Ayansk11/Chatkanoon · Datasets at Hugging Face

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1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 09TH DAY OF JULY, 2020 BEFORE THE HON'BLE MR.JUSTICE P.N.DESAI CRIMINAL APPEAL NO.3693/2012 BETWEEN: ANISHMIYAN S/O MEHEMOODMIYAN @ MAMUSAB NOW AGED: 38 YEARS OCC: AGRICULTURE R/O: GHODAMPALLI TQ & DIST: BIDAR. .... APPELLANT (BY SRI ANIL KUMAR NAVADAGI, ADVOCATE) AND: THE STATE THROUGH RURAL POLICE STATION, BIDAR TQ & DIST: BIDAR. ... RESPONDENT (BY SRI GURURAJ V. HASILKAR, HCGP) THIS APPEAL IS FILED UNDER SECTION 374 (2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 15.11.2012 OF SPL. JUDGE AND ADDL. DIST. AND SESSIONS JUDGE, BIDAR IN SPL.C.C. (SCS/STS) NO.54/2012 AND ACQUIT THE APPELLANT HEREIN FOR THE CHARGES FOR WHICH HE WAS CONVICTED. THIS APPEAL HAVING BEEN HEARD, RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING; 2 JUDGMENT 56. However, learned Sessions Judge misdirected himself in believing the prosecution This appeal is arises out of judgment of conviction passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Spl. C.C. (SCs/STs) No.54/2012 dated 15.11.2012 whereby sentenced the accused to undergo S.I. for one year and to pay fine of Rs.1,000/- in default S.I. for three months for the offence punishable under Sections 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short hereinafter referred as "SC and ST (PA) Act, 1989") and he further sentenced to undergo S.I. for one year and to pay fine of Rs.1,000/- in default S.I. for three months of the offence punishable under Section 325 of IPC. The sentences and in default sentences shall run concurrently. 02. Brief case of the prosecution is that, complainant-Ramanna is working as Gram-Sevak in Godampalli village Tq: Bidar. It is further case of the 3 prosecution that accused in this case was constructing the house without permission and illegally in Government land. It is further case of the prosecution that it is the duty of PW.1-Ramanna being Gram-Sevak to inform the higher officer, about anybody encroaching the government land for constructing house illegally. He found that accused-Anismiya has constructed the house at Sy.No.15 belonging to Government and he is also trying to sell the government land by taking money from others. So, in this regard he brought notice to his higher officer one Rajkumar i.e., PW.12-village accountant. This PW.12 had directed the accused to stop the construction work one-year back. In this regard the accused is having enmity and ill-will against complainant-PW.4. 03. It is further case of the prosecution that on 16.08.2012 at about 07.00 p.m. the accused was sitting below the Neem Tree near Hotel which is situated near 4 panchayat office. At that time accused came there with an intention to assault him and abused him by taking his caste that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla". He pushed the complainant on the ground and assaulted with hands. After that complainant returned to his house and went to Hospital at Bidar. On 17.08.2012 he lodged the complaint against the accused. Thereafter, the police recorded his statement and registered the complaint as per Ex.P.5. 04. PW.13-Namdev ASI who was Station House Officer of Bidar Rural Police Station received MLC report from the Government Hospital, Bidar at 4.00 p.m., as per Ex.P.4. Thereafter, he went to the hospital and recorded the statement of the complainant as per Ex.P.5 and registered a case in crime No.63/2012, sent FIR to 5 the Court and thereafter he handed over further investigation to Dy.S.P. Bidar. 05. PW.15-Jyoti Vaijanath-Dy.S.P. is the Investigating Officer. On 19-08-2012 he secured panchas and conducted the scene of offence panchnama as per Ex.P.6. He has recorded the further statement of the complainant-Ramanna. He sent his officials to search the accused. On 22-08-2012 he recorded the statement of witnesses Rajkumar, Rajeppa, Sharnappa, Ashok, Siddareddy and Maqsood. On 24- 08-2012 he arrested the accused and produced before the Court along with his report then he collected the wound certificate and also received caste certificate from the Tahasildar and also collected the scene of offence and map. After completing the investigation he filed the charge sheet against the accused for the offences punishable under Sections 504, 325 and 506 of Indian Penal Code and under Section 3 (1) (x) of the Scheduled 6 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 06. The Special Court took cognizance of offence thereafter furnishing the prosecution papers, charge was framed against the accused for the offences punishable under Sections 325 and 506 of Indian Penal Code and under Section 3(1) (x) of the SC and ST (PA) Act, 1989 only. The accused pleaded not guilty. Thereafter the case was posted for prosecution evidence. The prosecution in all examined 15 witnesses as PWs.1 to 15 and got marked 10 documents as per Exs.P.1 to Ex.P.10. 07. After recording evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused has denied the incriminating evidence appearing against him. He has not chosen to lead defense evidence. 08. After hearing both sides, learned Sessions Judge acquitted the accused for the offence punishable under section 506 of Indian Penal Code and convicted the accused for the offences punishable under Sections 3(1) (x) of the SC and ST (PA) Act, 1989 and under Section 325 of Indian Penal Code. 09. Aggrieved by the same, the appellant has preferred this appeal on the following grounds: That the Judgment and order of sentence passed by the Trial Court is illegal, arbitrary and against the facts of the case. The evidence of prosecution is full of inconsistencies, discrepancies and contradictions and there is no prima-facie evidence to connect the appellant with the incident. Hence, the Judgment of the Trial Court has resulted in grave miscarriage of justice. The FIR is fabricated and concocted. The entire Judgment of the Trial Court is warf and woof. The evidence of PW.4 has completely given go-bye to the 8 case set up by the investigating agency. The version put up by the complainant is contrary to his written complaint-Ex.P.5. The framing of charges under the provisions of the SC and ST (PA) Act, 1989, since the act being a Special Act, a special mens rea is required to for the commission of an offence under the Act and unless the acts complained of are out of and out of casteist attack, the charge is not tenable. The Judgment is passed on assumptions and surmises and conjectures. The Judgment and order passed by the Trial Court is liable to be set aside. 10. I have heard Sri. Anil Kumar Navadagi learned counsel for appellant/accused and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for respondent-State. 11. Learned counsel for the appellant/accused argued mainly on four points viz., that there is a delay in lodging the complaint though according to 9 prosecution the incident has taken place on 16-08-2012 at 7.00 p.m., and the FIR came to be registered on 17- 08-2012. So, there is a delay in lodging the complaint, this delay has given rise to concoct the story and embellishment, that itself creates a doubt that is fatal to the prosecution case. 12. The second point is, according to the learned counsel for appellant though in the complaint the complainant has mentioned that the abuse and assault on him is not only by this accused, but also by the son of the accused, but he has given the name of this accused only, this creates doubt about theory of assault. 13. The third point regarding non production of x-report, learned counsel for the accused argued that the evidence of the Doctor regarding fracture to the right thumb cannot be believed as x-ray report is not produced before the Court. In support of his contention 10 he relied upon decision of Division Bench reported in Criminal Appeal No.530 of 2002 (A) dated: 03-03- 2010 2011 KCR 2759 State V/s Sheenappa Gowda and Others, wherein it is held as under: Held, both trial Court and Appellate Court had concurrently accepted evidence of PW.s3 and 4, who were injured eye witnesses to incident- Nothing had been elicited in their cross-examination to disbelieve their evidence and their evidence was corroborated by 11 evidence of Doctor/PW.1 and wound certificates issued by him as per Exs. P1 and P2- Thus it was clear that prosecution had proved beyond reasonable doubt that Accused had committed offences as alleged against them and Assaulted PWs 3 and 4 and caused injury to them by forming an unlawful assembly, armed with deadly weapons and committed trespass into path way- However it was well settled that when prosecution alleged that grievous injury had been caused, it was necessary for prosecution to prove same beyond reasonable doubt - Thus unless prosecution produces X- ray for confirmation of fracture opined by Doctor on medical examination clinically, it could not be said that Accused have caused grievous injury of fracture - It was true that in cross-examination of PW.1, Accused had not disputed nature of injuries spoken to by PW.1 - Moreover same would not dispense with production X-ray by prosecution to prove beyond reasonable doubt that injured had sustained fracture of middle phalanx, which was an opinion given by PW.1 Doctor only on 12 clinical examination of PW.4 injured - Therefore finding of Sessions Judge holding that prosecution had failed to prove that Accused Nos.1 to 3 and 5 had committed offence punishable under section 326 of IPC and offence committed by them fall within ambit of section 324 of IPC was justified - Appeal partly allowed. Criminal - sections 324 and 149 of Indian Penal Code, 1860 (I.P.C.) - Whether both Courts below had justified sustained conviction of Respondents 1 and 3 herein for offence punishable under Section 324 of I.P.C. - Held, offence under Section 324 of I.P.C. was punishable with imprisonment of either description for term which might extend to three years or with fine or with both - Further having regard to fact that incident occurred on 30th April, 1993 and about nine years had elapsed prior to date of judgment of Sessions Judge 24th January, 2002, Sessions Judge had rightly held that it was not proper to sentence Accused to imprisonment at that stage - Therefore as on today since nearly 17 years had elapsed after incident, it would not be proper to 13 sentence Accused with corporal punishment of imprisonment - Hence having regard to nature of simple injuries sustained by PWs. 3 and 4 and other fact of case and situation bearing upon question of sentence, it would be appropriate to sentence Respondents 1 and 3 to pay fine and in default of payment of fine to undergo simple imprisonment for three months for offence punishable under Section 324 of I.P.C. r/w 149 of I.P.C. - Appeal partly allowed. Ratio Decidendi" Order of conviction shall be sustained, if prosecution proves his case beyond reasonable doubt." 14. Last point urged by the learned counsel for the appellant is that the Investigating Officer in the cadre of Dy. Superintendent of Police is required to be authorized as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity's) Rules, 1995. So, the entire investigation is vitiated as he is not authorized by the competent officer as required under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity's) Rules, 1995. 14 15. As against this, learned High Court Government Pleader argued that the prosecution witnesses have supported the charge leveled against the accused. The independent witnesses have also supported the prosecution case. The incident has taken place at Ghodampalli Gram Panchayat on 16-08-2012 at 7.00 p.m., it is a remote village and it is 15 Kms away from Bidar city. May be due to non-availability of the transportation, the victim immediately could not come to the hospital. But, he went to the hospital at night i.e., early hours at 1.30 a.m. and it is the duty of the Doctors to send the information regarding medico legal case to the concerned police station, if there is any delay about the medico legal case or sending the report or there is any delay on the part of Investigating Officer that cannot be attributed to the prosecution case and the evidence of the victim injured cannot be disbelieved on that point the medical certificate is produced and it is not objected by the accused side, so mere non 15 production of x-ray report will not render the medical evidence as not admissible. On the other hand, the Doctor has given evidence. Regarding the Investigating Officer appointment that will not vitiate the investigation as the investigation has been done by Dy.S.P cadre officer as per Rule-7. In this case also the Investigating Officer is Dy.S.P cadre. So, the investigation does not vitiate. Further as the independent prosecution witnesses have supported the case and Investigating Officer is also examined. The Trial Court has rightly convicted the accused. Hence, the learned High Court Government Pleader prays to dismiss the appeal. 16. From the above material on record, the points that would arise for my consideration are as under:- 02. Whether prosecution has proved its case beyond all reasonable doubt on the above mentioned date, time and place the accused caused grievous hurt voluntarily hurt without being provoked and that hurt has been caused of any of described under Section 320 of Indian Penal Code? 03. Whether the Judgment of conviction of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this Court? 17. On perusing of prosecution evidence it is evident that admittedly the accused belongs to Muslim community and the complainant belongs to SC community. Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under:- 18 18. There is a decision of Hon'ble Supreme Court reported in AIR 2011 S.C. 1905 in the case of Asmathunnisa vs. State of A.P., the Hon'ble Supreme Court has considered the scope of Section 3 (1) (x) of the SC and ST (PA) Act, 1989 and held as under:- 19 19. Further the Hon'ble Supreme Court referred the decision reported in (2008) 12 SCC 531 equivalent (2008 AIR SCW 6901). The paragraph No.12 of the said judgment which reads as under:- 20. It is necessary that in order to constitute the accusation of an offence under Section 3 (1) (x) of the SC and ST (PA) Act, 1989 there must be an allegation that the accused has intentionally insulted or intimidates the complainant in a place which was within public view and such insult or intimidation was done with the intention to humiliate the complainant. There must be an intentional insult, intimidation with an intention to insult a member of Scheduled Castes and Scheduled Tribes by a non Scheduled Castes and Scheduled Tribes member. The insult must have been done in any place within the public view. The intention 21 to humiliate makes it abundantly clear that mens rea is an essential ingredient. If there is no proof of intentionally insult and humiliate the complainant, it cannot make offence under Section 3 (1) (x) of the the SC and ST (PA) Act, 1989. Simply, addressing a person by his caste without intention to insult or intimidate does not constitute an offence the said Section. Whether there was intent to insult or humiliate by using word will of course depend on context in which it was used. 21. In order to prove its case the prosecution has examined in all 15 witnesses as PWs.1 to 15. PW.4- Ramanna is the complainant. In his evidence he has stated that he belongs to Scheduled Caste Holiya Community and accused belongs to Muslim Community. He has stated that about one month prior to he giving evidence at about 7.00 p.m. he was taking Tea near the Neem Tree situated by the side of Hotel of Panchayat Katta at Ghodampalli village. Accused came 22 there and abused him by taking his caste as Holiya Sulemagana. Accused further kicked him and twisted his thumb of right hand and he sustained injuries. 22. It is further stated by PW.4-Ramanna- complainant that accused was constructing a house in government land and he has informed the same to the Village Accountant. He has brought the village accountant and shown the spot. The village accountant told the accused not to construct the house at the spot. So, for that reason accused assaulted him. The people who gathered there separated the scuffle. Sharanappa, Rajappa, Siddareddy, Prabhu and Ashok are present at the spot. Due to the said abuse of accused by taking his caste, he has humiliated and insulted him. Thereafter, he went to the Hospital and taken treatment. Police came to Hospital on the next day morning and recorded his statement. The complaint is marked as Ex.P.5. Then on next day the police came to the spot and prepared panchanama. 23. In the cross-examination by accused, it is suggested that accused already constructed a house about two years back, the same is denied by the complainant. He further stated that one Maqsood is the owner of the said Hotel. When he was sitting near the Hotel the accused came there and owner of the Hotel saw the incident. It is suggested that, his caste is Christian and he did not belongs to Holiya Community, but he denied it. He has further stated that there are public in the Hotel at that time, but he could not say the names of the person inside the Hotel. After assault he went to the Hospital and police came on the next day morning. It is suggested that himself and village accountant were harassing the accused since one year, but he has denied it. It is suggested that to harass the accused he is deposing falsely before the Court, but he has denied it. It is suggested that he demanded money from the accused, when he failed to pay money, he has 24 filed false complaint against accused about abuse and assault, he has denied it. This is all his evidence. 24. It is evident that in Ex.P.5-complaint itself he has stated that this accused-Anismiya was warned by the village accountant PW.12-Rajkumar for trying to construct the house about one year back. So, for that reason the accused has got enmity with him. When complainant was sitting under the Neem Tree suddenly he assaulted the complainant and pushed him on the ground and assaulted all over the body. The incident has taken place on 16.08.2012 at about 07.00 p.m. He has stated in Ex.P.5 that the accused has abused the complainant by saying that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla" and assaulted him. Nowhere he has stated that any of these witnesses who are examined before the Court were present or tried to rescue the complainant. Even he has 25 not stated in Ex.P.5 that accused has intentionally insulted him to humiliate in a public view. The reason for the assault is regarding stopping the illegal construction alleged to have been started by the accused about one year back. So, why accused kept that enmity for about one year is not forthcoming. In Ex.P.5-compliant though PW.4-complainant has stated about the assault on him, but he never stated that accused intentionally insulted the complainant and humiliated him in a public view by taking his caste with an intention to humiliate him. Before the Court PW.4- Ramanna-complainant has simply given different version. He has stated that when he was sitting under Neem Tree near Hotel of Panchayat Katta, accused came there and abused him in filthy language stating that "Holiya Sulemagana" by taking his caste, kicked and twisted his right thumb and assaulted all over the body. So, according to him first accused has abused him. Here the words used as stated in Ex.P.5 are "Holiya 26 Sulemagane Neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla", but, all these words are not stated by him. He simply stated that accused abused stating that "Holiya Sulemagane". Only he has stated that he has abused him by his caste. But no other abusive words are stated to have been used by the accused or any threat stated by him as mentioned in Ex.P.5. Even he has stated that the accused has abused the complainant as he has stopped the construction work. So, the intention of the accused to insult or humiliate by taking his caste is not there, but according to PW.4- Ramanna because construction was stopped accused assaulted him. For the first time he has stated that the people were gathered there and separated the scuffle. But in Ex.P.5 he has stated that nobody came and separated the quarrel. It was also not stated that at about 07.00 p.m. whether there was light or not. Because in the month of August usually the sunset will 27 be between 06.30 to 06.40 p.m. and there will early darkness. Though he has stated in Ex.P.5 that his statement has been recorded by the police as per Ex.P.5 and Ex.P.5(a) is his signature. The complainant stated that he has not filed any written complaint. He has stated that the police have recorded his complaint. He could not state contents of his complaint. So, his evidence is contrary to the evidence of ASI-PW.13 who has received Ex.P.5. 25. ASI-PW.13-Namdev stated that on 17.08.2012 at about 04.00 p.m. he has received a MLC note from Government Hospital, Bidar. He went to the Hospital and the PW.4-Ramanna-Complainant has given written application, which is marked at Ex.P.5. But in the cross-examination he has stated that he has not recorded the statement of the complainant. So, this evidence creates doubt about variation of Ex.P.5 and also the evidence of PW.4-Ramanna-Complainant about the intentional insult and abused and assault by the 28 accused by taking his caste. But in the cross- examination he has admitted that accused had constructed a house in the government land. It was about one year back he had informed to village accountant. So, for one year back incident, now accused has abused him with his caste that is his case. He has stated that there was no talk between himself and accused before assault which is again contrary and inconsistent with the report of the complainant. As per Ex.P.5 the accused first abused and assaulted thereafter and threatened him. He has stated that he could not mention the name of the persons who were inside the Hotel. The Hotel owner is also inside the Hotel. There is no corroboration to his evidence by other witnesses. 26. PW.7-Maqsood said to be the person having Hotel in Ghodampalli. He has stated different version of abuse, which are not stated by PW.4-complainant either 29 in his complaint or in his oral evidence. This witness has stated that accused abused the complainant as "Sulemagane", "Chodimagane" and "Holiya Sulemagane", then he closed his Hotel. So, this type of abusive words are not at all stated by PW.4-complainant such as "Sulemagane" and "Chodimagane". This witness added some more words, which are not at all stated by PW.4-complainant or mentioned in Ex.P.5. Even he did not state about the threatening words or continued words or abuse after using words "Holiya Sulemagane" as mentioned in Ex.P.5-complaint. This witness talk only in respect of abuse by the accused by taking caste. No further word as mentioned in Ex.P.5-complaint is stated. He has stated time of incident was between 07.30 to 08.00 p.m. Definitely there must be darkness. Whether there is light or not, is not stated by him. He has denied about the assault by the accused and not supported the prosecution case about assault. The prosecution has treated this witness as hostile witness 30 and cross-examined. In the cross-examination he has stated that complainant alone was sitting at the Katta. He has also not stated about presence of any other witnesses at the time of incident. He clearly admitted that he was inside the Hotel at the time of incident. So, possibility of this witness seeing the incident or abuse does not arise at all. When he was inside the Hotel, then how he could hear such words at 07.30 p.m. or 08.00 p.m. darkness which are stated to have been used by accused is not forthcoming. It is not safe to believe his evidence about abuse by accused taking his caste with intentionally insult with an intention to humiliate this complaint by the accused. Why he has closed the Hotel immediately and went back to the house is not forthcoming. He has stated that he has not given statement before the police as per Ex.P.7. He has not seen any assault by accused. So, this type of evidence creates doubt about his presence. 27. PW.8-Siddareddy another eyewitness for prosecution, has not supported the prosecution case was treated as hostile witness and cross-examination was made at length by prosecution, but nothing helpful to the prosecution case is elicited. 28. PW.9-Ashok is the coolie. Admittedly, he also belongs to complainant's caste and his ancestors and complainant ancestors are same. His evidence is contrary to evidence of PW.7-Maqsood. Because he has stated that other persons are also present at the Katta. He has stated that incident had taken place at about 07.00 to 07.30 p.m. when he was near the Hotel of Muslim at Panchayat at Ghodampalli. Why he has come there and why he was present there is not forthcoming. In the cross-examination he has stated that accused and complainant were quarreling with each other and accused abused as "Holiya Sulemagane" and both were abusing each other. So, according to him this 32 complainant-PW.4 also abused the accused and this accused also abused the complainant. The complainant abused him as only "Sulemagane". He has not stated any other abusive words as per Ex.P.5-written complaint. But only stated about abused by caste. In the cross-examination he has stated that both are quarreling with each other. The name of this witness is not mentioned in the complaint-Ex.P.5 nor mentioned by the Hotel owner. He has not stated, if at all he was present why he did not try to pacify the quarrel or tried to rescue the complainant, who admittedly belongs to his community and they are of same caste. Why he was simply watching this incident is not forthcoming. His conduct makes the prosecution case more doubtful. Why he was present there at the time of incident that to in the darkness?, how he has seen the incident in the darkness is not forthcoming. He being the chance witness, it is not safe to believe this witness regarding abusive words as stated by this witness. Even in the 33 examination-in-chief he has not stated where the complainant was sitting where the incident has taken place. Simply he has stated that on 16.08.2012 at about 07.30 p.m. when he was near Hotel of Muslim a Panchayat at Ghodampalli, the accused came there and abused the complainant saying that "Holiya Sulemagana". Where this complainant was sitting, where the incident has taken place, where was the Hotel and which place the abusive words or assault took place, nothing is forthcoming. So, scene of offence/place, itself is not stated by this witness. Therefore, it is not safe to believe the evidence of this witness about intentionally insult and causing humiliation to PW.4-compaliant by taking his caste and assault. His presence itself is doubtful. 29. Similarly, PW.10-Sharnappa has also given evidence. Admittedly, in the cross-examination he admits that he belongs to SC Holiya community and 34 complainant also belongs to SC Holiya community. In the examination-in-chief he has stated that accused belongs to Muslim caste and complainant belongs to SC Holiya community. He further stated that about a month back at about 07.30 p.m. when complainant was at panchayat near the Hotel of Maqsood, the accused abused the complainant as "Holiya Sulemagane" and assaulted with hands and caused fracture on his right thumb. Again it is not forthcoming why and how this witness came there. If at all it was 07.30 p.m. in darkness how he saw the incident. He has stated that the complainant was at panchayat near the Hotel. On the other hand it is case of PW.4-complainant that he was sitting under Neem Tree. So, this type of evidence shows that he is also chance witness. At 07.30 p.m. why he was present in that place is not forthcoming, what he was doing, why he was present, nothing is forthcoming. In the cross-examination he clearly admitted that he did not know any talks between 35 complainant and accused prior to the incident. Even he could not say the name of persons who were sitting at panchayat Katta. So, that itself creates a doubt about presence of this witness. It is suggested that he belong to complainant's caste and deposing falsely. He has also not stated about the abusive words as stated by complainant in his written complaint-Ex.P.5, which is given after long delay. Simply, these witnesses have stated that accused abused as "Holiya Sulemagane". That is not the only case of prosecution, there are other words of abuse threat on him and he has used threatening words as per Ex.P.5. Not a single word of threat is said to have been given by accused is stated, except stating that accused abused by taking caste of PW.4-Complainant. It is not safe to believe his evidence. Because, he has not stated the name of any of witnesses who were stated to be present at the time of incident nor he has stated that he tried to pacify the quarrel. What he was doing, why he was standing, why he was 36 watching the incident is not forthcoming. It is not safe to believe his evidence. 30. PW.11-Rajappa is another witness. He has stated in his evidence that about 07.00 to 08.00 p.m. prior one month of he giving evidence, he was sitting on Katta near the Temple and accused abused the complainant as "Holiya Sulemagane" and assaulted the complainant with hands and caused fracture on his thumb and PW.11 went back to his house. He never stated the scene of offence as near any Hotel where incident has taken place as per prosecution. He has not stated as to why he was sitting at Temple Katta is not forthcoming. But there is no Temple either in the scene of offence sketch map or any witnesses stated about any Temple. Even abusive words as stated in Ex.P.5- Complaiant is not forthcoming. How he was watching the incident is not forthcoming and why he returned to his house is also not forthcoming. He did not know 37 whether any other persons tried to pacify the quarrel. In the cross-examination he stated that distance between Temple Katta and Panchayat Katta is about 60 to 70 feet. Only he has heard the abusive language. So, that means he was for away i.e., 70 feet away from panchayat Katta. He never stated about Neem Tree or any Hotel. So, that Temple Katta is not at all stated by any of the witnesses. This type of evidence of PW.11 creates doubt about his presence. It clearly indicates that it is not safe to believe his evidence. 31. PW.12-Rajkumar is Village Accountant in his evidence he has clearly stated that on 17.08.2012 the son of the complainant told him that accused assaulted his father and abused him in filthy language. Thereafter he saw the complainant is having fracture on his right thumb. He enquired the complainant-Ramanna and he has narrated the incident. The complainant told that as they have stopped the construction of the house of the 38 accused on the information of the complainant, that is why the accused assaulted him. He never stated that complainant told before him that accused abused him by taking his caste as "Holiya Sulemagane" intentionally insulted or humiliated him as stated by other witnesses. Of course he has not seen the incident. He has stated that he has asked accused to stop the construction work about 06 months back. So, his evidence also does not corroborate to abusive words as used by accused and stated by other witnesses, thereby creates doubt about prosecution allegations for the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 32. There is a delay in lodging the complaint. The incident though has taken place on 16.08.2012 at about 07.00 p.m. The FIR was registered on 17.08.2012 at 17.30 p.m. As per the evidence of PW.4 the FIR is given to the Spl. Judge on 17.08.2012 at about 10.30 39 p.m. There is also endorsement as per Ex.P.9 in this regard. So, there is more than 24 hours delay in sending FIR to the Court. Names of none of the witnesses were mentioned in the complaint-Ex.P.5, which was at earliest point of time. The abusive words stated by the complainant by taking his caste with an intention to humiliate him are inconsistent with words mentioned in Ex.P.5-complainant, which is filed after long laps of time, which itself is doubtful. 33. The presence of other witnesses at the time of incident itself is doubtful. The abusive words stated by the witnesses do not indicate that he used word giving threat by accused as mentioned in Ex.P.5. It appears stereo type or parrot like story stated by all witnesses only taking his caste as "Holiya Sulemagane". The presence of these witnesses itself is doubtful at the time of incident. 34. The pancha witness-PW.6-Prabhu has stated that panchanama is already prepared before he arrived at the spot and also stated that only police taken his signature. He did not know contents of the mahazar. 35. PW.5-Ramesh has also stated that the police have told him that the galata took place in the spot and shown the spot and prepared panchanama and he has signed in the panchanama. He never stated the presence of anybody at the time of panchanama. 36. On the other hand, Ex.P.6 spot panchanama clearly indicates that complainant himself was present and shown the scene of offence/place. But presence of complainant is not stated by the panchas. So, spot panchanama was drawn after two days of the incident. So, it may be that there was quarrel between them. It appears that complainant tried to make out a case of abuse by the accused by taking his caste. It is admitted, by complainant that there is ill-will against him and accused was having grudge over the complainant as he 41 had informed the village accountant about the accused constructing house at government place. The village accountant has also supported the complainant. But the possibility of this complaint taking advantage of his caste and trying to implicate the accused under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and assault also cannot be ruled out. 37. None of the witnesses have stated about threatening words used by the accused. There is darkness the prosecution have not explained how those witnesses have seen the incident. It is not safe to believe their evidence regarding intentional insult and abuse or assault by the accused by taking his caste with an intention to humiliate him within a public view cannot be accepted at all. 38. In fact since complainant and other witnesses admitted that the complainant belongs to 42 Scheduled Caste community, but there is no evidence has been placed before the Court to show that the complainant belongs to Scheduled Caste community. Because, Tahasildar has stated that he has given report on the basis of report of the revenue inspector. But no such revenue report or caste certificate is produced before the Court. No notification has been produced to show the caste of the accused and complainant. But accused admitted in the cross-examination that PW.4 belongs to Scheduled Caste community and other witnesses they are also belongs to Scheduled Caste community. So, from that cross-examination it may be inferred that the complainant also belongs to Scheduled Caste community. Exact Scheduled Caste cannot be made out. Otherwise, there was no legally admissible evidence in this regard. But anyway, it appears that this witness try to make out a case by making allegation under atrocities act which is not proved by the prosecution. Therefore, it is not safe to believe the 43 evidence in this regard about offence under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 39. Regarding offence punishable under Section 325 of IPC it is evident that the evidence of PW.4- Injured-Ramanna is to be considered in the light of admitted fact that the accused has ill-will against the complaint. PW.4-Ramanna has stated in his evidence that the accused when he was sitting under Neem Tree near Hotel the accused came there and abused him and twisted his right thumb and assaulted him and kicked him. But in his complaint-Ex.P.5 he has stated that the accused and his son came there when he was sitting near Neem Tree near Hotel and assaulted the complainant and pushed him on the ground by abusing threatened him and hit him. So, he lodged the complaint against this accused and his son. Of course accused son name is not mentioned. Subsequently, son of the accused was dropped. In Ex.P.6 i.e., spot 44 panchanama dated 19.08.2012 the scene of offence which is shown by the complainant-Ramanna, wherein it is mentioned that at that time this accused-Anismiya and his son Saddam both came there and abused and assaulted and caused internal injuries. So, nowhere either in Ex.P.-5-complaint or in Ex.P.6-spot panchanama which is said to be reported on 19.08.2012 there is nothing about the causing of any fracture. But it is only mentioned caused simple hurt. 40. PW.3-Dr. Prashant is the medical officer Government Hospital, at Bidar. He stated on 17.08.2012 at about 01.32 a.m. night Ramanna- complainant came to the Hospital with a history of assault and he has examined him and found following injuries;- 45 41. The doctor opined that injury No.1 is grievous in nature and injury No.2 is simple in nature. He has issued the wound certificate and the same is marked as per Ex.P.3. Injuries are within 05 hours and they are fresh. There is fist of thumb, injury No.1 can be caused with quarrel and by kicking injury No.2 can be caused. The MLC report is marked as per Ex.P.4. 42. The Doctor has issued the wound certificate as per ExP.3 on 23.08.2012 and same is received by PW.13-ASI-Namdev on 25.08.2012. Of course date of x- ray is also not mentioned in Ex.P.3. Learned counsel for the accused-appellant stated that x-ray is not produced. Even in the MLC report as per Ex.P.4 there is nothing about the fracture. 43. The contents of Ex.P.5 which is filed after long delay does not contain any fracture to PW.4- Ramanna. Further, regarding fracture what is the treatment he has taken is not forthcoming. No medical 46 records were produced before the Trial Court to show the nature of treatment taken by this injured. The Doctor in his examination-in-chief stated that the injury No.1 can be caused with quarrel. The doctor has not stated that by twisting the hands, such injury can be caused. So, in his examination-in-chief no suggestion is made whether twisting the right hand thumb such injury could be caused. The doctor is of the opinion that injuries can be caused in quarrel cannot be believed at all. Because, in what type of quarrel such injuries can be caused must be stated by the doctor. Nothing has been stated regarding the injury sustained by the injured by twisting right hand thumb by this accused. So, the second injury is abrasion over right knee joint. The doctor stated that by kicking the injury No.2 can be caused. The oral evidence does not corroborate with the theory of assault as stated by doctor. As per Ex.P.5, none of the witnesses stated about kicking by the accused to the complainant. The doctor has stated that 47 injury No.2 is simple in nature. The doctor has not stated that such injuries can be caused if a person was pushed on the ground and assaulted. How such injury caused by kicking is not forthcoming. It is not the case of prosecution that accused kicked the complainant and caused that injury. Therefore, oral and documentary evidence are inconsistent with medical evidence. 44. PW.7-Maqsood who is having Hotel has stated that he has not seen any assault or twist of right hand thumb. The prosecution has treated him as hostile. Nothing is elicited from him about the twisting of right hand thumb nor did he pacify the quarrel. Even he has no complain about the injury. 45. PW.8-Siddaraya who is eyewitness is also not supported the evidence with regard to twist of right hand thumb or causing any injuries. 46. PW.9-Ashok has also not stated about that accused has twisted the thumb of right hand of the complainant. Simply, in the cross-examination he stated that both accused and complainant are abusing each other. So, that means even complainant also abusing and quarreling with accused. Simply, he has stated that his right thumb was broken, which cannot be believed. How can he say that the thumb of the right hand was broken, is not forthcoming. 47. PW.10-Sharnappa is another witness whose evidence is not believable. He has stated about the assault by accused to the complainant and he assaulted on his right hand thumb. How can he ascertain the fracture was caused, is not forthcoming. The accused has abused the complainant's caste and his presence itself is doubtful. He has stated that the police have not enquired him. 48. PW.11-Rajappa has stated that he was sitting near the Temple of Katta. He has stated that accused assaulted the complainant with his hands and complainant sustained fracture and he went to his house. So, how the complainant has sustained fracture is not stated or twisting by his thumb, is not stated by this witness. 49. PW.12-Rajkumar-Village Accountant is only hearsay witness. Though he is a village accountant, he has not stated anything about the abusive words. The complainant's son informed him on the next day about the incident. He has also not stated because of assault by this accused, the complainant has sustained injuries. 50. As already stated if at all the complainant sustained injuries or fracture, he could not have kept quiet for such long time. Here already as discussed above, there is inconsistency in the oral evidence of 50 PW.4 and Ex.P.5-complaint regarding contents of Ex.P.5 and nature of assault. Though complainant all along contended that it is accused and his son both came and assaulted him, but son of the accused was left out for the reason known to Investigating Officer and complainant. 51. Though as per the prosecution documents the panchanama was drawn on 09.08.2012 the name of son of the accused appears as Saddam, but nothing has been stated by this witness. He has stated that accused suddenly assaulted and pushed him on the ground and assaulted all over his body. But there are no hurt or pain anywhere in the body. If he had fallen on the ground, there should be some injuries on his back. None of the witnesses has stated that this accused pushed the complainant on the ground. 52. Since, FIR has been lodged after long time of the incident, in view of the enmity and ill-will it is not 51 safe to believe uncorroborated evidence of PW.4. Because, theory of assault as stated by him is inconsistent with the contents of Ex.P.5-complaint. Both of them abused and there is possibility of fall on the ground and due to fall there is possibility that complainant may be sustained serious injuries. But it is not safe to believe the evidence of PW.5-Ramesh regarding this accused caused fracture by twisting his hands. The evidence of prosecution in this regard is doubtful and particularly in view of the delay of more than 24 hours in sending FIR to the Court, it creates further doubt. 53. PW.4-Ramanna-Complainant is not a uneducated person and he is the Gram-Sevak. In fact he met the village accountant on the next day. In spite of that the complaint came to be registered only in the evening at 05.30 p.m. nearly after 22 hours of the incident. It reached to the learned Magistrate only after 24 hours after the incident. 54. Whenever there is ill-will or enmity Court is to consider the prosecution witnesses evidence carefully. Admittedly, in this case according to PW.4 this accused is having ill-will against the complainant. According to the complainant he has informed about the construction of house to the village accountant about one year back. So, complainant himself stated that he is not in good terms with the accused. Therefore, his evidence is to be considered as interested witness. Accused is having ill-will against him, as the complainant informed about the encroachment of government land to the village accountant. But there are no records in this regard. There may be some quarrel taken place between the accused and complainant. But it is not like so as alleged by the prosecution. There is lot of difference between must be true and may be true. If there are two views possible then the view favourable to the accused is to be accepted. The ill-will is like a double edged weapon it 53 cuts either way. So, when the complainant or accused are having ill-will their evidence will have to be scrutinized carefully. There are material contradiction and inconsistency in the evidence of prosecution witnesses about the material particulars. In my opinion very presence of eyewitnesses is doubtful. The theory of oral evidence about the threat and twisting of right- hand thumb does not corroborate with the medical evidence. In view of the unexplained and abnormal delay in lodging the complaint, the evidence of prosecution suffers from inherent improbabilities. 55. In the light of the principles stated by the Apex Court in the decision referred above if the evidence of prosecution is considered, then it is evident that somehow complainant wants to implicate the accused. But prosecution failed to prove the same by legally admissible evidence. Therefore, possibility of complainant sustaining any such fracture, is not due to 54 incident but it may be for some other reason and some other place. Therefore, as the evidence of prosecution witnesses creates doubt in the mind of the Court, the accused is entitled for the benefit of doubt. witnesses about the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is totally inconsistent and contradiction in the evidence of prosecution about the exact words of abused by the accused when compared to statement of complainant i.e., Ex.P.5, which itself is filed after long time of delay which is not satisfactorily explained. It is fatal to the case of prosecution case. 57. The learned Sessions Judge has not appreciated the evidence of prosecution in a proper prospective. The learned Sessions Judge has not 55 assigned the proper reasons regarding long delay in lodging FIR. The learned Sessions Judge has not considered the inconsistency about the assault as per medical evidence. The learned Sessions Judge has not given any reasons as to how these witnesses were present at the time of alleged incident. The learned Sessions Judge has not given proper reasons for believing the chance witnesses, whose names were not mentioned in complaint-Ex.P.5. The learned Sessions Judge has not appreciated the evidence of prosecution witnesses in the light of the settled principles regarding appreciation of evidence cases and as per the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also in considering the theory of assault. 58. If the evidence of prosecution is considered then in my considered view the charges that accused intentionally insulted or intimidated with an intention to 56 humiliate the complainant knowing that he belongs to Scheduled Caste community within a public view, is not forthcoming. The prosecution has failed to prove that intentional insult or intentional to humiliation to this complainant by the accused taking his caste. So, the order passed by the learned Sessions Judge needs interference. Accordingly, points No.1 and 2 are answered in the Negative and point No.3 is answered in the Affirmative. 59. For the reasons stated above, I proceed to pass the following... ORDER The appeal is allowed. The judgment of conviction and sentence passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Special C.C. (SCs/STc) No.54 of 2012 dated 15.11.2012, is hereby set-aside. 57 The appellant-accused by name Anishmiyan s/o Mehemoodmiyan @ Mamusab is hereby acquitted of the offence punishable under Sections 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also of the offence punishable under Section 325 of Indian Penal Code. The bail bond of the accused and the bond executed by the surety, if any, is hereby cancelled. The amount of fine if any is already deposited, the same is ordered to be refunded to the accused- appellant. Send back the records of the Trial Court forthwith. Sd/- JUDGE KJJ/MNS	[ 1133601, 555306, 1133601, 180217, 1507082, 25085007, 1133601, 180217, 12362825, 767287, 180217, 12362825, 1133601, 701797, 1540253, 724142, 724142, 999134, 1569253, 724142, 724142, 724142, 1569253, 895891, 157412304, 25085007, 1587798, 157412304, 157412304, 157412304, 157412304, 25085007, 157412304, 25085007, 157412304, 25085007, 1133601, 157412304, 25085007, 25085007, 157412304, 25085007, 1133601 ]	Author: P.N.Desai	216,529	Anishmiyan @ Mamusab vs The State Through Rural Police ... on 9 July, 2020	Karnataka High Court	43
RULINGS AAR No. 609 of 2003 Decided On: 25.11.2004 Appellants: In Re: Instrumentarium Corporation Vs. Respondent: Hon'ble Judges: Syed Shah Mohammed Quadri, J. (Chairman) and K.D. Singh, Member Counsels: For Appellant/Petitioner/Plaintiff: Rahul Krishna Mitra and Parikshit Datta, Advs. For CIT: G.E. Vahanvati and Sanjay Puri, Advs. Subject: Direct Taxation Acts/Rules/Orders: Income Tax Act, 1961 - Sections 92 to 92(F), 92(1), 92(2), 92(3), 245N, 245R(2) and 245S JUDGMENT Syed Shah Mohammed Quadri, J. (Chairman) 1. M/s Datex-Ohmeda (India) (P) Ltd. (for short the 'Datex') is an Indian company and is a tax resident of India. It is a wholly-owned subsidiary company of M/s Instrumentarium Corporation, Finland, a non-resident company, a tax resident of Finland (for short 'Instrumentarium') which has not been assessed under the IT Act, 1961 (for short the "Act"), in India. Instrumentarium is engaged in the business, inter alia, of manufacturing and selling of medical equipments. Datex operates as 'distributor' of the Instrumentarium in Indian market. On 26th Aug., 2002, Instrumentarium and Datex entered into a loan agreement under which Instrumentarium granted a loan in US dollar equivalent to Indian Rs. 360 million for the purpose of general business of Datex. The loan is said to be free of interest. Datex has filed copies of the loan agreement with the RBI to comply its requirement. The Convention between the Republic of India and the Republic of Finland for the Avoidance of Double Taxation with respect to Taxes on Income and on Capital was concluded on 10th June, 1983, notified on 20th Nov., 1984, and subsequently amended by notification dt. 13th Aug., 1998, (referred to in this ruling as the "Treaty"). Instrumentarium filed this application under Section 245Q(1) of the Act seeking advance ruling of the Authority on the following questions : (i) Whether the granting of loan amounting to Rs. 360 millions by the applicant, being a non-resident corporate assessee, in favour of Datex-Ohmeda (India) (P) Ltd. (hereinafter referred to as "Datex"), which is its wholly-owned subsidiary company incorporated in India, without charging any interest, and accordingly without adhering to the principles of arm's length price, actually results in the Government exchequer or the tax revenue of the country being benefited ? (ii) Whether any payment of interest by Datex on the loan amounting to Rs. 360 million granted in its favour by the applicant, upto the arm's length price would have entailed a tax saving in its hands to the extent of 36.75 per cent of such interest and that the said interest would have been subject to income-tax in India in the hands of the applicant at the rate of 10 per cent on gross basis, with the result that any payment of such interest would have actually eroded the tax revenue of India to the extent of the tax differential, namely, 26.75 per cent [36.75 per cent-10 per cent] of such interest ? (iii) Whether, having regard to the statement of objects and reasons of the legislation relating to transfer pricing, which clarifies the legislative intent in enacting the same, namely, to curb the practice adopted by multinational group of companies in India of manipulating the prices charged and paid in intra-group transactions, which led to erosion of tax revenues, where the granting of loan amounting to Rs. 360 million by the applicant in favour of Datex without charging any interest, and accordingly without adhering to the principles of arm's length price, actually results in the Government exchequer or the tax revenue of the country being benefited, the applicant is required to comply with the provisions of the IT Act, 1961 (hereinafter referred to as the "Act") containing the legislation relating to transfer pricing, namely, Sections 92 to 92F of the Act, with respect to the said transaction of loan and accordingly charged interest as per the principles of arm's length price from Datex ? 2. On 22nd April, 2004, the Authority permitted the applicant to urge the following two additional questions : (a) Whether, in view of the provisions of Article 25(1) of the DTAA entered into by the Government of India with the Government of Finland (hereinafter for the sake of brevity, referred to as the "India-Finland Tax Treaty") in exercise of the powers conferred upon it by Section 90(1) of the IT Act, 1961 (hereinafter referred to as the "Act"), the applicant, being a company incorporated in Finland and accordingly both a national as well as a tax resident of Finland, is not subject to the rigours of the transfer pricing legislation of India contained in Sections 92 to 92F of the Act, with respect to the transaction of interest-free loan equivalent to Rs. - 360 million granted by it in favour of its wholly-owned subsidiary company incorporated in India, namely, Datex-Ohmeda (India) (P) Ltd. (hereinafter referred to as "Datex") and accordingly is not required to charge any arm's length price of interest on such loan ? (b) Whether, since any company, which is incorporated under the laws of India and is also a national and a tax resident of India, is not mandatorily required to charge any interest on loans given to its related parties, e.g., subsidiary companies, situated in India, inasmuch as, the Act is not empowered, in absence of any transfer pricing legislation relating to an element of income with respect to transaction between two entities, both of which are tax residents of India, to impose any income-tax on any notional interest in the hands of the Indian company granting the loan, in view of the provisions of non- discrimination contained in Article 25(1) of the India-Finland Tax Treaty, the applicant is also not required to charge any arm's length price of interest on the loan equivalent to Rs. 360 million granted by it in favour of Datex and accordingly, no income-tax may be imposed on the applicant with respect to any such notional interest by invoking the provisions of the transfer pricing legislation of India contained in Sections 92 to 92F of the Act ? 3. The Director of IT (International Taxation), Kolkata {for short the "CIT"), submitted the following comments to the application. The applicant did not frame any question of law for seeking advance ruling. The transaction of loan is between a non-resident company and its wholly-owned subsidiary Indian company which squarely comes within the arena of Section 92(1) of the Act. Once the transaction falls under Section 92, the other provisions viz., Sections 92C, 92D, 92E will apply and in appropriate cases Section 92CA will also apply. Section 92(1) has to be implemented as it stands. There is no ambiguity in the provision in regard to the international transaction which is defined in Section 92B{1) of the Act. The provisions of Sections 92 to 92F give rise to no mischief or absurdity and the assumption of the applicant that following those provisions would produce unjust results is a figment of imagination. If it fails to comply with the requirements of Sections 92D and 92E of the Act, it has to face the consequences. The applicant is trying to sidetrack the provisions relating to transfer pricing. No determination on a question on law as is required under Section 245N of the Act by the Authority for Advance Ruling is called for and on the facts and in the circumstances of the present petition, no such question is involved. Neither any interest is paid by Datex to Instrumentarium nor any interest is payable as per the Agreement, therefore, advance ruling is sought not on actual facts but on hypothetical question. It is also submitted that cl. (ii) of Sub-section (2) of Section 245R of the Act enjoins the Authority not to allow the application involving determination of fair market value of any property. The AO has to determine, at an appropriate stage, the quantum of interest, which should be paid by Datex to Instrumentarium, having regard to the international market. It will also examine the question as to whether not charging of interest on the loan is a convenient strategy crafted by the non-resident company as part of its global strategy to avoid incidence of tax in the other Contracting State where the subsidiary company is located, i.e., India and the present application is an attempt to pre-empt any such exercise by the AO and, therefore, it should be rejected. The Parliament in its wisdom did not intend that issues arising from or related to an international transaction should not go through the entire gamut of the provisions of Sections 92 to 92F and there should be a prior determination by the Authority which is not a tax enforcing authority. In regard to the additional questions, it is stated that the term 'national' is defined under Article 3(l)(d) of the Treaty. The definition shows that Article 24 of the Treaty can be invoked by any individual, legal person, partnership and association. Companies are not included within the definition of "national". Therefore, the Instrumentarium is not entitled to the protection on the ground of 'nationality' under Article 24 of the Treaty. There is no discrimination in application of transfer pricing provisions to Instrumentarium vis-a-vis any national of India placed in the same circumstances. Transfer pricing provisions are based on the concept of residence and discrimination mentioned in Article 24 of the Treaty is based on the concept of nationality, and it requires that the nationals of Contracting State, placed in the same circumstances, shall not be discriminated against, on the basis of their nationality. In the present case, the nationality of the Instrumentarium is not the reason for application of transfer pricing provisions but its residential status. An Indian national who is a resident of Finland will also be subjected to the same provisions of transfer pricing in case he enters into international transaction. 4. At the outset we may note that the aforementioned questions are more in the nature of paraphrases of questions rather than questions postulated in Section 245Q(1) of the Act. However, question No. 2 is not pressed and question No. 3 is reframed to read as under: "Whether the applicant is required to comply with the provisions of the IT Act, 1961 {hereinafter referred to as the "Act"), containing the legislation relating to transfer pricing, namely, ss, 92 to 92F of the Act, with respect to the said transaction of loan and accordingly charge interest as per the principles of arm's length price from Datex." 5. Mr. Rahul Krishna Mitra, chartered accountant, appeared for the applicant; after pointing out the salient features of Sections 92, 92(1), 93(3) and the legislative intent in introducing the new transfer pricing legislation, he submitted that provisions of the Treaty would override the provisions of the Act in regard to the rate of tax applicable on interest as being more favourable to the applicant as per Section 90(2) of the Act; in regard to the transaction of granting loan of Rs. 360 million by the applicant to Datex, if negotiated as per the principles of arm's length price, the Government exchequer would have lost an amount of Rs. 9.63 million, being the tax differential computed at 26.75 per cent of arm's length price interest and would result in erosion to tax revenue in India; a literal interpretation of Section 92(1) of the Act which would require adherence to the principles of arm's length price and accordingly, charging of interest at arm's length rate by the applicant on the loan of Rs. 3.60 million granted to Datex would lead to frustrating the legislative intent in enacting the provisions of transfer pricing, as the same would actually result in erosion of tax revenue of the country, therefore, it is not intended to apply in cases where the adoption of arm's length price determined under the Act would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction. In Circular No. 14 of 2001, issued by the CBDT, which is binding on the IT Department, it is clearly stated that the legislation relating to transfer pricing is not intended to be applied in cases where the adoption of arm's length price determination under the Act would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction. On the other hand, if no interest is paid by Datex to the applicant, as it is conceived of in the instant case, the Government exchequer is actually benefited and it is for this reason Sub-section (3) of Section 92 provides that where the adoption of arm's length price in relation to an international taxation has the effect of reducing income of an assessee and increasing its loss, then the provisions of Section 92(1) of the Act, which require any income arising from an international transaction to be computed having regard to the arm's length price, would not apply so as to confer a benefit on the assessee. The learned chartered accountant on the said premise persuaded us to so construe the provisions of Section 92 even by modifying the language used by the legislature or even doing some violence to it so as to achieve the obvious intention of the legislature as, in his submission, the plain literal interpretation of the statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature. 