s. 139(6A) of the Act prior to 1st July, 1995. 13. In the instant case there is no default regarding the situation mentioned at item No. (iii) above as is evident from the written submission of the assessee (p 4 of the assessee's Paper Book) wherein it is mentioned that the AO had issued notice under s. 142(1), dt. 7th December, 1993, requiring to file return of income on or before 31st December, 1993, and the assessee filed the return along with audit report under s. 44AB on 14th December, 1993, that is prior to the date given by AO. As regards the situation mentioned at item No. (ii) above the return filed by the assessee is a belated one inasmuch as the due date was 31st October, 1993, whereas the assessee filed on 14th December, 1993. As such it was not a return filed under s. 139(1) but one filed under s. 139(4). Therefore, the requirement ordained in s. 271B vide situation mentioned at item No. (ii) above is not applicable to the matter in hand. 14. As regards the situation mentioned at item (i) above we will discuss the same ahead separately as the same involves some other disputes also requiring factual analysis. 15. It is clear from the above discussion that s. 271B, as it stood at the relevant time, did not require the assessee to furnish the report of audit under s. 44AB along with return of income inasmuch as the assessee's return of income was not filed under s. 139(1) but was filed under s. 139(4). At this juncture it may also be observed that the words "referred to in s. 44AB" qualifying the audit report have been inserted in s. 139(6A) by Finance Act, 1995 w.e.f. 1st July, 1995, only and the assessment year under appeal being 1993-94, the penalty under s. 271B is not leviable for non-compliance of s. 139(6A). 16. Now coming to the provision of s. 271B, the position of the said provision as it stood prior to 1st July, 1995, alone is relevant in this case and the same has already been discussed above. It is worthwhile to note here that requirement of "furnishing" the audit report under s. 44AB was incorporated in s. 271B by amendment vide Finance Act, 1995, w.e.f. 1st July, 1995, and prior thereto such a general requirement of furnishing the report of audit under s. 44AB was no more there under s. 271B. 17. The learned Senior Departmental Representative has referred to the decision of Hon'ble jurisdictional High Court in Abhay Kumar & Co. vs. Union of India (supra). He has drawn our attention to the observation of the Hon'ble Court as made on p. 165 of the report which is as under : "The conspectus of the whole situation is that both the provisions, i.e., s. 44AB along with s. 271B and s. 139(9) can be read together and a harmonious construction is that the assessee has to file an audit report within the specified date, failing which he will have to pay the penalty if he fails to show reasonable cause for not doing so." 18. From the perusal of the cited judgment we find that the issue of penalty was not there before the Hon'ble High Court and it was the constitutional validity of s. 44AB which was in issue before the Hon'ble Court. It was with a view to judge the constitutional validity of s. 44AB that the workability of s. 44AB together with s. 139(9)(e) and s. 271B together was considered and the observation on harmonious construction were made as quoted above. In this context we may also refer the observation made in the second para on p. 164 of the report to the effect that : "The next limb of the argument of learned counsel for the petitioner is that the present section is unworkable because it is inconsistent with the various other provisions of the Act." 19. In this regard the contention raised was that there was no discretion with the AO under s. 271B for levy of penalty for violation of s. 44AB, whereas under s. 139(2) there was discretion with the ITO. From the perusal of the cited judgment it clearly appears that the observations made by the Hon'ble High Court regarding the levy of penalty on p. 165 of the report were in the context of judging the workability of s. 44AB together with s. 271B so as to adjudicate upon the issue of constitutional validity of s. 44AB. Obvious as it is the question as to whether the penalty under s. 271B was or was not leviable for default of furnishing of audit report required under s. 44AB within specified date was not in issue before the Hon'ble High Court. In the circumstances the above referred observations of the Hon'ble High Court as made on p. 165 of the reported judgment may not be the ratio decidendi of the case but only obiter dicta as has been argued by the learned authorised representative of the assessee. The contention of the learned authorised representative of the assessee has further been that the obiter dicta of the Hon'ble apex Court of the land may have the binding nature and be operative as precedent but not the obiter dicta of an Hon'ble High Court and this contention cannot be said to be without force. It has been held by the Hon'ble Calcutta High Court in the case of Mahaliram Ramjeedas, In re. (1938) 6 ITR 265 (Cal) that the obliter dicta of High Court did not operate as res judicata nor was it binding on IT authorities. In Goodyear India Ltd. vs. State of Haryana (1991) 188 ITR 402 (SC) the Hon'ble Supreme Court has held that a judgment is an authority only for what it decides and not for what may remotely or even logically follow. It has also been held therein that a decision even on question not argued cannot be treated as precedent. In CIT vs. Sun Engineering Works (P). Ltd. (1992) 198 ITR 297 (SC) the Hon'ble Supreme Court has held that the judgment must be read as a whole. The observations from the judgment are to be considered in the light of question before the Court and not to be divorced from the context of the question under consideration. It has also been held that a decision of the Hon'ble Supreme Court takes its colour from the question involved in the case in which it is rendered. In CIT vs. K. Ramakrishnan (1993) 202 ITR 297 (Ker) the Hon'ble Kerala High Court has held that a case is a precedent for what it explicitly decides and nothing more. The words used by the Judges are not to be read as if they are words used in an Act of Parliament. These words are not used after weighing the pros and cons of all conceivable situations that may arise. They constitute just the reasoning of the Judges in the particular case, tailored to a given set of facts and circumstances. What is made relevant and binding is only the ratio decidendi and no more. In Abhay Kumar case (supra) the specific issue as to whether the penalty under s. 271B be levied or not for not furnishing of the audit report under s. 44AB within the specified date, as provided in Expln. (ii) of s. 44AB was not there for adjudication before the Hon'ble Rajasthan High Court and the specific issue before the Hon'ble Court was regarding the constitutional validity of s. 44AB. There is no gainsaying the fact that the considerations for judging the constitutional validity of a statutory provision are different from those for judging the leviability of penalty under a particular statutory provision. The settled legal position is that while the Courts are slow in declaring a provision constitutionally invalid, that is, they need preferably be liberal in upholding the validity of provision whereas they need preferably construe the penalty provision strictly. At the same time it is also settled position of law that in interpreting a fiscal statute the Court cannot make good the deficiencies if there be any. The Court must interpret the statute as it stands and in case of doubt in a manner favourable to the tax payers. This position has been laid down by the Hon'ble Supreme Court in (1998) 231 ITR 308 (supra), cited by the learned authorised representative of the assessee. In that view of the matter we are of the considered opinion that in the circumstances the Revenue does not get any benefit from the decision of Hon'ble jurisdictional High Court in the case of Abhey Kumar (supra). In view of the discussions made above, we are of the view that prior to amendment of ss. 271B and 44AB vide Finance Act, 1995, w.e.f. 1st July, 1995, penalty for non-furnishing of audit report required under s. 44AB within specified date was not leviable. As such the assessment year under appeal being 1993-94 the penalty under s. 271B for non-furnishing of audit report under s. 44AB on or before 31st October, 1993, the specified date, was not leviable on assessee. 20. However, the AO has, in his order, largely discussed the non-getting of the accounts audited within the specified date (31st October, 1993) as also non-obtaining of the report of such audit under s. 44AB within 31st October, 1993, though the learned CIT(A), in his order, discussed only the non-furnishing of the audit report under s. 44AB. From the perusal of the record we find that the AO has drawn his conclusion regarding the assessee having not got its accounts audited under s. 44AB by 31st October, 1993, nor having the audit report under s. 44AB obtained by 31st October, 1993, on the basis of the fact that the audit report was furnished along with return as late as 14th December, 1993, despite the fact that the assessee had been penalised for the similar default in the preceding year vide order of penalty under s. 271B dt. 3rd March, 1993. In our view there can be a number of reasons for not furnishing of the audit report prior to 14th December, 1993, after having obtained the same on 28th October, 1993. The preparing of the audit report, by 28th October, 1993, is supported by the statement of chartered accountant also as mentioned in the impugned order of the learned CIT(A). Mere delay that has occurred in this case, in furnishing the audit report to AO or for that matter, mere suspicion cannot constitute a basis for concluding that the accounts were not got audited by 31st October, 1993, or the report of the said audit was not obtained by 31st October, 1993, the specified date under s. 44AB. As such there being no cogent and clear evidence to shatter the apparent fact-situation the same well deserves to be treated as real. Considering the facts and circumstances of the case, we do not find it established that the audit report dt. 28th October, 1993, was not prepared or not obtained by 28th October, 1993. In the circumstances the assessee having got its accounts audited by 28th October, 1993, and having obtained a report of the said audit by 28th October, 1993, the penalty for default of getting the accounts audited within specified date under s. 44AB and of obtaining the audit report within the said specified date is not found to be leviable under s. 271B. In that view of the matter considering all the facts and circumstances of the case as also the legal position we find the conclusion of the learned CIT(A) drawn in his impugned order to be quite justified and warranting no interference. We, therefore, decline to interfere with the same. 21. In the result, this appeal of Revenue is dismissed.