6. For the CIT initially, Mr. Sanjay Puri, Addl. DIT (International Taxation), Kolkata, appeared. Having regard to the complexity of the issues, we considered it appropriate to request the learned Solicitor General of India to assist us in this case. We record our appreciation of the learned Solicitor General for responding to our request. He placed the following written propositions on record and addressed us accordingly : 1. This is not a case of "interpretation". Section 92 cannot be displaced in the guise of interpretation. 2. The Authority in substance is being called upon to direct that Section 92 should not be given effect to. This cannot be done. 3. What is sought to be done at this stage is to enforce a premature application of Section 92(3), which can only be at the stage of assessment with full facts being placed before the AO. 4. If a notice were to be given to the applicant that interest on an "arm's length" basis ought to have been charged, and that. income has escaped assessment, it would not be open to the applicant to resist the same saying that it would be detrimental to the interests of Revenue. This is not a defence available to a non-resident; it is a matter for the Revenue to decide. 5. The application is based on a hypothesis (p. 17) that the question of a loss does not make a difference. This is hardly an "admitted" position. 6. What is sought (to) be achieved is that the principle of "arm's length price" be not adhered to. The Authority has no jurisdiction to order "non-adherence" to statutory provisions. 7. The Authority has no jurisdiction to order that Section 92(1) be not applied or implemented. The Authority, which is constituted under the Act, has no such power and even a Court exercising Constitutional powers such as under Article 226 would be unable to do so. In substance, the case of the applicant is that, as applying the arm's length price to give effect to Sub-section (1) of Section 92 in the case of the applicant results in loss to the Revenue, the provisions of Sub-section (3) ought to be applied and power under Section 92(1) should not be exercised. The contention of the learned Solicitor General is that the applicant is seeking to enforce a premature application of Sub-section (3) of Section 92 which can be invoked only at the stage of assessment with full facts being placed before the AO and that in the guise of interpretation, Section 92 cannot be displaced by seeking advance ruling from the Authority that the principle of arm's length price be not adhered to. It is argued that the Authority has ho jurisdiction to order "non-adherence" to statutory provisions and that a Court exercising Constitutional powers such as under Article 226 would be unable to do so, therefore, the Authority which is constituted under the Act, could not exercise such a power. 7. Before adverting to the above contentions, it would be necessary to refer to the provisions of the Act dealing with advance rulings. Section 245N(a) defines "advance ruling" as follows : "(a) "advance ruling" means- (i) a determination by the Authority in relation to a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant; or (ii) a determination by the Authority in relation to [the tax liability of a non- resident arising out of] a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with such non-resident, and such determination shall include the determination of any question of law or of fact specified in the application. (iii) x x x x x x The definition of advance ruling comprises of three categories of determination by the Authority. The first category speaks of a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant, referred to in Sub-clause (i) which is couched in wider terms; such a transaction may be with a resident or another non-resident. Notwithstanding the width of the language of Sub-clause (i) a proposed question of law or of fact must relate to tax liability (income-tax including capital gains) of the applicant arising out of such transaction and not to consequences of implementation of provisions of the Act on the State exchequer and the like. The second category relates to a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with a non-resident and a proposed question of law or of fact concerning the tax liability of such a non-resident. A determination or decision on a question of law or of fact by the Authority in respect of an issue relating to computation of total income which is pending before any IT authority or the Tribunal, falls under the third category. The proposed questions in this application do not evidently pertain to the second or the third category. Our determination in regard to the proposed questions will, therefore, be confined to the issues insofar as they fall within Sub-clause (i) of cl. (a) of Section 245N. It will be apposite to observe at this stage that, having regard to both the concept of advance ruling as well as the language employed in cl. (a) of Section 245N- transaction proposed to be undertaken-determination of a question of law or of fact by the Authority has to be much before the stage of assessment/ determination by the AO. Indeed, in view of Section 245S of the Act, the ruling of the Authority in respect of an applicant and the transaction, is binding on the CIT and the IT authorities subordinate to him, therefore, the AO has to give effect to the advance ruling in assessment and the other proceedings. It would, therefore, be incorrect to contend that before the assessment by the AO, the question in regard to transfer pricing cannot be determined by the Authority, if otherwise it is open to it so to do. 8. Chapter X of the Act embodies special provisions relating to avoidance of tax. Section 92 which deals with computation of income from international transaction having regard to arm's length price, Section 92A which defines "associated enterprise" and Section 92B which incorporates "meaning of international transaction" for purposes of Sections 92, 92C, 92D, 92E, fall within the said Chapter. There is no controversy about the applicant and Datex being associated enterprises within the meaning of Section 92A and the transaction of granting (interest-free) loan by the applicant to Datex falling within the meaning of Section 92B, respectively. The main issue relates to application of Sub-sections (1) and (2) of Section 92 to the transaction in question in the light of the provisions of Sub-section (3) of Section 92 of the Act. We may read here Section 92 of the Act: Section 92 (1) Any income arising from an international transaction shall be computed having regard to the arm's length price. Explanation : For the removal of doubts, it is hereby clarified that the allowance for any expense or interest arising from an international transaction shall also be determined having regard to the arm's length price. (2) Where in an international transaction, two or more associated enterprises enter into a mutual agreement or arrangement for the allocation or apportionment of, or any contribution to, any cost or expense incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises, the cost or expense allocated or apportioned to, or, as the case rriay be, contributed by, any such enterprise shall be determined having regard to the arm's length price of such benefit, service or facility, as the case may be. (3) The provisions of this section shall not apply in a case where the computation of income under Sub-section (1) or the determination of the allowance for any expense or interest under that sub-section, or the determination of any cost or expense allocated or apportioned, or, as the case may be, contributed under Sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. The mandate contained in Sub-section (1) of Section 92 is that any income arising from an international transaction shall be computed having regard to the arm's length price. Sub-section (2) of Section 92 requires that where, in an international transaction, two or more associated enterprises enter into a mutual agreement or arrangement for the allocation or apportionment of, or any contribution to any costs or expenses incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises, the cost or expense allocated or apportioned to, or as the case may be, contributed by such enterprise shall be determined having regard to the arm's length price of such benefit, service or facility, as the case may be. The centre of controversy in this case is Sub-section (3) of Section 92 which enjoins that the provisions of Section 92 shall not be applied in a case where the computation Of income under Sub-section (1) or the determination of the allowance for any expense or interest under that sub-section or the determination of any cost or expense allocated or apportioned, as the case may be, contributed under Sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case may be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. 9. With the expansion of global operations of multinational companies well- equipped in tax planning to minimize tax incidence of various countries in which they operate, there has been a corresponding legislative activity to counter such measures. The application of principle of transfer pricing is one such measure. The provisions of transfer pricing were first introduced by substituting Sections 92 to 92F for the then existing Section 92 by Finance Act, 2001; however, they were also substituted by new set of provisions-ss. 92 to 92F- by the Finance Act, 2002, w.e.f. 1st April, 2002. The said new provisions, supported by the rules, now provide a detailed statutory machinery for computation of reasonable and equitable profits and tax in India in the case of multinational enterprises. 10. It will be useful to refer to the notes on the Finance Bill, 2001. "New legislation to curb tax avoidance by abuse of transfer pricing. The increasing participation of multinational groups in economic activities in the. country has given rise to new and complex issues emerging from transactions entered into between two. or more enterprises belonging to the same multinational group. The profits derived by such enterprises carrying on business in India can be controlled by the multinational group, by manipulating the prices charged and paid in such intra-group transactions, thereby, leading to erosion of tax revenues. With a view to provide a statutory framework which can lead to computation of reasonable, fair and equitable profits and tax in India, in the case of such multinational enterprises, new provisions are proposed to be introduced in the IT Act. These provisions relate to computation of income from international transactions having regard to the arm's length price, meaning of associated enterprise, meaning of international transaction, determination of arm's length price, keeping and maintaining of information and documents by persons entering into international transactions, furnishing of a report from an accountant by persons entering into such transactions and definitions of certain expressions occurring in the said sections. It is proposed to substitute Section 92 with a new section to provide that any income arising from an international transaction shall be computed having regard to the arm's length price. It further provides that the costs or expenses allocated or apportioned between two or more associated enterprises shall be at arm's length prices. The proposed new Sections 92A and 92B provide meanings of the expressions "associated enterprise" and- "international transaction" with reference to which the income is to be computed under the new Section 92.........." After coming into force of the said provisions, CBDT issued Circular No. 14 of 2001 on 11th May, 2001 (22nd Nov., 2001), containing explanatory notes, inter alia, on transfer pricing in para 55.5 which, insofar as they are relevant, read : "The basic intention underlying the new transfer pricing regulation is to prevent shifting out of profits by manipulating prices charged or paid in international transaction, thereby eroding the country's tax base. The new Section 92 is, therefore, not intended to be applied in cases where the adoption of the arm's length price determined under the regulations would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction." From a plain reading of the material quoted above, it becomes evident that where the adoption of arm's length price under Sub-sections (1) and (2) of Section 92 would result in decrease in the overall tax incidence in India in respect of the parties involved in the international transaction, Sub-section (3) enjoins that principle of arm's length price shall not be given effect to. 11. Of the questions posed before us, referred to above, question No. 1 requires us to determine whether loan of Rs. 360 million by the applicant to Datex without charging interest and without adhering to the principle of arm's length price actually results in the Government exchequer or the tax revenue of the country being benefited. And question No. 3 is consequential, at least in part, to our ruling on the first question. Apparently question No. 1 appears to fall under Sub-clause (i) of cl. (a) of Section 245N but on a close examination, it becomes clear that it falls outside the ambit of the sub-clause because the question requires us to determine the effect of the transaction of loan between the applicant and Datex on Government exchequer or the tax revenue of the country as to whether it is being benefited or not. This implies a determination by Authority not in regard to tax implications of the transaction on the non- resident applicant but the impact of adhering to the principle of arm's length price embodied in Sub-sections (1) and (2) of Section 92 on the revenue of the State. We are afraid that such a determination is clearly outside the ambit of and not within the meaning of the expression "advance ruling" incorporated in Sub-clause (i) of cl. (a) of Section 245N of the Act. Adverting to question No. 3, as reframed, it will be necessary to bear in mind the scheme of Sections 92, 92A, 92B. The AO is enjoined to work out the arm's length price as per Sub-sections (1) and (2) of Section 92 following the method outlined in Section 92C. If he considers necessary or expedient so to do, he may with the previous approval of the CIT, refer the computation of arm's length price in relation to the international transaction to the Transfer Pricing Officer under Section 92CA. The Transfer Pricing Officer has to determine the arm's length price after notice to the assessee. On the basis of such determination, the AO has to compute the total income of the assessee. It is only if the AO comes to the conclusion that the interest of the Revenue would be better served by not applying Sub-sections (1) and (2) than by adhering to them, Sub-section (3) would be attracted and the AO will have to proceed with the assessment without giving effect to Sub-sections (1) and (2). Without complying with the statutory requirements it will be too presumptuous to assume the said transaction is beneficial for the Revenue and then invoke Sub-section (3) of Section 92. 12. To consider the applicability of Sub-section (3) of Section 92, we have perused the loan agreement between the applicant and the Datex, dt. 26th Aug., 2002. Clauses 5. 6 and 7 of the agreement are relevant for our purpose. "5. Repayment The borrower shall repay the principal amount of the loan in a bullet payment of three years maturity calculated from the first day of loan period. On the maturity of the loan the borrower will pay back to the lender equivalent amount in US dollars of 360,000,000 rupees (Rupees Three Hundred and sixty million only) at the exchange rate prevalent on the date of repayment of the loan as full discharge of the loan. 6. Interest rate The loan will be made available by the lender to the borrower free of any interest. 7. Overdue interest If the payment is delayed, default interest of 16 per cent will be charged. Overdue interest is calculated for the period beginning from the maturity date and ending to date the principal amount is received to the lender's bank account. The overdue interest shall be paid with the principal amount." Though Clause 6 provides that the loan will be made available by the lender to the borrower free of any interest, Clause 7 stipulates that if the payment is delayed, default interest of 16 per cent will be charged which has to be calculated for the period beginning from the maturity date and ending to date the principal amount is received to the lender's bank account. The overdue interest has to be paid with the principal amount. Clause 5 requires that the borrower shall repay the principal amount of loan in a bullet payment of three years maturity calculated from the first day of loan period. It appears to us that Clause 6 cannot be read in isolation; it has to be taken in conjunction with els. 5 and 7 which stipulate about repayment of loan and for payment on overdue interest. Without knowing the exact position in regard to the repayment of loan or the applicability of overdue interest, it will be premature to assume that the rate of interest is 0 per cent and proceed to pronounce ruling on that premise. 13. In this context, it is important to notice proviso (ii) to Sub-section (2) of Section 245R of the Act, which gives no option to the Authority except to reject the application where the question raised in the application involves determination of fair market value of any property. There can be no dispute that determination of arm's length price involves determination of fair market rate of interest. The sine qua non for applicability of Sub-section (3) of Section 92 is the finding that the computation of income under Sub-section (1) or determination of the allowance for any expense or interest under that sub-section read with the Explanation or the determination of any cost or expense allocated or apportioned, or, as the case may be, contributed under Sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case may be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. Having regard to the aforementioned provision-proviso (ii) to Sub-section (2) of Section 245R of the Act-it is a prohibited exercise for the Authority. Indeed the Authority is enjoined to reject the application if the question involves determination of fair market value of the property. It follows that the Authority cannot pronounce any ruling on the applicability of Sub-section (3) of Section 92 of the Act. 14. In the light of the above discussion, the applicant has no option but to comply with the provisions of the Act including the legislation relating to transfer pricing, namely, Sections 92 to 92F of the Act with respect to the said transaction of loan. Whether or not the applicant would charge the interest, as per the principles of the arm's length price, on the said loan advanced to Datex, having regard to its contractual obligation, is a matter for the applicant to consider but for the purposes of the Act the rate of interest will have to be taken as per the principles of arm's length price. 15. No arguments are addressed on the additional questions. 16. In the result, we rule on : (i) question No. 1 that the question does not fall within the meaning of the expression "advance ruling" incorporated in Sub-clause (i) of cl. (a) of Section 245N of the Act; (ii) question No. 2, we decline to pronounce any ruling as it is not pressed; (iii) question No. 3 that the applicant is required to comply with the provisions of the IT Act containing the legislation relating to transfer pricing namely Sections 92 to 92F with respect to the said transaction of loan and accordingly, interest for purposes of those provisions will be chargeable as per the principles of arm's length price. Before parting with this case, we thank the learned Solicitor General for rendering useful assistance to the Authority.	[ 789969, 789969, 620716, 789969, 1942568, 789969, 86224, 292995, 1942568, 789969, 86224, 1942568, 789969, 1942568, 1942568, 789969, 789969, 789969, 789969, 1942568, 789969, 1942568, 789969, 789969, 789969, 1755872, 509205, 1942568, 789969, 1659104, 1540780, 1540780, 1540780, 620716, 789969, 1942568, 1942568, 772724, 250601, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 1712542, 1942568, 1942568, 1942568, 1942568, 1712542, 1567544, 1755872, 1755872, 1583836, 1942568, 789969, 789969, 1942568, 789969, 789969, 789969, 789969, 789969, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 1942568, 789969, 1942568, 104566, 104566, 789969, 1942568, 789969, 789969, 1942568, 1942568, 1942568, 1755872, 1942568, 1755872, 1942568, 789969, 789969, 1942568, 789969, 789969, 1942568, 1942568, 509205, 1942568, 509205, 1942568, 1942568, 789969, 1755872, 789969, 1942568, 789969 ]	null	216,530	In Re: Instrumentarium ... vs Unknown on 25 November, 2004	Authority Tribunal	107
S.No. Writ Petition No. Criminal Case No. (1) W.P. No. 2522/84 Criminal Cases Nos. 186/83, 187/83, 188/83,189/83, 197/83, 203/83, 204/83 and 232/83. (2) W.P. No. 2516/84 Criminal Cases Nos. 196/83, 231/83 (3) W.P. No. 2517/84 Criminal Cases Nos. 199/83, 200/83,201/83, 202/83. (4) W.P. No. 2518/84 Criminal Cases Nos. 193/83, 194/83, 198/83. (5) W.P. No. 2519/84 Criminal Cases Nos. 180/83, 181/83, 182/83, 183/83, 184/83, 185/83, 230/83. (6) W.P. No. 2520/84 Criminal Cases Nos. 190/83, 191/83, 192/83, 195/83. (7) W.P. No. 2521/84 Criminal Cases Nos. 205/83, 206/83, 207/83, 208/83. 3. During trial, the petitioners apprehended that they will not get fair and just trial, hence they applied under Section 407 of the Code of Criminal Procedure, 1973 (for short 'the Code') before the Sessions Judge, for transfer of the cases to the Court of Judicial Magistrate First Class of the competent jurisdiction; that prayer was rejected. Hence the petitioners have filed the aforesaid petitions challenging the constitutional validity of Section 21 of the Act. 4. All the aforesaid petitions were heard by a Division Bench of this Court. The Division Bench after having anxiously considered the question raised in the petitions was of the opinion that the matter deserves to be considered by a larger Bench; hence referred the matter accordingly vide order dated 11th August, 1995. ORDER S.K. Dubey, J. 1. This order shall govern the disposal of Misc. Petition No. 2516 of 1984, Krishnapal Singh v. State of M. P. and Anr.; Misc. Petition No. 2517 of 1984, Pannalal v. State of M. P. and Anr.; Misc. Petition No. 2518 of 1984, Yashwant Singh v. State of M. P. and Anr.; Misc. Petition No. 2519 of 1984, Ramchandra Singh v. State of M. P. and Anr.; Misc. Petition No. 2520 of 1984, Mandatar Singh v. State of M. P. and Anr. and Misc. Petition No. 2521 of 1984, Surendra Singh v. State of M. P. and Anr.. 2. The petitioners in all the petitions are agriculturists, who for their agricultural operations hired labour, Bhils of Tahsil Petalwad, district Jhabua. On some complaints, after investigation concerning Police filed charge sheets under Sections 16, 17 and 18 of the Bonded Labour System (Abolition) Act, 1976 (for short 'the Act') against the petitioners, in the Court of Sub-Divisional Magistrate, Petalwad (for short 'the S.D.M.') in Criminal Case Numbers as mentioned below :5. The petitioners contended that Article 50 of the Constitution lays down that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. Directive principles of the State policy are conscience of the Constitution and embodies the philosophy of the Constitution and its basic under pinning and values. The anxiety of the Constitution makers was to keep the Judiciary far away from any form of executive control or interference. After the enforcement of the Code, the trial of any offence by an Executive Magistrate is excluded." Section 4 of the Code deals with trial of offences under the Indian Penal Code and other laws. Section 5 contains saving provisions. The effect of conjoint reading of Section 4(2) and section of the Code is that an offence has to be investigated, inquired into, tried or otherwise dealt with in accordance with the provisions of the Code unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. There is no such provisions in the Act regulating the manner or place of investigating or inquiring into the offences under the Act. Section 21 of the Act enables the State Government to confer powers on an Executive Magistrate for the trial of the offences under the Act and if such power is conferred, such Executive Magistrate is deemed for the purposes of the Code to be a Judicial Magistrate of the First Class or Second Class as the case may be. If no such power is conferred by the State Government on an Executive Magistrate, all offences under the Act are to be tried by Judicial Magistrate. Thus, after the conferment of power on an Executive Magistrate by the State Government under Section 21 of the Act, the jurisdiction of an Executive Magistrate and of Judicial Magistrate remains concurrent. The trial by an Executive Magistrate of the offences is neither fair nor reasonable and is biased as the S.D.M. remains the member of the Vigilance Committee constituted under Section 13 of the Act and acts as a Chairman of the Committee, or he nominates another person as Chairman of the Committee. The Vigilance Committee discharges its function as enumerated in Section 13 of the Act. A look at the provisions of Sections 13 and 14 of the Act will show that Vigilance Committee is acting as a complainant or a party. Therefore, the bias during the trial by S.D.M. is apparent. Such trial violates Article 21 of the Constitution, which prevents encroachment upon personal liberty by Executive save in accordance with law. Even if there is not bias, such a trial does not inspire confidence in the accused. Therefore, Section 21 of the Act violates Articles 14 and 21 of the Constitution. In support of the contentions, Shri Purushottam Shastri, learned counsel for the petitioner placed reliance on - Union of India v. Sankal Chand Himmatlal Sheth and Anr., AIR 1977 SC 2328; Olga Tellis and Ors. v. Bombay Municipal Corporation, AIR 1986 SC 180; Neeraja Choudhary v. State of M. P., AIR 1984 SC 1099 and Full Bench decision of Punjab and Haryana High Court in Sukhdev Singh Dhindasa v. State of Punjab, 1985 Cri. L.J. 1739. 6. Shri R. S. Jha, learned Govt. Advocate contended that Parliament enacted the Act to abolish bondage system in different parts of the country under which the debtor or his descendants or dependants have to work for the creditor without reasonable wages or with no wages in order to extinguish the debt. At times several generations work under bondage for repayment of paltry sum which had been taken by some remote ancestor. The interest rates are exorbitant, such bondage could not be interpreted to be result of any legitimate contract or agreement. The system implies infringement of the basic human rights and destruction of the dignity of human labour. Article 23(1) of the Constitution prohibits 'Begar' and other similar forms of forced labour and further provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. The Act being a welfare legislation for the upliftment of the downtrodden, it has provided various measures for implementing in the proper spirit for achieving the noble object. If any person is found contravening the provisions of the Act which have been made offences punishable under the Act, to grant relief to the bonded labour in speedy manner the Central Government in the Act made an enabling provision under Section 21 of the Act whereby the State Government can confer on the Executive Magistrate power for conduct of the judicial inquiry and trial who thereupon is deemed to be Judicial Magistrate for the purposes of the Code. Even on conferment of the power, the jurisdiction of the Judicial Magistrate and the Executive Magistrate on whom the powers to conduct the trial has been conferred, remains concurrent. The trial is to be conducted in accordance with the procedure prescribed under the code. A party accused of such an offence at the trial can avail the remedy of appeal or revision as the case may be and hence it cannot be contended that the trial by an Executive Magistrate who is for all purposes is a Judicial Magistrate is not just and fair and violates Article 21 of the Constitution; to support the contention reliance is placed on the decision of the Supreme Court in the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. However, he fairly cited another decision of the Supreme Court in the case of Special Courts Bill, 1978, AIR 1979 SC 478 and referred to paragraphs 94 and 95 of the judgment, which supports the contention of the petitioners. 7. Smt. Indira Nair, learned counsel for Union of India submitted that Section 21 of the Act is only an enabling provision and if the power is conferred by the State Government on Executive Magistrate, the jurisdiction of the Executive Magistrate and the Judicial Magistrate remains concurrent. Therefore, Section 21 of the Act does not offend Article 50 of the Constitution in any manner. The trial by the Executive Magistrate of offences under the Act also does not violate Article 21 of the Constitution. A decision of the Karnataka High Court in case of State of Karnataka v. Gangiah, 1979 Cr. L.J. 732 was cited. In any case if this Court is of the view that there will be no fair trial, the notification empowering the Executive Magistrate or the S.D.M. may be quashed as was done by the Bombay High Court in case of Govind Shanwar Chatal v. Dattatraya Waman Bhanushali, 1992(2) Cr. L.J. 1228. 8. The Act was enacted by the Parliament to assist abolition of bonded labour system as in various parts of the country, particularly remote areas, a system of usury, under which the debtor or his descendants or dependants have to work for the creditor without reasonable wages or with no wages in order to extinguish the debt, exists. At times several generations work under bondage for repayment of a paltry sum which had been taken by some remote ancestor. The interest rates are exorbitant and such bondage cannot be interpreted to be the result of any legitimate contract or agreement. The system implies infringement of the basic human rights and destruction of the dignity of human labour. Article 23(1) of the Constitution prohibits 'Begar' and other similar forms of forced labour and further provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. Article 35(a)(ii) of the Constitution confers the power on Parliament only to make laws for punishment for those acts which are declared to be offences under Part III of the Constitution. The bonded labour system offends Article 23(1) of the Constitution. Accordingly the Bonded Labour System (Abolition) Ordinance, 1975 was promulgated by the President. By the said Ordinance the Bonded Labour System was abolished and the Bonded Labourers were freed and discharged from any obligation to render any bonded labour and their bonded debts were also extinguished. The Ordinance further afforded protection to the freed bonded labourers from eviction from their homestead. Contravention of the provisions of the Ordinance were made offences punishable in accordance with law. This Ordinance was replaced by the Act which came into force with retrospective effect from October 25, 1975. 9. A cursory look at the provisions of the Act shows that Section 2 deals with definitions wherein Section 2(e) defines 'bonded labour', Section 2(f) defines 'bonded labourer'. Section 2(g) defines 'bonded labour system', as the system of forced or partly forced labour under which a debtor enters, or has, or is presumed to have entered into an agreement with the creditor to the effect that - (i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or (v) by reason of his birth in any particular caste or community; he would render by himself or through any member of his family, or any person dependant on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages. Section 3 gives overriding effect to the provisions of the Act inconsistent with the provisions of any enactment or instrument agreement. Section 4 deals with the abolition of bonded labour system on commencement of the Act. Section 5 of the Act lays down that on the commencement of the Act, any custom or tradition or any contract, agreement or other instrument (whether entered into or executed before or after the commencement of this Act) by virtue of which any person, is required to do any work or render any service as a bonded labourer, shall be void and inoperative. Sections 6 to 9 in Chapter III deal with extinguishment of liability to repay the debt. Sections 10 to 12 of Chapter IV deal with Implementing Authorities. Sections 13 to 15 of Chapter V deal with Vigilance Committees. Section 13 of the Act provides that every State Government shall constitute such number of Vigilance Committees in each district and each Sub-Division as it may think fit. Sub-section (2) of Section 13 deals with constitution of Vigilance Committee in a district. Sub-section (3) of Section 13 deals with the constitution of Vigilance Committees in a Sub-Division of which the persons enumerated in clauses (a) to (f) shall be members and S.D.M. or a person nominated by him shall be the Chairman. Sub-section (4) provides that each Vigilance Committee shall regulate its own procedure and have secretarial assistance, as may be necessary provided by the District Magistrate in relation to Vigilance Committee in district and in the Sub-Division by the Sub-Divisional Magistrate. Section 14 deals with functions of the Vigilance Committee as enumerated in clauses (a) to (f) of sub-section (1), Clause (d) of sub-section (1) of Section 14 casts a duty on Vigilance Committee to keep an eye on the number of offences of which cognizance has been taken under this Act, clause (e) speaks of making a, survey as to whether there is any offence of which cognizance ought to be taken under this Act and clause (f) requires Vigilance Committee to defend any suit instituted against a freed bonded labourer or a member of his family of any other person dependent on him for the recovery of the whole or part of any bonded debt or any other debt which is claimed by such person to be bonded debt. Section 15 deals with burden of proof, which provides that whenever any debt is claimed by a bonded labourer, or a Vigilance Committee to be a bonded debt the burden of proof that such debt is not a bonded debt shall lie on the creditor. Chapter VI deals with offences and procedure for trial. Section 16 provides that whoever, after the commencement of the Act compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees. Section 17 deals with the punishment for advancement of bonded debt; sentence provided for such an act is the same as is provided under Section 16 of the Act. Section 18 deals with the punishment for extracting bonded labour under the bonded labour system, punishable with imprisonment which may extend to 3 years and also a fine which may extend to Rs. 2,000/- and out of the fine, if recovered the payment shall be made to the bonded labourer at the rate of rupees five for each day for which the bonded labour was extracted from him. Section 20 deals with the abetment of an offence, which shall be punishable with the same punishment as is provided for the offence which has been abetted. Section 21 speaks of offences to be tried by Executive Magistrate which reads thus - "21. Offences to be tried by Executive Magistrate. - (1) The State Government may confer, on an Executive Magistrate, the powers of a Judicial Magistrate of the First Class or of the Second class for the trial of the offences under this Act, and on such conferment of powers, the Executive Magistrate, on whom the powers are so conferred, shall be deemed, for the purposes of the Code of Criminal Procedure, 1973, to be a Judicial Magistrate of the first class or of second class, as the case may be. (2) An offence under this Act may be tried summarily by a Magistrate." Section 22 of the Act provides that every offence under the Act shall be cognizable and bailable. Section 23 of the Act deals with the offences by companies. Section 24 to Section 27 of Chapter VII deals with miscellaneous provisions. 10. Part IV of the Constitution deals with the Directive Principles of State Policy. Article 50 of Part IV of the Constitution provides that the State shall take steps to separate the Judiciary from the Executive in public services of the State. True the Directive Principles of the State Policy cannot as such be enforced by Courts. But while considering the question of enforcement of fundamental rights of a citizen, it is open to the Courts to be guided by the Directive Principles to ensure that in doing justice the principles contained therein are maintained. Fundamental rights and the Directive Principles constitute "Conscience of the Constitution". The Constitution aims at bringing about a synthesis between 'Fundamental Rights' and 'Directive Principles' of the State Policy by giving to the former a place of pride and to the latter a place of permanence; together they form core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the Welfare State contemplated by the Constitution - See - Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; V. Markendeya and Ors. v. State of Andhra Pradesh and Ors., (1989) 3 SCC 191. 11. In Union of India v. Sankalchand Himatlal Sheth and Anr., AIR 1977 SC 2328, P.N. Bhagwati, J. (as he then was) has observed in paragraph 52 that Article 50 is the "Conscience of the Constitution" and embodies the social philosophy of the Constitution and its basic under pinnings and values, plainly revealing without any scope for doubt or debate, the intent of the Constitution-makers, to immunise the Judiciary from any form of executive control or interference. The independence of the Judiciary is a fighting faith of our Constitution. Fearless justice is the cardinal creed of our founding document. 12. It was in that light that when the Code of 1973 was enacted, complete separation of Judiciary with Executive was made. Chapter II of the Code deals with the constitution of Criminal Courts and the Offices. Section 6 deals with Classes of Criminal Courts. It says that besides the High Courts and the Courts constituted under any law, other than the Code, there shall be, in every State, the following classes of Criminal Courts,- namely, (i) Courts of Session; (ii) Judicial Magistrates of the first class and in metropolitan areas, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. From the set up of the classes of Criminal Courts, it is apparent that the scheme of separation of the Judiciary from the Executive has been implemented. All Judicial Magistrates are under the control of the Sessions Judge and the Executive Magistrates who are very few in number, under the control of the District Magistrate, which would be evident from Section 15 of the Code. On enforcement of the Code, there has been complete separation of Judiciary from the Executive in whole of the country. This has been done to implement the mandate under Article 50 of the Constitution which requires that State shall take steps to separate the Judiciary from Executive. By merging the judicial function in the executive, the basic structure of the Constitution is affected; justice and fair trial cannot be ensured by the Executive Magistrates in as much as they are not required to be legally qualified and trained persons and in actual practice are required to perform various other functions. Their powers under the Code are limited for the purposes of maintenance of law and order or dealing with the cases of the nature as provided in Chapter VIII to Chapter X of the Code; while the Judicial Magistrate, who remains under the exclusive control of the Court of Session and the High Court has to conduct judicial inquiry and trial of cases of various offences by recording judicial decisions. In fact the functions of the Judiciary and Executive are quite different. In other words it is clear that the Executive Magistrate has no role to play in conducting judicial trial and recording judicial decisions. However, in spite of the separation of Judiciary from Executive, Section 21 of the Act enables the State Government to confer judicial power on an Executive Magistrate or the S.D.M. to try offences judicially and to render judicial decisions and by virtue of the conferment of such power on Executive Magistrate, such Executive Magistrate for the purposes of the Code, for the trial of the offences under the Act is deemed to be Judicial Magistrate of first class or second class as the case may be. This is opposed to the policy of separation of Judiciary from the Executive and is against the 'conscience of the Constitution' contained in Article 50 of the Constitution. 13. Besides the fact that some of the Executive Magistrates are not Law Graduates and are not well versed with the practice and procedure and functioning of the judicial system, they are Members/Chairman of Vigilance Committees whose function, inter alia, is to watch the number of offences of which cognizance has been taken and to survey as to whether there is any offence of which cognizance ought to be taken. The trial before such a Magistrate may not always be biased, yet the accused may entertain reasonable apprehension on account of attending circumstances that he will not get a fair trial. The cardinal principle of administering justice is that the justice must not only be done but must be seen to be done; here it would be appropriate to refer to the observations of the Supreme Court in paragraph 94 in case of In re Special Court Bill, 1978 (supra): "94. Though this is so, the provisions of the Bill appear to us to be unfair and unjust in three important respects. In the first place, there is no provision in the bill for the transfer of cases from one special Court to another. The manner in which a Judge conducts himself may disclose a bias, in which case the interest of justice would require that the trial of the case ought to be withdrawn from him. There are other cases in which a Judge may not in fact be biased and yet the accused may entertain reasonable apprehension on account of attendant circumstances that he will not get a fair trial. It is of the utmost importance that justice must not only be done but must be seen to be done. To compel an accused to submit to the jurisdiction of a Court which, in fact, is biased or is reasonably apprehended to be biased is a violation of the fundamental principles of natural justice and a denial of fair play. There are yet other cases in which expediency or convenience may require the transfer of a case, even if no bias is involved. The absence of provision for transfer of trials in appropriate cases may undermine the very confidence of the people in the Special Courts as an institution set up for dispensing justice." 14. The case of Kartar Singh v. State of Punjab (supra) deals with provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 and Terrorist Affected Areas (Special Courts) Act, 1984 which were examined by the Supreme Court in the light of the Articles 50, 14 and 21 of the Constitution. In our opinion, the case is distinguishable as it does not deal with trial of the offences by Executive Magistrate. In that case constitution of a Designated Court was considered to be parallel to Court of Session since Sessions Judge or Additional Sessions Judge are to be appointed as Judges of the Designated Court. The Supreme Court in the said case also held Section 20(3) of the said Act to be valid. The provision deals with the power of Executive Magistrates to record confessions, while holding Section 20(3) as valid, the Supreme Court observed in paragraph 317 thus : "Though we are holding that this section is constitutionally valid, we, in order to remove the apprehension expressed by the learned counsel that the Executive Magistrates and the Special Executive Magistrates who are under the control of the State may not be having judicial integrity and independence as possessed by the Judicial Magistrate and the recording of confessions and statements by those Executive Magistrates may not be free from any possible oblique motive, are of the opinion that it would be always desirable and appreciable that a confession or statement of a person is recorded by the Judicial Magistrate whenever the Magistrate is available in preference to the Executive Magistrates unless there is compelling and justifiable reason to get the confession or statement, recorded by the Executive or Special Executive Magistrates. 15. The conferment of the powers under Section 21 of the Act on an Executive Magistrate is for trial of the offences under the Act and not to attend pre-trial steps. There is difference between the inquiry, investigation and trial. The Executive Magistrate on whom the power is conferred can try offences under the Act. They are warrant cases. If a case is instituted otherwise than on a police report, the Court is required to hold an inquiry before framing of the charge. This cannot be done unless the expression "trial" is considered in its widest sense so as to include inquiry at pre-charge stage. Ordinarily trial in a warrant case commences after a charge is drawn up under Section 246 of the Code. Trial is a judicial proceeding before the Court which ends in conviction or acquittal. In warrant cases instituted on a police report proceedings starting with Section 238 including discharge or framing of charges under Section 239 or Section 240 amount to a trial. See - V.C. Shukla v. State, AIR 1980 SC 962. But when a case is instituted on a private complaint the Magistrate conducts inquiry till the framing of the charge and then the inquiry is turned into a trial. As the power is conferred only for trial of the offences under the Act, it is difficult to hold that the Executive Magistrate can exercise powers under Section 167 of the Code regarding a remand etc. or conduct pre-charge inquiry. 16. Article 21 of the Constitution provides that procedure by law must be fair, just and reasonable and the accused should have satisfaction that he will get a fair and just trial. Therefore, on enforcement of the Code there was separation of Judiciary from the Executive. The fact that an appeal or revision is to be heard by the Court of Session or High Court would not cure the defect, as it is of the greatest importance that trial should inspire confidence and when under the procedure prescribed it cannot inspire confidence, such a procedure should be held to be invalid, unjust and unfair and also contrary to the provisions of the Code. 17. As the Sub-Divisional Magistrate or the Executive Magistrate plays an important role under the scheme of the Act and S.D.M. remains the Chairman of the Vigilance Committee, there is a force in the contention that the trial of the offences under the Act will be biased or there will be reasonable apprehension of bias in the trial by an Executive Magistrate which is violative of the principles of natural justice and denial of fair play. 18. Counsel for the respondents could not point out the benefit which would be derived by vesting judicial powers on the Executive Magistrates by the enabling provision under Section 21 of the Act which is not only against Article 50 of the Constitution but also against the Articles 14 and 21 and also the scheme of the Code. Therefore, we are of the opinion that Section 21 of the Act which enables the State Government to confer on an Executive Magistrate the powers of a Judicial Magistrate of first class or second class for the trial of the offences under the Act, offends Articles 21, 14 and 50 of the Constitution. The Full Bench decision of Punjab and Haryana High Court in the case of Sukhdev Singh v. State of Punjab (supra) supports our view. 19. It is contended that the jurisdiction is concurrent and, therefore, the cases can be transferred for trial by the Judicial Magistrate as ordered by the Bombay High Court in Govind Shanwar Chatal v. Dattatraya Waman Bhanushali (supra). This, of course, can be done. But that is not the way out, as, in our view, as and when any notification is issued conferring power on an Executive Magistrate for trial of the offences under the Act, the question will have to be dealt with. There should be fair trial and equal protection of law. Therefore, when offences under the Act can be tried effectively and speedily by the Judicial Magistrates, the question of trial by an Executive Magistrate does not arise particularly when it generates an apprehension in the mind of the accused that the trial before such Executive Magistrate will be biased as being the member of the Vigilance Committee. 20. As a result of the aforesaid discussion, we declare that the enabling provision contained in Section 21 of the Act violates Articles 21, 14 and 50 of the Constitution. Consequently trial against the petitioners for the offences under the Act by the Sub-Divisional Magistrate cannot proceed. All the cases referred to in paragraph 2 above shall stand transferred to the Court of concerned Judicial Magistrate, First Class, records shall be transmitted. As the cases are pending since 1983, the cases shall be disposed of in accordance with law expeditiously within the outer limit of six months. The parties to the cases shall appear before Judicial Magistrate, First Class, Petalwad on 1st November, 1995. If the petitioners fail to appear, their presence shall be secured by process of law. 21. As we have struck down Section 21 of the Act, the cases pending under the Act before the Executive Magistrates or Sub-Divisional Magistrates shall also stand transferred to concerned Judicial Magistrates and for that Executive Magistrates or Sub-Divisional Magistrates shall take steps and shall transmit the records to the appropriate Judicial Magistrates.	[ 834094, 590201, 164079564, 932781, 1254993, 410356, 236421, 115031, 267258, 192717, 445276, 1329373, 1569253, 129856, 76327, 445276, 445276, 590201, 445276, 590201, 849714, 849714, 849714, 347759, 1199182, 590201, 4572688, 709776, 1012224, 152457, 705639, 1189857, 590201, 445276, 1199182, 1813801, 590201, 590201, 192717, 1199182, 1998766, 1998334, 1189857, 705639, 976848, 705639, 947165, 1031236, 1212047, 1411619, 272161, 446256, 129856, 1168823, 1259061, 849714, 849714, 849714, 347759, 347759, 902188, 236421, 115031, 236421, 267258, 521952, 590201, 445276, 360715, 246003, 1641607, 192717, 257876, 978175, 4572688, 192717, 445276, 1168823, 445276, 707235, 445276, 192717, 445276, 590201, 445276, 192717, 1813801, 206811, 521952, 521952, 590201, 1859700, 1189857, 1189857, 1189857, 1687975, 1199182, 445276, 445276, 590201, 192717, 445276, 590201, 152457, 1998334, 590201, 590201 ]	Author: S Dubey	216,532	Hanumantsing Kubersing vs State Of Madhya Pradesh And Anr. on 28 September, 1995	Madhya Pradesh High Court	107
IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35547 of 2010 MD. RAZZAQUE @ RAZZAQUE S/O MD. AAINUL Versus STATE OF BIHAR ----------- Narendra/ ( Anjana Prakash, J. ) 3. 25.3.2011 Heard learned Counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence u/ss.395 and 412 of the Indian Penal Code. Considering that the petitioner is in custody since 16.8.2010 since the sim card of the wife of the petitioner was used by the petitioner on the stolen Mobile and he has fair antecedents, 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 C.J.M., Araria in Araria (Tarabari) P.S. Case No.221 of 2010, subject to the conditions (i) That one of the bailor shall be the wife of the petitioner and the other bailor 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 case of similar nature after -2- his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on 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 if he fails to do so on two consecutive dates, his bail will be liable to be cancelled.	[ 1569253 ]	null	216,533	Md.Razzaque @ Razzaque vs State Of Bihar on 25 March, 2011	Patna High Court - Orders	1