Assistant Commissioner Of Income ... vs Shankerlal Agarwal & Co. on 29 May, 2000

Income Tax Appellate Tribunal - Jodhpur

[Section 1] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36773 of 2010 JAILAL SAHNI Versus STATE OF BIHAR & ANR ----------- Devendra/ ( Mandhata Singh, J.) 3. 27.04.2011 As prayed for, put up this case on Monday (02.05.2011) retaining its position.

Jailal Sahni vs State Of Bihar &Amp; Anr on 27 April, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 6877 of 2009() 1. LIBIN, S/O.ACHUTHAN, AGED 24 YEARS, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.KRISHNADAS P. NAIR For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :30/11/2009 O R D E R K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO.6877 OF 2009 ------------------------------------------------------ Dated this the 30th day of November, 2009 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.1484 of 2009 of Kalamassery Police Station. 2. The offence alleged against the petitioner is under Section 376 of the Indian Penal Code. 3. The victim is a fifteen year old girl studying in X standard. It is alleged that the accused got acquainted with the girl over phone. The petitioner is working as a Call Centre Executive of Vodaphone. He was working in Kalamassery. Later, he had gone to Shornur. It is alleged that on 23.3.2009, the girl was brought to the residence of the petitioner at Kalamassery and he committed the offence on that day. The First Information Report was registered only on 16.10.2009. It would appear that in the meanwhile, the girl went to Shornur Railway Station in search of the petitioner. The Railway  B.A. NO. 6877 OF 2009 :: 2 :: Protection Force, on suspicion, collected the details from the girl and they informed the police. Accordingly, the crime was registered. The petitioner was arrested on 21.10.2009 and he was remanded to judicial custody. 4. The investigation is in progress. Potency test of the petitioner was conducted. 5. In the facts and circumstances of the case, I think the petitioner can be released on bail on stringent conditions. 6. The petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class - II, Aluva, subject to the following conditions: B.A. NO. 6877 OF 2009 :: 3 :: d) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; e) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. (K.T.SANKARAN) Judge ahz/ 

Libin vs State Of Kerala on 30 November, 2009

Kerala High Court