JUDGMENT P.K. Bahri, J. (1) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act (for short 'the Act') challenging the eviction order dated April 21, 1986, passed by Shri G.D. Dhanuka, Additional Rent Controller, Delhi on the ground of eviction covered by clause (e) of sub-section (1) of Section 14 of the Act. (2) The learned counsel for the petitioner has challenged the impugned order in arguments only on two points; firstly, that the legal heirs of deceased tenant Bhagwan Dass were not sought to be imp leaded as respondents in the eviction petition pending before the Additional Rent Controller, hence, the eviction petition should be deemed to have abated; secondly that is has not been proved from the evidence brought on the record by the respondent that the premises in question had been let out only for residential purposes. Counsel for the petitioners was frank enough not to challenge the findings of the Additional Rent Controller with regard to the respondent being owner of the premises in question and the respondent being not in possession of any reasonably suitable accommodation and his bonafide requirement for the premises in question for occupation as residence for himself and his family members dependent upon him for the purposes of residence. (3) Now taking up the first point, it is clear from the record that the eviction petition was filed against Bhagwan Dass in May 1981 and Bhagwan Dass had filed an application seeking leave to appear and defend the eviction petition but the Additional Rent Controller had dismissed the said application and bad passed the eviction order treating the facts slated in the eviction petition as correct. Bhagwan Dass had filed civil revision in the High Court seeking selling aside of the aforesaid order. During the pendency of the civil revision in the High Court, Bhagwan Dass admittedly had died and his legal heirs were substituted as petitioners in the civil revision in place of Bhagwan Dass and ultimately vide order dated July 16, 1984,YogeshwarDayal,J.(as His Lordship then was) allowed the Civil Revision No. 211/82 and granted the leave to defend to the legal heirs of Bhagwan Dass and gave the directions to the parties to appear before the trial Court on August 6, 1984, on which date written statement shall be filed. It is true that one of the points raised before the High Court was whether all or any of the legal heirs of Bhagwan Dass sought to be brought on record could be termed as legal heirs for the purposes of amended definition of 'tenant' given in the Act. This question was left open for decision by the High Court with the observations, that in view of the objections raised by the respondent landlord and the counsel for the petitioner, the heirs mentioned in the application are brought on record for purposes of this revision petition only and not for the purposes of ejectment application, and the question as to who are the legal heirs for the purposes of ejectment application will be decided by the trial Court. This particular observation of the High Court does not mean that the legal heirs already substituted, if not objected to in the proceedings before the Additional Rent Controller, could not participate in the proceedings or any new order was required to be made by the Additional Rent Controller for bringing the said legal heirs on-record for the purposes of deciding the eviction petition. The aforesaid observations were made by the Court for the benefit of the landlord because if landlord was to agitate the plea that none of the or some of the legal heirs of Bhagwan Dass tenant were not covered by the definition of "tenant" given in the Act and thus were not entitled to be allowed to contest the eviction petition, the High Court left the question open for decision of the Additional Rent Controller if such a point was to be raised by the landlord. It does not mean that if landlord was not to raise any such plea before the Additional Rent Controller even then the landlord was legally bound to bring an application before the Additional Rent Controller for substituting the legal heirs as respondents in the eviction petition when they have been already substituted in the revision petition. The legal position in respect of substitution of legal heirs in the appeal or in the revision is quite clear that once the legal heirs have been substituted in the appellate court or in revisional court, there is no necessity of bringing any application before the trial Court for substituting the legal heirs in the proceedings and the proceedings do not abate for omission to make any such application. (4) In Radhaballav Choubey & others v. Mahadev Choubey & others, , it has been observed that when there is a substitution in a pending appeal in the High Court and the matter is remanded to the court below, on remand, the court itself has to see that the names of those, who are dead, should be removed from the record and those, who are already substituted in the High Court should be brought on the record. Similar was the view taken in Hema Dibya v. Amarendra Kishore Das and others, . In this case. a plaintiff's suit was dismissed in default and an application was moved for restoration of the suit which was also dismissed. An appeal was filed and during the pendency of the appeal, the plaintiff appellant had died and his legal representatives were substituted and the appeal was allowed and the suit was restored and the matter was remanded to the court for deciding it on merits. It was held that it was unnecessary that the legal representatives should have been again substituted in the suit. In Panna Lal Agrawala v. Kanhaiya Lal Jain & others, and Harbans Lal v. Ved Parkash, , same principle was reiterated. The aforesaid judgments follow the law laid down by the Supreme Court in Rangubai Kom Sankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe & others, . In this case the Supreme Court has clearly laid down that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will ensure for the benefit of all the subsequent stages of the suit. So, in Kanailal Dholey and others v. Kalicharan Chatterjee and others, , it was laid down that if plea of abatement is not raised in the Lower Court, then such a plea could not be allowed to be raised in appeal when no prejudice is shown to have been caused by failure to bring the legal representatives of the deceased on record in a formal manner. In the present case, legal heirs of the deceased-tenant had filed the written statement and had contested the eviction petition on merits and after full trial the case was decided and in no manner these legal heirs have been prejudiced by inability of the Additional Rent Controller to make any formal order substituting them in place of deceased tenant. (5) At the time of admission'of this civil revision Sultan Singh, .L, had made reference to Union of India v. Ram Charan (deceased) through his L.Rs, . I have gone through that judgment and find that the same is completely distinguishable. In the said judgment, the Supreme Court bad only laid down well-known principle of law that if suit had abated, then there is no reason for the court to invoke any inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading the legal representatives of the deceased. It was pointed out that the abatement could be set aside only on the grounds mentioned in Order Xxii Rule 9 of the Code of Civil Procedure. However in the present case, eviction petition cannot be deemed to be abated in view of the ratio of law laid down by the Supreme Court in Rangubai (supra). No judgment has been cited by the learned counsel for the petitioner taking any different view. Hence, I hold that there is no merit in this contention of the learned counsel for the petitioners that eviction petition should be deemed to have abated. (6) It has been vehemently argued by the learned counsel for the petitioner that the Additional Rent Controller has completely gone wrong in returning the finding with regard to the letting purpose. He has committed a grave illegality in determining the question of letting purpose by placing the onus on the petitioners that the letting purpose was for composite purposes. So, he has argued that the findings of the Additional Rent Controller being perverse should be set aside by this Court. It is settled law that this Court in exercising its power of revision as conferred be Section 25-B(8) of the Act can set aside a finding of fact given by the Controller if it is shown that the findings is based on illegal principles of law or has been based on no evidence or has been arrived at ignoring important evidence existing on the record because in such a case such a finding would be a perverse finding. It is also true that in order to get eviction of the tenant on the ground of bonafide requirement for residence, one of the all important ingredients to be proved by the landlord is that the premises in question have been let out to the tenant for residential purposes only. The onus to prove this ingredient is always heavy on the landlord. It is also settled that if there is clear evidence available in any shape showing the letting purpose then that evidence must be given its due importance. But where there is no document of letting executed between the parties or there is no direct evidence of letting available, then the letting purpose has to be determined keeping in view the nature of the demised premises, the locality where the premises are situate and the dominant user for which the premises let out have been used since the very inception of the tenancy. (7) Now coming to the facts in the present case, the letting took place admittedly 40 years or so prior to the filing of the eviction petition. It has also come out in evidence that one Har Gopal Mathur was the owner of this property and presumably he had inducted Bhagwan Dass as tenant in the premises in question. He had sold this property to Champa Devi and Manohar Lal and said Champa Devi and Manohar Lal had sold the property to Ram Chander and the respondent has inherited the premises in question on the basis of the will executed by his father Ram Chander. Either of the parties has not produced the original owner of the property who had inducted Bhagwan Dass as tenant. Bhagwan Dass had died before the evidence was taken in this case. So the two persons who were the parties to the contract of tenancy initially, who could be the best persons to know about the letting purpose of the premises in question, could not depose about the fact for obvious reasons. Before I appraise the evidence led before the Additional Rent Controller with regard to the letting purpose, I must refer to the initial plea taken by Bhagwan Dass in his affidavit and the application filed seeking leave to defend the eviction case. In the eviction petition it has been averred clearly by the respondent that the prem.ses in question comprising of one kotha, one room, one kitchen, one tin shed and a courtyard on the first floor, shown in red colour in the site plan filed Along with the eviction petition, with common use of latrine on the ground floor stood let out to Bhagwan Dass for residential purposes only. In the application dated May 29, 1981 and the affidavit of the same date, Bhagwan Dass did not at all controvert this particular plea that the premises had been let out for residential purposes only. The only plea taken by him was that he had been using the premises in question for residential-cum-commercial purposes. There is a lot of difference between the pleas as to the letting purpose and the user of the premises. So, there was an implied admission in the affidavit of Bhagwan Dass that the premises had been initially let out for residential purposes only. With regard to his plea that the premises bad been used for residential-cum-commercial purposes, the question assumes importance in a different manner ; whether such user could lead to any legal or factual inference that letting purpose had at any time changed ? No plea was taken by Bhagwan Dass that the letting purpose had at any time changed with the consent of any of the landlords. It is true that before the filing of the eviction petition the landlord-respondent had served a notice of eviction, copy of which being Ex. AW3/1 and reply was received on behalf of Bhagwan Dass, the same being Ex. AW3/4. in which plea was taken by Bhagwan Dass that the premises had been let out for residential-cum-commercial purposes. But after the eviction petition was filed and necessary summons were served on Bhagwan Dass, he in his application and the affidavit aforesaid did not take this plea meaning thereby that Bhagwan Dass did not want to take any plea which may be shown to be false in evidence later on. He was not perhaps keen to give wrong or false fact in his sworn affidavit. But after Bhagwan Dass had died, the petitioners filed the written statement taking this plea that in fact, premises had been let out initially for composite purposes. I am afraid that this plea was beyond the pleas taken in the leave to defend application and the affidavit of Bhagwan Dass and could not be given any importance. (8) It is, indeed, not disputed that Bhagwan Dass with his wife and two sons and two daughter-! lived in the demised premises. It is true that about 40 years ago when be took the premises on rent, he and his wife initially might be residing in the said premises and children might have been born later on. The accomodation in question is not big one. No case was set up that any portion of the demised premises was exclusively used for any particular commercial activity by Bhagwan Dass, rather Bhagwan Dass, in his affidavit had mentioned in para 8 that it was the landlord-respondent who had threatened him that Bhagwan Dass using the premises for residential-cum-commercial purposes inasmuch as Bhagwan Dass was carrying on the business of repairs of watches and clocks in the said premises. Bhagwan Dass himself did not categorically make any averment in the affidavit that he was using any particular portion of the demised premises exclusively for any commercial activity. The respondent-landlord has brought on record Ex. AW2 1, a copy of the entries from the house-tax record, which show that the portion in possession of Bhagwan Dass was residential and so also all other portions in that house and he also proved on record counterfoils of rent receipts Exs.AW3/12 toAW3/16 issued by his father to Bhagwan Dass which also bear signatures of Bhagwan Dass and they show that the premises let out to Bhagwan Dass are residential. In his cross-examination, Mark 'A' and Ex. D rent receipts were brought on record which did not indicate the nature of the premises but no rent receipts, to which the counterfoils Ex. AW3/12 to AW3/16 partained, were brought on record by the petitioners to show that entry in the counterfoils showing the nature of the demised premises as residential was incorrect. Apart from the aforesaid documentary evidence, the respondent coming as bids own witness as AW3 made a categorical statement that Bhagwan Dass was employed in a printing press in Faridabad. No suggestion in crossexamination was given that in fact, Bhagwan Dass was never employed in any printing press at Faridabad at any time. It may be that the respondent did not know the name of the printing press or the exact address of the said printing press where Bhagwan Dass employed but the fact remains that his testimony in this regard remained unchallenged. Even AW4 Hari 0m had made a statement that according to his opinion, Bhagwan Dass was employed in a press. No suggestion was even given to him that Bhagwan Dass was never employed in any printing press at any time. RW1, one of the petitioners, appeared in the witness box and he also did not make any categorical statement on oath that his father was never employed in any printing press. RW2 Ram Pratap who admitted that he was relation of Bhagwan Dass also did not slate on oath that Bhagwan Dass was not employed in any printing press, rather he expressed ignorance as to whether Bhagwan Dass was employed in any printing press or not. If Bhagwan Dass had not been employed in printing press this witness, who claimed to be not only a relation of Bhagwan Dass but was also having some contact with Bhagwan Dass regarding repair of watches, would not have made such an evasive statement. RW3 Champa Devi also could not deny the suggestion categorically as to whether Bhagwan Dass was employed in any printing press or not. She only deposed that she had never objected to Bhagwan Dass carrying on repair of certain watches in the premises in question She deposed that the previous owner, whom she named as Shri Saxena wrongly, had told her that he had let out the premises for composite purposes to Bhagwan Dass but this testimony of Champa Devi does not appear to be correct because she could not deny the suggestion that she had been issuing rent receipts and preserving counterfoils thereof but she could not say as to what letting purpose had been mentioned therein. She made a statement that she had destroyed the counterfoil rent receipts. However, the fact remains that even according to her testimony, the premises let out to Bhagwan Dass were being used for residential purposes as long as she was the owner although, according to her, Bhagwan Dass also carried on repair of watches in the premises. She did not say that any specific portion of the premises bad been used by Bhagwan Dass exclusively for purposes of repairing the watches. Rent receipt issued by her would have been the best evidence to show whether she consented to premises being used for commercial purposes. With-holding of rent receipts by the petitioners leads one to draw an adverse inference that if produced the same would have shown the letting purpose as residential only. So, her testimony has been rightly disbelieved by the Addl. Rent Controller that the previous owner told her that premises stand let out for composite purpose or she gave any consent for commercial user. Even the testimonies of RW1 & RW2 do not show that any particular portion of the premises in question had been at any time earmarked for any commercial activity either by Bhagwan Dass Or by his legal representatives. So, the dominant user of the demised premises admittedly was residential at all relevant times. If Bhagwan Dass was bringing certain watches from some shopkeepers and was repairing them and then handing back those watchers to shopkeepers, it does not mean that he was using the premises predominantly for any commercial activity. It is not the case that any customers were visiting the premises in question for getting their watches repaired from Bhagwan Dass. Counsel for the petitioners has argued that there was no plea taken by the landlord in the petition or in the replication that Bhagwan Dass was employed in a printing press. So, any evidence led on that fact should be not given any importance. I do not agree. After all the landlord was only to prove from evidence that the premises had been let out for residential purposes. He was not to plead in the pleadings as to the avocation of Bhagwan Dass because that was subject matter of evidence. From the evidence it is apparent that the petitioners, legal heirs of Bhagwan Dass, had not cared to rebut the testimony of the respondent that Bhagwan Dass employed in a printing press. (9) So, examined from all angles, keeping in view the initial pleas taken by Bhagwan Dass in the eviction case. an irresistible conclusion can be reached that the premises bad been let out for residential premises only when it is clearly shown that house where the premises are located is residential nature and is located in residential locality and the premises in question had been used predominantly for residential purposes. Hence, I come to the conclusion that the finding of the Additional Rent Controller with regard to the letting purpose is not illegal even though the Additional Rent Controller approached ihe question by wrongly placing onus on the petitioners (legal heirs of the tenant). I, hence, negative this contention of the learned counsel for the petitioners as well. No other point has been urged before me. (10) I find no merit in this civil revision which I, hereby, dismiss. But in view of the peculiar facts of the case, I leave the parties to bear their own costs and I also grant one month's time to the petitioner for vacating the premises.	[ 679372, 367290, 752077, 914186, 1384287, 1994812, 1539480, 1709389, 1386437, 679372 ]	Author: P Bahri	216,535	Babu Lal And Ors. vs Satya Narain on 24 May, 1988	Delhi High Court	10
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-26104 of 2009 Date of decision: November 20, 2009 Kulwant Kaur -Petitioner Versus State of Punjab & others -RespondentsCoram Hon'ble Mr. Justice Rajan Gupta Present: Mr. Johny Goyal, Advocate, for the petitioner. Mr. Shilesh Gupta, DAG, Punjab. Rajan Gupta, J.(Oral) Counsel for the petitioner submits that he has instructions to withdraw this petition. Dismissed as withdrawn. [Rajan Gupta] Judge November 20, 2009. 'ask'	[]	null	216,536	Kulwant Kaur vs State Of Punjab & Others on 20 November, 2009	Punjab-Haryana High Court	0
Title: Need to order berthing of two urea ships at Gopalpur (Orissa) in the months of November, and December, 2000 with a view to provide employment to cyclone-hit people of Ganjam district. SHRI ANADI SAHU (BERHAMPUR, ORISSA): Sir, Gopalpur is a fair-weather minor Port in Ganjam district of Orissa. It is operational from November to March, every year. A number of ships come to this Port during this period. Till 1995, Urea ships were coming to this Port. However, anchoring of Urea ships in Gopalpur Port were stopped thereafter. After the supercyclone, the people of Ganjam are not getting adequate work. If Urea ships are brought to this Port in November and December, people will get work. In addition, farmers will get urea at a cheaper rate. I request the Government of India to order for berthing of two Urea ships at Gopalpur in the months of November and December, 2000. 1443 hours (Mr. Deputy-Speaker in the Chair)	[]	null	216,537	Need To Order Berthing Of Two Urea Ships At Gopalpur (Orissa) In The ... on 8 May, 2000	Lok Sabha Debates	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 11470 of 2008(M) 1. KOLLAM PRASAD,SECRETARY, ... Petitioner Vs 1. THE SUB INSPECTOR OF POLICE, ... Respondent For Petitioner :SRI.R.REJI For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MRS. Justice M.C.HARI RANI Dated :11/06/2008 O R D E R K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 11470 OF 2008-M ----------------------------------------- Dated 11th June, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner has approached this Court, alleging that the respondent Sub Inspector of Police is harassing him. The respondent has filed a statement, stating that a crime has been registered against one Mr.Johnson George under Sections 419 and 420 of the I.P.C. The said Mr.Johnson George is a member of the Executive Committee of the Human Rights Protection Council of Kerala, headed by the writ petitioner. In connection with the investigation into that crime, the petitioner was served with notice to appear before the investigating officer. The respondent further submits that he has no intention to harass the petitioner. This submission is recorded. If the presence of the petitioner is necessary in connection with the investigation of any case, the respondent may issue notice to the WPC 11470/08 2 petitioner as per the provisions of the Criminal Procedure Code. The Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/	[ 1667388, 1436241, 445276 ]	null	216,538	Kollam Prasad vs The Sub Inspector Of Police on 11 June, 2008	Kerala High Court	3
JUDGMENT M.R. Hariharan Nair, J. 1. The petitioner contends that he is entitled to the benefit of Ext. P4 Government Order relating to regularisation of physically handicapped provisional employees. 2. The appointment of the petitioner was under Ext. P2 order issued by the District Registrar (General), Kannur on 24.1.1998. On completion of the period of 281 days he was ousted from service. Learned Counsel for the petitioner submits that the appointment being under Rule 9(a)(i) of the K.S. & S.S.R., there is absolutely no justification for denying regularisation in view of the specific conditions in Ext. P4 Government Order and that denial of the relief through Ext. P5 is unjustified. 3. Learned Government Pleader submitted that the mention of Rule 9(a)(i) of K.S. & S.S.R. in Ext. P2 is actually a mistake (Committed by the appointing officer and that it is evident from Ext. P2 that the appointment was on daily wages and not under Rule 9(a)(i). The position, according to him, has been made clear in Ext. P5 order also. The benefit under Ext. P4, the Government Pleader submits, is available only to candidates appointed under Rule 9(a)(i) and is unavailable to those appointed on daily wage basis. 4. There are some obvious inconsistencies between the versions available in Ext. P2 and P5. The justification for denial of the reliefs under Ext. P4 is that the appointment is not under Rule 9(a)(i) and was only on daily wages. On the other hand, it is mentioned in Ext. P2, inter alia, that the appointment is on a temporary basis under Rule 9(a)(i) of the K.S. & S.S.R. upto 16.4.1998 or till the work is completed, whichever is earlier. The work referred to therein is made mention in the subject portion of Ext. P2 as work relating to Amnesty Scheme and further clarified in the counter filed in the case. It is mentioned in the counter that the appointment was not against any termination post or leave vacancy, but was made only on a temporary basis in connection with Amnesty scheme (compounding scheme) for undervalued documents and that the petitioner worked on daily wages pursuant to Ext. P2 during the period from 31.1.1998 to 16.4.1998, 18.5.98 to 20.6.98 and from 13.7.98 to 30.11.1998 and was paid only wages at the rate mentioned in Ext. P2, viz. at the rate of Rs. 707- per day and that too only for the working days. 5. In view of the apparent inconsistencies in the two versions contained in Exts. P2 and P5, i.e. one making it clear that the appointment is on daily wages at the rate of Rs. 70/- per working day and the other being that the appointment is on temporary basis under Rule 9(a)(i) of the K.S. & S.S.R., the question that first falls for consideration is whether the appointment envisaged in Ext. P2 is actually one under Rule 9(a)(i) of the K.S. & S.S.R. 6. Rule 9(a)(i) of the K.S. & S.S.R. aforementioned is quoted below : 9 (a)(i): Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily : Provided that before a person is appointed under this clause, persons who are admittedly senior to him shall also be appointed even if they are absent from duty, whether on leave (other than leave without allowances for taking up other employment) or on foreign service or on deputation or for any other valid reason, except due to suspension, and allowed to continue as such subject to the condition that persons so appointed shall not be eligible for the higher time scale of pay by virtue of such appointments unless otherwise specifically ordered by the Government." In order that an appointment be made under Rule 9(a)(i), the following ingredients appear essential : 1. The appointment should be in public interest. 2. The appointment should be to meet the emergency, which has already arisen. 3. The appointment should be made to fill up a vacancy with immediate effect. 4. It should be in a post borne on the cadre of a service, class or category. 5. There should be undue delay in making regular appointment in accordance with the K.S. & S.S.R. or Special Rules. Part I Rule 2(18) of the K.S. & S.S.R refers to cadre. According to this provision, the permanent cadre of each service, class, category and grade shall be determined by the State Government. Rule 12(4) of Part I K.S.R. stipulates that cadre means strength of a service or part of a service sanctioned as a separate unit. Rule 12(35) of Part I K.S.R. refers to time scale of pay. According to this a time scale of pay could be subject to conditions prescribed in the Rules raised by periodical increments from a minimum to a maximum. A joint reading of the aforesaid provisions will make it clear that one of the essential ingredients for application of Rule 9(a)(i) of K.S. & S.S.R is that the appointment should be against a regular post albeit on a temporary basis to meet the need for immediate appointment considering the exigencies and also taking into account the possible delay in filling up the vacancy. When the terms of Ext. P2 are construed in that background, what is clear is that the said appointment was not against a regular post, but only on a purely temporary basis made to meet the temporary need to complete the work of amnesty scheme, which itself was available only for a particular period. Ext. P2 does not contemplates any rise in pay by way of increment; nor does it mention that the appointment is to a post already in existence. Of course there is reference to Rule 9(a)(i) of K.S. & S.S.R. also therein; but this is obviously a wrong statement. The position is also made clear in Ext. P5. 7. The question of entitlement of the petitioner to the benefits contemplated in Ext. P4 will now be considered. The preamble of the said Government Order makes it clear that the question of regularising the service of the physically handicapped provisional (temporary) employees who were engaged in service during the Golden Jubilee year of the India's Independence was engaging the attention of the Government and pending final decision in the matter the instructions mentioned in the order was issued. Clauses (i) and (ii) of the Government Order reads as follows : (i) The physically handicapped provisional (temporary employees who were engaged in public services through the Employment Exchanges under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 at any time during the period from 1.1.97 to 14.8.1998 and who are still continuing in service will be retained in service on a purely provisional basis, until further orders. (ii) The physically handicapped (temporary) employees who were engaged in public services through the Employment Exchanges under Rule 9(a)(i) during the period from 1.1.1997 to 14.8.1998 and ousted from service (on completion of 180 days of service) or account of expiry of vacancies consequent on joining duty of nominees of Public Service Commission or for other reasons, will be re-appointed on a purely provisional basis and allowed to continue until further orders." 8. The petitioner, no doubt, was appointed during the period aforementioned, but Clauses (i) and (ii) aforementioned, both apply to persons appointed under Rule 9(a)(i) only. I have already found that Ext. P2 appointment is not one under Rule 9(a)(i) though there is reference to that provision in Ext. P2. No relief is seen contemplated in Ext. P4 to persons like the petitioners, who are employed on daily wages, the wages being payable only on working days and the appointment being not against any regular vacancy or post. 9. The question whether persons like the petitioner employed in another department were entitled to the benefit of Ext. P4 order came up for consideration of a Bench of this Court in State of Kerala and Ors. v. Kumari Sasikala, W.A. No. 1462 of 1998. On a consideration of the relevant aspects the Bench was of the view that the benefit would be available only to those appointed under Rule 9(a)(i) of the K.S. & S.S.R. and unavailable to contract employees. In the circumstances I am of the view that the petitioner herein is not entitled to the benefits contemplated in Ext. P4 Government Order. The Original Petition in the circumstances is without merit and it is dismissed. Nothing contained in this judgment will, however, impede the petitioner filing application, if any, to the Government seeking regularisation. If any such request is made, that can be considered by the Government on the merits and appropriate orders passed.	[]	Author: M H Nair	216,539	Musthafa V.K. vs The Distt. Registrar (General) ... on 27 March, 2001	Kerala High Court	0
IN THE HIGH COURT OF' KARNATAKA AT BANGA§§{}I§EA4 DATED THIS THE 6'?" 'DAY 0:? Aueustlf; 4_ BE13'ORE~~~ 4 V THE HON' BLE MRS. .JUs'r1¢I.yw:'ésN§}Ui.'A CRIMINAL % V' BETWEEN » .. V' Karthanda Appaiah @ P'm'::)hu.L : Son of Uthappa, Aged 46 yeam 1 Resident of Echner Village' " " Post, Ponnampé'£«N_é-2:1 Virajpct Ta111k.V V « Kodagu A V. PETITIONER (By Srgi; V AND Smt, @ Jubi Wifqof K. Appaiah, Aged 43 years _ Hysddlgar vﬁiage 3:.' 'Fast, Vizajpet Taluk . Distzict RESPONDENT {Bj.%__}%2f/ 'Associates, Advocates) Criminal Petition is ﬁled under Section 482 Cr.P,C. " :1' » ''€3&1cV'Advocate for the paiitioncr praying that this Horfblc may be plcascd to call for mcords in Criminal Revision % .. Fetﬁzian No. 54/2005 dated 16.2.2906 on the ﬁle «mf the A]3~H()C District and Sessions Judge, Fast Track Court at Virajpet and cansequcnﬂy allow the Cr1.R.P. No. 54/2005 ﬁled by the petitioner herein, under Section 397 of Cr.P.C. Crl.M.C. No.32/2005. " This Petition coming on for made the following: A Heard the learned .t}1e so also the learned Counsel for _ 2. It is ?t1bt;1ieiii_Vdis;pui?e" ' preésent petitioner was the respomie"nt--.vthe--.V»i\£é1g.f;iSh"?.te§ in proceedings launched under Seetiprl maintenance not only for hersekf bet £5: An interim awaxd of maintenance caj:r1§:;tp_LA\beVvaw'é'ﬁleci____&_tt.t}ae rate of Rs.10{)O/- and Rs. 500/-- per ' ofwife and son respectively by an interim order H the same came to be questioned in Cnmm' ' al Re§$is§.os:§,r Petition No. 54/ 2005. Before the First Revisional tin factual consideration that the second petiﬁoner in the ggtaiéeedings under Section 125 Cr.P.(3., the son was looked after ' Vt by the husband, the await} of Rs.5GO/ - as interim maintenance towards him came to be Withdmwn. So far as award of maintenance of Rs. 10%] -- in favour of me respondent/wife, the 3 Revisional Court eonﬁnaaed the said order without interfering with the said award. Aggrieved by the same, tl::k:'--.»jp17ese1:1t petition. is filed under Section 482 Cr.P.C. of the pmceedings under Section 125 Cr.P.(3. 3. According to the 1eaIneg;{....C(_)unse.l"fc51": this is nothing short ofabuse of ivoi; gs " approached seeking mainterienzx coiieeeling ﬂ'1'eA{.1'E?x€:.tVVo£3' her being in cam and custody of ~ ﬁot in dispute that meihieiianee was an exparte order. The "p1'derV'e.xfai.-Iiee' questioned in the Sessions Court. The vozfler an interlocutory order cammt be V. qiviéeiﬁgiiiﬁd by vpetifion under Section 397 Cr.P. C. What ' Veéueld .__done under Section 39'? Cr.P.C., cannot be "agei'}.ieve(:i by ﬁiing an application under Section 482 Cr; P course it can be done provicied them is abuse of ., 'preeese of law by the Court. As a matter of fact, in the present the Sessions Cimzrt; iiself has modiﬁed the award of u "in¥;erine. maintenance. 'fhereibxe, there is no question (sf considering the award cf maintenance in favour of the son, Wha is in custody of the husband. maintenance in favour of the H maintenance of the son is wi»thdIa\av§i2.A.:""E?he1cifoit:,'A. mat "of the matter need not be gone: 'ofzzce There is no question of the party at this stage, which has to Court. 5. F'<ii§\ V:2'2.:§)ove, the proceedings under vbeﬁdismissed. Accordingly, the petiuﬁn. = % 321/ - JUDGE	[ 1457888, 1679850, 1457888, 1445515, 445276 ]	Author: Manjula Chellur	216,540	Karthanda Appaiah @ Prabhu vs Smt Karthamada Poovamma @ Jubi on 6 August, 2009	Karnataka High Court	5
	[]	null	216,541	[Section 57] [Complete Act]	Central Government Act	0
ORDER C.K. Mahajan, J. CRP No. 1197/2003 & CM No. 2709/2003 1. The present petition is directed against the order dated 1.9.2003 passed by Addl. District Judge, Delhi dismissing the appeal of the petitioner. 2. Briefly the facts are that the respondent filed a suit for damages and mesne profits against the petitioner. On account of non-appearace of the Counsel for the petitioner on 16.5.1996, the petitioner was proceeded ex parte. The petitioner filed an application under Order 9 Rule 7, CPC for setting aside the ex parte order. The application was also dismissed on 8.12.1997. Thereafter, the learned Civil Judge passed ex parte judgment dated 2.9.1998 in favor of the respondent passing a decree of Rs. 27,096/- against the petitioner. Aggrieved by the said judgment, the petitioner filed an application under Order 9 Rule 13, CPC which was also dismissed by Civil Judge on 14.5.1999, Thereafter, the petitioner filed an appeal before the learned Addl. District Judge, Delhi which was also dismissed. It is stated that as per the procedure of the petitioner, one Mr. D.P. Vats, Attorney was attached with the Counsel for the petitioner. The said attorney handed over the charge to Mr. Pradeep Sharma, Attorney, who after taking over the charge absented himself from the office for more than three months. The keys of the almirah in which the case files and case diary were kept by him were with Mr. Pradeep Sharma. 3. Learned Counsel for the petitioner contends that non-appearance of the Counsel for the petitioner was neither intentional nor deliberate but due to the fact that the petitioner's clerk who had kept the case files and case diary in the almirah was absenting himself from the office for more than three months and therefore the case file could not be made available to the Counsel for petitioner. 4. The petition is opposed by Counsel for the respondent. Learned Counsel contends that since the petitioner failed to show sufficient cause for non-appearance before the Trial Court, the petitioners were rightly proceeded ex parte. The orders of the Trial Court and the learned Addl. District Judge are reasoned orders and the petitioner has failed to show jurisdictional infirmity in the said orders. The powers of the Court under Section 115 of the CPC are limited to the extent that only a jurisdictional infirmity can be cured by the Courts. Reliance has been placed on Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr., . 5. I have heard learned Counsel for the parties and also perused the order of the Trial Court as well as of the Appellate Court. 6. The learned Addl. District Judge in the impugned order has observed that the application under Order 9 Rule 13, CPC is supported by the affidavit of Counsel for the petitioner. No material was placed on record to show that Counsel was authorised on behalf of the petitioner to swear the affidavit. The averments made in the application under Order 9 Rule 13, CPC reflect negligence on the part of the attorney of the petitioner and no explanation is forthcoming for his absence for almost seven months. No material had been placed on record to establish that the said attorney was in fact absent during the said period. No departmental action appeared to have been taken against the said attorney. The avernments made in the application were not in the personal knowledge of the Counsel as he was not associated with the case during trial. It was also observed that the petitioner failed to establish sufficient cause for non-appearance. It was also observed that after the petitioner was proceeded ex parte, the suit remained pending in the Trial Court for almost two years and the petitioner or its Counsel took no steps to pursue the suit. If the attorney was not available, alternate arrangements ought to have been made. It is not stated as to what efforts were made to locate the attorney or the files. Inaction and callous approach is writ large and does not merit indulgence of this Court. 7. The scope of revisional jurisdiction under Section 115, CPC is restricted and it is only where there is a jurisdictions error or illegality or material irregularity in the exercise of jurisdiction that this Court can interfere. It is well settled that in exercise of jurisdiction, the finding of fact recorded by the Courts below cannot be reversed. 8. In Harshavardhan Chokkani v. Bhupendra N. Patel, , the Supreme Court held as under: "...Nontheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the revisional Court cannot be equated with the powers of the Appellate Court. In examining the legality and propriety of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power...." In view of the aforesaid discussion, in my considered opinion, the impugned order is a well reasoned order and does not suffer from any jurisdictional error, illegality or material infirmity which calls for interference by this Court under the revisional power under Section 115 of the Code of Civil Procedure. The findings are neither perverse nor have resulted in any injustice to the petitioners. Dismissed.	[ 663930, 1812884 ]	Author: C Mahajan	216,542	New Delhi Municipal Council And ... vs Sohan Lal on 18 February, 2005	Delhi High Court	2
JUDGMENT Anoop V. Mohta, J. 1. Heard. The present appeal has been preferred by the original appellant, thereby, challenged the judgment dated 24-4-1986, passed by the Motor Accident Claims Tribunal, Buldhana in Claim Petition No. 16/1984, whereby, the total amount of Rs. 14,000/- under Section 110-A of the Motor Vehicles Act, 1939 (for short 'Old Act') was awarded. 2. The Advocate appearing for the claimant restricted his case only in reference to the compensation in respect of "General Damages". No other points argued and/or pressed by the Advocate for the appellant. The learned Tribunal, after considering the evidence, as well as, the material placed on the record, and after taking into consideration the injuries sustained by the claimant has awarded total compensation under this head of General Damages at Rs. 1000/- only. The learned Advocate appearing for the appellant, therefore, contended that the General Damages as awarded is on the lower side and it should have been on the higher side. He ST relied on , State of Kerala v. P. Vijaykumaran Nair. The basic reliance is on the para No. 8 which is reproduced as under : "8. Turning to the quantum of damages, we may preface the discussions by observing that the person physically injured may recover compensation both for his pecuniary losses and non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, namely the loss of earnings and other gains which he would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury. The courts have sub-divided the non-pecuniary losses into three categories viz. pain and suffering, loss of amenities of life and loss of expectation of life. The question whether the damages should be itemised or whether it is more proper to make a global award need not be discussed as the Tribunal has itemised the award and nothing turns upon the propriety of the dichotomy in the appeal, the concept of pecuniary loss is self-explanatory which requires no elaboration but the kindred concept of non-pecuniary loss justifies in brief exposition. In the following discussion we have though it more convenient to draw upon Mc Gregor on Damages rather than cull relevant passages from decided cases. "Non-pecuniary loss is a very different field. Little can be stated with certainty as to the amount of damages awardable for such toss caused by personal physical injury. Indeed full compensation cannot be given in the sense that no amount can fully compensate for a serious physical injury. Beyond this, no yard-stick exists for measuring in money the compensation to be accorded a given amount of physical pain or mental suffering because, as far as money goes, the loss is imponderable, and any amount awarded must be in the nature of conventional sum" (Mc Gregor on Damages, 14th Edition, para 1211). "Pain and suffering is the first of the two main heads of non-pecuniary loss. Both past and prospective pain and suffering are covered, although the past loss is not claimed as special damages in the pleadings as it is not quantifiable with exactitude. Past and prospective loss are therefore claimed together as general damages". (Ibid para 1212). "The term 'pain and suffering' has been used so constantly by the courts without any clear distinction between the two words that it is now a term of art. It has been suggested that 'pain' is the immediately felt effect on the nerves and brain of some lesion, or injury to a part of the body, while 'suffering' is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include, for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the injury inflicted by the defendant." (Ibid para 1213), "Loss of amenities of life is the second of the two main heads of non-pecuniary loss." (Ibid para 3218) "This head of damages (loss of amenities of life) concentrates on the curtailment of the plaintiff's enjoyment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue the activities he pursued before hand. Birkett L.J. put it thus is Manley v. Rugby Portiant Cement Co. (1951) C. A. No. 286. "There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life, the man who has had both legs removed will never again go upon his walking excursions - things of that kind - loss of amenities." (Ibid para 1219) Later in the same para the learned author observes that "The appearance of loss of amenities as a distinct head of damage is however, a modern development. Not until the middle of the century does it, begin to become mentioned as such in the reports". He continues : "It is doubtful whether this was intended to reflect a substantive change in the law; the idea of loss of amenities can be subsumed under 'pain and suffering', taking that term in its wide connotation, and no doubt that was what had been done with this element of loss before 1950." As to the award the author states : "As with pain and suffering it is virtually impossible to give clear guidance on amounts, since here two awards vary with the particular injury, the particular circumstances and the particular judge. Before 1970 there was the difficulty that judges have tended to make global awards for all the plaintiff's losses, pecuniary and non-pecuniary, and today even where they are separated, a single figure is generally arrived at which brackets the compensation for loss of amenities with the compensation for pain and suffering." 3. The provisions as argued and as discussed above, is settled principle of law and need no further elaboration. Such claim shall depend upon the facts and evidence of each case. However, the question is, whether this court at this stage should interfere with the findings given by the court below, which was based on material evidence placed on record, including due assessment of the other damages as awarded. The said principle is also settled and observed in para No. 10, of the judgment referred (supra), which reads as under : "10. ... The ground upon which a court of appeal would interfere by reassessment of the damages has been stated by Groor L.J. In Flint v. Lovell, (1935) 1 KB 354 (CA) in the following passage which has been approved by the House of Lords in Davies v. Powell Duffryn Collieries, (1942)AC 601, and by the Privy Council in Nanco v. British Columbia Electric Ry. (1951) AC 601. "This court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was to extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled." Thus the two grounds of interference are that the judge has acted on a wrong principle of law and that he had made an entirely erroneous estimate of the damages. Although the tribunal cannot be said to have acted upon any wrong principle of law we feel that the oversight of the pathetic condition of the petitioner which is established by his evidence and corroborated by the testimony of R.W. 1 has led to an entirely erroneous estimate of the damages on his head." 4. Therefore, even on the basis of the above principle, I am of the view that there is no case made out for interference. We have gone through the evidence led by the parties in support of the various damages. As we are concerned with General Damages, there is no specific case or evidence or averment made for claiming Rs. 15000/- towards general damages. There is no dispute that it is difficult for the parties to claim any specific amount and/or to lead any evidence in support of "pains and sufferings". However, in the facts and circumstances, considering other damages as were already awarded, as per material placed on record. I see there is no reason to interfere with the order passed by the Court below, of awarding Rs. 1000/- towards general damages. Even otherwise total compensation of all other heads cannot be overlooked while considering claim for such damages. In the facts and circumstances of the case, there is nothing pointed out that the order is perverse or based on wrong principle of law and/or is entirely erroneous assessment of the damages. The evidence led on record and as corroborated by the testimony of other witnesses in the facts and circumstances of the case, the general damages as awarded cannot be said to be erroneous assessment of damages as contended. 5. In view of this the appeal is dismissed. No order as to costs.	[ 785258, 11488 ]	Author: A V Mohta	216,543	Vasant S/O Jairam Badodekar vs Prakash S/O Bhiku Warhade And Anr. on 15 June, 2004	Bombay High Court	2
1 Central Information Commission Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi110066 Telefax:01126180532 & 01126107254 websitecic.gov.in Appeal : No. CIC/DS/A/2011/000486 Appellant /Complainant : Shri Milap Choraria, Delhi Public Authority : Income Tax Department, Kolkata (Sh. A. Mallick, CPIO - through video Conferencing) Date of Hearing : 14 November 2011 Date of Decision : 14 November 2011 Facts: 1. Appellant submitted RTI application dated 15 February 2009 before the CPIO, office of the Income Tax Officer, Ward 5 (1), Kolkata - enclosed herewith as Annexure A. 2. After taking action under section 11 of the Act, Vide CPIO order dated 18 March 2009, appellant was informed that information as requested could not be disclosed as the thirdparty had raised objection. 3. Appellant preferred appeal dated 1 April 2009 before the first appellate authority. 4. Matter was decided vide FAA order dated 5 May 2009. 5. Appellant moved the Commission in second appeal. 6. Matter was heard today. Appellant was present as above in person. Respondent was present at Kolkata and made submissions via videoconferencing. Decision notice 7. Both parties have been heard. Respondent states that information pertaining to gifts, presents and details of expenditure on account of the marriage of the daughter of the thirdparty to the son of the Appeal : No. CIC/DS/A/2011/000486 2 appellant, which was included in the balance sheet and form part of the income tax returns of the third party could not be disclosed under the provisions of section 8 (1)(j) of the Act. Appellant stated that based on FIR No 1512007 in dowry matter, criminal case had been instituted by the state of West Bengal against the appellant and was presently in the 7 JM Court, Howrah. Therefore on the ratio given in the case of Shri Manoj Saini No. CIC/LS/A/2010/001044DS dated 24 March 2011, Commission directs the respondent CPIO to, after taking action under the provisions of section 10 of the RTI Act disclose all expenditure on account of marriage including gifts, presents etc as reflected in the balance sheet of the thirdparty for the financial year 1995 - 96 (as the marriage was on 26 January 1996) after severing other portions of the income tax returns, provide information to the appellant within three weeks of receipt of the order. This disclosure is in larger public interest wherein both parties must have equal opportunity before the court of law for securing Administration of Justice. (Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy: (T. K. Mohapatra) Dy. Secretary & Dy. Registrar Tel. No. 01126105027 Copy to: 1. Shri Milap Choraria B5/52. Sector7, Rohini Delhi110085 2. The CPIO Income Tax Officer, Ward5(1)Kol Aayakar Bhawan P7, Chowringhee Square 8th Floor Kolkata700069 3. The Joint Commissioner of Income Tax Range5/Kolkata Aayakar Bhawan Appeal : No. CIC/DS/A/2011/000486 3 P7, Chowringhee Square 8th Floor Kolkata700069 Appeal : No. CIC/DS/A/2011/000486	[]	null	216,544	Mr.Milap Choraria vs Cbdt on 14 November, 2011	Central Information Commission	0
IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1088 of 2010 In CWJC No. 5837 of 2008 ================================================ AMARKANT MADHUKAR Versus THE STATE OF BIHAR & ORS. ================================================ Appearance: For the appellant: Mr Arbind Kumar Anand, Advocate. =============================================== CORAM: HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR JUSTICE JYOTI SARAN ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE) 3. 01.09.2010. At the request of the learned Advocate Mr Arbind Kumar Anand, appearing for the appellant, stand over to 8th September 2010. ( R.M. Doshit, CJ ) ( Jyoti Saran, J ) Dilip	[]	null	216,545	Amarkant Madhukar vs The State Of Bihar &Amp; Ors on 1 September, 2010	Patna High Court - Orders	0
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15771 of 2011 1. Keshav Kumar Son of Kamta Prasad Resident of Village- Wazirpur, P.O. And P.S.- Bikram, District- Patna-Petitioner Versus 1. The State Of Bihar through the Secretary, Department Of Home, Govt. Of Bihar, Patna 2. The Director General of Police, Bihar, Patna 3. The Deputy Inspector General of Police, Patna Division, Patna 4. The Chairman, Central Region, Constable Selection Board, Patna through the S.P. Patna 5. The Chairman, Constable Selection Board, Darbhanga, Through the S.P. Darbhanga ---------------Respondents ---------------------------------- 2 27.9.2011 Heard learned counsel for the petitioner and learned counsel for the State. Contention of learned counsel for the petitioner is that the case of the petitioner is fully covered by the decision of the Division Bench of this Court rendered in LPA No. 831 of 2009 and other analogous cases disposed of on 28.6.2011, the case of Ajay Kumar & others vs. State of Bihar & others reported in 2011 (3) PLJR 575 This writ application is disposed of with a direction to the respondents that if the case of the petitioner comes within the ambit of the said decision, his case will also be considered in light of the same. ( Ajay Kumar Tripathi, J.) RPS	[ 45977833 ]	null	216,546	Keshav Kumar vs The State Of Bihar & Ors on 27 September, 2011	Patna High Court - Orders	1
JUDGMENT Pratt, J. 1. On this application, the first point that arises is one of limitation. Under Section 10(a) the application must be made within nine months of the date when the plaintiff obtains possession. The application ought, therefore, to have been made on or before September 30, 1922. The motion, however, was not made till four days later, i.e., October 4, 1922. Mr. Taleyarkhan contends that the application is in time, because notice of motion was given on August 25, 1922, returnable on August 31, 1922, and that a copy of that notice of motion was lodged with the Prothonotary as required by Rule 322 on the day on which it was given, that is, on August 25, 1922. He contends that that is the day from which limitation should run, and that the mere fact that the notice of motion was not brought on was due to the solicitor's impression that as the Rent Suit Judge was not sitting on Original Side, the bringing on of the motion might be deferred. That is of course a mistake, for the motion could have been brought on before any Judge. But the real point is whether the date on which the copy of the notice of motion was lodged with the Prothonotary should be taken as the date of the application or the date on which the motion was brought on in Court. On this point, I feel no hesitation in deciding that the date of the application is the date on which the motion was brought on. It is only when the motion is brought on that an application can be said to be made to the Court. The notice of motion is not a proceeding in Court, it is merely an expression of an intention to apply to the Court given to the other party for his information. Similarly the copy of the notice of motion lodged with the Prothonotary does not amount to an application; it is only an intimation to the Court that an application is intended to be made. I am fortified in this construction of the rule by the case of Hinga Bibee v. Munna Bibee (1903) I.L.R. 31 Cal. 150. 2. Mr. Taleyarkhan draws my attention to the case of Kuttayan Chetty v. Ellappa Chetty (1907) 17 M.L.J. 215. There the plaintiff's Vakil applied to the Registrar for an issue of the notice of motion according to the rules of that Court and a notice of motion was accordingly issued by the Registrar. The Madras High Court held that the date of the application to the Registrar for the issue of the notice of motion was the terminus a quo for the purpose of limitation. But the distinction is obvious, for under the Madras High Court's Rules, It is the Court that issues notice of motion. Therefore an application to the Court to issue notice presupposes that an application has been made to the Court. Under the rules of this Court, no application is made to the Court for issuing notice of motion and the Court is not moved until the day in which the motion is brought on. The motion, therefore, is time-barred and I must dismiss it with costs.	[ 1091217 ]	Author: Pratt	216,547	Nazarally T. Singaporevalla vs V.V. Kanemar Venkapiya on 12 October, 1922	Bombay High Court	1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 576 of 2001 Date of decision: 12th February, 2009 Teja Singh ... Petitioner Versus Binder Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Lalit Garg, Advocate for the petitioner. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Teja Singh son of Moti Singh against Binder Singh alias Balwinder Singh and Balbir Kaur alias Birpal Kaur, who were tried in case FIR No. 76 dated 26.10.1999 registered at Police Station Joga under Sections 302, 506, 341 IPC. Accused respondents were acquitted by the Court of Additional Sessions Judge, Mansa vide judgment and order dated 1st February, 2001. Briefly stated, prosecution case is that on 25th October, 1999 Teja Singh had made a statement (Ex. PB) to Bant Singh ASI, wherein he stated that he was a resident of village Burj Rathi and was an agriculturist. Balbir Kaur accused was married to his son Nachhatar Singh about seven years ago. Date of marriage was said to be before 26th October, 1999. Balbir Kaur had given birth to a son aged three years and a daughter Sandeep Kaur aged six years. It was stated by the complainant that his daughter-in-law Balbir Kaur had developed illicit relations with Binder Singh co-accused. Binder Singh used to come to meet Binder Kaur to the Criminal Revision No. 576 of 2001 2 annoyance of Nachhatar Singh. On the night intervening 14th and 15th October, 1999, Teja Singh complainant and his wife Surjit Kaur were sleeping in the courtyard and Nachhatar Singh along with his wife and children was sleeping inside a room of the house. At about 11.00 p.m. a person entered into the room of Nachhatar Singh. Light was switched on and Teja Singh got up and went towards the room of Nachhatar Singh. Balbir Kaur had held Nachhatar Singh by his arms, whereas Binder Singh, who had entered the room, gave leg blows on the stomach of Nachhatar Singh. Nachhatar Singh raised alarm, upon which Surjit Kaur got up and came in the room. On the alarm raised by Teja Singh and Surjit Kaur, Binder Singh and Balbir Kaur left the spot. Occurrence in the present case, has taken place on 14th October, 1999 at 11.00 p.m. Nachhatar Singh died on 26th October, 1999. Thereafter, the present FIR was lodged. Autopsy on the dead body of Nachhatar Singh was conducted by Dr.O.P. Aggarwal PW-4. He found following injuries: Teja Singh PW-2 and Surjit Kaur PW-3 appeared as eye witnesses. Trial Court held that the conduct of Teja Singh PW-2 and Surjit Kaur PW-3 was highly unnatural and improbable. Taking various factors into consideration, the trial Court came to the conclusion that they were not eye witnesses of the occurrence. Trial Court further took into consideration the delay in lodging of the report and held that prosecution version is doubtful. Court further held that Nachhatar Singh remained alive after 26th October, 1999 and for a period of 13 days, he had not told regarding the occurrence to the police, relatives or parents. The Court further held that Dr.Kiran Garg PW-1, to whose clinic Nachhatar Singh was allegedly taken at the first instance has not supported the prosecution case regarding his admission. Court further held that Dr.Kulwant Singh PW-6 admitted during cross-examination that there was no injury on the large lobe of liver or large intestines of Nachhatar Singh. Dr.Karamjit Singh PW-5 during cross- examination stated that there was one or two symptoms of typhoid in relation to the injury on the person of Nachhatar Singh. He further stated that if urinal and stool did not pass, then some of the symptoms of injury No.1, on the person of Nachhatar Singh, would be associated. The Court further held that Dr.Gurvail Singh PW-10 had stated that Nachhatar Singh was treated. He was thoroughly examined, investigated and diagnosed as a case of intestinal obstruction with peritonitis with jaundice. He further admitted in his cross-examination that Nachhatar Singh died on account of intestinal obstruction with peritonitis with Jaundice. The trial Court further held that it could not be said that simply that death of Nachhatar Singh was caused on account of alleged violence. No State appeal has been filed. The findings given by the Court below suffer from no infirmity. It was held in AIR 1968 Supreme Court 707 Mahendra Partap Singh vs. Sarju Singh and another, relying upon D.Stephens vs. Nosibolla, AIR 1951 SC 196, as under: (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re- weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. "In other words" said this Court, "the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them." Similar view was reiterated by Hon'ble apex Court in Bansi Lal and others vs. Laxman Singh, (1986) 3 Supreme Court Cases 444. Again, Hon'ble apex Court, in Ramu alias Ram Kumar and others, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh vs. Khuman Singh and another, (1998) Supreme Court Cases (Cri) 1574 and in Bindeshwari Prasad Singh vs. Criminal Revision No. 576 of 2001 7 State of Bihar, 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal. It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere. I find no merit in the instant revision petition to interfere while exercising revisional jurisdiction as learned counsel for petitioner has failed to point out any illegality or irregularity. There is no merit in the present revision petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE February 12, 2009 rps	[ 1560742, 180217, 1599401, 1835803, 496819, 749737, 1012887, 1761214 ]	null	216,548	Teja Singh vs Binder Singh And Others on 12 February, 2009	Punjab-Haryana High Court	8
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 125 of 2003 -------------------------------------------------------------- DINESHBHAI NATVARLAL PUJARA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 125 of 2003 MR SATYEN B RAWAL for Petitioner No. 1 Mr.S.J.Dave, A.P.P. for Respondent No. 1 RULE SERVED BY DS for Respondent No. 2-3 -------------------------------------------------------------- CORAM : MR.JUSTICE D.H.WAGHELA Date of Order: 02/05/2003 ORAL ORDER 1.This petition under Article 226 and 227 of the Constitution of India is made with a prayer to issue necessary directions directing the respondent no.3 to renew the licence of the petitioner under the provisions of the Arms Act,1959. 2.The application of the petitioner for renewal of the licence was rejected by order dated 19-10-2001 by the learned Additional District Magistrate, Surendranagar, and the appeal preferred therefrom being Application no.456/2001 was also rejected by the Deputy Secretary of the Government, by his order dated 23rd December,2002. It was submitted on behalf of the petitioner that the arm in question could not be produced before the authorities due to sufficient reasons, and there were also sufficient reasons to condone the delay. The learned A.P.P. Mr.Dave fairly conceded that the application of the petitioner for renewal required reconsideration, and the matter may be remanded to the learned Additional District Magistrate, for deciding the application of the applicant in accordance with law. 3.Therefore, by consent, the aforesaid orders of the learned Additional District Magistrate, Surendranagar, and the order of the Deputy Secretary are hereby quashed, and the learned District Magistrate, Surendranagar, is directed to hear and dispose of the application of the petitioner for renewal of the licence in accordance with law and as early as practicable. 4.The application is accordingly partly allowed. Rule is made absolute accordingly with no orders as to costs. Direct service is permitted. (D.H.Waghela,J.) stanley-dhw.	[ 1712542, 1331149, 1934415 ]	Author: D.H.Waghela,&Nbsp;	216,549	Special Criminal Application No. ... vs Mr.S.J.Dave on 3 August, 2010	Gujarat High Court	3
Court No. - 43 Case :- CRIMINAL APPEAL No. - 5821 of 2009 Petitioner :- Alveley Singh & Another Respondent :- State Of U.P.Petitioner Counsel :- G.R.S. Pal Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad J. Lay before another Hon'b1e Judge after seeking nomination from Hon'b1e the Chief Justice. Order Date :- 18.1.2010 Gss	[]	null	216,550	Alveley Singh & Another vs State Of U.P. on 18 January, 2010	Allahabad High Court	0
JUDGMENT H. H. Kantharia, J. 1. In these four petitions under Article 226 of the Constitution, facts are common and the law points are the same and, therefore, they are being disposed of by this common judgment. 2. The petitioners, in all the writ petitions, were in the employment of the second respondent. They were charge-sheeted on 24th November, 1981, inter alia, alleging against them that they assaulted one D.T. Jadhav, second respondent's Security Officer/Incharge, near Vasai Railway Station on 15th November, 1981 at about 6.30 p.m. The charge framed against them was 'riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline". The petitioners submitted their written explanations on 30th November, 1981 denying the charges levelled against them as false and fabricated and further contending that they were being victimised for their trade union activities. The petitioners were suspended pending domestic enquiries. Thereafter, domestic enquiries were held by one Namdco K. Aher. The petitioners participated in the said enquiries and were defended by one P. Ganguli, a trade union representative. The Enquiry Officer held the petitioners guilty of the charges levelled against them and relying upon his findings, the second respondent-company vide their letters dated 18th January, 1983 dismissed the petitioners with effect from 20th January, 1983. The petitioners resisted their dismissals by letters dated 23rd January, 1983 that the same were illegal and improper. 3. Thereafter, the petitioners approched the Government Labour Officer and lodged complaints with him and raised industrial disputes for their reinstatement vide letters dated 25th February, 1983 addressed to the Commissioner of Labour. The Conciliation Officer initiated conciliation proceedings but the disputes could not be settled and, therefore, failure reports were submitted. The Deputy Commissioner of Labour by his orders dated 22nd November, 1983 refused to refer the disputes relating to the petitioner's demands for reinstatement on the ground that the references were, prima facie, not justified having regard to the merits of enquiries, nature of misconduct and punishment awarded. The said orders of the Deputy Commissioner of Labour refusing to make references under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") are impugned in these four petitions. 4. Mr. Kochar, learned Advocate appearing on behalf of the petitioners, submits that the reasons advanced by the Deputy Commissioner of Labour in not making the references are no reasons in the eyes of law and if at all they can be termed as reasons, they are too inadequate to refuse references. Mr. Kochar further submits that in any event the Government cannot take upon itself to adjudicate industrial disputes which can be done only either by the Labour Court or the Industrial Tribunal. In the submission of Mr. Kochar, the powers of the Labour Court and/or Industrial Tribunal under Section 11A of the Act cannot be usurped by the Government by refusing to make references. Mr. Kochar then urges that a harmonious reading of Sections 10(1), 11A and 12(5) of the Act shows that the petitioners have a legal right to justify their demands before the Labour Court or the Industrial Tribunal as to how and why their dismissals from service were invalid, improper and incorrect in law and they cannot be deprived of this legal right by refusing to make references to the proper forum. If references are made, the Labour Court or the Industrial Tribunal could also go into the question of adequacy of the punishment qua the misconduct alleged against the petitioners, further submits Mr. Kochar. 5. Mr. Gokhale, learned Assistant Government Pleader appearing on behalf of the first respondent-State of Maharashtra, submits that the powers of the Government under Section 10(1) read with Section 12(5) of the Act are absolutely discretionary and the Government may be justified in refusing to make references for reasons to be recorded in writing after going through the entire record. Mr. Gokhale also submits that in these cases the record shows that the petitioners had indulged in violent activities of assaults and on consideration of the enquiry reports, the Deputy Commissioner of Labour was satisfied that there was no prima facie case for reference, having regard to the merits of the enquiries held against the petitioners and the nature of the misconduct and the punishment awarded to them. In the alternative, Mr. Gokhale submits that at the most this Court may refer back the matters to the Deputy Commissioner of Labour for re-considering whether references should be made or not. 6. Now, after a Conciliation Officer submits a failure report under Section 12(4) of the Act, the appropriate Government is required to consider whether a reference should or should not be made to the appropriate authority. Sub-section (5) of Section 12 of the Act provides: "If, on consideration of the report referred to in Sub-section (4),the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor." It may be noted here that if the Government decides to make a reference it has to be done under Section 10(1) of the Act which provides: "Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing - (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the third Schedule, to a Tribunal for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule ; and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c): ........ ........ ........ ........ ........ A bare perusal of these provisions of law makes it clear that the powers vested in the Government to make a reference, are discretionary. But when the Government chooses not to make a reference it has to : record reasons for not doing so and communicate the same to the concerned parties. This is a mandatory duty of the Government. 7. In our cases, the Deputy Commissioner of Labour passed identical orders and, for convenience sake, we may quote here the impugned order appearing in Writ Petition No. 627 of 1984. It reads as under: "In exercise of the powers conferred on me by Government vide Government notification, Industries, Energy and Labour Department No. IDA 1379/3496 (i) Lab-9, dated 20th April, 1979 issued in supersession of Government Notification, Industries and Labour Department No. IDA 1369/117365/Lab-n, dated 9th April, 1969, I have to state that I have considered the report dated 24-8-1983 submitted to me by the Conciliation Officer, under Sub-section (4) of Section 12 of the Industrial Disputes Act, 1947 (XIV of 1947), in respect of the above dispute and I am satisfied that there is no case for reference thereof under Sub-section (5) of Section 12 for the reasons that the reference is, prima facie not justified having regard to the merits of enquiry, nature of misconduct and the punishment awarded." A mere glance at this order shows that the Deputy Commissioner of Labour was exercising, having been invested with the powers of the appropriate Government, had to be exercised reasonably with utmost care and caution. While exercising such powers he should be slow in declining to make a reference because in doing so, he attempts to usurp the powers of the Labour Tribunal in going into the merits of the matter. He should bear in mind that it is only when the Government is of the considered opinion and comes to the conclusion that the claims preferred by the workmen were perverse or frivolous or bogus or were inordinately delayed that the Government may exercise its discretion and refuse to make a reference. All that the Deputy Commissioner of Labour here did was to peruse the failure report submitted by the Conciliation Officer under Section 12(4) of the Act. He gave no good reasons for refusing to make a reference except stating that prima facie there was no justification to make a reference, regard being had to the merits of the enquiry, nature of the misconduct and the punishment awarded. Thus, there is nothing in the impugned order to show whether the Deputy Commissioner of Labour had fully considered the matter and what exactly prevailed upon him to come to the conclusion that the dispute raised by the petitioner was not worth referring to the Labour Court or Industrial Tribunal. To say the least, the impugned order is very much cryptic and appears to have been passed mechanically without application of mind. The Deputy Commissioner of Labour should have made little more communicative order so that one could know what persuaded him to decline reference. The discretion vested in the Government in this regard has to be exercised properly and with acceptable reason s for the decision. 8. In the dispute between Nirmal Singh and State of Punjab and other (1984 II LLJ 396), the appellant was a "Branch Manager" of the Hoshiarpur Central Co-operative Bank Ltd. when he was dismissed following a fraudulent encashment of a draft. When, after conciliation, the matter went before the Labour Commissioner, he declined to make a reference stating that the employee was not a "workman". The employee's writ petition was dismissed in limine by the High Court and therefore he filed an appeal in the Supreme Court. The Supreme Court in that appeal held : "The Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of Section 2(s) of the Act. He has only stated that the post held by the appellant did not fall "within the category of workman". He has not given any reason to justify his conclusion". Ultimately, the Supreme Court directed the Labour Commissioner to make a reference under Section 12(5) of the Act. 9. In Workmen of Syndicate Bank, Madras v. Government of India and Anr. (1985 I LLJ 93), the management of Syndicate Bank imposed the punishment of stoppage of three increments on one of its workmen. An industrial dispute was raised by the Syndicate Bank Staff Union and the Union Government declined to refer the dispute to an Industrial Tribunal for adjudication because the charges of misconduct against the worker were proved in a duly constituted departmental enquiry and the penalty was imposed after following the required procedure. The order of the Union of India was unsuccessfully challenged before the Delhi High Court which dismissed the writ petition in limine. Hence civil appeal was filed by the workmen of Syndicate Bank, Madras in the Supreme Court, in which it was held : "It would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental enquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible managements could easily avoid a reference for adjudication and deprive the worker of the opportunity of getting the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fide or even if the penalty was imposed on the worker was totally disproportionate to the proved misconduct. Easily a claim for reference can be defeated by showing that a proper enquiry as per procedure has been held. Such a situation cannot be countenanced by law". 10. A Division Bench of this Court (Bharucha and Tipnis JJ.) while dealing with a similar point in Appeal No. 627 of 1981, arising from Writ Petition No. 451 of 1981, decided on 27th August, 1987 held : "The appropriate Government has an extremely limited administrative discretion in deciding whether or not to make a reference. In no case whatever can it perform an adjudicatory function. It cannot go into the merits of the dispute. That is squarely the preserve of the Labour Court or Industrial Tribunal. The discretion that the Government has is confined to determining whether, as a result of making a reference, there will be industrial unrest and whether the application for reference is frivolous or grossly delayed". The said Division Bench was of the opinion that it was not necessary to Elaborate on precedents in support of what they had stated and quoted the Supreme Court judgment in Bombay Union of Journalists and Ors v. The State of Bombay and Anr. which says: "...............Similarly on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal..............". The Supreme Court then said : "Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute exists or is apprehended and then refer it for adjudication on merits". 11. This becomes all the more necessary in view of the introduction of Section 11A by Act 45 of 1971, which reads as under: "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require : Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter". Thus, the provisions of Section 11A of the Act give powers to the Labour Courts and the Industrial Tribunals to give appropriate relief, including the award of lesser punishment, to the dismissed or discharged workman and, therefore, it is all the more incumbent upon the Government to make a reference and not take away the powers of the judicial authorities by refusing to make the same. In K.P. Kshatriya v. Khandelwal Udyog Ltd. and Ors. (1980 II LLJ 261)(1981 Lab IC 1611) a Division Bench of this Court held : "The power conferred under Section 10 to make a reference or not, is indeed discretionary and that the Government is not bound to make a reference of any dispute because a party or a union or the employer demands such a reference. Even so, the Government is under an obligation to exercise the discretion, reasonably and by reference only to relevant considerations. One of the relevant considerations, while making or refusing to make a reference, after the introduction of Section 11A, must necessarily be that the employee is entitled to get the evidence as to the proof of his misconduct reviewed in such a reference as also the quantum of punishment, even if the misconduct is held to have been proved. In other words, the circumstances that the disciplinary authority or the appellate authority over the same has applied its mind to the evidence on record and had bona fide come to some conclusion as to the proof of misconduct and the quantum of punishment by itself is not sufficient to refuse to make reference''. It was further held : "In the altered legal situation, the Government has to consider prima facie whether there is anything in the evidence which may goad or persuade the Labour Court or the Industrial Tribunal to change its opinion as to the conclusion of misconduct or the quantum of punishment therefor. The Government may refuse to make a reference if in their prima facie opinion the right of getting evidence reviewed already recorded and the right of getting reviewed the quantum of punishment awarded, is bound to be of no practical use in a particular case.'' 12. Mr. Gokhale drew my attention to a judgment of the Supreme Court in Ram Avtar Sharma and Ors. v. State of Haryana and Anr. wherein it was held that since Section 10 of the Industrial Disputes Act required the Government to be satisfied that an industrial dispute existed or was apprehended, it would permit the Government "to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony." There is no dispute about this position in law that the powers vested in the Government under Section 10(1) read with Section 12(5) of the Act are discretionary and the Government may refuse to make a reference if prima facie the Government is satisfied that a party in raising a dispute did it for frivolous and bogus reasons or for extraneous and irrelevant considerations rather than for justice or industrial peace and harmony. There is nothing in the impugned order passed by the Deputy Commissioner of Labour, in our case, to show that the claims of the petitioner were frivolous or bogus or were put forth for extraneous and irrelevant reasons and not for justice or industrial peace and harmony. Therefore, the authority cited by Mr. Gokhale does not help him. 13. Mr. Gokhale submits that the above judgment of the Supreme Court was referred to and relied upon by a Division Bench of this Court (Bharucha and Tipnis, JJ.) in Appeal No. 662 of 1984, arising from Writ Petition No. 912 of 1984, decided on 23rd July, 1987. The facts and circumstances obtaining in the case before the division Bench are distinguishable. In that case, while refusing to make a reference, the Deputy Commissioner of Labour gave four reasons as under :- "I am satisfied that there is no case for reference thereof under Sub-section (5) of Section 12 for the reasons that (1) the workmen were involved in serious acts of misconducts, like assault, etc.; (2) the attempts of the employer to hold regular enquiry against them were frustrated by the workmen themselves, either by giving threats to the witness or by obstructing the process of enquiry; (3) the action of the employer in terminating the services of these workmen is as per Standing Orders which appears to be bona fide and there is nothing to indicate any mala fide, vindictiveness or victimisation; and (4) I do not find it expedient to refer the dispute to adjudication as the same will not be conducive to industrial peace." It is in such facts and circumstances of that case that the Division Bench was of the opinion that it was not expedient to refer the dispute for adjudication and there were no justifiable reasons to intervene in the matter under Article 226 of the Constitution. As stated earlier, the Deputy Commissioner of Labour in our case did not assign any good, acceptable reasons for refusing to make a reference, hence, this judgment of the Division Bench is also of no avail to Mr. Gokhale. 14. Regarding the submission of Mr. Gokhale that if I am not to uphold the impugned orders of the Deputy Commissioner of Labour, I may direct the Government to re-consider the matters, I am not able to persuade myself to agree with Mr. Gokhale in view of the law laid down by the Supreme Court in Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nadu and Management of India Cements Ltd. v. S.C.A.T. (1983 I LLJ 460), Nirmal Singh v. State of Punjab and Ors. (1984 II LLJ 396) (1984 Lab IC 1312), The M.P. Irrigation Karmachari Sangh v. The State of Madhya Pradesh and Anr. (1985 I LLJ 519) (1985 Lab IC 932) and this Court in Rohinton P. Daruwalla v. Dy. Commissioner of Labour (Conciliation). Bombay (1985 I CLR 126) and Krishna Babu Ghadigaonkar and etc. v. State of Maharashtra and other (1986 Lab IC 1664) directing the State Government to make reference to the appropriate authority or forum under Section 12(5) of the Act. Similarly, the Gujarat High Court in Suresh Shantarm Joshi v. Regional Manager, Bank of Maharashtra, Baroda (1985 I Lab LJ 487) had directed the Central Government to make such a reference. 15. In the result, all the four petitions succeed and the same are allowed. The impugned orders passed by Deputy Commissioner of Labour refusing to make references in all the four matters are quashed and set aside. I direct the first respondent-State of Maharashtra to refer the disputes raised by the four petitioners to appropriate Labour Courts or Industrial Tribunals under Section 10(1) read with Section 12(5)of the Act for proper adjudication within two weeks of the receipt of the writs.	[ 1712542, 347928, 1968818, 760439, 1968818, 347928, 760439, 347928, 625936, 1570927, 760439, 1570927, 1570927, 625936, 1418464, 347928, 411139, 75183, 1669932, 1968818, 1968818, 577611, 1669932, 1968818, 455901, 1669932, 760439, 347928, 1570927, 1712542, 1310042, 1041213, 101565707, 1948366, 347928, 1627971, 760439, 347928 ]	Author: H H Kantharia	216,551	Bhagwan Dhondu Tarkar vs State Of Maharashtra And Ors. on 4 September, 1987	Bombay High Court	38
20. No alternative accommodation was offered at least in writing to the Judge on or about the date fn answer to his clear assertion that he has not able to find any alternative accommodation. It might also be stated that according to the Judge during the whole of this period tie was almost a solitary resident in the Circuit House where all the three other remaining suites lay vacant most of the time, between the 8th January to 21st January, 1964. 21. On the 9th January, 1964, the Additional District Magistrate again under the orders of the District "I may mention here that the behaviour of Sri Roy Subordinate Judge, Nadia in violating the rules of the Circuit House as well as in defying the direction issued by the competent authority, was quite Unbecoming of the position he holds ...... instead he chose to create a scene . . . . . . !n passing I may further state that the Hon'ble Sri Faziur frahaman has expressed his cur-prfse than a member of the judiciary should violate the rules and defy the orders of the 'competent authorities regarding the occupation of the Circuit House." It shows that a person, simply because he is an officer of the State has no right to waste public funds in liis defence if his actions are held to be grossly mala fide improper and throughout illegal and contemptuous. In this case as the State is already appearing in support of the Rule an order on the District Magistrate to pay the costs to the State may be in vain but this Court hav- ing regard to its findings here, thinks it fit to order that the District Magistrate should bear his costs personally and not be allowed* to call upon the public funds of the Government to defend such grossly, contumacious and illegal acts wliich he has committed in this case. JUDGMENT P.B. Mukharji, J. 1. On this Rule the District Magistrate of Nadia Mr. Debabrata Bandopadhyay, I.A. S., is standing his trial for contempt of court, on the ground of forcibly turning out Mr. M. Roy, the learned Subordinate Judge, Nadia from his residence at Circuit House and thereby compelling him to leave his station of justice and also making it imposst- ble for him to hold his Court for four days and a half and bringing down the Judge, In the estimation of the local public. The situation is unprecedented in the annals ef public services in India. The facts and circumstances revealed on the record, are of momentous significance. Affidavits disclose most distressing and deplorable features in the administration, which will continue to serve as a serious warning and lesson long after the memory of this case fades away. 2. On the 22nd January, 1964, by the order of this Magistrate the learned Subordinate Judge of the district was literally driven out of his room in the Circuit House at Nadia, where he was obliged to stay for acute want of accommodation in the district. At the relevant hour and the time the learned Judge was actually conducting a sessions case and performing his judicial duties in the Court. While he was in the court, under orders of this Magistrate, the Judge's room was locked in his absence. Under this District Magistrate's orders the Judge's personal belongings were seized, publicly inventoried before public witnesses of the place where the learned Judge was expected to administer justice and command public faith and all the Judge's articles, bags and baggages were publicly carried away and despatched to the Police Mal- knana. Deprived of all his belongings except his wearng apparel and publicly humiliated in the station of his judi cial authority and jurisdiction, the Judge was left utterly destitute without a penny in his pocket so that he had to borrow money to purchase his railway ticket to return to Calcutta to make his administrative representation to this Court. 3. By that act of the Magistrate, the Court of the learned Judge could not be held and the judicial work in the district was dislocated and disrupted. In fact, the Judge could not hold his Court from 2 p.m. in the afternoon of the 22nd January 1964, the day of the incident, and the whole of the 24th, 25th, 28th and the 29th January, 1964. Under directions of this Court to finish -the sessions trial which he had begun, and to keep the magisterially battered flag of justice still flying he attendad Krishnagar Court as a daily Railway passenger from Calcutta on the 30th and the 31st January, 1964 to complete the trial. He also attended as such daily passenger on the 1st and the 3rd February, 1964 and ultimately a different room was given to him again in the Circuit; House on the 4th February, 1964 and his articles returned! Shorn of all details, these are the bare facts constituting the charge of contempt against this District Magistrate. 4. On the 3rd February, 1964, Mr. Ajit Kumar Dutt a senior learned Advocate of this Court, moved this Court for a rule in contempt by producing before this Court 9 copy of a Bengali newspaper 'Bidyut' dated the 24tr, January, 1964 published at Krishnagar drawing the attention of this Court at page 3 of that Issue of the paper under the caption. "Complaint against the District Magis-trate for illegally putting lock in the room of the Subordiate Judge". Mr. Dutt filed that newspaper in this Court and called for the issue of a Rule upon the District Magistrate of Nadia and his Nazir, to show cause whv they should not be dealt with for contempt of Court or such other order or further orders as this Court may deem fit and proper. This Court issued the rule on the District Magistrate and the Nazir who were ordered to be present in the Court. The Court' directed service upon the District Magistrate and his Nazir of the Rule and also copy of the Newspaper publication, showing the facts constituting the contempt. 5. On the 10th of February, 1964 when the rule was returned Mr. Ajit Kumar Dutt appeared for the Stale-and made his statement about the procedure to be followed. Mr. R. C. Oeb, learned Counsel for the Magistrate-and the Nazir also made his statement about the procedure to be followed in this Court. Upon hearing them the Court issued the following directions :- 1} The Subordinate Judge will affirm an affidavit by the 14th February, 1964, placing and affirming the relevant facts before this Court: 2} The Legal Remembrancer will make a short affida-vi^ disclosing copies of all relevant correspondence and-record in his office on the subject by the 14th February. 1964; 3) The Registrar, Appellate Side of this Court directed to supply copies of all correspondence on this subject in the file of this Court, one set to be given to contem-nors' Counsel and another to Mr. Dutt, by the 14th February, 1964; 4) The contemnors were directed to file their affidavit in opposition by the 24th February, 1964; and 5) The hearing of the contempt rule was fixed for the 25th February, 1964 on which date the contemnors were directed to appear in person before this Court. 6. On the 24th February, 1964 Mr. R. C. Deb, learned Counsel for the contemnors prayed for extension of time by consent of Mr. Ajit Kumar Dutt and this Court granted extension of time to the contemnors to file their affidavit in opposition by the 27th February, 1964 and the hearing of the contempt rule was adjourned to the 27th February, 1964. 7. On the 27th February, 1964 when the rule for contempt came to be heard, Mr. A. C. Mitra, the learned Standing Counsel of the Government appearing for the Slate informing this Court that the learned Advocate, Mr. A. K. Dutt who was till then appearing for the State had returned his brief. The reasons for such return of the brief have remained unexplained, though they may not be far to seek, but this Court does not think It necessary to seek them. 8. The District Magistrate filed his affidavit. But his Nazir did not, on the date when the rules for con tempt came first to be heard on the 22nd February, 1964. 9. The essential facts are not in dispute. It is not disputed that the Judge was forcibly turned out of his room, that all his personal articles Including even articles of food were seized, publicly inventoried and then despatched to the Police Malkhana, all under orders, of the District Magistrate. The defence of the District Magistrate is that he was the absolute authority to determine who is to be permitted to remain in the Circuit House and for how long under the Rules of the Circuit House. Therefore the District Magistrate's defence is that he was Justified in doing what he did. Secondly, the defence of the District Magistrate is that he had to turn out the Judge from the Circuit House because he thought it to be essential for the security of the Minister, Shri Fazlur Rahaman, Minister-in-charge of the Local Self-Government and Animal Husbandry, Veterinary Department in this State who was to visit the areas in the District affected by riots and who was to reach Krishnagar on the 22nd February, 1934 at about 4 p.m. Thirdly, his defence is that his action was not intended to obstruct administration of justice and the disruption of the court's work was net the direct but an incidental and remote result of the Judge being forced to leave the Circuit House. Fourthly, the District Magistrate says that he offered alternative accommodation to the Judge. 10. We shall take up the first defence of the Magistrate about his authority in respect of the Circuit House, along with his further, defence of alternative accommodation. 11. Rule 1 of the Circuit House divides intended occupants in two categories of Part A and Part 8. Part A includes 8 classes of persons: (1) The Governor, (2) the Minister, (3) the High Court Judges, (4) the Members of the Board of Revenue, (5) Commissioners of Divisions, (6) District Judges, (7) Heads of Departments, and (8) the Superintendent of Engineers and other officers mentioned in Part A of the list. These persons have the right of exclusive occupation according to their rank and seniority. Part B consists of officers of the first grade as defined in Subsidiary Rule 24 corresponding to Rule 22 of the Bengal Services Rules Part 2 when travelling on duty away from their headquarters and other officers. Rule 1 provides that these other officers named in Part B are also privileged to occupy the Circuit House free of charge when travelling on duty. Rule 2 provides "Circuit Houses are under the immediate charge of the Magistrate ,of the districts in which they are situated and the Magistrates are responsible for their proper maintenance and for the observance of the rules regarding them". Rule 3 says "Excepting the officers named in the list appended no officer of the Government is allowed to occupy a Circuit House without the written orders of the District Magistrate." 12. Rule 4 provides "District Magistrates may allow Circuit Houses or such rooms in them as may be set apart for the purpose (when they are not required by his Excellency the Governor or any of the officers named in the list appended) to be occupied temporarily by Gazetted officers of the Government who may be summoned on duty from outside stations or who may be posted temporarily to the station..................In all these instances previous permission must be obtained and all such cases must be forthwith reported to the Commissioner of the Division and if the occupation is to last for more than 15 days the sanction of the Commissioner must be obtained." 13. This Rule 4 continues to provide "A Magistrate-Collector, an Additional District Magistrate-Collector, or a Joint Magistrate; a District and Sessions Judge, an Additional District and Sessions Judge or an Assistant Judge .................. who has to join a district in such haste as to preclude his taking his furniture with him or whose official residence is not immediately fit for occupation .................. or for any ether adequate reasons, may be allowed to occupy Circuit Houses for a period not exceeding one month with the sanction of the Commissioner of the Division". 14. Then, Rule 6 provides "Under Rules 4 and 5 permission to occupy the whole of a Circuit House should rarely be given." 15. Then, Rule 7 says "It must be a well-understood and special condition for every person who may be allowed to occupy a Circuit House or pan of it under Rule 4 and 5 above, that he must distinctly undertake to provide accommodation for officers who are entitled to it, on the shortest notice and at whatever inconvenience to himself when such officers make short visits to out-stations, and also to vacate altogether, if such a measure is, at any time considered necessary by the District Magistrate or the Commissioner." 16. These are all the relevant rules required for the purpose of this case. One thing clear from these rules is that the District Magistrate is neither the ultimate nor the sole authority over the Circuit House but he is only in "immediate charge" as provided in Rule 2 but subject to his superior authority the Commissioner of the Division as provided in Rules 4, 5 and 7. 17. The relevant facts an this point may here be stated for a proper appreciation of the case and to see-how far these Rules justify the District Magistrate's defence. 18. The Judge in this case was transferred on the 19th December, 1963 by the High Court to the District of Nadia and was ordered to join and resume his duties at Krishnagar on and from the forenoon of the 2nd January, 1964. The Judge therefore wrote to the District Magistrate to make arrangements for bis stay at Krishna-gar for 10 days from 1-1-64 to 10-1-64. On the 23rd December, 1963 the District Magistrate wrote to the Judge reserving his accommodation in Room Bo. IV of the Circuit House from 1-1-64 afternoon to the afternoon of 10-1-64. The Judge arrived at Krishnagar to join his duties on the 1st January, 1964. The Jutige went into occupation of Room No. II instead of Room No. IV in the Circuit House according to the instructions of the District Magistrate. 19. On the 7th January 1964 the Judge wrote to the District Magistrate saying that despite his best efforts he had not been able to secure any rented accommodation till then and he therefore requested that his reservation in the local Circuit House might be continued for another period of 10 days from 10-1-64, when the current reservation was due to expire. The Additional District Magistrate under orders cf the District Magistrate wrote on the same day by his D. 0. Ho. 156JG that owing to unavoidable circumstances and pressure of accommodation in the Circurit House, permission to occupy the Circuit House beyond 10-1-64 could not be accorded. The Judge wrote back immediately on the 8th January, 1964 "I am sorry it will not be possible for me to vacate-the Circuit House on 10-1-64 as requested. I came here on transfer from West Dinajpur under orders of the Hon'ble High Court. I have been staying in the Circuit House in the absence of any official Government quarters or any rented accommodation in the town. I am further referring your correspondence to the Hon'ble High Court soliciting its instruction. I would therefore sincerely request you that you should not disturb me with such communication until I hear from the Hon'ble Court. I assure you that I shall immediately vacate the Circuit House as soon as I shall be able to find any other alternative accommodation". Magistrate wrote to the Judge saying that "the Circuit Houses are under the immediate charge of the Magistrates of the Districts in which they are situated. Without the permission of the Magistrate of the District no suite or room in the Circuit Houses could be occupied. Permission to occupy the Circuit House beyond 10-1-64 has not been accorded by the Magistrate of the District and therefore you will have to vacate the Circuit House on the morning of the 11th instant." It is significant that not a word is said even in this letter that any alternative accommodation has been secured or offered for the Judge. Immediately on that date the Judge wrote to the Additional District Magistrate saying that the matter had already been referred to the High Court and also to the Government and requesting him to stay his hands till intimation was received from the High Court and the Government. 22. On that date, the 9th January, 1964 on the eve of the expiry of the first period of stay at the Circuit House, the learned Judge, also wrote to the Registrar of Appellate Side of this Court through the District Judge, Nadia expressly stating all the facts and stating that there was no possibility of finding any accommodation in the near future, and also informing that the Collector of Nadia would not allow him to stay in the Circuit House for more than a fortnight under the rules in force. He therefore stated in that letter "I may be permitted io apply for some period of earned leave before I can rehabilitate myself in any other station where I can have a reasonable shelter or else the Government may be approached to permit me to occupy an exclusive room in the local Circuit House till a suitable accommodation is requisitioned through the Collector". The District Judge recommended the Jutige's letter for favourable consideration by Registrar of the High Court. 23. According to the learned Judge when he returned to the Circuit House from his court on the 10th January, 1964 at about 5-30 p.m. he was informed by the Circuit House menials that his room had been allotted to another gentleman and that he also noticed that his name card had been removed from the reservation board. But according to him no one turned up. It is the Judga's case that the District Magisrtrate deputed the Nazir on the llth and 12th January 1964 and other officials who made attempts to evict him by force. 24. Then followed some important events. On the 17th January the Registrar of the Appellate side of this Court wrote to the Government of West Bengal requesting to allow the Judge to 'Stay in the Circuit House till a requisitioned house was arranged or till t'ne Judge found a suitable house. Copy of this recommendation of the High Court dated the 14th January, 1964, was received by the Judge on the 17th January, 1964. The Judge also informed by D. 0. Nos. 22 and 23 both to the District Magistrate and his Additional on the 17th January, 1964 about the ''recommendation of the High Court. On that very date also I.e. 17th January, 1964 the Deputy Secretary of the Revenue Department also wrote to the 'District Magistrate informing the Board of Revenue's per- mission to the Judge to stay in a room of the Circuit House for one month, that is, till the 2nd of February, 1964 and the District Magistrate was also requested to find a suitable house by requisition for the Judge. 25. Notwithstanding these orders of the High Court and Board of Revenue, the District Magistrate on the 18th January 1964 asked the Judge to vacate the room "which you are unauthorisedly occupying within 48 hours ot receipt of this notice failing which the room would be locked out." It is unthinkable how a District Magistrate could officially write such a letter to a Judge. On the 18th January, 1964 the District Magistrate says that the Judge again requested for extension which he turned down. On that day, i.e the 18th January the Judge contacted the Judicial Secretary of this State Government over the telephone from Krishnagar and he was informed by the Secretary that the Government had already passed an order authorising his stay in the Circuit House till the end of January, 1364 and he was also in the process of communication and he was also directed by the Judicial Secretary to inform the District Magistrate about the Government order. On the 19th January, the Judge by his D. O. Nos. 26 and 27 informed the Distract Magistrate about the telephonic conversation of the Judicial Secretary. 26. Immediately the District Magistrate started moving to frustrate the Government's order of permission to the Judge to stay. On the 20th January, 1964 the District Magistrate wrote to the Member, Board of Revenue, Calcutta complaining about the "Misbehaviour of Roy the Judge)" and adding "Roy was informed that permission to stay in the Circuit House beyond 10-1-64 could not be given. Communal strife broke out In the district from 9-1-64. We were in a state of emergency. It was necessary to provide accommodation for the officers at one place. For this reason and for superior police officers mobilised on duty it was necessary to get vacant possession of the room occupied by Shri Roy (the Judge) during the period of emergency. On 11-1-64 Roy (the Judge) whose permission to occupy expired on 10-1-64 was requested to give vacant possession of his room. Instead of complying with the request Shri Roy insulted the Nazar. On 18-1-64 notice was served on Roy to vacate the room. I received a letter from Roy regarding permission of the Board of Revenue. I do not know if any such order is under issue. Roy should not be allowed to occupy the Circuit House." This letter proves that this District Magistrate was attempting to frustrate and defy the order of his superior, the Member, Board of Revenue and was determined to oust the Judge by all means. 27. When the District Magistrate had already decided that the Judge should not be allowed to occupy the Circuit House and defied the administrative direction of this Court as well as of his superior officer, the Board of Revenue, a further situation developed which the District Magistrate immediately seized to carry out his threat to evict the Judge. According to his version, on the 21st January, 1964 the District Magistrate was asked to reserve two rooms in Circuit House for the Minister mentioned. The District Magistrate at once exploits the-situation to get rid of the Judge. The Minister himself did not ask that the Judge should vacate the Circuit House. Nor did he ask for reservation of the whole Circuit House for himself, as he could have asked. He only asked for two rooms in the Circuit House. That could easily haw been given without disturbing the Judge's room. Suppressing an that fact to the Judge, on the 21st January, 1964 the Mazir of the District Magistrate comes to the Judge saying "I am directed by the u. M. to request you to vacate the-room by 8 A.M. tomorrow positively as it has been reserved for the stay of the Hon'ble Minister and his party." The Sheristadar wrote to the Nazir on the very same day saying that it was not possible for the Subordinate Judga to vacate the Circuit House as desired by O. M. Tne District Magistrate foiled so long rises to a boiling pitch on the 21st January, 1964 and sends an express telegram to the Member, Board of Revenue calling his attention to Judge's refusal to vacate the room reserved for the Minister. All this episode shows that the District Magistrate was bent upon getting rid of the Judge from the Circuit House. 28. The District Magistrate now takes steps to clear his record. On the 21st January, 1964 he writes for the first time to the Judge stating that accommodation is available both at the District Board's Duk Bungalow and the P. W. D. Rest House alleging that the Nazir had Informed him about this on the 11th January, 1964. He repeats in this letter that the Judge must vacate the room in the Circuit House which has been reserved for the Hon'ble Minister by the morning of the 22nd instant. The Judge has denied on affidavit the suggestion of the District Magistrate that his Nazir had offered him alternative accommodation on the llth January 1964. This Court wholly believes the Judge and disbelieves the District Magistrate on this point first for the simple reason that even after the llth January, 1964 many communications passed between the Judge and the District Magistrate where this specific alternative accommodation was not even hinted, although the Judge had heen asking for alternative accommodation ever since the 7th January, 1964. Secondly it is also noteworthy that the District Magistrate in his complaint to the Member, Board of Revenue even on the 10th January, 1964 never suggested that the Judge nad in fact been offered or given alternative accommodation and that he had even then refused to go from the Circuit House. It is therefore plain in our opinion that the District Magistrate's statement is untrue, if not false, that he had offered alternative accommodation to the Judge on the llth January, 1964. Thirdly about this alleged alternative accommodation, the District Magistrate is not the authority at all in respect thereof and neither the District Board's permission nor the Executive Engineer's permission for the P. W. D. Rest House who are the appropriate authorities regarding such accommodation, has been produced before me on any affidavit. Fourthly this letter of the District Magistrate dated the 21st January, 1964 to the Judge was received by the Judge on the following day at 9 a.m. when he was about to go to the Court. On the 22nd January 1964 at 1 p.m. while the Judge was engaged in Court of sessions his servant was forced out of his room in the Circuit House and the Judge's room was locked up from outside leaving ail his belongings in the room. Having heard this, the Judge went to the Circuit House but could not enter his room. He was not even then told that any alternative accommodation had been found and he could shift thera with his belongings. For these 'reasons this Court over-roles the fourth defence of this District Magistrate that he offered alternative accommodation to the Judge. The Judge was compelled to leave Krishnagar, his Judicial station and arrived In Calcutta at ID- p.m. on 22nd January, 1964. 29. This District Magistrate then became unusually active on the 22nd January 1964. He says that he himself left Krishnagar on that date in the forenoon and returned in the evening. But the machinery which he elt behind under his orders was working with relentless Speed. The Judge's room was locked by ab'out 1 p.m. on the 22nd January, 1964. By 5-15 p.m. on that very day under orders of the Magistrate the process-server of the Nada Coilectorate illegally broke open the Judge's room in the Circuit House. An inventory is ceremoniously prepared in the midst of notorious publicity. This inventory took about three hours' time from 5-15 p.m. till about 8 p.m. to be completed. Two witnesses have subscribed' their signature to that inventory, one the Principal of the Krishnagar College Sri Amiya Kumar Majumdar and the other Shri R. K. Banerjeer, Principal, B. P. C. Institute of Technology, Krishnagar. We will presently have occasion to come back to the fact how two busy and responsitte Principals of educational institutions happened to come to the Circuit House just at that very moment and had sufficient spare time and leisure to witness for long three hours the inventory and then subscribe their signatures to it. Continuing with the events of the 22nd January, 1964 we find that the Nazir of this District Magistrate makes a neti-tion before a First Class Magistrate in Nadia and obtains an order from him long^after office hours at about 9 p.m. at night, which we were told by the Counsel for the can-temnor was obtained from the 1st Class Magistrate while he was supposed to be at which is called a "Contral Room". Upon that petition the order was obtained to this effect "Let the Nazir deposit the articles at Kotwali Police station. The Officer-in-charge to deliver the article to Shri Roy as soon as he is available." The Judgs also made a report of this incident on that very day to the officer-in-charge Krishnagar police station. 30. On the next day, the 23rd January 1964 ths Judge reported the matte/ to the Registrar of the Appel-late Side of this Court and also the District Judge of Nadia. He also gave the same report to the Registrar. On the following day, i.e. the 24th January, 1964 the Bengali local newspaper 'Bidyut published this news which started the present proceedings. On that date, the 24th January, 1964 the Joint Secretary wrote to the Registrar of the Appellate Side informing him about the letter from the Board of Revenue to the District Magistrate permitting the Judge to stay in the Circuit House and enclosing a copy of that letter from the Board of Revenue to the District Magistrate. On the record there is also the letter of the Judge on the same day giving his representation to the Registrar, Appellate Side of this Court narrating those deplorable incidents and facts and stating:- "It is not possible to resume my duties untii residence in the Circuit House and my belongings lying there are resor-ed to me. I pray to the Hon'ble Court to grant me leave". On the next, the 25th January, 1964 the Registrar of the Appellate Side of this Court writes to the Joint Secretary enclosing copies of letters from the Judge to the District Judge dated respectively the 23rd and the 24th January, 1964 and stating "Permit Roy to occupy his suite until other accommodation is available atherwise the Court may be kept vacant. Pending intimation from the Government, he is directed to' proceed fin leave. Enquire the propriety of the action taken by the District, Magistrate". 31. The Board of Revenue acted promptly and sent a telegram to the District Magistrate, Nadia on the 23th January, 1964 stating "Allow this Subordinate judge to continue his occupation in the Circuit House till the end of February, or earlier if alternative accommodation can be secured in the meantime by requisition or otherwise. Copy is sent to the Registrar". 32. On the 29th January, 1964 the Registrar of the Appellate Side of this Court wrote to the Judge enclosing the copy of the telegram of the 28th January, 1964 and stating "You are to resume your duty at Krishnagar at once". On that very day the District Magistrate wrote to, the Chief Secretary of the Government of West Bengal, Sfiri R, Gapta, I.C.S., giving his explanation. 33. This Explanation of the District Magistrate to the Chief Secretary shows not only his 'conduct but also utterly deliberate and contumacious' attitude in this matter throughout evincing a deliberate plan of the District Magistrate to render it impossible for the Judge to act as a Judge and hold his court in the district. The District Magistrate, in spite of the orders of his own superior the Board of Revenue makes the following astounding allegation against the Judge:34. The Chief Secretary's reply dated the 30th January, 1964 admirably represented the great traditions of the Indian administration. This Court is of the opinion that Mr. R. Gupta, the Chief Secretary took the right and commendable view in telling the District Magistrate what he thought of the Magistrate's acts in the following unequivocal terms: "I have carefully gone through your letter (D. O. No. 226-C dated 29-1-1964} and after taking full account of the various facjs and circumstances which you have reported, I still feel that the summary eviction of the Subordinate Judge on the 22nd January, from the room so occupied in the Circuit House was neither proper nor justified. After all, a Subordinate Judge is not a private person or a clerk. He is a senior Judicial officer, of the Government and he was staying in the Circuit House beyond- the period originally allotted to him only because he had not uptil then been able to find suitable private accommodation in the town." "f appreciate the necessity to provide for the accommodation and security of HM, LSG and AH and VS, who was coming on tour-and f am also aware that the Hon'ble Ministers are entitled to occupy the whole of the Circuit House, At the same time I feel sure that the Minister hiimself would not have fnsisted on the eviction of the Subordinate Judge if he had been consulted before he was removed. The Subordinate judge's goods and articles were locked up in the room. Nor do I feel that the subordinate Judge's continued presence in another room' in the Circuit House would have jeopardiesd the security of the Minister." 35. On the correspondence and facts stated that is the brief survey of the position. 36. Now taking the first point in the defence namely that the District Magistrate has the absolute "authority to determine who is to he permitted to remain in the Circuit House and for how long under the Rules of the Circuit House, it will be clear from the rules of the Circuit House set out above that the District Magistrate is not the also lute authority. He is at best in "immediate charge. Far from the learned Judge, violating the Rules of the Circuit House, this Court holds that the District Magistrate was himself violating the Rules of the Circut House in this case and was making a most unseemly exhibition of power which the Rules did not give him. In the first place, the learned Judge was one of the persons authorised to use the Circuit House under the Rules of the Circuit Hause in the second place the extension of time which he asked from the 10th January, 1964 to stay in the Circuit. House is governed by Rule 4 which expressly provides-that where the Official residence is not fit for accommodation or for any other adequate reason, the Assistant Judge may be allowed to occupy the Circuit House for a period not exceeding one month with the sanction of the Commissioner of the Division. Therefore, when the Judge asked for extension of time his request for extension should have been placed before the, Commissioner. The District Magistrate without placing it before the Commissioner rejected it, which he had no authority under the rules to do. Thirdly, the Rules do not authorise the District Magistrate either to lock the room of any occupant or to forcibly drive him out and to seize his goods and articles. We have carefully analysed the Rules and do not find anything in them which gives him a wanton power of summary and forcible eviction of the occupant and public seizure of his goods. In doing all these, we have no hesitation in holding that the District Magistrate did acts which were not only grossly illegal and outside his powers and jurisdiction but also were deliberately contumacious to bring down the position of the Judge in public estimation and hold up the judiciary to ridicule before the public eye in the very district where the judge is expected to administer justice. Fourthly, the District Magistrate's action in seizing the goods, making inventory of them and making a petition through his Nazir for their deposit in the Police Malkhana are wholly unwarranted. Neither the Indian Penal Code nor the Criminal Procedure 'Code nor the Civil Procedure Code nor any law of this land that we know of, authorises the District Magistrate to take such a high-handed and illegal action. The 1st class Magistrate before whom the Nazir made a petition for custody of the articles was making illegal order unwarranted by the Criminal Procedure Code. It 'shows the danger that exists in this country due is the absence of separation of' the Executive from the lud-ciary. The District Magistrate could only succeed to following this wholly illegal procedure because he knew : that the 1st Class Magistrate will have to obey the been nest of the District Magistrate. If there was separation of the Executive from the Judiciary in this State such a situation would have been avoided. It is hight' time' that this State took steps to separate the Judiciary from-the Eeceeutive in the public services according to the Directive Principles raid down in Article 50 of the Constitution. This Court holds for the reasons statetd above that the District Magistrate's first defence fails, and we overrule it. 37. The District Magistrate's second line of defence that he had to turn out the Judge from the Circuit House because he thought it to be essential for the security of the Minister is baseless and groundless and is a mala fide attempt to use a blameless Minister as a convenient excuse. The most fitting answer was given by the Chief Secretary of the Government of this State. It is difficult to imagine how the presence of a Judge of the land in the Circuit House in a single room could endanger the security of a Minister of same State. The District Magistrate perhaps realised the futility of this excuse and therefore says in his affidavit before the Court and not in his numerous correspondence that although he did not for a moment regard that the Judge was a security risk in any way " He had to consider that their presence in the Circuit House would create problems for enforcement of security measures for the safety of the Hon'ble Minister". We have no hesitation in rejecting this plea as an afterthought and also as not bona fide. If the presence of the Judge was not a security risk to the Minister in the same Circuit House then any possible visitors who could be coming to see the Judge could be controlled and the Judge need not have been forcibly evicted and locked out in manner followed. Thirdly, the Minister himself only want ed two rooms in the Circuit House and did not want the entire Circuit House. Therefore, the Minister could have been given two rooms in the Circuit House with enough protection without the District Magistrate's finding an excuse to drive out the Judge living in a separate room of the Circuit House. Security of the Minister is a public duty of the District Magistrate. Security of the Courts of the land and their Judges is equally as great a public duty and sacred responsibility of, the District Magistrate of the area concerned. This Court will hope that no District Magistrate will, in future choose one security at the cost of another and thus disgrace the fair name ot public service in India. ' Lastly, this Court cannot help making a comment on the District Magistrate's attitude to malign the Judge behind his back in his letter to the Chief Secretary qiroted above dated the 28th January, 1964. It is astounding to find that the District Magistrate chose to quote the alleged opinion of a Minister not connected with the legal or the judicial department of the State 8s having expressed his surprise against a Judge violating the rules of the Circuit House. If the District Magistrate is right then he alone is responsible In poisoning the mind and ear of the Minister and telling him that the Judge had violated the Rules when in fact he did not. We would like to believe that the District Magistrate is making an incorrect statement here because the alleged opinion of the. Minister against this learned Judge has not been verified by any affidavit by the Minister and because we think it is extremely qnworthy of a District Magistrate to write about a judicial officer who is not under his charge or under his department complaining against him on the plea of an alleged opinion of a Minister who has nothing to do with the legal or a judicial department. It is a very sinister practice which should stop at once, 38. For these reasons we hold that the Rules of the 'Circuit House and the visit of the Minister do not pro- vide any defence for the contumacious acts and conduct of the District Magistrate in this case. The rules do not authorise the District Magistrate, in the first place ta refuse to grant extension beyond 10/15 days without placing the matter before the Commissioner. In refusing the extension himself the District Magistrate himself vie- lated the Rules and acted illegally and beyond his powers. In the second place, the rules of the Circuit House do not authorise and permit the District Magistrate to make a forcible eviction, to break open the lock of the occu pant, to forcibly seize his goods and personal articles, to make an inventory of them and to send them to the Police Malkhana. Such actions of the District Magistrate in the facts of this case, were wholly illegal and utwar- rantetd by the Civil and Criminal Procedure Codes of this country. The case of the State of West Bengal v. Blrendra, has no application- to the facts of this case because (1) that was concerns* with specific provisions of Sec. 3 of the Crown Grants Act expressly excluding the operation of not merely the Trasn- fer of Property- Act but also of all other laws, which the Rules of Circuit House here cannot and could not exclude and (2) because there was in the lease by the Dajmty Commissioner an express right of re-entry, which does not exist under the Rules of the Circuit House. This Court therefore overrules these two points of defence taken in behalf of the District Magistrate, ; 39. The third defence of the District Magistrate that his action was not intended to obstruct the administration of rustics and disruption of the Court's work, was not the direct but an incidental and remote result of the Judge being forced to leave the Circuit House. This Court will now examine this defence. 40. Mr. Deb appearing for the contemnor District Magistrate relied on the classical, well-known but undelivered judgment of Wilmot, J. in Rex v. Almon, reported in (1765) 97 ER 94. This was an application made to the Court by the Attorney-General for an attachment against Mr. Almon for publishing a pamphlet containing many libellous passages upon the Court and upon tne Chief Justice for his conduct both in Court and outside. It charged the Court and particularly the Chief Justice with having introduced a method of proceeding to deprive the subjects of the benefit of the Habeas Corpus Act. The opinion of Wilmot, J. was not delivered in Court in this case because the prosecution was dropped in con- sequence, as it was supposed, of the resignation of the then Attorney-General, Sir Fletcher Norton. Wilmot, at 103 of that Report observed as follows : "It is conceded that an act of violence upon his (Judge's) person, when he was making such an order, would be a contempt punishable by attachment; upon what principle? For striking a Judge in walking along the streets would not be a contempt of the Court. The reason therefore must be, that he is in the exercise of his office and discharging the function of a Judge of this Court; and if his person is under this protection, why should not his character be under the same protection? It is not for the sake of the individual, but for the sake of the public, that his person is under such protection; and in respect of the public, the imputing corruption and the perversion of justice to him in an order made by him at his Chambers, is attended with much more mischievous consequences than a blow; and therefore the reason for proceeding in this summary manner, applies with equal, if not superior, force, to one case as well as the other; there is no greater obstrution to the execution of justice from the striking a Judge, than from the abusing him, because his order lies open to be enforced or discharged, whether the Judge is struck or abused for making it." 41. Taking inspiration from this observation Mr. Deb's submission on this point is that any matter involving ft. Judge is not necessarily contempt. Undoubtedly, that is a correct proposition. The contempt is a contempt of i court. The contempt is a contempt of the administration of justice- in some sense or another. For instance, if a Judge as a member of the public, walking in the street is assaulted by an individual that does not by itself make the assault a contempt of Court. For instance, again, if a Judge who is a tenant is ousted by his landlord who obtains a decree for ejectment and then by a process of execution evicts him, such eviction will not be a contempt of Court. Similarly a Judge driving a car rashly and negligently collides with another car and is prosecuted. Such prosecution will not be contempt of Court. These in stances relating to the Judge personally and individually may be cases of assau't or other crimes or delicts but they are not contempts of court. Contempt of Court 's not a matter affecting the Judge personally but affecting His judicial office and judicial work and administration of justice. 42. ' But then these analogies have no application to the facts of the present case. This is not a case of a trespass by the District Magistrate upon the Judge or a case of a landlord executing a decree of eviction against Bis tenant. Let this be clearly understood that the District Magistrate in this case is a public officer discharging the public duties of a public office. The Circuit House is not the private property of the District Magistrate. The District Magistrate is not the landlord of the Circuit House. The Circuit House is a public property charged with public purpose and public utility maintained by taxpayers' money, and exists for fulfilling those public purposes. The Judge who is the victim in this case is also public officer, a Judicial Officer and as the Assistant Sessions Judge was occupying a room in the Circuit House By virtue of the right of his office under the Rules of the circut House. The District Magistrate as a responsible public officer of the District should know that this judi-dial officer was performing his judicial functions from day ft day and at the time when his room was locked he Was, in fact, engaged in judicial duties in the Court. As an ordinary man, far less a public officer this District Magistrate is expected to know and did know that If the Judge lost alt his personal belongings including even his previsions for food, which the District Magistrate seized, he would not be in a position to go on performing his judicial duties. The District Magistrate knew that there was acute shortage of accommodation in the district and he knew that without atternative accommodation offered to the Judge, his judicial work in the district would not be possible. The District Magistrate was made well aware of the situation in the correspondence analysed above. The District Magistrate also Knew that there was enough acommodation in the Circuit House for one single room to be safely in the 'occupation of a Judge in the district at at relevant 'times. The District Magistrate also knew that the Board of Revenue's permission had been given on the 17-1-1964. The Board of Revenue is a superior authority over the District Magistrate. This permission was received on or about the 19th January, 1954. In fact, the District Magistrate himself admits receipt of the same on the 20th January, 1954. This District Magistrate successfully defied the order of his superior the Board of Revenue to drive out the Judge. 43. A number of cases have been cited above on the law of contempt, but almost all of them deal with libel on courts or Judges. The famous case is In the matter of William Tayler, reported in 26 Cal U 345 : (AIR 1913 Cal 713) otherwise known as the Englishman's case. That was a case where the learned Chief Justice Sir Bames Peacock coming across those letters privately, issued a rule suo motu upon the contemnor, Mr. Tayler who wrote his libellous letters to the editor of the Englishman to show cause why he should not be adjudged guilty of eon-tempt of court. The Court was not even moved, in that case by any learned Advocate, as in this case. 44. In the judgment of the Division Bench in that case Sir Barnes Peacock, C. J. sitting with Dwarha Nath Mitter, J. observed as follows :- (a) "Every insult offered to a Judge in the exercise of the duty of his office is a contempt." - page 381. (b) "I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which sooner or later never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my sense tells me is wrong, to gain the daily praise of all the papers which issue from the press. I will not avoid doing that which I think right, though it should draw upon me the whole artillery of libels, Ell that falsehood and malice can invent or credulity can swallow." - Page 393. 45. The next case cited is the first famous Amrita Bazar Patrika Case, In the matter of Amrita Bazar Patrika, reported in 26 Cal U 459 : (AIR 1918 Cat 988, SB). There, Sir Ashutosh Mukherjee, J. observed: "A criminal contempt is conduct that is directed igainst the dignity and authority of the Court. A civil contempt, on the other hand, is failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Consequently in the case of a criminal contempt the proceeding is for punishment of am act committed against the majesty of the law, and, as the primary purpose of the punishment is the vindication of the public authority, the jro-ceeding conforms, as nearly as possible, to proceedings id criminal cases." - at p. 545 (of Cal LJ)': (at p. 1017 of AIR). 46. Woodroffe, Chitty and Fletcher JJ. express clearly the view that all proceedings whether in respsct , of criminal or civil contempts are of a criminal nature when the objective is to punish by fine or imprisonment. The procedure in such cases is not In all respect the same as an ordinary criminal case. Both the offence as also jurisdiction and procedure under which it Is tried are sui generis. 47. Reliance was placed on the decision ef the Privy Council in the matter of Special Reference from the Baharm Islands, reported in 1893 AC 138. That was also a case of' libel contained in a letter published in the colonial newspaper containing criticisms of the- 'conduct of ins Chief Justice of the Colony. Actually no judgment was given in that case. But a short report appears at pagss 148, 149 from which it could be seen that the two tests laid down by the Privy Council were whether the act complained of was calculated to obstruct or interfere with (1) the course of justice or (2) the due administration of the law. The Privy Council in Debiprasad Sharma v. Emperor, reported, in discussed the law of contempt, although 'that also arose out of an editorial comment published in a newspaper. At page 224 Lord Atkin relerrea with approval to the two tests above laid down in the Reference from the Bahama Islands. 48. The above two tests for contempt as laid down by the Privy Council were also emphasised by the High Court of Australia in the R. v. Nicholls, reported in (1911) 12 Comm.-W. LR 280, where Griffith, C. J, at p. 286 observed: "The only question for us to determine here is whether these words are calculated to obstruct or interfere with the course of justice or the due administration of the law in the court." That was also a libel case. The law in our view will not be different in cases other than libel and where words are not involved the acts or conduct should be judged by the same two tests namely, whether they are calculated to obstruct or interfere either with (1) the course of justice or (2) the due administration of the law in the Court. 49. Our Supreme Court has laid down the law in clearest possible terms in Brahmaprakash Sharma v. State of Utter Pradesh, , emphasising that an act or conduct which lowers the authority of the Court and weakens the sense of confidence of people in the administration of justice is contempt. Mukherjea, J. delivering the judgment of the Supreme Court in that case observed at p. 1176 (of SCR) : (at p. 13 of AIR) of the Report as follows: "It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts, It would be only repeating what has been stated so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individual; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party the authority of the court is lowered and the sense of confidence of people in the administration of justice by it is weakened." 50. Applying this test laid down by the Suprem? Court we have no hesitation in finding in the facts of this case that the acts and co'nduct of this District Magistrate are calculated to lower the authority of the Court and weaken the sense of public confidence in the administration of justice and are therefore gross and clear contempt. 51. We can pass by another case citeu before the Court namely (Vicieoo v. St. miDyn, in 1899 ac 54a laying down tne principal that the conempt of court may us committed by the publication ui scandalous mmtm respecting the court atter abdication as nell as penang a case before it, as that is not relevant for the present proceedings before us. 52. In R. v. Odham's Press Ltd., 1957-1 QBD 73 Lord Goddard C. J. laid down the principle that mens CM was no't 3 necessary constituent at d contempt ot while the court would take cognizance and punisn and that lacK oi intention or Knowledge was only material in relation to the penalty which the court would inflict and the test was whether the mauer complained of was calculated to interfere with the courts of justitce, and not whether the contemnors intended that result. In Attorney General v. Butterworth, (1963) 1 QBD 696 it is laid dowit that "contempt of court is not confined to pending cases and that victimisation of witnesses being an interference with the proper administration of justice as a continuing process in deterring potential witnesses from giving evidence in future cases, was contempt of Court whether rt was done while the proceeding was still pending or even after they had finished. If interference with the witnesses can be a contempt, interference with the Judge which the not only to the disruption and the obstruction of holding the courts but also bringing' down the Judge in the esti-mation before the public where he has to administer justice must surely be plain contempt. 53. the Privy Council in Ambard v. Attorney General, 1936 AC 322 emphasised this aspect when Lor-Atkrn observed at page 323 of the Report "Every one will recognise the importance of made taining the authority of courts in restraining and punishing interference with the administration of justice, whether the interference is in particular civil or criminal cases, or take the form of attempts to depreciate the authority of the Courts themselves. It is sufficient to say that such interference, when they amount to contempt at court, are criminal act and orders punishing them should generally speaking be treated as orders in criminal cases and leave to appeal should only be granted on the well known principles on which leave to appeal in criminal cases is given." 54. Lord Atkin in that case also approved and -applied the law laid down by Lord Russel of Killewen, C. S. in R. v. Gray, (1900) 2 GBD 36 stating. "Any act done or writing published calculated to bring a Court or a Judge of the court into contempt of lower his authority is a' contempt of court. That is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with the for administration or course of justice or the (awful process of the court is a contpmpt of Court." 55. The learned Standing Counsel also relied an s Division Bench decision- of this Court in Hembala Dasi v, Sunder Shaw, particularly relied on the observation of Chakravsrtti, K, J, saying that omission to specify the alleged act of ecantff-tempt in the notice of motion would not entail a ns-missal of the motion, even though it was desirable to give the particulars of the contempt charge in the notice of motion itself. Reference was also made to a learned single Judge's decision reported in Harikissen Khetry v. farrukh Sayer, 66 Cal WN 983. 56. Arguments were advanced from the Bar both an behalf of the contemnor as well as on behalf of the State on the paint how far this Court can commit for contempt of its subordinate courts. On the basis of certain decisions such as Kochappa v. Sachi Devi, ILR 25. Mad 494 it was argued that a district Court is not court of record and as such has no inherent power to commit for contempt. That argument is beside the ooint, because it is not the district court which is trying this case for contempt, but it is this High Court which is trying this case for contempt of its subordinate court. 57. In the Full Bench decision of the Allahabad High Court in Re: Abdul Hasan Jauhar it is laid down that the High Court as a court of record and as the protector of public justice throughout its jurisdiction has power to deal with all contempts directed against the administration of justice, whether those contempts are committed in faca of the court or outside, and independently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning Itself or whether they relate 'to proceedings concerning Inferior courts, and in the latter case whether these proceedings might or might not at some stage come before the High Court." 58. Sulaiman J. at pp. 722-23 (of ILR All) : (at .pp. 628-629 of AIR) observed as follows: "The real question which requires consideration is whether the High Court has jurisdiction to commit for contempt of an inferior court. Inferior courts in these provinces, not being King's courts, have no jurisdiction to commit for contempts not perpetrated in facie curiae They cannot punish contempts committed'out of court: Rule 26 Mad 494. If therefore the High Court also were to have no power to punish such contempts, they would go altogether unpunished, unless in particular cases they came within the provisions of the statutory penal law. 'The High Court has a general superintendence over its civil courts and watches over their proceedings, not only to prevent their exceeding their jurisdiction or otherwise acting contrary to law, but also to orevent interference with the course of justice in1 such courts. It would seem at first sight that a High Court of Justice, being the highest court in the land, and yet without power to vindicate the dignity of its subordinate courts and to protect officers of such courts, would be an anomaly which could hardly be permitted to exist in a civilised country. With- our such protection subordinate courts would soon lose their hold upon public respect and the maintenance of law and order would be rendered extremely difficult. The question, however, has become one of some difficulty because of a conflict of opinion that has prevailed in India." 59. There was some' doubt about the jurisdiction for contempt when such contempt related to contempt of subordinate courts, But the Contempt of Courts Ad 1926 and the present Contempt of Courts Act 1952 have made the position clear. Section 3 of the Contempt of .Courts Act 1952 provides power to the High Court to punish contempts, of its subordinate courts and reads as follows: "(1) Subject to the provisions of Sub-section (2) every High Court shall have end exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself. (2} No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such, contempt is an offence punishable under the Indian Penal Code." 60. Section 3 of the Contempt of Court's Act 1952 therefore empowers the High Court to punish far contempt of all the subordinate courts in the same jurisdiction, powers and authority as it has in respect of contempt of itself. 61. Article 215 of the Constitution of India declares that "Every High Court shall be a Court of record and shall have all the powers of such a court including the power to punish for contempt of itself." This Srti-cle of the Constitution read with Section 3 of the Jontempt of Courts , Act 1952 now empowers this High Court to punish for contempt not only of itself but all contempts of couris subordinate to the High Court, and invests the High Court with the same jurisdiction, powers and authority in accordance with the same procedure and practice. 62. This position was recognised by the Supreme Court in Bathina Ramkrishna Reddy v. State of Madras, pointing out to the fact that Section 2(3) of the Contempt of Court's Act 1928 excludes the jurisdiction of the High Court to take cognisance of contempt alleged to have been committed in respect of a court subordinate to it only in cases where the acts alleged to constitute contempt are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. 62a. The Supreme Court in Sukhdev Singh v. Teja Singri, AIR 1954 SC 185 lays down that the Code 'of Criminal Procedure does not apply in matters of contempt triable by the High Court and the High Court can deal with it summarily and can adopt its own procedure. All that is necessary is that the procedure should be fair and that the contemner is made aware of the charge against him and given 3 fair and reasonable opportunity to defend himself. 63. On the above case law and on the basis of the Article 215 of the Constitution read with Section 3 of the Contempt of Courts Act 1952, I am of the opinion that this Court is the custodian of the dignity and majesty of law in this State concerning not only this Court itself but also all courts subordinate, to this Court. In this case the District Magistrate by his act and conduct, stated as above, made it impossible for the subordinate Judge of the district of Nadia to hold his court and to perform his judicial duties, publicly humiliated him in trie very area of his jurisdiction and trought the [earned Judge and his court down in the estimation of the public. This I court therefore holds the District Magistrate guilty of I contempt of the subordinate Court. 64. At this stage, it will be appropriate to dispose of some technical points of objection. They are raised tf paragraph 3 of the- first affidavit of the District Magistrate affirmed on 26th February, 1964. Mr. Deb, the learned Counsel appearing for the contemner has act really pressed these points but has asked us to clarify the procedure for the future in contempt proceedings. 65. in the first place it is said that this rule should not have been issued in its criminal revisional jurisdiction. This point has really no substance. The practice and procedure of this court have long been well settled, ever since the time of Ranhin, C. J. On the 18th May 1953 Chakravartti, C. J. in Criminal Misc. Case No. 63 of 1953 passed the the following order, which indi-eatets the position: "Cases for contempt of a subordinate court which may be reported to this Court are to be dealt with judi-cially and under a standing order passed by Rankin C. I. recently repeated ,by Harris, C. J. they are to be dealt with by the Division Bench taking criminal matters. So place the papers before that Court." 66. Chakravartti, C. J. further clarified this order by an administrative direction on the 29th July, 1957 as follows: "I therefore, direct in modification of the previous orders on the subject that, in so far as the Appellate Side is concerned, applications relating to contempt moved before this Court, invoking its "special jurisdiction" shall in future be dealt with by the Criminal Section or the flule and Miscellaneous section according to the alleged contempt for which process is prayed is a criminal or a civil contempt,". 67. The jurisdiction for dealing with contempt is clear and settled now. No doubt, the High Court has 'inherent' jurisdiction for contempts of itself. In a sense "this is a special jurisdiction, but appropriately this is called the inherent jurisdiction special to the High Court. But this preset matter relates to contempt of a subordinate court and subordinate Judge in the district and the jurisdiction in respect thereof is now contained in . 'Section 3 of the Contempt of Courts Act 1952. This jurisidiction can therefore be said to be -Statutory. Rule 2 chapter 4 of Part II of the Appellate Side Rules as well as the Original Side Rule in chapter 38 deal with applications for contempt and provide that such applications should be marked or headed "special jurisdiction" with the subject-matter described as "contempt of court". But when the court acts suo motu and not on 'application' these rules do not strictly apply. The criminal Bench of this Court exercising Criminal Revisional Jurisdiction is an appropriate Bench so far as contempts of subordinate courts are concerned because it can be said to be the Bench exercising criminal revisional jurisdiction over the entire State and its subordinate courts. The contempt in this case is aiso not a civil contempt but a criminal contempt according to the decisions which "we have already discussed above. Therefore, trie heading 'Criminal Revi-sibnal Jurisdiction' cannot be said to be inappropriate. Besides, such cases as a matter of practice are also i marked as Miscellaneous cases. 68. The second technical point urged is that His State has no right to be represented and the affidavits filed on behalf of the State ought not to be treated or read as evidence in the case or otherwise used in these proceedings. The third point may aiso. be tanen togetner with this. It is that because the matter appears as "the State v. The District Magistrate of Madia and another", the State is unable to defend the contemnor in these proceedings through its iaw officers and thereto the Advocate-General is also unable to appear for him and it was submitted that as a matter of importance tt tjje contemnor as an officer of the State he should be officially defended. This third point was actually not pressed by Mr. Deb appearing for the District Magistrate and, in fact, dropped, 69. Taking these two technical points togethar, here again' the administrative orders and the practice ot this Court have been long settled. The latest is the offise order dated 1st February, 1964 authenticated by the Registrar of the Appellate Side of this Court which reads as follows: "The Hon'ble the Chief Justice has been pleasad to direct that, until farther orders, on tHe grant of a tale of this Court ini other criminal revision case, a copy of the rule and the connected petition, shall be served nn the Superintendent and Remembrancer of Legal Affairs, West Bengal." 70. The reasons for making the above order will appear from the Registrar's note before the Chief Jus tice, dated the 31st January, 1962, stating as follows- "The Superintendent anu Remembrancer of legal Affairs approached the Court in August, 1961 with vhe request that the Rule and the connected petition in other criminal case should be served 'on him' to enable him to arrange1 for representation of the State in important cases. Copies of Rule and connected petition may, if your Lord ship approves, be henceforth served on the superintendent and Remembrancer of Legal Affairs." On broad principles this Court considers that, the State is as much interested in1 upholding and maintaining the dignity of the Court, the majesty of law and the Judiciary and in preventing contempts of court and as siren it is only appropriate that the State should have notice of contempt proceedings. See also Rule 2, Chapter II, Appellate Side Rules. The Affidavit filed on behalf of the State, against which complaint is made is an affidavit by the Assistant Legal Remembrancer who was directed only to disclose the correspondence in his office and record in this matter relating to this contempt. The affidavit only produces the papers and correspondence receievd by the office of the Legal Remembrancer, Government of West Bengal from the Secretary, judicial Department. In the facts of this case that was a necessary course and the objection is unfounded and without substance. The state as siren has made no affidavit for or against the flule. Whether this particular contemnor because be is a District Magistrate and officer in the State is entitled to be defended by the Government is a matter for the Government, if may be remembered that Harris, C. J. hold- ing a District Magistrate guilty of contempt observed In the case presently to be- referred: "fortunately no costs have been incurred, otherwise we should have had no hesitation whatsoever in direct-ing this Magistrate personally to pay the costs of the proceedings." 71. So far as the title of a contempt proceeding is I concerned this court considers that the most appropriate title would be "In Re Contempt In Re: the name of the contemnor" instead of the State v. So and so unless in any particular application the State or any other applicant itself moves for a rule in contempt, in which cass the title "State or the applicant (name) v. So and so'1 may be adopted with propriety. 72. The last technical point is that the Rule is said not to specify the exact contempt and the charge. This point also has no substance. The publication in the paper 'Bidyut' set out clearly the acts of contempt namely, (1) driving the Jirdge out of the Circuit House, (2) in making it impossible for the Judge to hold his court and compelling him to leave his station of justice and, (8) bringing down the Judge in the estimation of the local public. On the authorities discussed that is sufficient, See also on this point the observations of the Supreme Court in AIR 1954 SC 186, already mentioned. 73. Before conclusion we would revert to the fact of the two Principals of the educational institutions subs cribing thsir signatures as witnesses to the inventory which took long three hours' time in the Circuit Houss and how they were present for such a long time. The following letters have been sent to the Record of this court through the Additional District Magistrate of Nadta. They are:' "[1) No. 100 CG: To The Superintendent and Remembrancer of Legal Affairs, Government of West Sengal, Calcutta 1. Dated Krishnagar, the 5th March, 1964. Sir, The inventory of articles found in the Circuit House on 22-1-1964 and the order of the Magistrate will be found in the case record. The time taken for making the inventory of the articles will be found on the last psge of the inventory. The circumustances under which the two Principals attested the inventory of articles may be seen from their letters which are enclosed in original. Yours faithfully, A. Sen, 5-3-64 Addl. District Magistrate, Madia. (2) No. 733 D/- 5-3-1964 Krishnagar College Krishnagar, Nadia West Bengal. To Sri A. Sen. I.A.S,,' Addl. District Magistrate, Nadia, Krishnagar. Ref: Your letter No. 99-CG\|2J D/- 4th March, 19 W, Sir, I went to the Circuit House, Krishnagar on 22-1-1964, after my office work, to meet Sn Rahaman, Hon'b!e Minister, West Bengal in connection with a meeting of the Nadia District Peace Steering Committee to be held, on the following day. A copy of the notice of the meeting is enclosed. As I was about to leave the Circuit House after having a discussion with the Bon'ble Minister, I was requested by some members of the staff, of the Nadia Collects rate to attest a list" of articles expected to bo inside one of the rooms of the Circuit House, which was locked and was to be broken open. 1 was at first hesitant as 1 did not want mysif to be dragged into this matter. It was then ascertained from Sri Bakshi, Sub-Deputy. Magistrate, Krishnagar, that the responsibility in this matter was not mine and 1 was to act merely as a formal witness. Thereupon I attested the inventory of articles, Yours faithfully, A. K. Mazumdar Principal, Krishnagar College, To Sri A. K. Majumdar, Principal, Krishnagar Government College. The Hon'ble Shri S. M. Fazlur Rahaman, Minister-in- Charge, Departments of Animal Husbandry, Veterinaiy Ser vices, Fisheries and LS.G. has expressed his desire to meet the members of the District Peace Steering Corfl- mrtt-'e on 23-1-1964 at 9-00 A. M. in the Nadia district Board Hall You are requested to attend. Convener, S. M. Badaruddin, 21-1-1984 (S. M. Badaruddin) Attested A. K. Mazumdar, Principal, Krishnagar College. (3) No. D.O.'9 (Con)/ll: R. K. Banerjee, Principal, B. P. C. Institute of Technology. Dated 4th March, 1964. Confidential. Dear Sri Sen, You wanted to know as to why and how I had been at the local circuit hoirse on 22-1-64 in the afternoon. write to inform you that on my way to the club. I met Principal A. K. Majumdar on that day. Phncbal Majumdar was going to meet Hon'ble Minister Sn F. Rahaman at the circuit house in connection with the meeting of the Peacp Steering Committee with the Minister scheduled to be held on the next day. He reduested me to accompany him to the circuit house and I conced-ed to his request and that is how and why I went to the circuit house. Yours sincerely, Sd/- R.K. Banerjee, 4/3 To Sri A. Sen, M.A., I.A.S., Addl. Dist. Magistrate, Nadi'." .................... 74. The explanation does not seem to this Court Impressive. The Peace Steering Committee was to meet on the 23rd January and much remains unexplained why Principal A. K. Majumdar of Krishnagar College should not only be going to the Circuit House a day earlier but alSB Why he does not say how he picked up another chance witness on the way, witness Banerjee, Principal, B. P. C. Institute of Technology, who says in his turn that on his way to the club, Principal Majurndar met him and requested him to accompany him to the Circuit House. We do rot propose to take any further notice of this Fact except by making the observation that this Court will hope that in future, educational institutions and' their responsible heads will not permit themselves to be Involved in this kind of a situation. 75. Last comes the question of punishment for this contempt. Section 4 of the Contempt of Courts Act 1952 provides as follows: "Save as otherwise expressly provided by any jaw for the time being in force, a contempt of Court may be punished with simple imprisonment for a term which nay extend to six months, or with fine, which may extend to two thousand rupees, or with both; Provided that the accused may be discharged or the -punishment awarded may be remitted on apology being made to the satisfaction of the Court: Provided further that 'notwithstanding anything elsewhere contained in any law for the time being m force, no High Court -shall impose a sentence in excess-of that specified in this section for any contempt either in res-pret of itself or of a Court subordinate to it." 76. The acts complained of are in the present case deliberately and highly contemptuous, contumacious, hum!-liatng and deliberately p'anned and executed. No Dls* trict Magistrate in the history of public administration in India had the temerity to humiliate and pursue a Judge to public disgrace to the extent and manner that this District Magistrate has dote. This District Magistrate was condemned both by the learned Standing Counsel for the State as well as by his own Counsel as "arogant and Impertinent". His own counsel described him as 'pig-headed". His defiance is Unprecedented. He defied the. Rides of the Circuit House. Ho defied the orders of his superior, the Member of the Board of Revenue. He defied the Chief Secrptary of this State. He defied the administrative directions conveyed through the Registrar of this Court. He was a law unto himself and took ail law in his own hands and broke it. That he broke decency, responsibility and the minimum standards of public behaviour of one Gazetted Officer towards his 'ellow brother officer makes this contempt all the more grave. This District Magistrate is immature and young hE has not been in service for even ten years having joined the IAS in 1955 and being in training at the I.A.S. Training School until April 1956. He was posted to the high and responsible office of a District Magistrate 'in May 1952 when he was barely six years in service. Posting of immature officers in charge of a District is- a very risky end dangerous course, A District Magistrate has to perform -highly responsive duties and in the present context cf a constitutional democracy in India he has to handle many complex and delicate problems. He must be a person whose public relations have to reach at ferer-minimum standards of human behaviour. If his brother officer receives siren treatment one shudders to think now the ordinary private citizen will be treated by him- fliis ^District Magistrate is far too inexperienced his office record shows that he was an Assistant Magistrate at Berhampore from May 1956 to the middle of 1957 and was a S.D.O. in Tamluk district of Micinapore from middle of 1957 to 1958. He worked for some time as an Assistant Settlement Officer of Darjeeling from May 1958 to March, 1959 and a Settlement Officer and Superintendent cf Surveys of North Bengal and adjoining areas fram April, 1S59 to July, 1960 and in some other districts as such settlement officer and Superintendent of Surveys from July, 1960 to October, 1981. His only experience as a Magistrate, was as Additional District Magistrate in Murshidabad for only one month from March, 1962 to April, 1962 before he was given the sole responsibility of being a District Magistrate of Nadia from May, 19S2. Such a course in the tradition of the administration was unthinkable and is undesirable in public interest, when many senior and experienced State executive service officers are available. No officer in that tradition, however brilliant got Sole charge of a District Magistrate unless he had done at least double the number of years of service that this District Magistrate has done and unless he had been an Additional District Magistrate at least in two districts for a reasonable length of time to acquire-' knowledge, experience and responsibility. This Court cannot help making the comment that such trial should be avoided in future in order to prevent this unseemly ugly-public exhibition of magisterial high handedness. 77. In his first affidavit this District Magistrate netther expressed "regret" nor "apology", in paragraph 31 of his affidavit all that he said on this point was "I have had no intention ever to act in any way which could be-even remotely regarded as contempt ot court. If I nave done any act which can in any way be regarded contempt1 of court, I have done so without the least intention of committing any contempt and without appreciating mat it was a contempt, for which I am sincerely sorry." lathe glaring context of ugly facts this Court cannot ^ake the above statement as an expression even of regret or apology. If a public officer of the status and responsibility of a District Magistrate by turning the Judge in ni& district out of the Circuit House publicly, when he had no other shelter or place to live in by publicly seizing' 'his goods, by making an inventory of them before public witnesses, by despatching them to the Police Malknana and by making it impossible for the Judge to be in the district to perform his Judicial functions, did not even , realise that he was committing contempt of the subordinate Court and says he had no intention of doing so, then this court is constrained to remark that such a jer-son should not be in such a responsible position whose sense of appreciation and understanding is so sadlp-limited. 78. At the very last moment, and on the very ast day of hearing of this Rule for contempt a certain sense of responsibility appears to have dawned upon this. Dis trict Magistrate. He made an affidavit on the 6th March, 1934 wherein he said in paragraph as follows: "I had no animus against Shri M. Roy and the entire matter was distressing to me. I haw the deepest respect for this Hon'ble Court and the courts subordinate to it and I realise that I should have avoided doing any act which could have been considered even as an occasion for the issue of a rule tor tlie contempt of court against me and for this 1 express my most sincere opo-logy. 1 have and had no intention ever to act in any manner which could be even remotely regarded -as savour ing of contempt of court. If I have done any act which could in any way be regarded as contempt of court, I have done so without the least intention of committing any contempt and without appreciating that it was a contempt for which I express my sincere apology." 79. The first proviso to Section 4 of the Contempt jf Courts Act, 1952 says that "The accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of this court. The apology in this case has been very slow,' hesitant and,tardy. On the present facts of gross contempt, un-, precedented as they are, this Court considers that the proper punishment for this District Magistrate would be a sentence of a fortnight's simple imprisonment. If peresons committing such gross contempts of court were to get the impression that they will get off by ultimately tendering an apology, however slow and tardy it mig'nt je, then that would be a most unfortunate state of affairs, The law of apology and its acceptance by court ;s not in doubt. The fact of apology must be dear. The apology must be real and sincere. 80. Acceptance of an apology by a court is'not a matter of course. The language of the proviso to Sec-I tion 4 of the Contempt of Courts Act, 1952 makes it clear that the apology has to be to the "satisfaction of [the Court". Because an apology is offered the Court is not bound to accept it. A Court certainly can refuse to accept art apology if it is not to its "satisfaction" or when it is not genuine. It should be tendered at the earliest opportunity. The apology must be unequivocal I and not hedging and hypothetical. Mahajan, C. J. in M. Y. Shareef v. Hon'bie Judges of the Nagpur High Court said on behalf' of the Supreme Court in , "An apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to be a univarsal uenacea, but it is intended to be evidence of real cor;-'iriteness." The test of apology is the "real contrite- ness". In the case of English Mail In Re. Claridge, 14 Bom tR 231, where a rule was issued against the editor, the editor offered apology qualified by the words "If the Court is of opinion that any part of the paragraph would prejudice Khan of Hoti". The Court through Davar, J. at p. 233 of the Report observed "This the respondents have no right to ash. The' Court's opinion would not, be expressed till after the respondents had done what they "may be advised to do or what they may think fit to do at the arguments of Ins Rule." it has been said that apology is not a magic formula of words which has to be uttered as an incantation at the last possible moment when all else had failwl and to be used to stave off the inevitable punishment. See the observations of Vivian Bose, J. in the case of Sub-Judge, First Class, Hosangabad v. Jawharlal Ramcha'id, AIR 1940 Nag 407, where the learned Judge observed as follows at p. 408: "It appears to be felt that a man should be free to continue unfounded attacks ..... .and then when he is unable to stave off the consequences of his infamous conduct any longer, all he need do is to wave this magic formula referred to as an apology in the lu'dge's face in order to emerge triumphantly from the fray, Nothing can be further from the truth." Again in the same case at pp. 408-9 the learned Judge analysed the nature and purpose of apology in these words with which we respectfully agree; "An apology is not a weapon of defence forged o purge the guilty of their offences. It is not an additional Insult to be hurled at the heads of those who have bean wronged. It is intended to be evidence of real contrite-ness, the manly consciousness of a wrong done, of in injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power. 0% then is it of any avail in a court of justice. But before it can have that effect it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology; it ceases to be the full, frank, manly, "coafession of a wrong done which it is intended to be. It becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards and bullies wjio do nqt hesitate to threaten others and to impugn their nonesty and character without the slightest foundation and who cringe and wail when their own safety is at stake, are treated. However, I do not intend to make a point of this in this case because of the misconception which is prevalent in these parts about the meaning, nature and effect of an apology; nor of course am I Intending to lay down any universal rule or to ignore the proviso to' S. 3, Contempt of Courts Act of 1926. I refer to the matter in these strong terms only in order that there ishould be no misconception about apologies in the future and aboiA the practice In respect of the tendering of them, and in order that there should be no possible mistake about my meaning and attitude. Mere lip service to a formula without any contrition of heart will not do." 81. The Allahabad High Court points out in Lal Behari v. State that apology is not a convenient service to be used by a person driven and compelled by the logic of events to resort to a measure which seems to him to provide the only mode of escape From the impending doom or as a last desperate throw in a game of chance hazarded by him at a time when ail else has failed and everything seems to be lost. We have anxiously considered whether this belated, dubious and graceless apology in the present case can be said to be to the satisfaction of the Court within the strict meaning of the great principles laid down regarding the nature and character of apology, just discussed. Not without hesitation we have decided to accept this apology for the limitetd purpose of only remitting the punishment' that we have considered proper. 82. The records have been so eloquent in this case that there is even a letter on record showing the approach of this District Magistrate to the Divisional Com- missioner who went to the length of describing that the contempt was a "reprisal" to the District Magistrate's action. This notorious word appears in the letter of Mr. R. Banerji, I.A.S. the Commissioner of the Presidency Oivision to the Cfcief Secretary dated the 4th February, 1964 which is annexed to the affidavit of the Assistant Legal Remembrancer before us. To meet this "reprisal" this Commissioner of the Division commends this District Magistrate as "dutiful civil servant" deserving to oe defended at public cost of the Government. It is needless to say this Commissioner of the Division while as District Magistrate of West Dinajpore was once himself convicted of being guilty of contempt on the 13th February, 1951 by Harris, C. J. and Shambhunath Banerjee, J. with the following words: "The District Magistrate wasj guilty of a clear contempt and we find him guilty of the contempt charged. 8ut for the fact that an unconditional apology has oeen offered on behalf of the District Magistrate concerned, we should have "taken a very serious view of this case. We do not however in view of this apology propose to inflict any punishment. Fortunately no costs have been incurred, otherwise we should have had no' hesitation whatsoever in directing this Magistrate personally to pay the costs of this proceedings. Rule is made absolute accordingly." These observations were made in the Criminal Misc. Case No. 17 of 1951 (Cal). Even during the trial of this case the public spectacle before the court was the pre-' sence of Magistrates who came and attended in appreciable number giving the impression to the public, that it was trial between the Executive and the Judiciary and that it was not a case but a cause and a campaign, It will be a sad day for India and her constitution if this is a true state of affairs, where two'equally necessary and indispensable limbs1 of the State, the Executive and the Judiciary, instead of responsive reciprocity and understanding of the common cause of alike serving the State, were to engage in a trial of strength and power. Constitutional democracy means checks and balances and rot internecine competition of powers between the necessary organs of the State. The constitution of an Indian Judicial Service line the Indian Administrative Service :tiay help the much needed climate of parity of understanding beetween these two essential wings of public service in India. The Court has in view the decision of the Supreme Court in , where Mahajan, C. J. at p. 765 (of SCR) : {at p. 23 of AIR), observed: "Once the fact is recognised as was done fcy the High Court here, that the members-of the Bar had not fully realised the implications of their signing such applications and were formally under the belief that their conduct in doing so was in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under' the mistaken view of their rights and duties, and in such* cases even a qualified apology may well be considered by court." The present case however can be distinguished in- many ways from the above case which dealt with (1) members of the bar with forty years' experience, (2) a single instance of signing one solitary application, and (3) debatable question of conflict of professional ethics between duty to the court and duty to the client. 83. On the same facts and on the same reasons [his Court holds the Nazir also guilty of contempt and sentences him to a fortnight's simple imprisonment but we remit that sentence wG make no order for costs against the Nazir because he acted under the orders "of the District Magistrate. 84. This Court however will continue to do its duty and administer justice and if possible, to temper it witn mercy. Having regard to the utter immaturity displayed by this District Magistrate, having regard to his extreme youth, which we hope will be better employed in the public service elsewhere not as the ruler of a district, and having regard to the apology which he has ultimately tendered on the last day of hearing of the Rule and at its conclusion, this Court makes the following order: "This Court makes' the Rule absolute and holds this District Magistrate guilty of gross contempt of the subordinate court, sentences him to a fortnight's simple imprisonment but out of mercy to him remits that punishment by accepting his belated apology under the first proviso of Section 4 of the Contempt of Courts Act, 1932. The Rule is therefore made absolute accordingly fcy holding (1) both the District Magistrate and his Nazir guilty of the contempt charged, (2) by sentencing each to a fortnight's simple imprisonment, (3) by remitting the sentence in each case by accepting their respective apologies and (4) by directing the District Magistrate in these proceedings to bear and pay his own costs and the Nazir's costs personally.' R.N. Dutt, J. 85. I agree.	[ 1569253, 445276, 192717, 445276, 515323, 1916227, 890137, 1396751, 1121027, 701797, 1569253, 1121027, 207538, 27473, 1737746, 1569253, 1569253, 1569253, 207538, 1121027, 1121027, 216552, 1222272, 1222272, 701797, 1396751, 1319749, 1121027, 1396751, 1413122, 1222272 ]	Author: P Mukharji	216,552	The State vs Debabrata Bandopadhyay, Dist. ... on 24 April, 1964	Calcutta High Court	31
	[]	null	216,553	[Section 39] [Complete Act]	Central Government Act	0
(i) No person shall be eligible for election or as a President or election or nomination as a Councilor if he has directly or indirectly any share or interest in any contract with, by or on behalf of the Council, while owing such share or interest; or (j) has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election or (nomination) is held or made within thirty days of receipt of a notice of demand made in this behalf by the Chief Municipal Officer. ORDER S.K. Pande, J. 1. This revision under Section 26 of the M.P. Municipalities Act, 1961 (hereinafter referred to as the "Act" for convenience), is directed against the order dated 14-10-2000, passed by ADJ, Beohari in Election Case No. 1/2000, whereby the election of the petitioner Indrajeet Singh to the post of Councilor, Nagar Panchayat Jai Singh Nagar was set aside. 2. The petitioner Indrajeet Singh and respondent Jagdish Prasad were the contestants of the election of Nagar Panchayat, Jai Singh Nagar, held in December, 1999. Petitioner Indrajeet Singh submitted nomination form from Ward No. 9. At the time of scrutiny, the respondent Jagdish Prasad raised an objection to the validity of the nomination of petitioner Indrajeet Singh. It was submitted that petitioner Indrajeet Singh has entered into a contract of supply of building materials to Nagar Panchayat, Jai Singh Nagar and is in arrears of dues. Ignoring the objection aforesaid, petitioner's nomination was accepted. Petitioner-Indrajeet Singh was declared elected by a margin of 8 votes. Respondent Jagdish Prasad submitted Election Petition under Section 20 of the Act stating inter alia that the petitioner was a contractor with the Nagar Panchayat, Jai Singh Nagar and as per audit report, a huge sum is recoverable from him. As such, nomination should not have been accepted. On the basis of improper existence of nomination of the petitioner his election must be declared void under Section 22 of the Act. The petitioner resisted the election petition and stated that on the date of submission of nomination form, he was not having contract with the Nagar Panchayat, Jai Singh Nagar. No dues certificate has been issued to him on 3-12-99 certifying that he is not in arrears of any dues of Nagar Panchayat. No objection as to nomination was ever raised by respondent-Jagdish Prasad. Issuance of the demand notice by Nagar Panchayat after the election, is a malafide act and the election of the petitioner was not void, as stated. 3. The Court below has recorded a finding that there was contract between the petitioner and Nagar Panchayat, Jai Singh Nagar. As per the terms of contract as on the date of nomination, the contract was not concluded and the amount payable under it was even paid to him by delivery of cheques on 7-1-2000, 9-2- 2000, respectively. Therefore, treating the nomination of the petitioner being improperly accepted, set aside the election vide impugned order dated 14-10-2000. 4. Indrajeet Singh (D.W. 1) has stated that he had contract with the Nagar Panchayat which was of the years 1994-95, 95-96. As on the date of nomination, there was no contract between him and the Nagar Panchayat. Ex. D-1, no dues certificate was issued on him on 3-12-99. Dinesh Prasad (P.W. 2), an employee of Nagar Panchayat has stated that the contract was of the years 1994-95, 95-96. The work was carried out by the petitioner even in the year 1998-99. He was issued with the notice of demand (Ex. D-1) to make payment of Rs. 39,600/- as per the audit report. Indrajeet Singh (D.W. 1) has stated that the work order was issued to him on 1-1-98 and two months time was given to complete the work. The work was accordingly completed. In his cross-examination, Indrajeet Singh (D.W. 1) has stated that under the work order dated 1-1-98, payments were made to him on 9-2-2000 also. These payments were referred Ex. D-7 also a certificate dated 31-3-2000, issued by Nagar Panchayat, Jai Singh Nagar. Towards the work done under the contract, cheques dated 7-1-2000 and 9-2-2000 were issued to the petitioner Indrajeet Singh (D.W. 1). Dinesh Prasad (P.W. 2) has made it specific that towards the aforesaid contract, as per audit petitioner was required to pay Rs. 39,600/- to the Nagar Panchayat. Notices (Exs. P-2 and P-3) were served upon the petitioner on 4-4-2002. Accordingly, it has been amply clear that certificate dated 3-12-199 (Ex. P-1) as to no dues was issued without actually examining the report and the dues standing against the petitioner. In the final settlement the payments were made to the petitioner even on 7-1-2000 and 9-2- 2000 (Ex. D-7) as per audit the petitioner is required to make a payment of Rs. 39,600/-to the Nagar Panchayat, Jai Singh Nagar towards the contract entered into between him and Nagar Panchayat. 5. The dispute relating to dues had been adjudicated and quantified sum remained unpaid in spite of notice duly served upon the petitioner. It has been stated by the petitioner that once Ex. D-1, no dues certificate was issued and work was completed as per the work order dated 1-1-98, the contract extinguished. The final payment vide Ex. D-7 and audit objection cum demand (Ex. P-1) must not be treated in continuity. The judgment reported in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and Ors., AIR 1954 SC 236, is as under :-- (e) Representation of the People Act (1951), Section 7(d)--Contract for supply of goods--Continuation of. A contract for the supply of goods does not terminate when the goods are supplied; it continues in being till it is fully discharged by performance on both sides. It cannot be said that the moment a contract is fully executed on one side and 11 that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes it place. There is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on 'quantum meruit but if the other side contest and relied on the terms of the contract, the decision would have to rest on that basis (1905) 2 It R. 590, AIR 1931. 5. Section 7(b) of the Representation of People Act, 1951 defines the term of disqualification : (b) "disqualified" means disqualified for being chosen as and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. 7. Disqualification of the candidates under Section 35 of the M.P. Municipalities Act, 1961, is to be viewed with reference to the above definition of disqualified. Section 35 (1) (j) of the Act are as under:-- 8. Accordingly, it has been established that the petitioner Indrajeet Singh was a contractor of Nagar Panchayat, Jai Singh Nagar and the contract on the date of nomination dated 7-12-99 was in existence. Petitioner was required to make payment to the Panchayat and no dues certificate (Ex. D-1) was issued to him without taking into account the dues standing against him. Under Section 26 of the Act, revision against the impugned order is limited to the extent to see the legality of the decision being not contrary to law. The jurisdiction to entertain the petition under Section 20 of the Act was vested with the Court below and on facts and circumstances the finding recorded, vide impugned order is not contrary to law. Impugned order is affirmed. Revision fails and is dismissed. Parties to bear their costs.	[ 732821, 320017, 757933, 53008955, 146422906, 1016799, 1904694 ]	Author: S Pande	216,554	Indrajeet Singh vs Jagdish Prasad And Ors. on 7 May, 2003	Madhya Pradesh High Court	7
Court No. - 38 Case :- WRIT - A No. - 36703 of 2010 Petitioner :- Hakim Singh Respondent :- State Of U.P. And Another Petitioner Counsel :- Ashutosh Gupta Respondent Counsel :- C.S.C. Hon'ble Panka° Mithal,J. In the order dated 25.6.2010 words "respondent no.4" where ever occurring be deleted and substituted by the words "respondent no.2" and the time of two weeks for making representation shall be counted from today. Application No.177131 of 2010 is allowed. Order Date :- 2.7.2010 BK	[]	null	216,555	Hakim Singh vs State Of U.P. And Another on 2 July, 2010	Allahabad High Court	0
VV ' ii I __'£-'!,j+"a, Sanei:__4h,. Singari Bui lviing, Kaladka, Bantwal Taluk. IN THE HIGH cozmr ore KARNAT§K;A AT aANGf_AL'c1§;a:'_~ DATED THIS THE mm }:>Ay 05- DECEMBER" _écs@a~ BEFORE ._ _ " 'V THE HON'BLE MR. JUSTICE §HBHASH:3;=33fi A_¥_§§ELLANEOUS FIRST_§I'E_g§3AL ﬁo, "72§g f BETWEEN: National Insurance ' gna moor,Ganesh au1"id1_1ng;' " " B.C. Road. Banmal V 29.x. D1str1c_:'£,"'}:; 5'V .' A '''' ~ New 1 t4:'§:'.': ~ ' r Reg1o§sa.;.[VQff1;'£:z;e}1i:;:':,.._ V' " IIAIAP, (3--- £Z'..'=j5'\v5"', "g.., I . ,. Bangalojre-956000;."-.."-- ' '..Appel.lant.' ' _ (By? A,N; Kri shnaswamy, A. Sr}. . ' }§['bfahes§2ara, Adv.-5.} E can: 1 . i%!_oid_ﬁku.§.5.'Ly, S/cs _L_é;te Aﬁdul Rahiman," r _ , I . 'Agjcé abeut 39 years. D.£<.. District. ..2p°.. / _/§,,,.:-,9 »'V~'C ééagﬁ d" '"/(g'\' '~"xs_~:i.~:.r:+m fR'<f;1i.~:Ir:n* ...7[;;"/E ,7 1:13 '"02.u*r 0!" i<;"u'n:n.:k:- U22} 3,5,-aluri 5;}- r\,\ W"	[]	Author: Subhash B.Adi	216,556	National Insurance Co Ltd vs Moidukutty on 10 December, 2008	Karnataka High Court	0
W.P. No. 10252/2010 09.08.2010 Shri Sanjay K. Agrawal for the petitioner. Smt. A. Ruprah for the respondents. (i) Hon'ble Court be pleased to issue a writ in the nature of mandamus commanding (Krishn Kumar Lahoti) (J.K. Maheshwari) Judge Judge ap respondents to forthwith allot balance space to the petitioner for exhibition of hoardings, glow- sign and board as per terms and conditions of the agreement dt. 3/8/09. (ii) Hon'ble Court be further pleased to direct respondents to grant remission to the petitioner in proportion to the area not allotted to the petitioner for the aforesaid work. (iii) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition. At the out-set learned counsel for the petitioner submitted that the petitioner is making short grievance before this Court for issuance of direction to the respondents to decide representations Annexures- P-5 and P-6 which are pending before them since 11 th March, 2010 and 20th July, 2010. Learned counsel appearing for the respondents submitted that there is an arbitration clause in the agreement and the petitioner has issued notice for appointment of Arbitrator, which the respondents are considering. It is submitted that no directions are required in the case. As Shri Agrawal, learned counsel for the petitioner has made prayer for consideration of the representations Annexures-P-5 and P-6 by the respondents, we are not inclined to pass any order on merits of the case, but are directing respondent No. 2 to consider and decide representations of the petitioners Annexures-P-5 and P-6 expeditiously, as far as possible within 30 days from the date of communication of this order and communicate his decision to the petitioner forthwith. It is made clear that no opinion on merits of the case has been expressed by this Court and respondent No. 2 shall be free to decide and deal with the matter in accordance with law. With the aforesaid, the petition is disposed of. No order as to costs.	[]	null	216,557	M/S Deepa Advertising (A ... vs Secretary Union Of India on 9 August, 2010	Madhya Pradesh High Court	0
ORDER B.N. Kirpal and Syed Shah Mohammed Quadri, JJ. 1. There are two aspects which came up for consideration at this stage. One is dealing with the solid waste and the second is clearance of slums. The two are inter-related inasmuch as, as have been pointed by the Additional Solicitor General at an earlier point of time, and that is also borne out from the report of the C.P.C.B., the slums are generating lot of untreated solid waste and adding to the pollution. 2. As far as the treatment of solid waste is concerned, the affidavit on behalf of Bangalore City Corporation has been filed indicating therein the various recommendations contained in the Barman Committee Report and the response of the Commissioner, Bangalore City in respect thereof. With regard to the recommendation concerning the separation of the re-cycle able waste/non-biodegradable waste as well as domestic hazardous waste at source, the affidavit states that the Corporation has launched a scheme known as "Swachha Bangalore-Phasel". We are informed by the learned Counsel that about 60 health wards in the city have come under this scheme. The scheme envisages door to door collection of domestic waste by municipal workmen who are known here as Safai Karamcharis. We are further informed that in respect of another area, because there are no sufficient number of such workers available, the scheme of "Swachha Bangalore" is being worked by hiring private hands. Mr. Javali states that at the end of the day the cost of collection of one tonne of garbage through municipal employees comes to about Rs. 995/- per tonne per annum whereas through private hands comes to about Rs. 668/-. It, therefore, means that 50 per cent more expense is being incurred in collection of garbage through municipal employees. Mr. Javali submits that in view of this the Corporation is taking steps to see that there is no legal impediment in their way in entrusting the task of cleaning, scavenging and collection of waste through private contractOrs. A decision in this respect is for the Government to take and it is not for the Court to direct. 3. It appears to us that if a scheme like "Swachha Bangalore" can be successfully launched with satisfactory results in the metropolitan town of Bangalore, that can be and should be a role-model for other cities, especially Delhi. There is unfortunately no positive response or suggestion or innovative step taken in Delhi except to a large extent by the N.D.M.C. The response of the M.C.D. leaves much to be desired and the M.C.D. should consider and take benefit from the successful experiment of Bangalore and Calcutta. There is no reason why the large army of safai karamcharis of Delhi cannot be deputed to do door-to-door collection of garbage at least in the D.D.A. and other Government colonies to begin with. Mr. Maheshwari has submitted that this effort was tried in 1996 but it was unsuccessful. As to why it was not successful is not indicated and why it cannot be successful is not known. A similar effort of door-to-door collection should also start in the slum areas of Delhi as soon as possible in an effort to clean the same. An affidavit should be filed by the Delhi Municipal Corporation dealing with each one of the recommendations of the Barman Committee Report. 4. As we understand it, the door-to-door collection is not only mechanical but is also the responsibility of the Collectors to educate the people how to segregate the waste and to put it in different containers. 5. The N.D.M.C. in its affidavit has stated that efforts are being made to improve the sanitation and solid waste management in Delhi. The N.D.M.C. is stated to be over staffed spending 35 per cent of its revenue on pay, allowances etc. as against the world city standards of only 15 to 20 per cent. The high rate of absenteeism is stated to have been reduced amongst safai karamcharis from 30 percent to 15 per cent and it intends to reduce the same to a minimum of 10 per cent. The N.D.M.C. has stated that they should be permitted to challan the community like Residents' Welfare Association and Market Association as a group when it is not known as to from where waste has originated. How the waste is to be cleaned and who is to be identified and challaned, is for the N.D.M.C. to consider. It may do so in accordance with law. 6. As far as slum clearance is concerned, Mr. Raval, the learned Additional Solicitor General, has drawn our attention to Sections 3, 4 and 10 of the Slum Areas (Improvement and Clearance) Act, 1956 which shows that it is one of the functions of the Authority under the Act to take measures for slum improvement. He has stated that he will file an affidavit explaining as to how 700 J.J. clusters are on D.D.A. land. Prima facie it appears that vacant land lying in Delhi is an open invitation to encroachers notwithstanding the land having been acquired by Government Authorities, Delhi Administration and D.D.A. a number of years ago. The land has not been put to use as per the development plans of the D.D.A. Affidavit be filed by the D.D.A. giving explanation in respect thereto and where the land is available with the D.D.A. and the other authorities which is lying vacant it should be put to use in accordance with the provisions of the Master plan and the Development Plan within six months from today. If it is not possible to do so, the D.D.A. will give reason in respect thereto also indicating as to when the land, which is not being utilised so far, had been acquired. The M.C.D. which has filed Annexure-I to its affidavit at page 227, should indicate as to which are the agencies under the head "others" where 153 JJ clusters are stated to be stationed. Affidavits be filed within four weeks. I.A. No.../2000 (Filed in Court on behalf of Government of N.C.T. of Delhi) 7. Taken on Board. This is an application for clarification with regard to order reported as where in paragraph 9 at page 351, we have directed Government of National Capital Territory of Delhi to appoint Executive Magistrates under Section 20 and/or 21 of the CrPC. The learned Counsel states that it would be more effective if appointment of Municipal Magistrates under Section 18 is made. We clarify that our order does not preclude the appointment of Municipal Magistrates under Section 18 of the CrPC, if the Government feels that they will suffice the appointment of such Magistrates under Sections 20 and 21 of the CrPC need not then be made. The application stands disposed of. 8. Mr. Gopal Jain states that the petitioner will file a detailed Action Plan dealing with the future prevention of establishment of slums and unauthorised colonies. 9. Intervention application is dismissed. 10. To come up, with regard to the solid waste disposal in respect of Calcutta, Chennai and Mumbai, after two weeks.	[ 1376290, 1517584, 392619, 1020653, 445276, 1556590, 1337575, 1670661, 96507 ]	null	216,558	Almitra H. Patel And Anr. vs Union Of India (Uoi) And Ors. on 24 August, 2000	Supreme Court of India	9
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IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30107 of 2006(S) 1. SMT.K.M. THANKAMANY, ... Petitioner Vs 1. THE CHEIF POST MASTER GENERAL, ... Respondent 2. THE DIRECTOR OF POSTAL SERVICES, 3. THE SENIOR SUPERINTENDENT OF 4. THE ASSISTSANT SUPERINTENDENT OF 5. THE UNION OF INDIA, For Petitioner :SRI.K.P.DANDAPANI (SR.) For Respondent :SRI.JOHN VARGHESE, ASSISTANT SG The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :17/02/2009 O R D E R K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- W.P.(C) No.30107 OF 2006 ---------------------------------------- Dated this the 17th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The applicant in O.A.No.53/2000 before the Central Administrative Tribunal, Ernakulam, is the writ petitioner. She was a Postal Assistant working as the Sub Post Master of Thaikkattukara Sub Post Office during 1998. She was charge sheeted by the disciplinary authority for having fraudulently withdrawn amounts from the Recurring Deposit Accounts of three persons. 2. The allegations in brief were the following: i) She, on 28.8.1998, fraudulently withdrew Rs.13,000/- from R.D.account No. 86097 of Sri.N.J.George. ii) She, on 11.12.1997, fraudulently withdrew Rs.10,000/- from the R.D. account No.86354 of Smt.A. Jansi Ratnakumari. iii) She, on 20.5.1998, fraudulently withdraw Rs.6,000/- from the R.D. account No.86554 of Smt.Girija K.A. W.P.(C) No.30107/2006 2 Thus, she has failed to maintain absolute integrity and devotion to duty in contravention of Rule 3(1)(i) and 3(1)(ii) of Central Civil Servants (Conduct) Rule 1964. She denied the charges against her. So, an enquiry was held into the allegations. The Enquiry Officer found her guilty of all the 3 charges. The Disciplinary Authority accepted the findings of the Enquiry Officer, after examining the objections filed by the delinquent against the enquiry report. Disciplinary authority awarded the punishment of dismissal from service, which was affirmed by the appellate as well as the Revisional Authorities. Challenging those orders, Ext.P1 Original Application was filed. Those orders were produced as Annexure A9, A7 and A5 in the Original Application. She also challenged Annexure A3 Enquriy Report dated 28.1.2001. 3. The respondents in the Original Application, who are the respondents in this writ petition, resisted the application by filing Ext.P2 reply statement. They submitted that the punishment has been imposed on the applicant after following the due procedure and in accordance with law. The Tribunal, after hearing both sides, dismissed the Original Application. W.P.(C) No.30107/2006 3 Before the Tribunal, the applicant tried to highlight the non- supply of a few documents and contended that the disciplinary action was taken against her in violation of the principles of natural justice. She filed a petition dated 1.7.2000 for production of documents. The available documents were produced. Main grievance highlighted by the applicant was the non production of SB-3 Cards and Error Book, concerning the Recurring Deposits. SB-3 Cards contained the signatures of the depositors. Since they were not available, specimen signature book of the Post Office was made available. Later, another request was made on 23.8.2000 seeking production of five documents. Among them the non production of second document, which is the inspection report of Thaikattukara Post Office in the year 1998 and 1999, is highlighted. According to the applicant, the said report would show that there were no adverse comments in it concerning the relevant years. The documents, requested as per the petition dt.23.8.2000, were not produced for the reason that the said request was highly belated. The said stand was upheld by the Central Administrative Tribunal also. The C.A.T. noted that the request for production of documents made on 1.7.2000 was substantially complied with and the W.P.(C) No.30107/2006 4 request for production of documents made on 23.8.2000 was rightly rejected. Based on the above findings, the Original Application was dismissed. 4. The learned counsel for the writ petitioner canvassed before us the very same point concerning non production of the records requested by her. We agree with the findings of the Tribunal that whatever documents could be produced based on the petition dated 1.7.2000 were in fact produced. The petitioner has not pleaded what prejudice has been caused to her by the production of specimen signature book instead the SB-3 card. Regarding the documents sought, as per request dated 23.8.2000, the learned counsel for the petitioner submitted that non furnishing of the preliminary enquiry or investigation report has prejudiced him. But, we notice that preliminary enquiry or investigation is held to decide whether the incumbent should be charge sheeted or not. Thereafter, the action is proceeded based on the charge sheet. Whatever information is collected in the preliminary enquiry or investigation will be contained in the charge sheet and in this case, we notice that the petitioner has been served with three charges, which were clear and specific W.P.(C) No.30107/2006 5 and the reports of the preliminary enquiry or investigation were unnecessary to defend the charges. At any rate, no prejudice has been pleaded or proved. The non-furnishing of the inspection report of the Post Office for the year 1998-1999 also is of no consequence. Having regard to the nature of the charges, even assuming, there is no adverse comments in the inspection report, the same will not in any way help the petitioner. 5. So, we are of the view that the contention of the petitioner that the enquiry was held in violation of principles of natural justice, for not furnishing to her the copies of some documents as requested, is devoid of any merit. We find no reason to interfere with the view taken by the Tribunal. As rightly held by the Tribunal, no flaw in the decision making process, which prejudiced the petitioner has been brought out. We agree with the reasons and conclusions of the Tribunal on the above aspect. In the result the writ petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) ps	[]	null	216,560	Smt.K.M. Thankamany vs The Cheif Post Master General on 17 February, 2009	Kerala High Court	0
SBCWP NO.5746/2010 - ARJUN SINGH V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.5.7.2010 1/3 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.5746/2010 Arjun Singh Versus State of Rajasthan and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.H.S.Sidhu, for the petitioner DATE OF JUDGMENT : 5th July, 2010. JUDGMENT 1. Heard the learned counsel. 2. By Annex.2, candidature of the petitioner in the selection process of Prabodhak was rejected on the ground vide item No.8 in the impugned order that he does not hold the prescribed qualification of BSTC. 3. The learned counsel for the petitioner submits that he entered into the said course of BSTC in the year 2006 and passed out SBCWP NO.5746/2010 - ARJUN SINGH V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.5.7.2010 2/3 the same on 5.7.2009. The interview for selection on the post of Prabodhak were first held, according to the petitioner in para 5, on 19.2.2010 and again on 29.6.2010. The petitioner further stated in para 5 that " the petitioner acquired the qualification of BSTC at the time of interview and therefore, he was eligible to be considered for the post of Prabodhak. The learned counsel for the petitioner relying upon the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma V/s Chander Shekhar and anr. reported in 1993 Supp. (2) SCC 611 submitted that the qualification on the date of interview should be taken into account by the respondent - authorities as it was considered in better public interest to widen the choice of selection in the said manner. 4. From the perusal of para 5 and the impugned order Annex.2 dtd.31.5.2010, it does not appear to this Court that the petitioner ever informed formally or with some documents the respondents - authorities about the factum of his having passed the said eligibility qualification of BSTC in the year 2009. Mere acquiring of said qualification even if it was to be true unless brought to the notice of the respondents, the respondents authorities cannot be faulted in passing the impugned order Annex.2 on 31.5.2010 rejecting the candidature of the petitioner on the ground that the petitioner was not eligible as per the information given in the application filed in the year 2008. Para 5 does not specifically state that the petitioner SBCWP NO.5746/2010 - ARJUN SINGH V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.5.7.2010 3/3 brought it to the notice of the respondents that he has acquired the qualification of BSTC before the earlier round of interview held on 19.2.2010. 5. Consequently, this Court is of the view that this writ petition as has been framed cannot succeed. Accordingly the present writ petition is dismissed. No order as to costs. A copy of this order be sent to the respondents immediately. (Dr.VINEET KOTHARI)J. Item No.8 Ss/-	[]	null	216,561	Arjun Singh vs State Of Raj. & Ors on 5 July, 2010	Rajasthan High Court - Jodhpur	0
Gujarat High Court Case Information System Print CA/838420/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 8384 of 2008 In SECOND APPEAL No. 68 of 2008 ========================================================= HAFSABIBI WD/O RASULBHAI MOHEMMEDBHAI - Petitioner(s) Versus SAKINA WD/O ADBULREHMAN KARIMBHAI SHETH & 8 - Respondent(s) ========================================================= Appearance : MR MA KHARADI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 None for Respondent(s) : 1,1.2.6 - 5, 5.2.1, 5.2.2, 5.2.3,5.2.4 - 6, 6.2.1, 6.2.2, 6.2.3, 6.2.4,6.2.5 - 9. MR DR BHATT for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.7, 1.2.8, 1.2.9,1.2.10 ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/07/2008 ORAL ORDER Heard. This application is misconceived inasmuch as the respondent no.4 has expired before the first appellate court delivered its judgement. Civil Application stands disposed of accordingly. Second appeal to come up on 30.07.2008. (K.S. JHAVERI, J.) Divya// Top	[]	Author: Ks Jhaveri,&Nbsp;	216,562	Hafsabibi vs Sakina on 23 July, 2008	Gujarat High Court	0
Security Code Check for Accessing Judgment/Order Document eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document Security Code: GO Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer System designed and developed at Computer Centre, High Court, Allahabad.	[]	null	216,563	Israil Banjara And Others vs State Of U.P. on 6 September, 2010	Allahabad High Court	0
IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10617 of 2011 Randir Kumar Raushan Versus The Union Of India & Ors ----------- 02 06.07.2011 Nobody appears on behalf of the petitioner to press the application. Learned counsel for the respondent Union of India is present. Instead of dismissing this application in default, this Court grants one more opportunity. Post this matter in the same list after one week. ( Kishore K. Mandal, J. ) Sym	[]	null	216,564	Randir Kumar Raushan vs The Union Of India & Ors on 6 July, 2011	Patna High Court - Orders	0
	[]	null	216,565	[Section 5] [Complete Act]	Central Government Act	0
Court No. - 1 Case :- MISC. BENCH No. - 7084 of 2010 Petitioner :- Vedant College Of Education Ghaziabad Through Its Secy. Respondent :- State Of U.P.Through Its Prin. Secy. Higher Education Lko.An Petitioner Counsel :- Mukund M.Asthana Respondent Counsel :- C.S.C,S.P.Shukla,Vinay Bhushan,W.U.Ahmad Hon'ble Pradeep Kant,J. Hon'ble Ritu Raj Awasthi,J. List and connect with Writ Petition No. 8949 (MB) of 2008. In the meantime, the benefit of the order dated 30.09.2008 passed in Writ Petition No. 8949 (M/B) of 2008, shall be available to the present petitioners also, for the academic session 2010-2011. Office is directed to issue a copy of the aforesaid order passed in Writ Petition No. 8949 (M/B) of 2008 also while issuing a certified copy of this order. Order Date :- 28.7.2010 Sachin	[]	null	216,566	Vedant College Of Education ... vs State Of U.P.Through Its Prin. ... on 28 July, 2010	Allahabad High Court	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 16105 of 1998(P) 1. V.BALAKRISHNAN ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.C.P.SUDHAKARA PRASAD (SR.) For Respondent : No Appearance The Hon'ble MR. Justice P.N.RAVINDRAN Dated :21/05/2009 O R D E R P.N.RAVINDRAN, J. ----------------------------- O.P No. 16105 of 1998-P ------------------------------ Dated this the 21st day of May, 2009. J U D G M E N T This original petition was presented on 21.8.1998, claiming seniority over the third respondent and promotion to higher posts earlier than the third respondent. The original petition was admitted and notice ordered to the respondents on 24.8.1998. However the petitioner has not taken steps to serve notice on the respondents. Though the petitioner had taken steps to implead the third respondent in a representative capacity and had filed C.M.P.No.28656 of 1998 for taking out notice of the original petition by advertisement in a news paper daily, the petitioner did not take steps on that application also. Therefore, when this Original Petition came up for hearing on 19.9.2007, the learned Single Judge passed the following order: 2. However, till date, the petitioner has not taken any step to cure the defects. More than ten years have passed after the Original Petition was filed. In my opinion, as rightly noticed by the learned Single Judge, who passed the order dated 19.9.2007, it would not be just or equitable to call upon the third respondent to defend the writ petition at this distance of time. I am therefore constrained to dismiss this Original Petition for non prosecution. Ordered accordingly. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab O.P No. 16105 of 1998-P 3	[]	null	216,567	V.Balakrishnan vs State Of Kerala on 21 May, 2009	Kerala High Court	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 21125 of 2009(O) 1. KUNJUKRISHNA PILLAI, S/O. KUNJU PILLAI ... Petitioner 2. P.M.VIKRAMAN, S/O. MADHAVAN, Vs 1. MULAMOOTTIL LEASING AND HIGHER ... Respondent For Petitioner :SRI.A.SANIL KUMAR For Respondent :SRI.V.PHILIP MATHEW The Hon'ble MR. Justice S.S.SATHEESACHANDRAN Dated :25/08/2009 O R D E R S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21125 OF 2009 -------------------------- Dated this the 25th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To call for the records leading to Ext.P3 order in E.P No. 19/2007 in O.S No.373/1999 of the Munsiff Court, Punalur and set aside the same. ii) To direct the Munsiff Court, Punalur to reconsider E.P No.19/2007 in O.S No. 373/1999 and give an opportunity to the petitioners to adduce evidence in the matter within a stipulated time as directed by this Hon'ble Court. W.P.(C).No.21125 OF 2009 Page numbers iii) To direct the Additional Munsiff Court, Punalur to grant atleast 20 installments to pay the balance decree amount and till then Ext.P3 order issuing arrest warrant against the petitioners in E.P No. 19/2007 in O.S No.373/1999 may be kept in abeyance. iv) Issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. 2. Petitioners are the judgment debtors in E.P No.19 of 2007 in O.S No.373 of 1999 on the file of the Munsiff Court, Punalur. Decree in execution was one for money. In execution of the decree, pursuant to the steps taken by the decree holder, warrant was ordered against the judgment debtors / petitioners. Order passed by the execution court directing issue of warrant vide W.P.(C).No.21125 OF 2009 Page numbers Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice being issued, the respondent / decree holder has entered appearance. I heard the counsel on both sides. The learned counsel for the petitioners submitted that petitioners are prepared to discharge the decree debt by instalments as fixed by this court. It is further submitted, a sum of Rs.6,000/- on the decree debt has already been paid. Though the counsel for the decree holder has some reservation in allowing installments, having regard to the submissions made and taking note of the facts and circumstances presented, I find, judgment debtors can be allowed to discharge the decree debt in ten equal monthly instalments. Outstanding amount with interest and W.P.(C).No.21125 OF 2009 Page numbers cost, tentatively, calculated at Rs.35,000/-, and the petitioners are directed to deposit Rs.3500/- per month on or before 5th day of every month. In case 5th of the month happens to be a holiday, the instalment payment has to made in the next working day positively. In default of payment of one instalment, the decree holder shall be at liberty to proceed for recovery of the entire outstanding amount. Whatever be the outstanding amount due after payment by nine instalments the rest of the amount shall be paid in the last instalment by the judgment debtor. Payment of installment will commence from next month onwards. Subject to the above directions, Ext.P3 order is quashed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv	[ 1331149 ]	null	216,568	Kunjukrishna Pillai vs Mulamoottil Leasing And Higher on 25 August, 2009	Kerala High Court	1
Gujarat High Court Case Information System Print CA/14452/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR DELAY No. 14452 of 2007 ========================================================= GUNVANTIBEN B SANGHVI & 2 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR RAJESH K SAVJANI for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 - 2, 2.2.1,2.2.2 - for Petitioner(s) : 3, MS TRUSHA PATEL ASST.GOVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/07/2010 ORAL ORDER Learned advocate appearing on behalf of the applicants seeks permission to withdraw the present application with a liberty to file two separate Civil Applications for condonation of delay of 1266 days and 2809 days, respectively. Permission as prayed for is granted. Present application is dismissed as withdrawn with above liberty. Rule is discharged. No costs. [M.R. SHAH, J.] rafik Top	[]	Author: M.R. Shah,&Nbsp;	216,569	Gunvantiben vs State on 9 July, 2010	Gujarat High Court	0
JUDGMENT 1. This is a plaintiff's appeal, from the judgment and decree dated 5-1-1987 passed by the I Additional City Civil Judge, Bangalore in Original Suit No. 1501 of 1982, Mr. D. Victor v Mr. L. Sundaram, claiming for declaration of title and possession and mesne profits whereby the Trial Court has dismissed the plaintiff's claim in toto. 2. The plaintiff's case as per plaint allegations is that he is the absolute owner of house property No. 40 situated in Sy. No. 106 of Kodihalli, within the jurisdiction of H.A.L. Sanitary Board, Bangalore South Taluk. The plaintiff claims that he purchased the site in dispute namely No. 40 in Sy. No. 106, Kodihalli, now bearing No. 57, Postal No. 57, Murugeshpalyam, Bangalore-70 by a registered sale deed dated 13-11-1972. The plaintiff's case is that, plaintiff out of his self earned money constructed the house on the said site No. 40. After the construction of the house by the plaintiff, the plaintiff along with his father late. Sri David and Robinson his brother started residing in the house. The defendant, who was his uncle or to say younger brother of his father, had also been permitted to stay in the house along with them and this permission to reside was given to him to live in the house with the plaintiff and his father simply on account of the plaintiffs love and affection for the defendant who was none else than the plaintiff's junior father/paternal uncle i.e., as the defendant was 'chikkappa' of the plaintiff. The plaintiffs case is that, he had left the original sale deed or the title deed relating to house with his father and his father died on 19-6-1977. That after his father's death, in spite of best efforts, the appellant could not trace the original sale deed, thereafter he obtained certified copy of the sale deed. Plaintiffs case is that, notice of assessment was issued to the plaintiff with reference to his property. After the death of his father, defendant continued to be in permissive occupation of the premises along with the plaintiff's brother, as the plaintiff was undergoing great hardship in the rented premises therefore, he demanded the defendant to vacate the premises so that he could make use of suit-house and thereafter, plaintiff revoked the permission which had been granted to the defendant to occupy the suit property, by notice dated 24-6-1981. Plaintiffs further case is that the defendant gave a reply to notice and raised untenable pleas and contended that the defendant-respondent was residing and occupying the premises in his own right. The plaintiff as such, alleged that the cause of action accrued on 24-5-1981 for filing the suit for possession and declaration of title. The plaintiff has filed the suit for.- (a)the decree declaring the plaintiff to be the absolute owner of the property in dispute; (b)decree for recovery of possession of the schedule property from the defendant; (c)decree for past mesne profit together with interest thereon at the rate of 12% and for future mesne profits under Order 20, Rule 12. In addition to the above, the plaintiff has sought decree for costs. 3. The property in dispute has been described in schedule by the plaintiff as under.- "House property built on site No. 40 in Sy. No. 106 of Kodihalli, now bearing postal No. 57, Murugeshpalyam, in the jurisdiction of H.A.L. Sanitary Board, Bangalore South Taluk, Bangalore-560 017, bounded on the East by : Site No. 49 West by : Road North by : Road South by: Site No. 41. Measuring East to West 30 feet and North to South 40 feet". 4. The defendant contested the plaintiff's case and filed written statement. That the defendant denied the plaintiff's case and stated that, it is false to allege that the suit schedule property has been the self-earned property of the plaintiff or that suit schedule site has been purchased by the plaintiff out of his self earned money. The defendant denied that the house situated at the said site was constructed out of the self earned property of the plaintiff. The defendant asserted that he purchased the suit site and constructed the house thereon out of his own earnings with the help of one Cheluvaraj. The defendant-respondent further alleged that the suit site was purchased in the name of the plaintiff, but as a benamidar due to the sentiment of love to the plaintiff. That the plaintiff xvas treated by the defendant as his own son. Defendant's case is that the defendant's elder brother was residing with the plaintiff in his rented house. The defendant used to look after plaintiff as the son. Defendant's case is that, he after purchasing the site which is revenue site, had constructed the house in the year 1974-75 and thereafter, plaintiff's father along with the members of the family came to the suit schedule property to live there. The plaintiffs father was not keeping well and died in the year 1977 under the care of the defendant. The defendant pleaded that he got married the plaintiff in the year 1975. Defendant's case is that, the plaintiff has taken undue advantage of the benami sale deed in his name. He further alleged that, the sale deed had always been in possession of the defendant-respondent and the plaintiff knew it, but concocted the story of the documents having been misplaced. The defendant denied the plaintiffs case that, defendant was in occupation of the suit schedule property by virtue of permission from the plaintiff. The defendant further alleged that, it is false to state that the defendant's possession was permissive. The defendant asserted himself as the owner of the suit property and asserted his possession to be that of the owner and not in the nature of permissive possession. The defendant further asserted that the plaintiff has no title, right or interest in the suit property. He asserted that, there was no question of revoking of the permission on 24-6-1981 and the said notice was baseless. The defendant asserted that the theory of the permission was concocted one. Defendant asserted that the plaintiff has no right, title and interest over the suit property and his claim is to be nullified. He asserted that the plaintiff has nothing to do with the property and had no cause of action to file the suit. The defendant further asserted that the suit is barred by limitation. 5. On the basis of the pleadings of the parties, the Trial Court framed the issues which read as under.- 1.Whether the plaintiff proves his title to the suit property? 2.Whether the plaintiff proves, that the defendant is in permissive possession of the suit property with the permission of the plaintiff? 3.Whether the defendant proves that the suit property belongs to him and the suit site was purchased under the registered sale deed dated 13-11-1972 by him out of his own funds, benami in the name of the plaintiff as contended in para 4 of the Written Statement? 4.Whether the suit is barred by limitation? 5.Whether the plaintiff is entitled to recover a sum of Rs. 10,080/- by way of past mesne profits from the defendant?. 6.Whether the plaintiff is entitled to the relief of declaration of title and recovery of possession of the suit property from the defendant? 7.Whether the plaintiff is entitled to future mesne profits? 8.Whether the valuation of the suit and the Court fee paid thereon is not proper? 9.Whether the defendant is entitled to exemplary costs under Section 35A of the Civil Procedure Code? 10.What order? 6. On the basis of the evidence led by the parties and after having appreciated the evidence led by the parties, the Trial Court held.- (1)That the plaintiff has failed to prove his title to suit property. (2)The plaintiff has failed to prove that the defendant has been in permissive possession of the property in suit with the permission of the plaintiff. (3)That the defendant has established that the property in dispute belonged to the defendant and the suit property was purchased under the registered sale deed dated 13-11-1972 by the defendant out of his own funds, but a benami in the name of the plaintiff as alleged in para 4 of the written statement. (4)That the suit is not barred by limitation. (5)That the plaintiff is not entitled to recover any sum or the sum of Rs. 10,080/- by way of past mesne profits. (6)That the plaintiff is not entitled to relief of declaration of title and recovery of possession from the defendant nor he is entitled to future mesne profits. (7)That the suit has been properly valued and Court fee paid is sufficient. (8) That the defendant is not entitled to any exemplary costs. (9)As the plaintiffs suit cannot be stated to be false suit, the parties should be ordered to bear their own costs. 7. After having recorded these findings, the Trial Court has dismissed the plaintiff's suit. Feeling aggrieved from the judgment and decree of the Trial Court dismissing the plaintiffs suit, the plaintiff has come up in this first appeal under Section 96 of the Code of Civil Procedure. I have heard the learned Counsel for the plaintiff-appellant Sri A. Ram Mohan and Sri K.I. Bhatta, learned Counsel for the respondent, assisted by Sri P.G.C. Chengappa on behalf of the respondent. 8. Learned Counsel for the appellant contended that the learned Trial Court erred in dismissing the plaintiffs suit for declaration and possession inspite of the fact that the title deed relating to suit property has been in favour of the plaintiff-appellant. It shows that the said site in dispute has been purchased by the plaintiff-appellant and deed shows that the consideration was paid by the plaintiff. Learned Counsel contended in view of the title deed being in favour of the appellant, the Court should have presumed the plaintiff to be the owner of the site in question over which the house exists. Learned Counsel for the plaintiff contended that the plaintiff has constructed the house and there are entries of the tax paid by the plaintiff. Learned Counsel contended that the material on the record establishes the appellant to be owner of the property in dispute. The defendant has failed to establish that plaintiff was benamidar. Learned Counsel for the appellant contended that findings of the Trial Court that the defendant has established that deed was benami in name of the plaintiff but the real owner thereof was the defendant-respondent is wrong. It did not apply correct and proper tests to determine the question of benami nature of deed, and as such, the findings of the Court below that defendant is and has been the real owner of the property in possession and the plaintiff is benamidar are erroneous on facts and in law. The learned Counsel made reference to the law laid down by Hon'ble Supreme Court in the case of Smt. Surasaibalini Debi v Phanindra Mohan Majumdar and Others. 9. Sri Mohan on behalf of the appellant contended that the possession of the defendant had been permissive and the defendant-respondent has not been able to establish that he had purchased the property for his own benefit and as such, the finding of the Court below to the effect that plaintiff was only benamidar and not the real owner and that defendant-respondent was the real owner is erroneous in law and liable to be set aside. Learned Counsel for the appellant placed reliance on the case namely, Jayadayal Poddar (deceased) by L.Rs and Another v Mst. Bibi Hazra and Others . Learned Counsel for the appellant also made reference to the decision of the Supreme Court in Nand Kishore Mehra v Sushila Mehra . 10. These contentions of the learned Counsel for the appellant have been hotly contested by the learned Counsel for the defendant-respondent. Learned Counsel for the respondent contended that there is no doubt that initial burden is on the person who claims the transaction to be benami to prove it and the defendant has discharged that burden by placing the material evidence. Learned Counsel for the respondent contended that there are yardsticks to determine the nature of transaction whether it is benami in the name of the person in whose name it stands which have been well set out by their Lordships of the Supreme Court in many cases and including the decision in Jayadayal Poddar's case, supra. Learned Counsel contended that the evidence of the defendant is coupled with that of the seller D.W. 5 which clearly establishes that the sale consideration was paid by the defendant-respondent and not by the plaintiff. The evidence of the seller coupled with the evidence of the other defendants, the learned Counsel contended, clearly establishes that the sale consideration had been paid by the defendant. Learned Counsel contended that, it is not the plaintiff's case that plaintiff had given money to defendant to pay the sale consideration nor is it the plaintiff's case that defendant was acting on behalf of the plaintiff. As such, learned Counsel contended that, sale consideration has been paid by the defendant, as admitted by the seller and defendant paid it in his own right and for his own behalf. He paid it for the purpose of an object which was in his view to serve and not for any other purpose. He paid it with the object that he may succeed in his effort to discharge his duty to get married his nephew, the plaintiff and may get a suitable match, but not with an object to hand over the title and possession of the property to the plaintiff. Learned Counsel further submitted that evidence on record including the documentary evidence produced by the defendant coupled with oral evidence, as found by the Trial Court clearly establishes that, the constructions were got made by the defendant-respondent and not by the plaintiff. Learned Counsel submitted that the findings of Court below are well supported by any documents relating to construction. No person has been produced who could say that the materials have been purchased by plaintiff. Learned Counsel for the respondent further submitted that evidence on record has been sufficient to prove that the building on site in dispute has been constructed by the defendant-respendent having spent huge amount to the tune of Rs. 25,000/-. Learned Counsel contended that the deed of sale relating to the land in dispute has always been in possession of the defendant-respondent. The defendant-respondent had been in use and occupation of the house, in his own right. Learned Counsel for respondent contended that the evidence furnished really proves all the necessary ingredients and passes necessary tests to establish that, the property in dispute had belonged to the respondent as real owner and plaintiff's name in the transfer deed in question was merely as a benamidar and not as a real owner. Learned Counsel contended that the findings of the Court below is correct and does not call for any interference, as defendant has been the owner of the property. Learned Counsel for the respondent con- tended that the decree of the Court below does not suffer from any error of fact or law and the appeal deserves to be dismissed. 11. I have applied my mind to the contentions made by the learned Counsels. It may be mentioned at the initial stage that an objection was raised on the basis of Benami Transactions (Prohibition) Act. Learned Counsel for the appellant fairly submitted that, he does not wish to press that submission, in view of the latest decision laid down by the Supreme Court in R. Rajagopal Reddy (dead) by L.Rs and Others v Smt. Padmini Chandrashekhar (dead) by L.Rs, as the said decision has already a settled issue. Laying down the law to the effect that Section 4 of the Act of 1988 cannot be applied to suit, claim or action to enforce the right in property held benami against person in whose name such property is held by any other person, if such proceedings have been initiated by or on behalf of a person claiming to be the real owner thereof, prior to coming into force of Section 4(1) of the Act. The Supreme Court further observed that disallowing of such a claim defence which earlier was available when the suit plaint or written statement was filed itself suggests that a new liability or restriction is imposed by Section 4(2) of Act on pre-existing right and such a provision cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. In view of this, learned Counsel for the appellant fairly did not press this contention. As regards to the benami nature of transaction, law has been laid down by the Supreme Court. It will be appropriate at this juncture on my part to make reference to the decision of their Lordships of the Supreme Court in the case of Smt. Surasaibalini Debi, supra. Their Lordships in above case have observed as under.- "We start with the position that the Court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material factor for establishing the case of benami but the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant's title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a case of benami notwithstanding that the purchase money did not proceed from the defendant". Their Lordships observed that in Mayne's Hindu Law it is observed as under:-- "While the source from which the money came is undoubtedly a valuable test, it cannot be considered to be the sole or conclusive criterion. For, the question whether a particular transaction is benami or not, is one of the intention, and there may be other circumstances to negative prima facie inference from the fact that the purchase money was supplied by or belonged to another. The position of the parties, their relation to one another, the motives which could govern their actions and their subsequent conduct may well rebut the presumption". In the case of Jayadayal Poddar, supra, their Lordships in para 6 of the judgment have clearly laid down as under:-- "It is well-settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or the transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether the particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. 1, viz., the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another". 12. From the reading of the above decisions, it follows that a person expressly shown as the purchaser or transferee in the deed is a document prepared after considerable deliberations, starts with initial presumption in his favour that the apparent state of affairs is real state of affairs. The burden of proving that the sale is a benami transaction and apparent purchaser is not the real owner, always rests on the person who asserts it to be a benami transaction and thus, burden has to be discharged strictly by adducing legal evidence of definite character. For determining whether a particular sale is a benami transaction or not, there is no absolute formula or a test to be uniformly laid for all situations, but there are certain guiding factors as mentioned below which may help the Court to arrive at the decision on this part and decide further the real intention and to determine the nature of transaction.- (a)The source from which the purchase money came; (b)The nature and possession of the property, after its purchase namely in whose possession the property purchased has been and in what capacity; (c)The intention of the motive behind the transaction being given the benami character; (d)The position and relationship of the parties and in particular between the claimant and the benamidar; (e)The custody of the title deeds after the sale and the conduct of the parties, even subsequent to the transaction, in dealing with the property. 13. The source from where the money came is one of the important factors. Keeping these principles in view, I proceed to examine the respective contentions. No doubt, the person, in whose name the transfer deed is, prima facie starts with initial presumption that in his favour i.e. the state of affairs as is presented by the sale deed is the real state of affairs, but it is open to the claimant to prove that, it is not the real state of affairs and it is open to a person as the defendant-respondent to prove the state of affairs as represented by the deed is not the real state of affairs and the real owner of the property is not the one whose name is shown in the deed, but the claimant himself. The sale deed Ex. B-1 in the present case no doubt reveals that the vendor has received the consideration from the vendee mentioned in the sale deed i.e., from the plaintiff. A statement of fact made in a document may be shown to be incorrect and it is open to the claimant that, really consideration has not passed on from the person named as vendee named in the deed is plaintiff but it passed from the defendant-appellant. On behalf of the defendant to prove the passing of the consideration, the defendant himself has examined as D.W. 1 and also examined D.W. 2 and the vendor as D.W. 5. D.W. 1 as per examination-in-chief deposed as under.- "On 13-11-1972 I purchased the said site from one Krishnappa. I got the site in the name of the plaintiff. Ex. D-1 is the sale deed. I had brought him as my own son and secondly he was of the mar riageable age then and thinking that if there is some property, it will be better, I got the site in his name". "I constructed a building therein, I purchased the site with a view that I should construct a house and live therein". In para 6 of the deposition he states that "my friend Cheluvaraj told me that Krishnappa was selling the site and I should purchase. Cheluvaraj had paid an advance of Rs. 700/- before the sale deed and thereafter he had come to me. Cheluvaraj had given the advance of Rs. 700/- for my site and also for his site". He also states that Cheluvaraj and himself had joint a/c relation to the purchase of the construction of the building. 14. D.W. 2 Cheluvaraju states that "both of us purchased the site from Krishnappa. I had come to know that Krishnappa's sites are for sale. Before asking the defendant I had paid advance amount of Rs. 700/- for Site Nos. 40 and 41. Ex. D-2 is the said receipt". He further states that "then I proposed to the defendant, since he is my friend, whether he intended to purchase one of the sites. I offered him Site No. 40. Myself and the defendant purchased the site for Rs. 1,500/- each". The defendant purchased the site in the name of the plaintiff. He also stated that "myself and Sundaram had given instructions to Krishnappa to purchase stamps in the name of particular persons. The defendant paid the consideration for the said site. On the date of the execution of the document, it was registered. After the document was written, the defendant went and got the plaintiff for signing the document". D.W. 2 further states that, "it is not correct to say that in order to help the defendant I am deposing in the manner told by the defendant". D.W. 5 is the vendor. In para 5 he states that "he had formed about 60 to 70 sites of 40' x 30' and had given Sundaram one of them and Cheluvaraju gave the advance for Site Nos. 40 and 45 and admits that he has received Rs. 700/- as per Ex. D-2(a)". He states in para 3 that "though advance has been paid by Cheluvaraju, at the time of sale he purchased only one site from me and another site was purchased by his friend, Sundaram. I sold each site for Rs. 1,500/- ". In para 6 of the deposition D. W. 5 states that "no person by name Victor had come to me for taking the sale deed. No person by name victor came to me to negotiate for the purchase of the site. No person by name victor ever came to me to purchase the site or to flay the consideration or to purchase the stamp paper". In the cross- examination D.W. 5 states that "it is not correct to say that D. Victor paid me Rs. 1,500/- at the time registration. Sundaram was present at the time of registration". It may be mentioned that D.W. 5 vendor has very clearly stated in para 5 that "the rest of the consideration was paid to me by Sundaram". His evidence clearly reveals that the advance money was paid by Cheluvaraju for both the plots. Cheluvaraju has stated that, he has purchased one plot and one was purchased by Sundaram. The balance of sale consideration with regard to Plot No. 40 was paid by Sundaram. This witness has denied the suggestion made from the plaintiff that Victor had paid Rs. 1,500/- at the time of registration and has stated that, it is not correct to say that Victor paid Rs. 1,500/- at the time of registration. No reason has been assigned on behalf of the plaintiff nor it has been shown why the vendor should be telling lies as suggested by the learned Counsel for the appellant. The evidence of vendor D.W. 5 clearly reveals that really the sale consideration had passed on or was paid by the defendant-respondent Sundaram to the vendor i.e., Krishnappa. There appears no reason to discard this evidence. Whoever had purchased the site from him, the vendor naturally would have so stated and as he stated that sale consideration did pass on from Sundaram to the vendor and he has stated that, instruction was given by the defendant that the deed may be made in the name of the plaintiff. It is not the case of the plaintiff that he passed on the money to the defendant and instructed him to pay the same to the vendor on behalf of the plaintiff. No such case has been taken over nor any such suggestion has been made to any of the witnesses on behalf of the plaintiff in course of cross-examination. The plaintiff's case has been that, he himself had paid the sale consideration while the case of the defendant has been that, he the defendant himself had paid the sale consideration and including the advance money to the defendant. The vendor has stated that sale consideration was paid by the defendant and I think his evidence is reliable and more reliable than that of the parties. The parties may be making conflicting statements in case and telling lies. There is no reason to disbelieve vendor when he stated as to who paid the sale consideration. No doubt, the plaintiff has stated that he has purchased the property in dispute from his own funds. But, in view of the above circumstance, the plaintiff's evidence does not appear to be of much credence and does not appear to be reliable. I have to hold that the money or the sale consideration which had been paid, had been paid by the defendant-respondent from his own funds. This having been found that the money was paid by the defendant-respondent and not by the plaintiff, it as one of the essential element has been established against plaintiff-appellant and in favour of the defendant-respondent. The other aspect is the conduct of the parties. The evidence on record reveals that, on behalf of the defendant first Cheluvaraju has negotiated and then the deed was got prepared by the defendant which may have been got to be executed in the name of the plaintiff. The question is, why the defendant got it executed in the name of the plaintiff and what was the defendant's intention in purchasing the property, was it to hand over the property to make the plaintiff owner of the property or was this got done for the benefit to the plaintiff-appellant and to confer the title to property to plaintiff or there was some other motivation? The relationship between the parties no doubt is very near one namely uncle and nephew. The plaintiff-appellant had been the son of the own brother of defendant-respondent. It is undisputed by the parties that the mother of the boy had died. The 2 brothers were living together. The defendant's case is that, he purchased the site for constructing his own house as well as it was purchased by the defendant in plaintiffs name due to the affection and moral obligation which he felt he had towards the plaintiff, as the defendant was liking him as his own son as per para 4 of the written statement. In the course of evidence led by the defendant, in para 2 he has stated that, he purchased the site in 1972 from Krishnappa and further states that, he got the site in the name of plaintiff. Ex. D-1 is the sale deed. The defendant had brought the plaintiff since he treated him as his own son. Secondly, he was of marriageable age and thinking that, if there is some property it will be better to have suitable match. In para 54 in cross-examination D.W. 1 states that "because I treated him as if my son I got the sale deed in his name, though I had my own 2 children by then". Reading of this statement of D.W. 1 in the circumstance reveals that, really the defendant had no intention that the property purchased under sale deed Ex. D-1 should go to or deemed to belong to the plaintiff. It would he unnatural that a person having his own children would so intend that his children may not get the property, but it would go to the nephew. But the fact is that the sale deed stands in the name of the plaintiff. The question is why it was so purchased. Two brothers were living together and the defendant intended that, there must be some own property in the family. He was earning and he wanted to purchase it. That, to get the better matrimonial offer for the nephew, he has stated that, he thought it would be better if the property is purchased in the name of the plaintiff. So, the intention only appears to be to get better offer for the marriage of the plaintiff and so the deed was got executed in the name of the plaintiff and the defendant neither got it executed in his own name nor in the name of his children. This really indicates that, what benefit the defendant had intended was, to get better offer for the nephew and not to pass on the title of the property to the plaintiff or to make him owner of the property. So, the motive appears to be, to pretend before others in the society that the family has possessed some property and there is some property in the name of the boy. But the real intention was not that the plaintiff should be its owner. In view of the near relationship and the intention of the defendant to fetch a good match for the plaintiff only the deed appears to have been got in the name of the plaintiff. When I look and consider the subsequent conduct as dealing with possession and control of parties over property this intention appears to be very much effective. The deed of transfer or the sale deed in question had not been in possession of the plaintiff or his father. No doubt the plaintiff has stated that, he had handed over this deed to his father and it was with his father and his father died, thereafter deed was lost. He also applied for certified copy. Except the statement of the plaintiff there is no evidence on record on behalf of the plaintiff. Once the defendant's evidence is that the deed was from the beginning in his possession and it was within the knowledge of the plaintiff. If the deed of transfer has been stolen, it does not appear that the plaintiff had made any report. The question is which the evidence has to be relied with reference to the possession of the site. This Court has to dwell into conduct of the parties. It has to be seen that who purchased the site and who got the house constructed thereon. Plaintiff's case is that, he got the house constructed. Plaintiff's evidence in this regard is his statement that he got constructed by his own funds as well as taking loan from his father and maternal uncle. In para 21 he states that "I used to bring the construction materials and so also my father. I had given some amount to the defendant to make some purchases of such materials. The defendant has not contributed anything, either for purchase of the site or for the construction of the house. 1 have spent about Rs. 25,000/- for the construction". "I had Rs. 15,000/- with me, and my father gave some amount. My maternal uncle Gyanasun-daram gave Rs. 5,000/-. I have returned his money". In para 45 he states that "I had kept accounts of the construction. I had kept the accounts in a book, I had myself written it. I have spent about Rs. 25,000/-". In para 46 he states about his salary in 1974-75 was Rs. 800 to 900/- p.m. Thereafter, he states that "I have not produced any document to show that in 1974-75 I was getting a total salary of Rs. 800A or 900/- per month. I have no documents to show about the salary when I joined and as to how it went on increasing". In para 61 of the deposition he has stated that "I had constructed the house myself and I had not given it on labour contract. One Krishnappa, mason, was engaged by me to construct the house. I had taken receipt for every thing. I cannot give the particulars as to who supplied the cement, wood and steel. My father got the electrical material for the house. My father has helped me in the construction of the house. The accounts were with my father. Myself and my father had both written those accounts. In all Rs. 25,000/- I spent. I have no document to show about the borrowings, I made, from my father and maternal uncle". A reading of the statement deposed by the plaintiff shows that, according to him, he spent a sum of Rs. 25,000/- for the construction of the house. He had some money of his own and he had taken sum of Rs. 5,000/- as loan from his maternal uncle and some money from others. He has deposed that, he had maintained accounts of expenditure and purchase of the building materials, but is not in a position to show or tell from whom he has purchased. The accounts of expenditure incurred by him in the construction of the building and purchase of the materials plaintiff claims to have maintained but has failed to produce. He has not stated that the accounts are misplaced or the accounts prepared by him have been stolen. The question arises why he has not produced those accounts, if he had incurred expenditure and maintained the accounts. No explanation is forthcoming from the plaintiff. If he had maintained the account and spent money he ought to have produced those accounts. It is failure on the part of the plaintiff to place the accounts alleged to be maintained by him, for no rhyme and reason. This Court is of the view that theory put up by the plaintiff should be taken as false. The accounts alleged would have been some material importance to throw light on the question who has spent it ought have been produced but has not been produced without any rhyme or reason as such, adverse inference may be drawn that the plaintiff's case is false. Apart from that, the plaintiff has produced P.W. 2 who is none-else than own brother-in-law of the plaintiff, who has deposed that plaintiff purchased the sites and constructed the house by his own funds. He has not disclosed the source of information as to how he had come to know that the house was constructed by the plaintiff from his own funds. Merely saying that plaintiff purchased the site from his own funds and constructed the building cannot be said to be reliable or admissible piece of evidence. He should have disclosed the source of knowledge of money or funds alleged to have been used in connection, with purchase of site and raising of construction thereon. The evidence of the P.W. 2 is not worthy of any consideration or reliance. In the cross-examination P.W. 2 says that "I have not taken part in the sale talks of the purchase of the site made by the plaintiff. I do not know when it was purchased from one Krishnappa. It was purchased in 1972. I have not gone through the sale deed of the property because it was in Kannada. In 1975 the plaintiff had read over the contents. I do not remember the dimension and schedule mentioned in the sale deed. In para 17 he has stated that "the plaintiff had spent in all Rs. 25,000/- for construction. He borrowed Rs. 5,000/- from his maternal uncle and he had his own Rs. 20,000/-. I have no personal knowledge regarding the bank balance of the plaintiff. He has further stated that "I was not present when plaintiff borrowed Rs. 5,000/- from his maternal uncle. I had no occasion to verify his accounts regarding the construction of the building". The above statement of the P.W. 2 clearly reveals that, his statement was merely made to support the plaintiffs case without any personal knowledge of the plaintiffs account or without verifying the account which plaintiff alleges to have maintained for construction of the building. The statement in para 37 by witness P.W. 2 is that he was not taking any interest in the family or his brother or sister and that he has not been much interested in the plaintiff. He has further stated that defendant was taking much interest in the family matters and in educating the children. He has stated that defendant had affection and love for the plaintiff and thinking that the plaintiff would look after his children he had purchased the site in the plaintiff's name and the plaintiff had no interest in the site until the registered deed was executed. There is no document that the plaintiff paid the advance money and his evidence and that of B.W. 2 itself appears to be unreliable. Apart from the circumstance that the plaintiff had not produced any account of expenditure alleged to have been incurred during construction of the building and which account he says that he has maintained and no reason is assigned for not producing the same. The evidence oral and documentary produced by defendant- respondent including Ex. D-3, D-4, Ex. D-32 and D-33, including plan of the building D-36 are on record. The Trial Court itself has considered the evidence of the parties and of the defendant's witness. The material observations in paras 21 to 25 of Trial Court judgment and discussion thereon where the Trial Court has discussed all evidence, oral, documentary and circumstantial and in my opinion the finding which has been arrived by the Trial Court on this aspect of the matter after considering all the material evidence, cannot be said to be suffering from any error nor can it be said to be erroneous. 15. For the reasons mentioned above, I agree that the finding of the Trial Court that construction on the site in dispute was made by the defendant-respondent after having incurred the expenditure to the tune of Rs. 25,000/- and plaintiff has failed to establish that he incurred expenditure to the construction of the site. So, this conduct of the defendant investing money on the property/site putting construction, the deed being in his possession and in particular when the plaintiff himself has stated in Ex. P-14 that "after the death of my father I could not get any document, regarding my house, since the defendant had taken them away. The documents were like sale deed, receipts and bills regarding construction of the house, After the death of my father, the defendant had taken away my documents". The plaintiff ought to have given a notice to that effect as well as to have lodged a complaint. But, he has not done so. This theory that defendant had taken away the documents, appears to be false as the plaintiff did not make any complaint to the police that defendant had taken away forcibly or stealthily the documents. Why the plaintiff has not done so, if the documents were forcibly taken away or stealthily taken or removed by the defendant from the plaintiffs possession. The natural conduct of the plaintiff would have been to have given a notice to defendant in that regard which the plaintiff has not done. These circumstances reveal that, theory of documents being in plaintiffs or plaintiffs father's possession etc., and thereafter being taken away by the defendant is false. Really it appears that, the deed of transaction i.e., the sale deed Ex. D-1 and the accounts of money spent on the construction had been with the defendant as the defendant-respondent himself had purchased the site and had incurred the expenditure in construction of the house. So, the circumstances that defendant invested money for the purchase of the site; that defendant incurred expenditure in the construction of the building, and further the documents, title deed and accounts with reference to the construction being with the defendant, really lead one to think that state of affairs, as appears from the sale deed was not real state of affairs, instead real state of affairs was something different therefrom. Apart from that, it is admitted position that the defendant had been residing in that house. No doubt plaintiff might have also resided, but later plaintiff has shifted to some other house. He himself has put up a theory of permissive possession which does not appeal to this Court. The father of the plaintiff-appellant did not object to the defendant's making use of the house. Really the money having been invested by the defendant in the purchase of the site and construction of the building, with a view that, for the plaintiff, the defendant-respondent may be able to get suitable match so he got the deed of the transaction in question made in the name of the plaintiff. The intention and motive appears only to procure good, suitable match for plaintiff-appellant and not to make the plaintiff owner of the house. The consideration had passed on to the seller as admitted by the seller from the defendant respondent. It had been contended before me by the learned Counsel for the appellant that there are tax receipts namely Ex. P-5 and P-6. These receipts reveal that they are of the period subsequent to the filing of the suit and not prior to the filing of the suit. They are not of much importance and do not help to arrive at a conclusion contrary to the case of a benami transaction being entered vide sale deed dated 13-11-1972. The Trial Court has taken into consideration of the circumstance in Ex. D-2 and thus, considering the entire set of circumstances in the light to guiding Test as set up by Their Lordships of the Supreme Court, it appears to me that the defendant succeeded in rebutting the preliminary presumption which was in favour of the plaintiff with regard to the real state of affairs. The defendant has rightly been held to have established that the deed in question was benami in nature in the name of the plaintiff-appellant and plaintiff was only a benamidar and the real possessor and owner of the property has been none else than the defendant-respondent. That at the plaintiff had no title. That as real owner of the property had been the defendant-respondent, the plaintiff-appellant had no right to get the claim made in plaint decreed. The defendant-respondent being in possession of the property as well as being the real owner and title holder of suit property as per sale deed of 1972, and the plaintiff-appellant being only name lender benamidar the plaintiff had no right to seek decree for declaration sought for nor for possession against the real owner of the property nor has been entitled to seek injunction restraining him nor plaintiff could claim any mesne profits against the same. Thus considering in my view, the Trial Court's decision does not suffer from any error of law or fact. The decisions referred by the learned Counsel for the appellant namely Nand Kishore, supra, with reference to the benami transaction referring the observations made in para 8 only indicated that "transfer to one for consideration paid by another -- where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration". The defendant has satisfied the contest. As mentioned earlier, motive has not been to confer any interest or title in property to plaintiff-appellant. Thus considering in my opinion, above decision which has been referred by the learned Counsel is not of any help to appellant. The other decisions in the case of Rajagopal Reddy is also of not much help for the decision of this case. There can be no dispute from the principles of law laid down by the decision of the Patna High Court that the person in whose name the property is purchased is presumed to be the real owner of the property-onus of proving that transaction is benami on the claimant. There can be no dispute as mentioned earlier, so far as this basic proposition is concerned. The defendant-respondent has been successful in discharging its burden on yardsticks of the law laid down in Jayadayal Poddar's case, supra, and in establishing that the transaction in question has been benami in the name of plaintiff, the plaintiff is not and has not the owner of the suit property. The Trial Court decree dismissing plaintiffs suit is correct. Thus, considering in my opinion, the present appeal is devoid of merits and is dismissed with costs. The Trial Court decree is affirmed herewith.	[ 57071259, 17891642, 170336297, 170999038, 170999038 ]	null	216,570	D. Victor vs L. Sundaram (Deceased) By L.Rs. on 13 March, 1998	Karnataka High Court	5
IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP.No. 600 of 2009() 1. GOPINATHAN ... Petitioner Vs 1. STATE OF KERALA AND OTHERS ... Respondent For Petitioner :SRI.C.A.ANOOP For Respondent : No Appearance The Hon'ble MR. Justice S.S.SATHEESACHANDRAN Dated :11/11/2009 O R D E R S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.600 OF 2009 -------------------------- Dated this the 11th day of November 2009 ------------------------------------- ORDER Revision is directed against the order dated 30/09/2009 in A.A No. 12 of 2007 passed by the Appellate Authority(Land Reforms), Thrissur. The revision petitioners had filed an appeal before the Appellate Authority challenging an order passed by the Land Tribunal, Wadakkanchery in O.A No. 2296/1976 issuing a purchase certificate in favour of the predecessor of the respondents in the revision. The revision petitioners are in possession of the property in respect of which the purchase certificate had been obtained by the applicant in the above O.A and the certificate had been so obtained fraudulently after making some corrections in the name of the applicant in the application moved by another person was the crux of the case canvassed in the appeal to impeach the C.R.P.No.600 OF 2009 Page numbers certificate issued by the Land Tribunal. The Appellate Authority was not satisfied of the grounds canvassed by the revision petitioner to challenge the certificate which had been issued by the tribunal nearly 30 years ago. At the time of hearing of the revision, impeaching the correctness of the order passed by the Appellate Authority, the learned counsel for the petitioner confined his submissions to seek permission to canvass his challenges against the order issued by the Land Tribunal in the O.A No.2296/1976 in favour of the predecessor of the respondents by way of a suit before the Civil Court. Since the petitioners have got a case that the issue of purchase certificate by the tribunal is vitiated by fraud they may be given a chance to challenge that certificate in the competent civil court as provided by law is the submission of the counsel. It is open to the petitioner to seek whatever remedies available C.R.P.No.600 OF 2009 Page numbers under law to impeach the correctness of the purchase certificate issued in the O.A by the Land Tribunal. Reserving the right of the petitioner to seek such remedies, if so available, the revision is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv	[]	null	216,571	Gopinathan vs State Of Kerala And Others on 11 November, 2009	Kerala High Court	0
Gujarat High Court Case Information System Print CA/11113/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 11113 of 2010 In LETTERS PATENT APPEAL No. 405 of 2010 In SPECIAL CIVIL APPLICATION No. 24225 of 2005 With CIVIL APPLICATION No. 11114 of 2010 In LETTERS PATENT APPEAL No. 403 of 2010 To CIVIL APPLICATION No. 11117 of 2010 In LETTERS PATENT APPEAL No. 428 of 2010 With CIVIL APPLICATION No. 14486 of 2010 In LETTERS PATENT APPEAL (STAMP NUMBER) No. 2190 of 2010 ========================================= PATEL KALYANBHAI TEJABHAI - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================= Appearance : MR KB PUJARA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 3. MR J G VAGHELA for Respondent(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/12/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) S.O. to 15.12.2010 at the request of learned AGP with the statement that necessary instructions as regards the stand of the Government will be taken by that time and no further adjournment will be sought on behalf of the respondents. [D.H.WAGHELA, J.] [J.C.UPADHYAYA, J.] JYOTI Top	[]	Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;	216,572	Patel vs State on 3 December, 2010	Gujarat High Court	0
APL391.15.odt 1/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APL) NO.391 OF 2015 APPLICANTS: 1. Prakash Bhaskarrao Nandurkar, Aged about 60 years, Secretary of Satchikitsai Prasarak Mandal Shri Satya Sai Vidhya Nagari, Yavatmal, Tq. and District Yavatmal. 2. Sau. Jaishree Omprakash Mishra, Aged about 45 years, Incharge, Head Mistress of Dr. Nandurkar Vidyalaya, Shri Satya Sai Vidya Nagari, Yavatmal, Tq. and District Yavatmal. -VERSUS- RESPONDENTS: 1. Ku. Saroj Panditrao Datir, Aged about 29 years, R/o C/o Shri Dilip Tarpe, Ujwal Nagar, Near Gulhane Kirana Shop, Deep Nagar, Yavatmal, Tq. and District Yavatmal. 2. State of Maharashtra (formal party) Shri A. S. Kilor Advocate with Ms. Deepali Sapkal, Advocate for the applicants. Dr. A. De Advocate with Ms. Komal Mundle, Advocate for non- applicant no.1. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 2/11 Shri A. Madiwale, Addl. Public Prosecutor for respondent no.2. CORAM: A.S. CHANDURKAR, J. DATED: NOVEMBER 08, 2017 ORAL JUDGMENT : 1. By this application filed under Section 482 of the Code of Criminal Procedure, 1973, order dated 9-4-2015 passed by the learned Additional Sessions Judge, Yavatmal is under challenge. By that order, the revision application seeking to challenge the order dated 27-6-2014 rejecting the application for dropping the proceedings as being barred by limitation has been rejected. 2. The facts in brief are that the non-applicant no.1 was in the employment with an institution of which the applicant no.1 was the Secretary and the applicant no.2 was the incharge Head Mistress. The services of the non-applicant were terminated on 23-6-2003. This order was challenged by filing an appeal under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1971 (for short, the said Act). The appeal ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 3/11 was allowed on 28th June, 2007 by directing reinstatement of the non-applicant no.1 with back wages. This order was challenged by the present applicants by filing Writ Petition No.3254/2007. By judgment dated 28-9-2007, the said writ petition was partly allowed. It was directed that if the services of the non-applicant no.1 were reinstated within a period of eight weeks, she would not be entitled for back wages. If, however, she was not reinstated within a period of eight weeks, the non-applicant no.1 would be entitled to execute the order of grant of back wages. This order passed in the Writ Petition attained finality on 31-1-2008 when the Letters Patent Appeal filed by the applicants came to be dismissed. 3. According to the non-applicant no.1, as there was non-compliance with the directions issued in the order of the School Tribunal as confirmed by this Court, she filed Contempt Petition No.142/2008. This contempt petition was disposed of on 4-8-2009 by observing that there was no wilful disobedience of the orders passed. It was clarified that the non-applicant no.1 was entitled for legal remedies available for executing that order. The miscellaneous application ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 4/11 seeking review of this judgment was disposed of on 10-2-2010. Thereafter, on 15-6-2010, the non-applicant no.1 filed a complaint under Section 13 of the said Act. The learned Magistrate on 21-2-2011 issued process only against the present applicants who were accused Nos.4 and 12. The applicants then filed an application for dropping the proceedings on the ground that they were barred by limitation. By order dated 27-6-2014 this application came to be rejected on the ground that it was not tenable. The applicants then filed revision application challenging this order. By the impugned order, the revision application has been dismissed. 4. Shri A. S. Kilor, learned Counsel for the applicants submitted that the Sessions Court committed an error in coming to the conclusion that the proceedings were filed within limitation. According to him, in view of provisions of Section 468 of the Code, the complaint ought to have been filed within one year from the date of commission of the offence. The offence as alleged was for non-implementation of the order of the School Tribunal that was passed on 20-6-2007. It was submitted that immediately on the expiry ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 5/11 of period of eight weeks, the non-applicant no.1 was sought to be reinstated in view of the communication dated 26-11-2007. Despite this letter, the non-applicant no.1 joined services on 24-10-2008. He referred to the findings recorded in the Contempt Petition as well as the review application to urge that it was clearly held that no wilful breach had been committed by the applicants in the matter of implementation of the orders passed in favour of non-applicant no.1. It was submitted that there was no continuing cause of action and the present proceedings had been filed after the review application came to be dismissed. It was also urged that separate execution proceedings for recovering the arrears of salary had been filed. According to the learned Counsel, continuation of this proceeding amounted to abuse of the process of law and the same was, therefore, liable to be quashed in exercise of the powers under Section 482 of the Code. 5. Dr. A. De, learned Counsel for the non-applicant no.1 supported the impugned order. It was submitted that the proceedings under Section 13 of the said Act were filed within limitation and process was rightly issued by the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 6/11 learned Magistrate. It was submitted that two remedies were available for enforcing the order of the School Tribunal. The civil remedy was by way of execution while the present proceedings under Section 13 of the said Act were for disobedience of the order. After the review application was disposed of, the present complaint came to be filed on 15-6-2010. In view of Section 472 of the Code, the breach was continuing in nature and hence, it could not be said that the proceedings were barred by limitation. In support of his submissions, the learned Counsel placed reliance on the decisions in Vilas Shankarrao Deshmukh and another vs. S. A. Ghode, Principal, Navprabhat Vidya Mandir and others 2001 (1) Mh.L.J. 261, Saroj Pundlikrao Datir vs. Prakash Nandurkar and others 2009(6) Mh.L.J. 235, Shriprakash Chandmal Bora and anr. vs. Mutyal Vilas Rambau 2004(2) Mh.L.J. 927 and Shaikh Badarunnisa Begum Shaikh Abbas vs. State of Maharashtra and others 2004 (2) Mh.L.J. 407. It was, therefore, submitted that the impugned order did not call for any interference and the present proceedings deserve to be dismissed. 6. I have heard the learned Counsel for the parties at ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 7/11 length and I have also perused the documents filed on record. It is not in dispute that the order passed by the School Tribunal was challenged by filing Writ Petition No.3254/2007. In that writ petition on the concession made on behalf of the non-applicant no.1, time of eight weeks was granted to reinstate her and if the same was done she was held disentitled for back wages. The period of eight weeks came to an end on 23-11-2007. On 26-11-2007, a communication was issued by the applicants calling upon the non-applicant no.1 to join the services. The non-applicant no.1 joined her services on 24-10-2008. 7. At this stage, it is necessary to refer to the observations of this Court in the Contempt Petition that was filed by the non-applicant no.1. While considering the question as to whether there was any wilful disobedience of the order of stay, it was observed that the applicants had complied with the directions as regards reinstatement in view of communication dated 26-11-2007. Though the period of eight weeks expired on 23-11-2007, there were two intervening holidays. In this backdrop, it was held that it could not be said that the applicants had committed wilful ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 8/11 disobedience of the orders as passed. The finding to that effect is recorded in para 19 of that judgment and it was clarified that the legal remedy for executing the orders as passed could be taken. In the review application filed by the non-applicant no.1, this Court refused to review that order and observed that the original order could be executed by demanding back wages as well as salary. It is thus clear from the aforesaid order that on 4-8-2009 while dismissing the contempt petition as well as on 10-2-2010 while dismissing the review petition, it was held that there was no wilful disobedience of the orders passed in the proceedings. 8. In the proceedings filed under Section 13 of the said Act, it is the grievance of the non-applicant no.1 that aforesaid orders of the School Tribunal as well as the orders of this Court were not complied. These proceedings were filed on 15-6-2010 with the cause of action being shown as commencing from 20-6-2007. While according to the non- applicant no.1 there was a continuing cause of action, according to the applicants the proceedings ought to have been filed within a period of one year as per Section 468 of the Code. Proceedings under Section 13 of the said Act have ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 9/11 been held to be independent in nature in Shaikh Badarunnisa (supra). In Shriprakash Chandmal Bora (supra) it was held that if punishment is sought to be imposed, a criminal complaint can be filed and if execution is sought, the civil Court can be approached. 9. Under Section 13 of the said Act if the management fails without any reasonable excuse to comply with any direction issued by the Tribunal, the management could be liable on conviction to be punished. On perusal of the Contempt Petition as well as the application filed under Section 13 of the said Act, it is clear that the grievance of the non-applicant no.1 is with regard to non-compliance of the order of reinstatement within a period of eight weeks. For the purposes of the claim for back wages, separate execution proceedings have been filed which are pending. Under Section 468 of the Code, the complaint under Section 13 was required to be filed within a period of one year as the punishment if imposed was imprisonment for fifteen days. Under Section 472 of the Code, if there is a continuing offence a fresh period of limitation would begin to run at every moment of the time during which the offence ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 10/11 continued. 10. The facts indicate that pursuant to communication dated 26-11-2007, the non-applicant no.1 joined her duties on 24-10-2008. A separate dispute with regard to back wages and its recovery is pending. This Court in the Contempt Petition having recorded a specific finding that there was no wilful disobedience of the order passed by the School Tribunal or in the writ petition after noting the fact that the non-applicant no.1 had joined her duties thereafter, said finding cannot be ignored. In fact, the non-applicant no.1 joined her duties after a specific order in that regard was passed by this Court. The period of eight weeks having expired on 23-11-2007 and non-applicant having joined duties thereafter the grievance, if any, under Section 13 was required to be made within a period of one year from 23-11-2007 or even from the date of joining which is 24-10-2008. It having been specifically held in the Contempt Petition on 4-8-2009 as well as on 10-2-2010 that there was no wilful disobedience in the matter of reinstatement, the alleged offence in that regard cannot be said to be of continuing nature. The complaint under Section 13 of the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 11/11 said Act having been filed on 15-6-2010, it is clear that the proceedings were barred by limitation. The learned Magistrate ought to have allowed the application at Exhibit- 47. The Sessions Court also committed an error by holding that the offence was continuing in nature especially when the order of reinstatement was complied with and the petitioner had joined duties. 11. In view of aforesaid, the order dated 27-6-2014 passed below Exhibit-47 as well as the judgment of the Sessions Court in Revision No.66/2014 are quashed and set aside. The application below Exhibit-47 is allowed in terms of its prayer. The criminal application is allowed in aforesaid terms with no order as to costs. JUDGE /MULEY/ ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 :::	[ 1679850, 1889786, 1599077, 1679850, 1889786, 1889786, 574291, 977859, 1658375, 925450, 1889786, 1599077, 1889786, 1889786, 1889786, 1599077, 1889786, 574291, 1889786, 1889786 ]	null	216,573	Prakash Bhaskarrao Nandurkar And ... vs Ku. Saroj Panditrao Datir And ... on 8 November, 2017	Bombay High Court	20
Court No. - 33 Case :- CRIMINAL MISC. WRIT PETITION No. - 10888 of 2010 Petitioner :- Ahsan Raza & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Sharique Ahmed Respondent Counsel :- Govt. Advocate Hon'ble V.K. Shukla,J. Hon'ble Ran Vijai Singh,J. Learned A.G.A. has accepted notice on behalf of respondent nos. 1 and 2. Issue notice to respondent no. 3. Each one of the respondent is accorded eight weeks time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks. List thereafter. It has been contended on behalf of the petitioners that in the present case there is matrimonial discord in between daughter of petitioner no.1 Ahsan Raza and respondent no.3. Petitioners submit that as a counter blast first information report has been lodged against the petitioners. and criminal forum has been misused by falsely implicating entire family members. Prima facie arguments advanced, requires consideration by this court. Consequently, till the next date of listing or till submission of the report under Section 173 (2) Cr. P.C. whichever is earlier, petitioners shall not be arrested in Case Crime No. 121 of 2010 under Sections 323,504,506 I.P.C. , Police Station Anwarganj, District Kanpur Nagar, subject to condition that petitioners shall extend all possible co-operation with the on going investigation. Order Date :- 22.6.2010 T.S.	[ 1011035, 555306, 180217 ]	null	216,574	Ahsan Raza & Others vs State Of U.P. & Others on 22 June, 2010	Allahabad High Court	3
JUDGMENT Altamas Kabir, CJ. 1. This writ application involves 'the interpretation of a notification dated 22nd June, 2001, issued by the State of Jharkhand in exercise of powers conferred by Clause (b) of Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956, which reads as under : "NOTIFICATION The 22nd June, 2001 S.O. 25, dated the 25th June, 2001.--In exercise of the powers conferred by Clause (b) of Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Act 74 of 1958) the Governor of Jharkhand is pleased to direct that tax payable under Sub-section (1) or (2) of Section 8 of the said Act in respect of sale of all types of glass and glass sheets in the course of inter-State sale or commerce from any place of business in the State of Jharkhand shall be calculated at the rate of three per centum and no statutory form in this regard shall be required. 2. This notification shall come into force with effect from 16th June, 2001. By the order of Governor of Jharkhand A. Tiwari Addl. Secretary to Government Finance Department, Jharkhand, Ranchi" 2. The writ petitioner is a public limited company incorporated under the provisions of the Companies Act, 1956, having its industrial unit situated at Madhupur in the district of Deoghar, Jharkhand. The petitioner is also a registered dealer under the provisions of the Bihar Finance Act, 1981, as well as the Central Sales Tax Act, 1956 under the Deoghar Circle. Deoghar. 3. The writ petitioner is engaged in the manufacture of glass and glassware made of opal glass. As indicated hereinabove, the unit is situated at Madhupur in Deoghar. On 25th June, 2001, the State of Jharkhand issued the aforesaid notification reducing the rate of tax in respect of sale of all types of glasses and glass-sheets from 4% to 3% in course of inter-State trade and further exempted dealers from the requirements of filing declaration in Form "C" on such sales. 4. On publication of the aforesaid notification, the writ petitioner started charging tax @ 3% on sales involving inter-State trade since it was under the impression that it was covered by the aforesaid notification. However, by way of abundant precaution, the writ petitioner company wrote to the Assistant Commissioner of Commercial Taxes, Deoghar Circle, on 27th May, 2002, with a copy to the Deputy Commissioner of Commercial Taxes, at Ranchi, informing them that since the petitioner was covered by the said notification, tax on sales of glass and glass-ware in course of the inter-State trade was being charged @ 3% in terms of the notification. It is the petitioner's case that it did not receive any response to its letter, nor was any objection raised that the petitioner was not covered by the said notification dated 25th June, 2001. For the first time, by letter dated 9th January, 2004, the petitioner was informed by the Assistant Commissioner of Commercial Taxes, Deoghar Circle that it had wrongly deducted and paid taxes @ 3% on its products manufactured out of glass since the correct rate was 4% in case of sale to registered dealers and 12% in case of sale to unregistered dealers. The writ petitioner company was also directed to show cause as to why penalty should not be imposed under Section 16 and Section 16(9) of the Bihar Finance Act, 1981, read with the relevant provisions of the Central Sales Tax Act and to further show cause as to why it should not be directed to correct the returns and to deposit the tax at the correct rate. According to the petitioner, a reply dated 16th January, 2004, was submitted before the Assistant Commissioner of Commercial Taxes, Deoghar Circle, enclosing a copy of the notification and explaining that the petitioner company was liable to charge and deposit tax @ 3% on sale in course of inter-State trade in respect of its products and that returns had, therefore, been correctly filed and taxes has correctly been deposited @ 3% as per the rate prescribed in the notification. The show cause filed on behalf of the petitioner was rejected by an order passed by the Assistant Commissioner of Commercial Taxes, Deoghar Circle, vide Memo No. 246, dated 13th May, 2004, and the petitioner company was directed to deposit tax in relation to its transactions in course of inter-State trade @ 4% in respect of sales to registered dealers and @ 12% in respect of sales to unregistered dealers. Subsequently, the petitioner was informed by a Memo dated 13th July, 2004, written by the Additional Commissioner, Jharkhand, and addressed to the Assistant Commissioner of Commercial Taxes, Deoghar Circle, that the petitioner's product, namely, "glass-ware" was not covered by the Entry in S.O. No. 25, dated 25th June, 2001, and as such, it would be liable to be taxed @ 4% in relation to its transactions in course of the inter-State trade. 5. Aggrieved by the rejection of its reply dated 16th January, 2004, showing cause in response to the letter dated 9th January, 2004, written by the respondent No. 4 and being further aggrieved by the memo dated 13th July, 2004, written by the Additional Commissioner, Jharkhand, to the Assistant Commissioner of Commercial Taxes, Deoghar Circle that the petitioner's products were not covered by the notification dated 25th June, 2001, the writ petitioner company has filed the instant writ application. 6. Appearing on behalf of the writ petitioner company, Mr. Sanjay urged that the concerned respondents has wrongly interpreted the provisions of the notification dated 25th June, 2001, in arriving at a conclusion that the products of the petitioner were not covered by the said notification. According to him, the expression, "all types of glass" as used in the said notification include products made from glass where the primary ingredient is glass. Mr. Sanjay also contended that glass is the final form of different components which are fused together to give glass its final form and such form would be in accordance with the moulds in which they were finally manufactured, such as, different forms of glass-sheets or other glass products, namely, crockery, vases, etc. 7. Mr. Sanjay further submitted that the petitioner company had applied to the Central Glass Ceramic Research Institute, Kolkata, for certification of its products, after describing their nature and characteristics and how they come into existence. Mr. Sanjay referred to the certificate issued by the said Institute, which has been made Annexure-9 to the second supplementary reply to the counter affidavit filed on behalf of the petitioner, wherein, upon reference to the chemical composition of the products of the writ petitioner company as well as their physical and chemical properties, it was opined that the products could very well be regarded as "glass". 8. Mr. Sanjay submitted that the said certificate was sufficient in itself to prove that the products manufactured by the petitioner company were made out glass and consequently came within the expression, "all types of glass" as used in the notification published on 25th June, 2001. 9. In support of his aforesaid submission, Mr. Sanjay firstly referred to the Bench decision of the Patna High Court in the case of Bajrangbali Coke Briquetting Industries v. State of Bihar and Ors., reported in 1987 PLJR 926, wherein the expression, "Coal including coke in all its forms", had fallen for interpretation and it had been indicated that briquettes are manufactured by mixing coal dust with soil and molasses. It was observed by the Hon'ble Supreme Court that briquettes so prepared have direct connection with coal or coke since coal dust is the main ingredient of the product. On the basis of such finding, coke briquettes were also directed to be treated as a form of coke during the assessment proceedings. 10. Reference was also made to the decision of the Hon'ble Supreme Court in the case of Telangana Steel Industries and Ors. v. State of A.P. and Ors., reported in 1994 Supp. (2) SCC 259, wherein it was held that since they have been placed in the Statute under the same sub-item, iron wires could not be treated as a commodity different from wire rods. 11. Mr. Sanjay concluded his submission by referring to the decision of the Hon'ble Supreme Court in the case of Commissioner of Sales Tax v. Industrial Coal Enterprises, , in which the Hon'ble Supreme Court had observed that in Taxing Statutes, provisions granting incentives for promoting economic growth and development should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision. Mr. Sanjay urged that in a Taxing Statute, when a benefit is provided, the same should be interpreted to be in favour of the assessee. Mr. Sanjay submitted that in the instant case, a highly technical stand has been taken on behalf of the Revenue although it had been duly admitted on behalf of the respondents that no expert opinion had been taken before issuance of the impugned notices, which were liable to be quashed. 12. Appearing for the Revenue, Mr. Pradip Modi tried to impress upon us that glass in its primal form could not be equated with the end product of glass where, according to him, a different product was manufactured and even though such product was made of glass, it could not be said to come within the expression "all types of glass" as used in the notification dated 25th June, 2001. According to Mr. Modi, the aforesaid expression was meant to include only glass in its primary form and not as an end product and glass ware, which was the product manufactured by the writ petitioner company, could not be included within the said expression. 13. Mr. Modi submitted that it was the clear intention of the State Government to make the benefits of the notification dated 25th June, 2001, applicable to manufacturers of glass either in the form of glass-sheets or in mass form and glassware could not certainly be made part of such scheme. Mr. Modi urged that interpreting items in Revenue Statutes, the terms and expressions used should be interpreted having regard to their popular meaning and not to their scientific and technical properties. In support of his submissions, Mr. Modi referred to the decision of the Hon'ble Supreme Court in the case of Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, reported in 47 STC 359 (SC), in which various items of hospital equipment and apparatus were held not to be glassware but were referred to with regard to their use and utility. 14. Mr. Modi then referred to another decision of the Hon'ble Supreme Court in the case of Atul Glass Industries (P) Ltd. v. Collector of Central Excise, reported in 63 STC 322 (SC) where the question raised was whether a glass mirror could be included within the expression "glass and glassware" and it was held that it could not, inasmuch as, the original glass-sheet as a result of the process through which it passed, underwent a complete transformation when it emerged as a glass mirror. The evolved product is completely different from the original glass-sheet. The Hon'ble Supreme Court went on to observe that the fundamental function and quality of a glass mirror, its power to reflect, is derived not from the glass-sheet but principally from the silvering and other processes applied to the glass medium. A glass mirror could not, therefore, be regarded as glass. 15. Reference was also made to a Full Bench decision of Madhya Pradesh High Court (Indore Bench) in the case of Commissioner of Sales Tax, Madhya Pradesh v. Triveni Sheet Glass Works Ltd. and Ors., reported in 76 STC 308 (MP), wherein, relying on the decision of the Hon'ble Supreme Court in the case of Atul Glass Industries (P) Ltd. (supra), it was observed that there is undoubtedly a distinction between glass and goods and articles made of glass. 16. Mr. Modi lastly referred to the decision of the Hon'ble Supreme Court in the case of Parle Biscuits (P) Ltd. v. State of Bihar and Ors., reported in 2005 (3) JCR 46 (SC) : 2005 (2) JLJR 3 (SC), wherein paper of all kinds was interpreted only to include the forms of paper mentioned in the relevant notification and not cardboard boxes, which were held to be a product not covered by the Entry in such notification. Mr. Modi contended that it was quite clear that the expression "all types of glass" could not, therefore, include the end products manufactured by the writ petitioner company out of glass. Mr. Modi submitted that the writ petition was wholly misconceived and was liable to be dismissed. 17. We have carefully considered the submissions made on behalf of the respective parties and it appears to us that the interpretation sought to be given by Mr. Modi to the expression "all types of glass" used in the notification published on 25th June, 2001, is neither correct, nor supported by the decisions cited by him. 18. The notification published on 25th June, 2001, brings within its ambit sale of all types of glass and glass-sheets in course of the inter-State trade or commerce from any place of business in the State of Jharkhand. The expression, "all types of glass" appears to us to be an inclusive definition, notwithstanding the attempts made by Mr. Modi to convince us that the products made of glass could not be brought within the ambit of the said expression. For the purpose of the notification of 25th June, 2001, Mr. Modi attempted to make a distinction between glass in its primal form and products made of glass and submitted that products made of glass were not covered by the said notification. 19. In order to emphasize the distinction made by him, Mr. Modi referred to the decision of the Hon'ble Supreme Court in the Atul Glass Industries (P) Ltd. case (supra), which in our view, not only does not support his case but also goes against the submissions made by him. In the said decision, the question, which fell for decision, was as to whether a mirror could be regarded as "glass" or "glassware". On consideration of the manner in which a mirror is manufactured and its uses as a medium of reflection, the Hon'ble Supreme Court observed that the evolved product is completely different from the original glass-sheet. The fundamental function and its quality of a glass mirror, namely, its power to reflect, is derived not from the glass-sheet but principally from the silvering and other processes applied to the glass medium. In that context, the Hon'ble Supreme Court observed that a glass mirror could neither be regarded as glass, nor glassware. The Hon'ble Supreme Court went on to elucidate that a glass bowl, a glass vase, a glass tumbler, a glass table-top and so on are all articles in which the primary component is glass and they are nothing more and nothing less and any treatment of ornamental nature applied to such articles does not derogate from their fundamental character as glass articles. 20. In the instant case also, the products manufactured by the writ petitioner are articles of different form made out of glass. Their character, even after manufacture, remains that of glass, which in our view, would bring such products within the meaning of the expression, "all types of glass". 21. In the other judgment, the Madhya Pradesh High Court dealt with the question as to whether glass-sheets fall within the ambit of the expression, "goods made of glass and glassware". In the said case, the Madhya Pradesh High Court took note of the distinction of products made out of glass and glass-sheets by themselves. The Hon'ble Court observed that there was undoubtedly a distinction between "glass" and "goods or articles made of glass". The Court went on to give examples of goods made out of glass, such as cup, water-Jug etc. and came to the conclusion that once the liquid form of raw material is placed in a mould, it will be a raw material, which may be used for the manufacture of new goods. Therefore, while a glass-sheet was glass simpliciter, it differed from the products manufactured out of glass. In our view, the said decision does not also come to the aid of the respondents in the instant case. 22. Even the decision of the Hon'ble Supreme Court in M/s. Parle Biscuits (P) Ltd., 2005 (3) JCR 46 (SC) (supra) does not support the case made out by Mr. Modi, since the expression, "papers of all kinds" was circumscribed by the articles mentioned in the notification in question which is not so in the instant case, where the expression, "all types of glass", has been used in a generic sense to include glass of all kinds, which would include within its ambit not only glass in its primal form but also objects manufactured out of glass. 23. On the other hand, the decision cited by Mr. Sanjay, in Bajrangbali Coke Briquetting Industries, (supra) appears to have greater application to the facts of the instant case, since in the case also, the Patna High Court was dealing with an inclusive description of coal, including coke in all its forms. Despite the fact that coal briquettes were made by a mixture of coal dust, soil and molasses, the Hon'ble Court observed that the primary ingredient of the product is coal dust and accordingly, coke briquettes must be treated to be a form of coke during assessment proceedings. 24. Apart from the above, we are also in agreement with Mr. Sanjay that when, in a Taxing Statute, certain incentives are granted for promoting economic growth, the same has to be liberally construed so as to advance the objective of the provision. 25. We are convinced that the products of the writ petitioner company, which are made of glass, do fall within the expression, "all types of glass" as used in the notification published on 25th June, 2001, by the State of Jharkhand and that the writ petitioner company had rightly deducted and charged tax @ 3% on sales of its glass products involving inter-State trade and the notices issued by the Assistant Commissioner of Commercial Taxes, Deoghar, Circle, on 9th January, 2004, had been erroneously issued alleging that the petitioner company ought to have charged tax @ 4% in case of sale to registered dealers and 12% in case of sale to unregistered dealers. The order passed by the Assistant Commissioner of Commercial Taxes, Deoghar, Circle, dated 13th May, 2004, rejecting the show cause filed on behalf of the writ petitioner is, in our view, based on the erroneous conception that the petitioner's products made of glass were not covered by the notification published on 25th June, 2001, and is liable to be quashed. 26. The writ application, therefore, succeeds and the order passed by the Assistant Commissioner of Commercial Taxes, Deoghar Circle, on 13th May, 2004, directing the writ petitioner to deposit taxes in relation to inter-State sales @ 4% and to file revised returns for the periods 2002-03 and 2003-04 is quashed. The respondent No. 3 is directed to issue statutory declaration forms and road permits to the writ petitioner company, which had been withheld by the respondent No. 4. The respondents are also directed to levy tax on the glass products of the writ petitioner company @ 3% without requirement of statutory form as per the notification, S.O. 25, dated 25th June, 2001. There will be no order as to costs. R.K. Merathia, J. 27. I agree.	[ 1808776, 1808776, 1808776, 1353758, 1645178, 898387, 1645178, 659535, 124080135, 1985102, 1604162, 1145125, 1064490, 1108170 ]	Author: K . Altamas	216,575	La Opala R.G. Ltd. vs State Of Jharkhand And Ors. on 22 June, 2005	Jharkhand High Court	14
IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28254 of 2011 Shri Bhagwan Mahto, son of Bhuneshwar Mahto Versus The State Of Bihar ----------- 2. 30.08.2011 Heard learned counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence under Sections 323, 379, 504, 420, 467, 468 and 471 of the Indian Penal Code. The petitioner was allowed bail by an order dated 18.3.2011 passed in Cr. Misc. 6188 of 2011, but on one of the conditions that an affidavit would be filed on his behalf that he is not an accused in any other case. Since the petitioner was an accused in Complaint Case, such an affidavit could not be filed and he remained in custody. Considering that on merits, the petitioner was found fit to be released on bail and he has explained his antecedent, 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 Sub Divisional Judicial Magistrate, Sikrahna at Motihari, in connection with Chorasahan (Lakhaura) P.S. Case No. 160 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 2 genealogy as to how he is related with the petitioner. The bailor will undertake to furnish information to the court about any change in the address of the petitioner (ii)That the bailor shall also state on affidavit that he will inform the court concerned if the petitioner is implicated in any other 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 (iii)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. (iv)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. The petitioner is directed to deposit a sum of Rs. 500/- (Five hundred) in the concerned District Legal Aid Committee. ( Anjana Prakash, J.) S.Ali	[ 1011035, 1101188, 555306, 1436241, 1985627, 556166, 1466184 ]	null	216,576	Shri Bhagwan Mahto vs The State Of Bihar on 30 August, 2011	Patna High Court - Orders	7
	[]	null	216,577	[Section 34(1)(ii)] [Section 34(1)] [Section 34] [Complete Act]	Central Government Act	0
	[]	null	216,578	[Complete Act]	Central Government Act	0
ORDER V. Ratnam, J. 1. The question of the maintainability of an appeal under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) arises for consideration in this matter under the following circumstances. The appellants filed I. A. No. 1239 of 1979 in O. S. No. 119 of 1971, Principal Sub-Court, Salem, under Sections 14(2) and 16 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979), praying for setting aside the ex parte decree dated 14th June, 1971, as null and void and also for an amendment of the decree. The application was dismissed by the learned Principal Subordinate Judge, Salem, by his order dated 24th December, 1980. Against that order, the appellants preferred a Civil Miscellaneous Appeal under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). The office returned the papers raising a question as to how the Civil Miscellaneous Appeal is maintainable and requiring the counsel for the appellants to furnish any authority in support of the maintainability of the appeal. The papers were thereafter re-presented stating that the appeal would lie as per Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). The office nevertheless entertained doubt whether in view of the amendment of Section 2(2), Code of Civil Procedure, by Act CIV of 1976 the adjudication on an application under Section 14(2) and 6 of the Tamil Nadu Debt Relief Act. 1979(XL of 1979) would still be deemed to be a decree within the meaning of Section 47, Code of Civil Procedure and appealable as such under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) so far as it is relevant purpose, reads as follows: An appeal shall lie from any of the following orders passed by a Court under this Act, as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 7 of the Code of Civil Procedure, 1908(Central Act V of 1908). Under Section 25(1)(a) to (g) orders passed under certain provisions of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) have been Made appealable. The order in the present case would fall under Section 25(1)(6). Section 25(2) provides for a second appeal on the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908 and that section reads as under: From any order passed on an appeal presented to it under the provisions of Sub-section (1) by a Court subordinate to the High Court an appeal shall lie to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908(Central Act V of 1908). That under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979), the legislature thought fit to confer a right of appeal in matters falling under Section 25(1)(a) to (g) is very clear. The question is, whether as a result of the amendment of Section 2(2), Code of Civil Procedure, deleting from the scope of the definition of a decree an adjudication under Section 47, Code of Civil Procedure, the right of appeal is in any manner curtailed. The argument raised against the maintainability of the appeal is that only by reference to Section 47, Code of Civil Procedure, the effect of an adjudication under the Act is equated to that of a decree and when an adjudication under Section 47, Code of Civil Procedure cannot itself be a decree within the meaning of Section 2(2), Code of Civil Procedure, as a result of the amendment introduced by Act CIV of 1976 the appeal would be incompetent. Though the provisions of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) were passed and also published after the amendments to the Code of Civil Procedure were effected by Act CIV of 1976, yet the legislature thought fit to confer the right of appeal under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) as if the adjudication under certain provisions of the Act amounted to a decree within the meaning of Section 47, Code of Civil Procedure. It can not be assumed that the legislature was unaware of the amendments made to the Code of Civil Procedure by Act CIV of 1976. But yet, the right of appeal under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) has been conferred against a class of adjudications, as if the adjudication related to the execution, discharge or satisfaction of a decree within the meaning of Section 47, Code of Civil Procedure. 2. Stemming from a statute, a right of appeal is a substantive right and any provision conferring such a right should be interpreted with a liberality which would favour an appeal being entertained rather than a stringency that would defeat it. The words of Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) are clear and in favour of an appeal and there is no ambiguity. The use of the words "as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure clearly indicates that as a result of a fiction the effect of an adjudication under the provisions of the Act is placed on a par with that of & decree which, otherwise it is not. In Corpus Juris, Volume 25, page 1036 fiction is defined as under: A legal assumption that a taking is true which is either not true or which is probably false as true; as assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place, an allegation in legal proceedings that does not accord with the actual facts of the case, and which may be contradicted for every purpose, except to defeat the beneficial and for which the fiction is invented and allowed. 3. It is also pertinent to recall in this connection the oft quoted passage of Lord Asquith in East and Dwellings Co. Ltd. v. Finsbury Borough Council (1952) A. C. 109, which brings out very clearly the legal effect of a legal fiction: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolaries of that state of affairs. The above passage has been referred to with approval by the Supreme Court in several earlier cases and also in Industrial supplies (P) Ltd. v. Union of India A. I. R. 1980 S. C. 1858. At page 1864, it has been pointed out that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created and after ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried out also to its logical conclusion and in order to do so, the court has to assume all the facts and consequences which are incidental or inevitable corrollaries. The use of the words "as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure" in Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) clearly indicates that though the effect of the order passed under the Act is not that of a decree and even if the effect of an adjudication under Section 47, Code of Civil Procedure is taken outside the scope of the definition of a decree under Section 2(2), Code of Civil Procedure such an adjudication shall nevertheless be treated as a decree, though in fact and also in law it is not. It must also be noticed that the application in the present case has been filed in the suit itself and if the order on such an application satisfies the characteristics of a decree, the mere fact that the order is deemed to be one passed under Section 47, Code of Civil Procedure, which, as a result of the amendment is taken out of the category of decrees as defined in Section 2(2), Code of Civil Procedure, would not be of any consequence. In view of the aforesaid considerations, the doubt entertained by the office is, thoroughly unfounded and is unsupportable as well. The office is, therefore, directed to entertain the appeal and number the same, if the papers are otherwise in order.	[ 110162683, 17002337, 17002337, 17002337, 110162683, 17002337, 197743596, 110162683, 110162683, 110162683, 197743596, 110162683, 110162683, 1067949, 110162683, 197743596, 110162683, 197743596 ]	Author: V Ratnam	216,579	R. Sundaresan And Two Ors. vs A. Ramachandran And Co. By Partner ... on 30 March, 1981	Madras High Court	18
2. C. O. 39 of 1956, under Section 185 of the Indian Companies Act; 3. C. O. 57 of 1956, under Section 185 of the Indian Companies Act; 4. C. O. 7 of 1957, under Section 185 of the Indian Companies Act; and 5. C. O. 81 of 1957, under Sections 195/196 of the Indian Companies Act. It was stated that if these cases were at this stage referred to the Court of the District Judge, the liquidation of the People's Insurance Company would be delayed besides causing monetary loss to the policy-holders of this Company. ORDER Tek Chand, J. 1. The Official Liquidator of the People's Insurance Company Limited (in liquidation) presented a petition purporting to be under Section 436 read with Section 438 of the Companies Act, 1956, and Section 151 of the Code of Civil Procedure, praying that certain cases may continue to be heard by this Court and not transferred to the Court of the District Judge, Delhi. A reference was made in the petition to the recent Full Bench decision of this Court in National Planners, Ltd. v. Contributories, etc., 1958-60 Pun LR 187 : (AIR 1958 Punj 230), where it was held that winding up proceedings pending before the District Judge must continue in that Court and it was not necessary under the Companies Act of 1956 to transfer such proceedings to the High Court. The petition mentioned that there were the following cases pending in this Court and in some of which evidence has already been recorded while in others processes have been issued for recording of evidence : 1. C. O. 38 of 1956, under section 185 of the Indian Companies Act; 2. The respondents filed written statements opposing the petition. It was stated on their behalf that the petition was not maintainable under Sections 430 and 438 of the Companies Act and in view of the provisions of Section 647 of the Companies Act, 1956, and of the decision of the Full Bench referred to above, Sections 436 and 438 did not apply to the companies which were being wound up when the Companies Act of 1956 came into force. The second objection was that under Section 2(6) and Section 53 of the Insurance Act of 1938 the jurisdiction to wind up an insurance company vested only in the Court of the District Judge of the District, in which the registered office of the Company was situate, and for this reason the proceedings for the winding up of the petitioner Company could be taken only in the Court of the District Judge, Delhi. It was also contended that this Court had no jurisdiction to try the cases of the People's Insurance Company Limited (in liquidation). On merits it was said inter alia that the respondents who were residents of Delhi, were greatly inconvenienced in attending to these cases in the High Court. 3. In his replication the Official Liquidator maintained that even if Sections 436 and 438 were held inapplicable, the petition was maintainable under Clause 9 of the Letters Patent and also under Section 24 of the Code of Civil Procedure, It was also reiterated that the interests of Justice and convenience of the parties required, that further proceedings should continue in this Court, otherwise there was danger of several complications arising in case the proceedings were now to be held in the Court of the District Judge. 4. By my order dated 26th of September, 1957, in Civil Original No. 7 of 1957, I had referred the following question to a larger Bench : "Whether, in a case in which, the winding up of an Insurance Company had commenced in the District Court, before the coming into force of the Companies Act, 1956, the High Court has jurisdiction to continue further winding up proceedings." 5. The Division Bench consisting of my Lord the Chief Justice and Chopra J. answered the question In the negative and held that in a case as that of this Company, in which the District Judge, Delhi had ordered the compulsory winding up of the Company in May 1955, the High Court had no jurisdiction to continue further winding up proceedings. 6. The winding up proceedings in this case after the passing of the winding up order by the District Judge on 20th of May, 1955, were sent to this Court under the following circumstances : The District Judge, Delhi, sent a communication dated 9th of March, 1956, to the High Court stating that in view of the provisions of Section 10 of the Companies Act, 1956, if it was desired that the District Judge, Delhi, should have jurisdiction, the Central Government might be moved to issue the appropriate notification under Sub-section (2) of Section 10. Another communication was sent by the District Judge, Delhi, dated 11th of April, 1956, enclosing a copy of his order in a liquidation case in which he had expressed the view that the District Court, Delhi, had ceased to have jurisdiction for winding up companies under the Companies Act, 1956. He also stated, that besides that case, there were a number of other liquidation cases also the list of which he had enclosed which were covered by his aforesaid order. He solicited the orders of the High Court as to whether the files of such cases were to be forwarded to Chandigarh or were to be sent to the Assistant Registrar, Circuit Bench, at Delhi. The Hon'ble the Chief Justice ordered that "all such files should be sent to Chandigarh." The files of the Company in liquidation before me were received in this Court and the various proceedings in pursuance of the winding up order have been going on in this Court ever since. 7. The winding up order was passed by the District Judge, Delhi, on 20th of May, 1955, and the People's Insurance Company Limited was ordered to be compulsorily wound up and the Provisional Liquidator was appointed as the Official Liquidator of the Company. 8. This petition relates to three cases under Section 185, one under Section 184, and one under Sections 195 and 196 of the Indian Companies Act, 1913. All these matters arise under the provisions of winding up under Part V of the Act. The learned counsel for the Official Liquidator has frankly conceded that in view of the decision of the Full Bench, his petition is not maintainable under Sections 436 and 438 read with Section 647 of the Companies Act of 1956. 9. The main controversy which emerges from the arguments of the learned counsel for the parties centres on the question, whether this Court is rightly seized of the cases, and if not, whether in the exercise of its powers under Clause 9 of the Letters Patent and under Section 24 of the Code of Civil Procedure, these cases should be, or deemed to have been, transferred to this Court and therefore the proceedings should go on here and not in the Court of the District Judge. The stand of the learned counsel for the respondents is, that this Court has no jurisdiction whatever, and the cases in question should neither he transferred, nor be treated to have been transferred under the orders of the Hon'ble the Chief Justice under Section 24 of the Code of Civil Procedure or of Clause 9 of the Letters Patent. Clause 9 of the Letters Patent runs as under : "9. Extraordinary original civil jurisdiction: And We do further ordain that the High Court of Judicature at Lahore shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court subject to its superintendence, when the said High Court may think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court." 10. No doubt the proceedings in this Court under the Indian Companies Act are not in the nature of "suit" as narrowly construed, but the word "suit" in Clause 9 of the Letters Patent has been given a wider significance and includes proceedings of a civil nature whether commencing with plaint or not. In Harkishan Lal v. Peoples Bank of Northern India, Ltd., AIR 1936 Lah 608, it was held by a Division Bench that the word "suit" in Clause 9 should be interpreted widely and it includes proceedings in the insolvency Court, and the High Court under its extraordinary powers has jurisdiction to transfer a proceeding in insolvency from the lower Court to itself for disposal. Young, C. J., observed at page 609 : "In our opinion, Section 3(1) (Provincial Insolvency Act, 1920) merely enacts that the ordinary jurisdiction in insolvency shall be in the District Courts. It does not exclude the extraordinary civil jurisdiction of the High Court." 11. In In the matter of the West Hopetown Tea Co., Ltd., ILR 9 All 180, it was held by a Full Bench of three Judges that there was nothing in the Indian Companies Act (VI of 1882) or the High Courts Act or the Letters Patent, which prevents the High Court from calling for the record of the proceedings in the winding up of a company under the Companies Act, and transferring those proceedings to its own file. The objection that the High Court had no power to call up the record and transfer the winding up proceedings to its own file was rejected. 12. The next case reported is In the matter of, General Assurance Society Ltd., Ajmer, AIR 1956 Raj 61. It was held that the words of the proviso to Section 3 of the Indian Companies Act, 1913, do not exclude the jurisdiction of the High Court in Company matters and hence the High Court does not lose its jurisdiction in Company matters. This was a case of an Assurance Company. It was also held that as the High Court did not suffer from inherent want of jurisdiction, even when a District Court is authorised to exercise jurisdiction under the Act, the High Court could proceed with the application before it by virtue of Section 3(3) of the Act. It was further held, that even if it be assumed that the High Court had no jurisdiction, Section 17 of the Rajasthan High Court Ordinance -- which is equivalent to Clause 9 of our Letters Patent -- authorises transfer of any case to itself falling within the jurisdiction of any subordinate Court. Bapna J. observed : "The word 'suit' in Section 17 has a wide meaning and would include all civil proceedings pending in the subordinate Courts. It would be a mere formality to transfer the cases to a District Court and thereafter to retransfer them to the High Court should the High Court think it proper to try the cases itself." 13. The authorities cited above make Clause 9 of the Letters Patent applicable to this case. It is argued by the learned counsel for the respondents that the order of the Hon'ble the Chief Justice dated the 7th of May, 1956, was an administrative order and further as it did not contain any reasons for transferring the files to the High Court it was not covered by Clause 9. But for purposes of transferring a case from the file of one Court to that of the other, the passing of judicial orders after hearing the parties are not within the contemplation of either Clause 9 of the Letters Patent or of Section 24 of the Code of Civil Procedure. It cannot be stressed that the order is bad because no reasons in support of it have been recorded by the High Court. The reasons have been given by the District Judge, which were accepted by the Hon'ble Chief Justice. 14. Under Section 24, Civil Procedure Code, the High Court may either on the application of any of the parties and after notice to the parties or after hearing such of them as desire to be heard, or of its own motion without such notice, may at any stage withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and try or dispose of the same. 15. In Babubhai Vamalchand v. Hiralal Vamalchand, AIR 1941 Bom 69, a suit had been properly instituted in the Court of First Class Sub-Judge and later on it was transferred to the Second Class Sub-Judge by an administrative order. It was held by the High Court, that it may properly take action of its own motion under Section 24 and in order to save difficulty and delay, transfer the suit to the First Class Sub-Judge for disposal. 16. In a Full Bench decision of the Madras High Court, Annamalai Chettiar v. Ramanathan Chettiar, AIR 1936 Mad 55, it was held, that both under Clause 13 of the Letters Patent of that Court -- which is equivalent to Clause 9 of the Letters Patent of this Court -- and Section 24 of the Code of Civil Procedure, the High Court had power to withdraw a suit from a subordinate Court and try and dispose of the action itself, and this may be done of its own motion, without notice to the parties and, at any stage of the suit. 17. In C. L. Gulati v. G. Reeves Brown, AIR 1939 Lah 463, it was held, that under Section 24, a Judge in Chambers has got jurisdiction to transfer a case under Sections 302 and 303, Succession Act, to his own Court at any stage and he can suo motu examine the accounts filed under Section 317 of the Indian Succession Act (1925) so as to pass an order under clause (4) of that section. Reference may also be made to Kavasji Pestonji v. Rustomji Sorabji, AIR 1949 Bom 42 and Allahabad Bank, Ltd., Lahore v. Raja Ram, AIR 1933 Lah 671, which are to the same effect. 18. The learned counsel for the respondents hag placed reliance upon a Division Bench decision of this Court in Sathir Singh v. Rajbir Singh, AIR 1954 Punj 274. In that case it was held that there was nothing in the Guardians and Wards Act which gave ordinary original jurisdiction to the High Court to deal with the petition filed under the Act. The petition for the appointment of a guardian could only be entertained in the High Court in the exercise of its extraordinary civil jurisdiction. In that case a petition was instituted in the first instance to the High Court under what was alleged to be the "inherent powers of the High Court." It was held that the petition must first be instituted in the District Court where it lay and then if that Court be subordinate to the High Court it could, if that Court so thought fit, be withdrawn from that Court and decided in the High Court. That decision is distinguishable on the facts of this case. The District Judge, as noticed above, had passed the winding up order in 1955 and it was in 1956 that the file was sent to this Court, but in the ruling referred to above, the proceedings were initiated in the High Court which obviously could not be done. 19. It was then argued on behalf of the respondents that five cases, the transfer of which was sought, were never filed in the Court of the District Judge, but were originally filed in this Court and therefore, the respective petitions should be returned to the Official Liquidator for presentation to the Court of the District Judge. All proceedings consequent upon winding up order are the offshoots of that order. Proceedings under Sections 184, 185, 195 and 196 of the Indian Companies Act are begun after the winding up order is passed. As they stem from the winding up order passed under Section 162, they cannot have a separate and an independent existence. These proceedings became necessary during the progress of winding up and in fact they themselves are in the nature of winding up. 20. It was also argued, that although proceedings have been pending in this Court since 1956, in some cases a number of witnesses have been examined and in others, important decisions have been made, no respondent in any one of these cases questioned the jurisdiction of this Court. It is true that where a Court has no inherent jurisdiction to entertain a case, the acquiescence of a party cannot confer jurisdiction upon the Court, vide Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155. But this rule has its limitation and cannot extend to cases where the Court has extraordinary original civil jurisdiction. In Ex parte Pratt, (1884) 12 QBD 334, Bowen, Lord Justice, observed; "There is a good old-fashioned rule that no one has a right so to conduct himself before a tribunal as if he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him, to turn round and say, 'You have no jurisdiction'. You ought not to lead a tribunal to exercise jurisdiction wrongfully." 21. In Ex parte May, (1884) 12 QBD 497, Bowen, L. J., said: "If the point had been taken the Court could have clothed itself with jurisdiction to make the adjudication under Sub-section (12) of Section 125 (of the Bankruptcy Act). I think the true ground of our present decision is this, that the debtor had no right to allow the Court which could have exercised jurisdiction rightly, to exercise jurisdiction on a wrong ground, and then to come to the Court of Appeal and say, The Court below had no jurisdiction to make the adjudication against me. The answer before me is, The Court had jurisdiction to make the adjudication if it had exercised it in the right form". 22. Both the above decisions were considered in a Division Bench decision in Posan Singh v. Inderdeo Singh, AIR 1952 Pat 328, and it was held that where there was no inherent want of jurisdiction the doctrine of waiver applied. In that case the record of a civil suit was sent from the Second Additional Munsif to that of the Third Additional Munsif who had jurisdiction to entertain the suit, but there was no order of the District Judge sanctioning the transfer of the suit. It was held that the failure to obtain the order from the District Judge was a defect of procedure which had been cured by waiver. The principle of the above decision applies to this case. 23. Bank of Chettinad v. S. P. K. V. R. Firm, AIR 1935 Rang 517, cited on behalf of the respondents is not applicable as this is not a case of assumption of jurisdiction by a Court where it had none. 24. On a consideration of the facts of this case and after examining the arguments of the learned counsel, I am of the view that in the exercise of its extraordinary original civil jurisdiction this Court is competent to transfer proceedings pending in the Court of the District Judge, to itself. Neither Section 24 of the Code o[ Civil Procedure nor Clause 9 of the Letters Patent, is any bar to this Court's power to withdraw, of its own motion, and without notice to the parties, any proceedings pending in any Court subordinate to it and to try and dispose of the same. I am also of the view that such proceedings stood validly withdrawn from the Court of the District Judge, when on the representation made by the District Judge to the High Court, the Hon'ble the Chief Justice ordered that all such files should be sent to Chandigarh. This order was competent and within the scope of Section 24, Civil Procedure Code, and Clause 9 of the Letters Patent. In any case even if the winding up proceedings were now pending in the Court of the District Judge, I would have ordered their withdrawal from that Court and would have directed that the liquidation proceedings and other ancillary matters be tried and disposed of by this Court. It will be a futile formality, now that all the files have been in this Court since 1956, to transfer the cases to the District Court, Delhi, and thereafter to retransfer them to this Court. This was also the view expressed by Bapna J. in AIR 1956 Raj 61. 25. In my view, the cases referred to in this petition were validly transferred to this Court, and in the exercise of its extraordinary original civil jurisdiction, this Court is rightly seized of the proceedings and has jurisdiction to itself try and dispose of the same. 26. The only question that remains to be disposed of is the desirability of taking such steps. On behalf of the respondents it has been urged, that hearing of cases at Chandigarh is inconvenient to the parties and burdens them with unnecessary expense. This objection does not seem to have been present to the respondents prior to this petition. Large sums are involved and there are serious allegations made against the ex-Directors and other contributories not only as to gross mis-management but also as to defalcation and misappropriation etc. Various steps under Part V of the Indian Companies Act of 1913 have been taken by this Court and various proceedings are going on. It will not be in the interests of justice and convenience that the proceedings which have been pending in this Court for the last two years should now be transferred to the Court of the District Judge, Delhi. 27. I, therefore, allow the petition and direct that all proceedings connected with the winding up of the People's Insurance Company (in liquidation) shall remain and be continued in this Court in the exercise of its extraordinary original civil jurisdiction. I will leave the parties to bear their own costs.	[ 257409, 257409, 257409, 257409, 257409, 1994238, 1196503, 1353758, 257409, 1954106, 1994238, 1591579, 257409, 257409, 1353758, 1973807, 1058144, 745933, 1994238, 1353758, 1907423, 1907423, 1353758, 179512, 1847726, 257409, 257409, 745933, 1994238, 1591579, 257409, 301673, 257409, 1483303, 1353758, 860740, 1330413, 1513155, 993607, 241179, 993607, 946639, 993607, 129277, 531455, 1450343, 1372849, 822294, 1220, 1608688, 257409, 257409, 257409, 257409, 257409, 1652166, 257409, 1317106, 257409 ]	Author: T Chand	216,581	Peoples' Insurance Co. Ltd. vs Sardul Singh Caveeshar And Ors. on 31 May, 1958	Punjab-Haryana High Court	59
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/4/2007 CORAM : THE HON'BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA and THE HON'BLE Mr.JUSTICE K.VEERARAGHAVAN Rev.Appl.Nos.45,46 of 2006 in W.A.(MD)Nos.81,82 of 2006 The Special Officer, Pudukkottai District Central Co.operative Bank Limited, Pudukkottai. .. Petitioner in both Review Applications Vs 1. R.Devendram .. Respondents in Rev.Appl.No.45 of 2006 2. SP.AM.Sundaram .. Respondents in Rev.Appl.No.46 of 2006 3. The Registrar of Co-operative Societies, Kilpauk, Chennai-10. .. Respondents in both Review applications Prayer in R.A.No.45 of 2006: Review petition filed under Order 47 Rule-1 Code of Civil Procedure against the order dated 15.11.2006 passed in W.A. No.81 of 2006. Prayer in R.A.No.46 of 2006: Review petition filed under Order 47 Rule-1 Code of Civil Procedure against the order dated 15.11.2006 passed in W.A. No.82 of 2006. !For Petitioner : Mr.K.Jayaraman ^For RR 1 in both applications) : Mr.AR.L.Sundaresan, Senior Counsel For RR 2 : Mr.R.Janakiramalu :ORDER Order of the court was made by F.M.IBRAHIM KALIFULLA, J. These review petitions have been preferred by the second respondent in the writ appeals. 2. Mr.K.Jayaraman, the learned counsel for the second respondent submitted that on the date of hearing namely 15.11.2006, the counsel could not be present and therefore, certain vital legal questions involved in the writ appeals could not be placed before the Division Bench but for which the order in the writ appeals would not have been passed. 3. The review petitioner has raised three contentions namely, that in the light of the Full Bench decision of this Court reported in 2006(4) CTC 689 (K.Marappan V. The Deputy Registrar of Co-operative Societies, Namakkal), the writ petition itself was not maintainable and consequently, no relief could have been granted in the writ appeal. Secondly, it was contended that the issue relates to non grant of promotion to the writ appellants on the ground that they suffered the punishment of censure which was in operation during the relevant period namely immediately preceding three years from the date when the selection promotion was made. 4. According to the learned counsel for the review petitioner as per the bye-laws of the society when censure has been listed out as one of the punishments, having regard to the dictum of the Honourable Supreme Court reported in 1998 SCC (L & S) 1121 (State of M.P. V. I.A.Qureshi), the same would operate as a bar for considering the writ appellants for promotion. Lastly, it was contended that irrespective of the clause in the bye-laws listing out the penalties as between the candidates who were considered for promotion, one who suffered a punishment of censure or any other punishment cannot be equated to another employee who served the petitioner society without any blemish and therefore, on this ground as well the claim of the writ appellants was not justified and therefore, no interference was called for to the order of the learned Single Judge. 5. As against the above submissions, Mr.AR.L.Sundarasan, learned senior counsel appearing for the writ appellants at the out set contended that the case of the writ appellants would fall within the criteria laid down in paragraph 21(i) of the Full Bench decision and therefore, the writ petition was maintainable. The learned counsel then contended that the Division Bench having examined the question whether censure would constitute the punishment and has taken a view that the same can only be treated as warning or a minor penalty and not a full fledged punishment, no interference is called for in a review petition. According to the learned senior counsel, the writ appellants having served the society for a quite long time cannot be deprived of their promotion merely because of the censure administered on them. Apart from the respective submissions, it is also stated that both the writ appellants were promoted after the prohibitive period of three years which was an impediment for considering them for further promotion to the post of Assistant Manager. 6. In the above said background, when we considered the respective submissions of the learned counsel, as far as the contention regarding the maintainability of the writ petition is concerned, a perusal of clause (i) of paragraph 21 of the Full Bench decision it comes to light that if a particular Co-operative Society can be characterised as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court), it would also be, 'an authority' within the meaning and for the purpose of Article 226 of the Constitution and that in such a situation, even an order passed by a society in violation of the bye-laws can be corrected by way of Writ Petition. As far as the tests are concerned the same have been set out in paragraph 7 of the decision of the Full Bench. The tests as laid down in the Ajay Hasia Case of the Honourable Supreme Court have been reproduced in the said paragraph. The tests laid down therein broadly set out states that if the entire share capital is held by the Government or where the financial assistance of the State is so much as to meet almost entire expenditure that would afford an indication of the Co-operative Society being impregnated with governmental character. With that tests laid down by the Honourable Supreme Court in mind when we considered the submission of learned counsel for the writ appellants, it was stated that substantial shareholdings of the review petitioners society is that of the State Government. That apart, the said issue was not very much in controversy both in the writ petition as well as in the writ appeals. 7. We are therefore of the view on that ground there is no scope to countenance the contention of the review petitioner to interdict with our order passed in the writ appeal. As far as the contention placed on bye-laws 6, its proviso and the explanation attached to it, the question is whether the expression "any punishment" would take within its fold 'censure' awarded to the writ appellants. Under bye-law 19 of the review petitioner's bye-laws, it is stated as under "The following penalties may, for 'good and sufficient' reasons or for "misconduct" be imposed upon on employee:- (i) Censure" A reading of bye-law 19 is quite explicit and there is no reason for doubt that 'censure' is one of the penalties prescribed under the bye-laws of the society. In this context, the decision of the Supreme Court reported in 1998 SCC (L & S) 1121 (cited supra) relied upon by the learned counsel for the review petitioner assumes significance. In paragraphs 7 & 8 of the said decision, the Honourable Supreme Court has stated the legal position in the following words: "7.The submission of Shri khanduja is that "censure" is only a recorded warning and does not constitute punishment and, therefore, the directions contained in the circular in relation to imposition of minor penalty would not apply and the Tribunal was justified in giving the directions for opening of the sealed cover and for giving effect to the recommendations of the DPC. 8. We are unable to accept the said contention of the Shri.Khanduja. "Censure" cannot be equated with a warning since under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, "censure" is one of the minor penalties that can be imposed on a government servant. It cannot, therefore, be said that the penalty of censure which was imposed on the respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2.5.1990. Once it is held that a minor penalty has been imposed on the respondent in the departmental proceedings, the direction given in the said circular would be applicable and the sealed cover containing recommendations of the DPC could not be opened and the recommendations of the DPC could not be given effect because the respondent has not been fully exonerated and a minor penalty has been imposed. The respondent can only be considered for promotion on prospective basis from a date after the conclusion of the departmental proceedings." (Emphasis added) 8. As per the law laid down by the Honourable Supreme Court, even a censure which has been prescribed as a 'penalty' under the rules would certainly operate as an embargo for considering the case of an employee for promotion. In other words, a reading of bye-law 19 along with the explanation to clause 6 of the bye-laws leads us to hold that even the punishment of censure would come within the mischief word "any punishment" described in the explanation to bye- law 6 and consequently, the award of such punishment to an employee would deprive such an employee's promotion for a period of three years from the date of imposition of such punishment. Once such a conclusion is in-escapable by applying the ratio of the Honourable Supreme Court, we have to necessarily review our order dated 15.11.2006 and state that even the punishment of censure should be construed as one covered by clause 6 of the bye-laws of the review petitioners society. 9. Once such a position is ascertained and the same is applied to the case on hand, we find that both the appellants suffered the punishment of censure on 06.03.2003 and 26.09.2003 respectively. Since the panel was drawn on 6.12.2004, the punishment of censure did act as an impediment for being considered for further promotion to the post of Assistant Manager. 10. In view of the said conclusion, no fault can be found on the action of the review petitioners in not considering the case of both the writ appellants while effecting promotions in December 2004. Having regard to our conclusion in these review petitions, our order dated 15.11.2006 in setting aside the order of the learned Single Judge stands reviewed and the order of the learned Single Judge is confirmed. For the reasons set out in this order, the review petitions are allowed and the writ appeals stand dismissed. 11. The cost awarded by the learned Single Judge alone is set aside in view of the fact that both the writ appellants are employees and there were substantial questions of law involved in the writ petition as well as in the writ appeals. 12. It is reported that both the writ appellants were subsequently promoted in the normal course in the year 2006. The Review Petitioner in their order dated 8.3.2007 have stated that the promotions of the writ petitioner would be subject to the result of the review petitions. Since we have allowed both the review petitions, the promotions accorded to the writ appellants shall not in any way be affected by these proceedings. No costs. sgl To The Registrar of Co-operative Societies, Kilpauk, Chennai-10.	[ 186075, 609139, 1712542 ]	null	216,582	The Special Officer vs R.Devendram on 4 April, 2007	Madras High Court	3
IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15528 of 2009 SANJIT KUMAR SINHA Versus STATE OF BIHAR 2 04.11.2010 As prayed for, put up on 15th November, 2010 under the same heading. (Akhilesh Chandra, J.) AAhmad	[]	null	216,583	Sanjit Kumar Sinha vs State Of Bihar on 4 November, 2010	Patna High Court - Orders	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM LA.App..No. 385 of 2008() 1. STATE OF KERALA . ... Petitioner Vs 1. K.APPUKUTTAN, S/O.KESAVAN, ... Respondent 2. THE MANAGING DIRECTOR, For Petitioner :GOVERNMENT PLEADER For Respondent : No Appearance The Hon'ble MR. Justice M.N.KRISHNAN Dated :30/11/2009 O R D E R M.N. KRISHNAN, J. = = = = = = = = = = = = = = = L.A.A. NO. 385 OF 2008 = = = = = = = = = = = = = = = Dated this the 30th day of November, 2009. J U D G M E N T This is an appeal preferred against the award of the Land Acquisition Court, Thiruvananthapuram in LAR 415/03. An area of 0.07 Ares of land comprised in R.S.No.527/05 of Pettah village was acquired for the purpose of expansion of International Airport, Thiruvananthapuram. The Land Acquisition officer fixed the land value at Rs.7,655.55 and value of structures at Rs.22,339/-. In a reference the Land Acquisition Court in paragraph 10 of its award fixed the value of structures at Rs.35,000/- and the land value to Rs.2,00,000/- per Are thereby enhanced the land value by Rs.6,344.45 and value of structures by Rs.12,661/-. 2. I had carefully perused the award. I do not find any basis given by the Land Acquisition court for enhancing the value of structures. He criticized the land acquisition officer holding that on what basis he has calculated the value L.A.A. 385 OF 2008 -2- of structures. In the next sentence he jumps to the conclusion that it can be enhanced by Rs.35,000/-. I do not find any materials discussed or supplied to arrive at that decision. 3. Similarly regarding the land value also the claimant makes a claim of Rs.3 lakhs and the land acquisition court makes it at Rs.2,00,000 lakhs without any basis. So these are all materials which requires detailed consideration at the hands of the court below. Therefore the award under challenge is set aside and the matter is remitted back to the Land Acquisition Court for fresh consideration of the land value as well as the value of the structures. Parties are directed to appear before the Land Acquisition Court on 7.1.2010. M.N. KRISHNAN, JUDGE. ul/-	[]	null	216,585	State Of Kerala vs K.Appukuttan on 30 November, 2009	Kerala High Court	0
, '_ Anni, V IN THE HIGH ooum' OF KARNATAKA, ' DATED THIS THE 23'"! DAY:-OF' BEFORE THE HON'BLE MR. A's.Bo.1§3$miA%'V '.1!..,l'I' PE-T. . IQN ,1 vulva. -3? * 9.34 «,r=m ,.--,g.g;;;; BETWEEN: _ V _ UNITED INDIAINSURANC-E " Divimor-5A1. o?§:g_§y- _ .v .& _ ._ P.B. NO. 88.;1'13'_;.134-7; IIND-..FLOO'R ' PUB Bb'iLBIi€GSi,'__A,;A. '_ B.H.RQAD.,_ -- ' _' sHiM0r3A--57?.T,-301 _ _ BY ITS AssIsTAN1>.MANA(sEVRvv----._ -- - PETITIONER (BY SR£ OWLHAESHV, z»;.:M A _ s.,N:RANJAN SI-IASTRY ~ T as/-0, LATEEJAGABHUSHANA SI-[_AS'I'RY % NEAR,R&JA"SHEKAR TALKIES A? ' surxaxiamuns, SHIMOGA DIST - 577 201 2 SARITHA W/O MR SANJAY A ' 21 YEARS, N05 856, RUKMINI COLONY r _ NEAR AJANTHA THEATRE " BANGALORE - 560042 RESPONDENTS' [ ~ 13:? SR! v s PRASAD, ADV FOR R13 L ]L "9 THIS WRIT PETITION IS FILED UNDER ARTlC_LE$'226 AND' ' 227 OF THE CONS'!'I'!'UT!QN QF !N£!.'. PRAYEHGV --a»Q'QU&';$ ~«.TE%E " V. V JUDGEMENT VIDE ANNEXA. AND .CER'P!F'IE'D COW' AWARD VLDE AMNIEJKLB. BOTH PASEBED 01'! 11.53993'-5'a.' THE' PRL. MOTOR ACCIDENT owns Trexaubm; Af3!'D"TI-{EV calpiwf JUDGE OF SMALL CAUSES AT EAN'C-£9-LC«'RE {H'w'b,.?-'~;'\3'i".! "953, 'G? 1996 AND Em. V _ . THIS PETITION comma <j'r{FoR Htsaléileue THIS DAY. THE CQUEP MAQE THE -11.: mtéii;1Lezi;},:.2-!:2.e'¢.-re-;f.:¢ 'ﬁﬁfi':"i"1:': thia Cain-t as-amuu"""§ -:i_ paaaeti in 3-io}5:'i96."e % _H.Mfhe mar and the char' Judge 5:. has awmtled the sum of R§..5,570f-- costs and interest at 6% p.a. to the dais: of payment. The said the respondent Noa.1-andeﬂ-therein jeiqfijr among whom the ie t_h_e ' V _ ﬁrst A The gtievanee put ibrth by the petiﬁocnerv-lnaunnee C ..._(3§:mpany is that the mar was not juatiﬁed in ﬁxing the on the insurance Company also, -tﬁhe veh_1't_2k @- " J5-""" question was a pnvate' ear, but the name had uBed_ V' taxi and therefore, the name was teru 1» T. Insurance Policy. The judgment along with the judglnent 52,11-:a<e:o6= In ;g_,.n-gm: es the at:-.a.-- mm ﬁos.2i9oj_r;4, and 2195104. 3133- 131- appenh' __ . A oo- oxtlinate disposing ofthe said- appeale on upheld the contention of the such, has uet aside the judgtnent ogatnst the Insurance Gmnpany and :.---J_ - ---o---' . the eholl nmr the et..ﬁ.:I.p-..-z-.a.is.-.2-. to A t....'-- -2......-"-' vie'.'.-' uu""'5 -'-can-:1 takeii o"" i % .L'I__'._ I1_ __ __4. or' "we of mm uourt, in preaent idea, the piztfoxtia by the insurance Company would have to be inmn-mu"'"'"' arnd iniofar as the oaunpenenﬁon mvatlieci 'by the mar, the owner shall alone be liable to pay the claimants and the judgment and the Insurance Company liable in With the above stands allowed. No older as	[]	Author: A.S.Bopanna	216,587	United India Insurance Co Ltd vs S Niranjan Shastry on 28 March, 2008	Karnataka High Court	0
62, For money payable Three years When the money by the defendant to is received, the plaintiff for money received by the defendant for the plaintiff's use. ORDER Kapur, J. 1. This is a rule obtained by the defendant, Municipal Committee, Amritsar, against a judgment and decree of Mr. Monahar Singh, Small Cause Court Judge, Amritsar, dated 18-10-1951, decreeing the plaintiff's suit for the recovery of Rs. 252/8/-. 2. In the year 1945 the Municipal Committee of Amritsar levied house-tax, but by a notification this house-tax was not recoverable from religious institutions. The Committee recovered a sum of Rs. 344/5/- as house-tax from the plaintiff who is the Mahant of Akhara New Panchayati, Amritsar, for the years 1946-47, 1947-48 and 1943-49. On 10-8-1949 a suit for perpetual injunction was brought by the present plaintiff restraining the Committee from realising any house-tax on Akhara property which was granted on 1-2-1951. The Committee refunded the tax for the year 1948-49 which was Rs. 91/13/-, but they refused to return the balance. The plaintiff thereupon brought a suit for the recovery of this money alleging that this tax was 'ultra vires' and the tax had been illegally recovered from the plaintiff. The suit was defended on the ground of limitation. The learned Judge has held that the suit is within limitation and has applied Article 96, Limitation ACT me municipal committee has come up in revision to this Court. 3. Mr. Grover has submitted that this Court should not interfere as substantial justice has been done and the mere fact that the Court may have taken an erroneous view on me question of limitation would not be any ground for interference by this Court on its revisional side. He has relied upon three judgments of the Lahore High Court. In the first one, -- 'Ghasita v. Sultan', 93 PR 1911, Rattigan J. held that the Chief Court would not interfere, in the exercise of its discretional powers of revision, with an erroneous decision on the question of limitation where substantial justice had been done. The same view was taken by Addfson J. in -- 'Karam Chand-Sant Ram "v. Daya Nand-Damodar Das', AIR 1928 Lah 51 (2), and by Din Mohammad J. in -- 'Charan Dass v. Ram Rattan', AIR 1935 Lah 137. 4. The question in the present case is not merely of substantial justice but a question of principle is involved as this decision affects the rights of the Municipal Committee in regard to taxes which have already been recovered. I am therefore not inclined to dismiss the petition of the Municipal Committee on the mere ground of substantial justice. 5. The present suit brought on 28-8-1951 and the taxes were collected -- Rs. 166/11/-for the year 1946-47 on 3-2-1947 and Rs. 91/13/- for the year 1947-48 on 16-2-1948. The petitioner Committee relies on Article 62, Limitation Act which is as follows; The question to be decided is whether the money which was paid to the defendant-Committee by the plaintiff can come within the phrase "money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use". The petitioner relies upon several decided cases in all of which Article 62 was applied to taxes recovered by or paid to Municipal Committees when they were not so due. In -- 'The Rajputana Malwa Rly. Co-Operative Stores, Ltd. v. Ajmer Municipal Board', 32 All 491, a Municipal Board in disregard of certain lawful orders levied upon a Company certain sums by way of octroi duty over and above what they were legally entitled to levy. This was held to be a suit for money had and used for the use of the defendant within the meaning of Article 62, Limitation Act. At page 496 the Court observed; "The language of Article 62 is borrowed from the form of count in vogue in England under the Common Law Procedure Act of 1852 xxx The most comprehensive of the old common law counts was that for money received by the defendant for the use of the plaintiff. This count was applicable where a defendant received money which in justice and equity belonged to the plaintiff under circumstances which rendered the receipt by the defendant to the use of the plaintiff. It was a form of suit which was adopted when a plaintiff's money had been wrongfully obtained by the defendant as for example, when money was exacted by extortion, or oppression, or by abuse of legal process, or when overcharges were paid to a carrier to induce him to carry goods or when money was paid by the plaintiff in discharge, of a demand illegally made under colour of an office. It was a form of claim which was applicable when the plaintiff's money had been wrongfully obtained by the defendant, the plaintiff in adopting it waiving the wrong and claiming the money as money received to his use". See -- 'Morgan v. Palmer', (1824) 2 B & C 729: 26 RR 537 and -- 'Neate v. Harding', (1851) 6 Ex 349." 6. Reliance was next placed on a judgment of Kania J-, as he then was, in -- 'City Municipality, Bhusawal v. Nussorwanji Hormusji', AIR 1940 Bom 252, where it was held that Article 96 applies when the cause of action is applicable to all citizens is not and cannot itself form the basis of a cause of action. Hence, a suit to recover certain amount of Municipal tax on the ground that it was illegally levied is governed by Article 62 and not by Article 96. It will be noticed that the learned Judge took into consideration the allegations made in the plaint. In the present case no question of mistake was ever raised in the pleadings of the parties. Counsel then relied on a judgment of the Madras High Court in -- 'India Sugars and Refineries Ltd. v. Municipal Council, Hospet', ILR (1943) Mad 521, where it was held by a Division Bench of that Court that Article 62, Limitation Act is intended to apply to all actions for money had and received to the use of a plaintiff whether they be actions which may be deemed strictly to be based on implied contracts or whether they be merely to enforce an equitable claim to the return of the money had and received. It applies therefore to a suit for the recovery of Municipal tax alleged to have been wrongfully levied by a municipality. 7. Another case dealing with the same subject is a Division Bench judgment of the Madras High Court in -- 'The Municipal Council, Dindigul v. Bombay Co. Ltd., Madras', 52 Mad 207, where it was held that a suit by a company for the recovery of a sum wrongfully collected by a municipality under section 92 is essentially an equitable action for "money had and received" and not a suit for "damages and compensation". At p. 213 reference was made to a judgment of the House of Lords in -- 'Sinclair v. Brougham', (1914) AC 398, and to a judgment of Lord Mansfield in --'Moses v. Macferlan', (1760) 2 Burr 1005, and also a judgment of the Privy Council in -- 'John v. Dodwell & Co.', (1918) AC 563, which was a case from Ceylon. I may here quote from the observations of Mookerjee J. in -- 'Mahomed Wahib v. Mahomed Ameer', 32 Cal 527. "It seems to me to be clear, as pointed out by Mark by J. in -- 'Raghumoni Audhikary v. Nilmoni Singh Deo', 2 Cal 393, that the Article, when it speaks of a suit for money received by the defendant for the plaintiff's use, points to the well known English action in that form; consequently the Article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff. As pointed out by Lord Mansfield C. J., in -- 'Moses v. Macferlan', (1760) 2 Burr 1005, this form of action lies for money paid by mistake, or upon a consideration, which happens to fail, or for money got through imposition (express or implied) or extortion of oppression or an undue advantage taken of the plaintiff's situation contrary to laws made for the protection of persons under those circumstances, in other words, this form of action would be maintainable in cases in which the defendant at the time of receipt, in fact or by presumption or fiction of law receives the money to the use of the plaintiffs; see also Keener on Quasi-Contracts, page 180." And again at page 534 the learned Judge observed : "It is clear therefore that under the English law, a sum received by the defendant is treated as having been received for the plaintiff's use, even though it might have been taken wrongfully, and I am of opinion that the same principle ought to be applied in construing Article 62. This view is in accordance with a series of cases decided by the Courts in this country, to which I shall now refer." With these observations I am in respectful agreement. 8. Mr. Grover relied on certain cases which, according to him, take a different view of Article 62. He relies in the first instance on a judgment of this Court in -- 'Amolak Chand v. Mohammad Shall', AIR 1948 EP I. It was held in that case that Article 62 has never been extended to cases in which the original receipt of the money by the defendant could not be deemed to be either in fact or by operation of law as a receipt on behalf of or for the use of the plaintiff, and it had not been applied to cases in which by reason of subsequent events the money which was paid to the defendant for his own use was to be regarded as in law money received by him for the plaintiff's use. I do not see how that principle can apply to the facts of the present case. Here the principle which is applicable is the one laid down by Mookerjee J. in the case referred to above rather the present one. 9. Reference was then made to 'Tofa Lal Das v. Moinuddin Mirza', 4 Pat 448, where it was said that in cases where the relief is based on mistake the period of limitation is to run from the time when the mistake is first discovered. But it was also held that where a Patnidar sues the landlord for return of the money paid in excess of the amount of cesses, the relief being based on mistake, Article 62 was applicable and not Article 96. This case, in my opinion, does not help the plaintiff in any way. 10. Reference was next made to -- 'Gorakhpur Electric Supply Co. Ltd. v. Nariman and Co.', AIR 1948 All 75, where in a different set of circumstances Article 120 was applied. 11. After considering all these cases and the arguments of counsel, I am of the opinion that the learned Small Cause Court Judge had erroneously applied Article 96 to the "facts of the present case. The Article applicable is 62. 12. I would therefore allow this petition, set aside the decree of the trial Court and dismiss the plaintiff's suit, but in the circumstances of this case I direct the parties to bear their own costs throughout.	[ 1018551, 1864672, 825474, 1317393, 825474, 812162, 825474, 1317393, 825474, 706522, 1018551, 825474, 1018551, 825474, 1317393, 1317393, 66278930, 779466, 825474, 825474, 825474, 1912148, 825474, 1018551, 552977, 1226884, 1018551 ]	Author: Kapur	216,588	The Municipal Committee, ... vs Amar Dass on 30 October, 1952	Punjab-Haryana High Court	27
Gujarat High Court Case Information System Print SCA/6995/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6995 of 2011 ===================================================== KOLCHA NARVATBHAI RAMSINGBHAI - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s) ===================================================== Appearance : MR KB PUJARA for Petitioner(s) : 1, Ms.Asmita Patel, learned ASST.GOVERNMENT PLEADER for Respondent(s) : 1 - 4. NOTICE SERVED for Respondent(s) : 3 - 4. ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/11/2011 ORAL ORDER Ms.Asmita Patel,learned Assistant Government Pleader, states that further time be granted, in order to file the affidavit-in-reply. It is noticed by this Court that though notice has been issued on 7-7-2011, no affidavit-in-reply has been filed in spite of time being given on two occasions. Let the needful be done on, or before, the next date of hearing, failing which no further time will be granted. Mr.K.B.Pujara, learned advocate for the petitioner, submits that the petitioner had preferred Special Civil Application No.15415 of 2011 against the Superintendent of Post Offices against the action of the respondents in that petition of holding a departmental inquiry against the petitioner with regard to the cancellation of Caste Certificate which is the subject matter of this petition and the Division Bench has permitted the respondents to proceed with the Departmental Inquiry but, has restrained them from passing a final order. A copy of the order dated 14-10-2011 passed in Special Civil Application No.15415 of 2011 is tendered by Mr.Pujara and is taken on record. List on 12-12-2011. (Smt.Abhilasha Kumari,J) arg Top	[]	Author: Abhilasha Kumari,	216,589	Kolcha vs State on 16 November, 2011	Gujarat High Court	0
JUDGMENT John Beaumont, Kt., C.J. 1. J. This is a second appeal from a decision of the District Judge of Thana, in which the learned Judge held that where this Court dismissed an appeal with costs, it only meant that the appellant was not to get his costs. " Appeal dismissed with costs " is the ordinary expression which the Judge uses, when he means that the appellant has to pay costs having failed in the appeal. When the order comes to be drawn up, it is usually framed in such a way as to direct the appellant to pay the respondent's costs when taxed, but if in drawing up the order, the same expression is used as the Judge normally uses, " Appeal dismissed with costs," it can only have one meaning, and that is, that the appellant has to pay the costs of the respondent of the appeal. It is somewhat astonishing to find that the learned District Judge could take any other view of the matter. 2. April 13. A further point as to costs is also raised. The order I propose to make is to allow the appeal with costs throughout. But Mr. Joshi says that, inasmuch as his opponents' first appeal to the District Judge was dismissed summarily, the respondents ought not to be ordered to pay the costs of that appeal, because Mr. Joshi says that as they had not been given notice of the appeal, the lower appellate Court could not have directed them to pay costs. That, no doubt, is true. But the lower appellate Court having dismissed the appeal summarily, and that decision having now been reversed by this Court, it seems to me that it is open to this Court, on hearing the respondents, to make a proper order as to the costs in the lower appellate Court. In my opinion, in cases of this sort, where an appeal against a summary dismissal of an appeal succeeds, it is the general practice to allow costs throughout, and those costs include the costs of the appeal in the lower Court which was summarily dismissed. It is very undesirable to interfere with general practice, and in any case I think that the practice is fair, because there is no real hardship upon the respondent ; if he does not intend to contest the appeal in the lower Court, he can give notice of that fact to his opponent and avoid any costs being incurred. If he does not adopt that course, and in the result an appeal has to be brought to this Court against a summary dismissal of the appeal by the lower Court, I think that the ordinary rule, that "Costs follow the event" should apply. 3. The appeal must be allowed with costs throughout.	[]	Author: K John Beaumont	216,591	Yadav Vishvanath Gandre vs Bachoo Abraham David Awaskar on 13 April, 1939	Bombay High Court	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 7672 of 2008() 1. VARKEY @ ROY, S/O. VARKEY, ERATTHU HOUSE ... Petitioner 2. JOSEPH @ SAJU, S/O. VARKEY, Vs 1. STATE OF KERALA, REP. BY THE PUBLIC ... Respondent For Petitioner :SRI.B.RAMAN PILLAI For Respondent :PUBLIC PROSECUTOR The Hon'ble MRS. Justice K.HEMA Dated :06/02/2009 O R D E R K.HEMA, J. ----------------------------------------- B.A.No. 7672 of 2008 ----------------------------------------- Dated this the 6th February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 55(g) of the Abkari Act. According to prosecution, petitioners, who are accused 1 to 3 were found in possession of 1200 litres of wash and utensils for distillation of arrack and they were about to distill arrack. The crime was detected on 25.9.2008. Petitioners ran away and on the way, electoral identity card of the second accused and his lunki were dropped while chasing. Those also were seized. 3. Learned counsel for petitioners submitted that petitioners are innocent of the allegations made. They were implicated only because there was an incident on 30.6.2008 in front of the Excise office in Thankamony, on the allegation that first accused herein along with other UDF workers attacked the Excise range office and also assaulted an official. A crime was registered as Crime No.622/2008. Because of this enmity, the present crime is registered against petitioners and they BA.7672/08 2 are not actually involved. The allegation that the electoral card was in the possession of second accused, when he was allegedly engaged in distillation, is highly improbable and hence, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that the details of petitioners are recorded in the occurrence report and also in the mahazar. Those persons were identified by the persons in the locality and their statements are also there in the case diary. It is not correct to say that petitioners are falsely implicated. It is also submitted that the crime was detected not by any officials in Thankamony Excise Range, but it was detected by the Excise Enforcement and Anti Narcotic Special Squad, Idukki. The allegations of motive against the officials are denied. 5. On hearing both sides, considering the serious nature of the allegations made and in the absence of any special circumstance to grant anticipatory bail, I am not inclined to invoke the provision under Section 438 Cr.P.C. I am satisfied that it is not a fit case to grant anticipatory bail to petitioners. However, petitioners may raise the same contentions before BA.7672/08 3 the appropriate court at the time of filing of application under Section 437 Cr.P.C., in which event, bail application will be disposed of untrammelled by any of the observations made by this Court in this order. It is made clear that the observations made in this order are only for the purpose of considering whether anticipatory bail can be granted or not. Consideration for anticipatory bail and bail under Section 437 Cr.P.C are different as well settled. In the above circumstances, the following order is passed: K.HEMA, JUDGE vgs.	[ 1783708, 848468, 848468 ]	null	216,592	Varkey @ Roy vs State Of Kerala on 6 February, 2009	Kerala High Court	3
Court No. - 38 Case :- WRIT - C No. - 36261 of 2010 Petitioner :- Nityananda Sharma Respondent :- Smt. Sabra Begum Petitioner Counsel :- Anup Upadhyay,Shashi Kant Shukla Respondent Counsel :- Madhav Jain Hon'ble Pankaj Mithal,J. Small Cause Suit no. 109 of 2000 Smt Sabira Begum Vs. Sri Bhagwan Garg was decreed on 30.10.2009. In revision preferred by the petitioner against the said decree, the operation of the decree was stayed provided the petitioner deposits the entire amount as decreed in respect to the shop in his possession within 15 days. According to the petitioner he has deposited the amount as decreed within the time stipulated. However, the executing court vide order dated 5.6.2010 ordered for the issuance of Dakhlparvana with the finding that the entire amount decreed has not been deposited. The petitioner's revision against the said order has also been dismissed. The submission of Sri S.K. Shukla, learned counsel for the petitioner is that the petitioner has deposited the entire amount as decreed in respect to the shop in his possession and the executing court without apportioning the decretal amount amongst the various tenants simply for the reason that the entire amount has not been deposited and ordered for the issuance of Dakhalparvana. On the other hand Sri Madhav jain appearing for the respondents states that though the petitioner has deposited the rental part of the decree but has not deposited the damages which has been awarded. In view of the above respective submission of the parties the matter require some consideration. As agreed list on 7.7.2010. Learned counsel for the petitioner under takes to deposit even the damages part of the decree so far as it relates to the shop in his possession or proportionate to the damages of his share by the next date and furnish prove of the same before this court. Till the next date of listing the petitioner shall not be dis-possessed from the shop in dispute. It is made clear that this order come in way if the revisional court in deciding revision no. 3 of 2010. Order Date :- 23.6.2010 R.C.	[]	null	216,593	Nityananda Sharma vs Smt. Sabra Begum on 23 June, 2010	Allahabad High Court	0
Court No. - 28 Case :- MISC. BENCH No. - 717 of 2010 Petitioner :- Aditya Kumar Srivastava S/O Late H.K. Srivastava Respondent :- State Of U.P. Thru Secy. Home & Ors. Petitioner Counsel :- Syed Mohd. Nasir Respondent Counsel :- G.A. Hon'ble Alok K. Singh,J. Hon'ble Yogendra Kumar Sangal,J. List on 01.02.2010 as fresh to enable the learned counsel for the petitioner to file supplementary affidavit as requested. Order Date :- 29.1.2010 PAL/	[]	null	216,594	Aditya Kumar Srivastava S/O Late ... vs State Of U.P. Thru Secy. Home & Ors. on 29 January, 2010	Allahabad High Court	0
> Title: Regarding decision on methodology of caste-based census . श्री शरद यादव : अध्यक्ष जी, मैं निवेदन करना चाहता हूं कि यह बहुत गंभीर मामला है जो कास्ट इनोमरेशन का मामला था, ...( व्यवधान) अध्यक्ष महोदया : आप उसे शून्य प्रहर में उठाइए। …( व्यवधान) श्री शरद यादव : उसे बायोमीट्रिक में डाल दिया। ...( व्यवधान) अध्यक्ष महोदया : आप उसको शून्य प्रहर में उठाइए। अभी प्रश्न काल चलने दीजिए। …( व्यवधान) श्री मुलायम सिंह यादव (मैनपुरी): ...( व्यवधान) जातीय आधार की जनगणना क्यों बायोमीट्रिक में डाल रहे हैं? ...( व्यवधान) अध्यक्ष महोदया : मुलायम सिंह जी, आप उसे शून्य प्रहर में उठाइए। …( व्यवधान) श्री मुलायम सिंह यादव : आपसे निवेदन है कि इसे उलझाया क्यों है? क्या हम सब लोगों को नासमझ समझ रखा है?यह समझ रखा है कि ये नासमझ हैं और इनको यह समझ में नहीं आएगा। ...( व्यवधान) यह सरकार की गहरी साजिश है। अध्यक्ष महोदया : अभी प्रश्न काल चल रहा है। शून्य प्रहर में आप इसको उठाइए। …( व्यवधान) श्री गोपीनाथ मुंडे (बीड): ...( व्यवधान) वादा किया था कि पार्लियामेंट को बतायेंगे। ...( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चलने दीजिए। …( व्यवधान) श्री शरद यादव : यह जो हेड-काउन्ट हो रहा है, हेड-काउंट में नहीं रखा है, इसको बायोमीट्रिक में डाल दिया। ...( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चलने दीजिए। …( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चल जाने दीजिए। …( व्यवधान) श्री शरद यादव : इसको बायोमीट्रिक में डाल दिया है। ...( व्यवधान) बायोमीट्रिक में 15 वर्ष के ऊपर के लोगों का हुआ है। ...( व्यवधान) अध्यक्ष महोदया : सुदीप जी, आप क्या कह रहे हैं? …( व्यवधान) SHRI SUDIP BANDYOPADHYAY (KOLKATA UTTAR): Madam, I am on a point of information.… (Interruptions) Please give me a chance to speak. … (Interruptions) We have given a notice to speak during the ‘Zero Hour’.… (Interruptions) MADAM SPEAKER: All right. … (Interruptions) श्री शैलेन्द्र कुमार (कौशाम्बी): हमने इस पर एडजर्नमेंट मोशन भी दिया है। ...( व्यवधान) इस पर चर्चा की जाए।...( व्यवधान) जो आज उठाया गया है ...( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चलने दीजिए। …( व्यवधान) अध्यक्ष महोदया : इसे शून्य प्रहर में उठाइए। …( व्यवधान) अध्यक्ष महोदया : अब हम प्रश्न काल चला लें। …( व्यवधान) अध्यक्ष महोदया : ठीक है, आप बैठ जाइए। …( व्यवधान) श्री लालू प्रसाद (सारण): उसे सब्सक्राइब क्यों किया गया? ...( व्यवधान) अध्यक्ष महोदया : उसको शून्य प्रहर में उठा लीजिएगा। …( व्यवधान) श्री दारा सिंह चौहान (घोसी): ...( व्यवधान) काउंटिंग नहीं करेंगे, इसका क्या मतलब है?..( व्यवधान) श्री शरद यादव : ...( व्यवधान) हेड काउंट करना चाहिए था, बायोमीट्रिक का तो सौ साल में भी नहीं होगा। ...( व्यवधान) श्री लालू प्रसाद : अध्यक्ष महोदया, आप पहले हमारी बात सुनिये।...( व्यवधान अध्यक्ष महोदया :आप इतनी जोर से मत बोलिये, धीरे बोलिये। हम कह रहे हैं कि आप इस विषय को शून्य प्रहर में उठाइये। …( व्यवधान) अध्यक्ष महोदया : हमारा आग्रह है कि आप अभी प्रश्न काल चलने दीजिए और इस विषय को शून्य प्रहर में उठाइये। …( व्यवधान) अध्यक्ष महोदया : दारा सिंह जी, आप क्या कहना चाहते हैं? …( व्यवधान) श्री दारा सिंह चौहान : महोदया, मैं भी इसी विषय के बारे में कहना चाहता हूं। ...( व्यवधान) अध्यक्ष महोदया : आप इस विषय को शून्य प्रहर में उठाइये। …( व्यवधान) श्री दारा सिंह चौहान : अध्यक्ष महोदया, इस विषय पर सारे हाउस का एक मत है। ...( व्यवधान) श्री लालू प्रसाद : अध्यक्ष महोदया, सारे हाउस का एक मत है। ...( व्यवधान) प्रधान मंत्री जी को, सोनिया जी को ...( व्यवधान) यह कहा गया कि कर रहे हैं, लेकिन फिर चतुराई दिखा दी। ...( व्यवधान) श्री शरद यादव : अध्यक्ष महोदया, 15 साल में इलैक्शन कमीशन का फोटो आइडेंटिटी कार्डनहीं बन पाया है। ये सौ साल में भी नहीं होगा। बायोमीट्रिक क्या चीज है? ...( व्यवधान) श्री लालू प्रसाद : मैडम, इन्होंने गलत काम किया है। ...( व्यवधान) अध्यक्ष महोदया : आप क्वश्चेन ऑवर चलने दीजिए। इस विषय को आप शून्य प्रहर में उठाइये। …( व्यवधान) श्री लालू प्रसाद : पहले इस पर फैसला होना चाहिए। उसके बाद हाउस चलेगा। ...( व्यवधान) पहले इस विषय का निराकरण होना चाहिए, उसके बाद आप हाउस चलाइये।...( व्यवधान) MADAM SPEAKER: Nothing will go on record. (Interruptions) … * 11.08 hrs. At this stage, Shri Shailendra Kumar and some other hon. Members came and stood on the floor near the Table MADAM SPEAKER: The House stands adjourned to meet again at 1200 hours. 11.08 hrs. The Lok Sabha then adjourned till Twelve of the Clock. . Decision on methodology of caste-based census – Contd. MR. DEPUTY-SPEAKER: The hon. Minister Shri Pranab Mukherjee. THE MINISTER OF FINANCE (SHRI PRANAB MUKHERJEE): Mr. Deputy-Speaker, Sir, in the morning, some hon. Members expressed their views about the methodology of the caste census. As the hon. Members are aware, this issue was raised during the last Session. Thereafter, the hon. Prime Minister appointed a Group of Ministers, in a meeting of the Cabinet, to look into this aspect. The Group of Ministers wrote to all the political parties and we have received the response from the political parties. The Group of Ministers met yesterday and they considered the written response of all the political parties. The decision taken by the Group of Minister is that caste will be convassed in the census without affecting the integrity of the headcount. How and when this should be done is under consideration. Some suggestions have been made by the leaders today. All these will be kept in view and an appropriate decision on the mechanism will be taken shortly. As the decision will have to be taken by the Cabinet, only after the Cabinet takes the decision, I will be able to inform the House. … (Interruptions) MR. DEPUTY-SPEAKER: The House will now take up Calling Attention. Shri Jagdambika Pal. … (Interruptions) SHRI SUDIP BANDYOPADHYAY (KOLKATA UTTAR): Sir, we were told by the hon. Speaker that I would be allowed to speak for a minute for giving some information.… (Interruptions) MR. DEPUTY-SPEAKER: No. We have not received any notice. … (Interruptions) MR. DEPUTY-SPEAKER: There is no notice. … (Interruptions)	[]	null	216,595	Regarding Decision On Methodology Of Caste-Based Census . on 12 August, 2010	Lok Sabha Debates	0
W.P. No.§_255;2oo7 nu ma man comer or Iumwmu A-1' % nxrmn mm nu: 31-1' on or = ~ 11!: Human: uxausntzl rm; nwrwnnu: 1 SMTRABIYABI : " ' w/0 M ANWAR KHAN" D/O ALIKHAN % % V AGED 534YEA.RS{ . HOUSEH0!1;D'W'0RK€ _ R/A "BEHIND, 1-"¢oPL;=w2.,.R.Ir:i::..MILL HONNAL1;EROA--D = V' SHIMO.GAé.;_;577 20.1. * _ .3'; Hicnm. (AMENDED v.c.o. I ~ % ~ DATED 21.8.07) 1(a.}' $121 _' " x 5/0' LATEMIKHABOOB KHAN " AGED 30 ""-7._:.'-"eR_$= 'V :14 Avi'm_ Inuu '.5; ' ¢. "r--..-,1 " nngﬁmn rm mom I: vunu ¢'I.!:.\|Il.'l% I.1IlJ'Il.I'l I'rII"I' ,0 ANWAR HAN ':t..i\nr\ a1 am 'on ' i IJI» l'Jn"\3 " _ iii) HABEEB KHAN S/O ANWAR KHAN AGED 29 YEARS le; PAS}-{A _ S/0 ANWAR KHAN AGED '28 YEARS {f) SHABEEEW Ki-ii\i\I'IJ'ﬁ w/o mreoz KI-IAN ' AGED 45 'fﬁﬁﬁﬁ - 2 .. F I1'0."fZa"5/2l'iL"i7 ALL ARE RESIDING AT BEHIND POPULAR RICE MILL T T HONNALI ROAD _ SHIMOGA -- 577 201 PEf'1fI_'_l'!Qi_ilE§RS-« H (BY sm G LAKSI-IMEESH RAO, ADV.) mm: 1 SMT B M SUSHEELA WIQ B MALATHESH AGED :29 YEARS :2.,rs:r mun III-I-CUIII 191' CROSS, 2'0 MAIN B.A.PU-.!!NAG.'.R SI-IIMOGA 577 . R§;9,;¢NDEm (BY SR1 svPRAKAsH.A1:m AX THIS w121'r;jj>n2:'rrrI::$N 1'eId1d4:.3:a UNDER ARTICLES 225 AND 227 09' eo:€ea'rrLvmod' es? epemzeee To QUASH THE enema ~m,22..9.'o6' pdssen -BY--. THE cover on» THE am) ADDITIOPEAL ed:-2:11. JUL'GEff{S;'%'.'a}I'v'}SION} saedem 1.-at No.35/o5_deANn "3'?"1:,€05 AS .__PER ..dm14Ex-A AND THE ORDER DT.23-€3.35 eases 3'.-' THE cove'? 05% we :'uﬁBi"i"I0iiAL I.'.':I'v'iL June:-;~_uR.9Md.:em<ﬁrewood on IA No.1 m o.e.No.19a/05 ONL'.' he so F'AR=..é'i$ 2 faeszsee OF' "W-'demons, as PER ANNEX-B ._IN _REePEc:r 'oz? sun' arm NOAS4 MEASURING 3o'x4 SITUﬁ_(PED .-.13 Afiﬁs'-;_Lﬁ'fAh'ﬁKERI, . THIS PE'f"i's'.'i0ﬁ .C0iviiNG FGR F-RF;LimNA"Rv " ' . HEARIN,GTHl S DAY, 'i'HE COURT MADE THE FOLLOWING: hidun-1 mi on by the L-.Re M' + - -- .3. -3:» In luv-uu-Inn ..'I ..1_._J.'~l.l.I' V'-».p1l1lIlLl1;[__ ;ii'1 suit in o.s.No.193/2605 mm the of the Additional Civil Judge (Jr.Dn.)., smmoga is against the common order dated 22.9.2006 (Annexure-A] passed by the Lower Appellate Court - &x\g)// 'ALP. !1lQe5255!2QQ'.7 by the respondentidefendant and 7 appeal in M.A.No.37/2005 ﬁled. by " plaintiif; the aforesaid appeals Vlweiie interlocutory onder L' names-r'I I'll] fhn 'I1-In} r~n1n~l- i fhg ' nah'-1" is!)-If :1 11159992 II', BIA'! I-I-II-Ial Ill ,-Ln ,4 $1.315. the appiication-mi piainm under Order 'Iv-l.9j grant of an order "ao_:ogoittst the defendant in respect 2. counsel appearing for the 'ana%e the orders at Annexures-A & ---nu----vi-'--- -----n V" fG;jV%'I_~,_l::_zh_vroeA¢_Aasl1 Rae, 1::-A.a.I.r.r1_r.ar_l eon In-I n ___1.__ _I_ A :-\_e A 1 r 1-: 1 _ _ ._ .1 _ I n 31".! :5.V.l"I'&!£B8I1, lcﬁnlctl GO1lIlBO.l I01' t1to'«--. respotttiont jointly submit that the writ petition may liitiisposed or by direcﬂng both the parties herein status-quo in respect of the suit pmoperty the disposal. -2' the am 9.116. 1*-.~-_rt_m_a_r «.1i_r-can-.g 2,-nth q-vi--an WV -4- E _c_ee_z lzcenrcizz -.o- L. ,1.-... up any wnawawsn an F LI. ..._ me suit the disposal of the suit. 5 submit that the parties will fully on-operaatgé trial court for expeditious 4 V' accordingly pray for a (llama of .119 S1... axmﬂuitictaéi'-'_;%. 3. In View of the al§wIe, followihﬁoltlert 1) both the to mai;r1t~é1i;;.st£;!tus;§Quo«..ii£ of the suit pmpen;» of the suit in they are _' putting up any suit property till the 3 = months thc (LL. .1' . .1'éQ,:=.i'pt/ production of a co y of this orde .	[]	Author: H.G.Ramesh	216,596	Smt Rabiyabi vs Smt B M Susheela on 31 March, 2008	Karnataka High Court	0
PETITIONER: SUMITOMO HEAVY INDUSTRIES LTD. Vs. RESPONDENT: ONGC LTD. & ORS. DATE OF JUDGMENT: 04/12/1997 BENCH: S.P. BHARUCHA, S.C. SEN ACT: HEADNOTE: JUDGMENT: THE 4TH DAY OF DECEMBER, 1997 Present: BHARUCHA, J. This appeal by special leave assails the correctness of the judgment and order of a learned single Judge of the High Court at Bombay. By the Judgment and order the petition of the first respondent for the issuance of a direction to the second respondent to file the award that he had made as the umpire in arbitration proceeding between the appellant and the first respondent in that court was allowed. Briefly stated, these are the facts relevant to the issue in the appeal: The appellant and the first respondent entered into a contraction on 7th September, 1983, whereunder the appellant agreed to install and commission on trunkey basis an oil platform at Bombay High, about 100 miles north-west of Bombay. The contract stipulated the following. Disputes having arisen subsequent to the completion of the work under the contract, the appellant served notice of arbitration on the first respondent and appointed Mr. Robert A. MacCrindle its arbitrator. The first respondent appointed Mr. Justice Chandrasekhar (Retired) its arbitrator. The arbitrators nominated the second respondent as the umpire. Preliminary hearings commenced. The appellant then applied to the queens Bench Division, Commercial Court in London for leave to issue and serve on the first respondent an Originating Summons seeking an order under Section 5 of the English Arbitration Act, 1979, to confirm that the arbitrators had the power toe proceed with the arbitration in default of a defence having been served by the first respondent. A learned Judge of the Commercial Court granted to the first respondent leave to issue and serve the said summons. It was heard and decided in favour of the appellant. Thereafter the first respondent's defence was served, and a summons was issued on the first respondent's behalf in the Commercial Court to set aside its earlier orders. The application made by the first respondent was decided on 23rd July, 1993 by Potter, J. (The Judgment and order is reported in (1994) 1 LIoyd's Law Reports 45). The arbitrators having differed, the second respondent entered upon the reference and, on 27th June, 1995, made his award. The award was served on the first respondent on 10th July, 1995. On 26th July, 1995, the first respondent filed in the High Court at Bombay a petition praying that the second respondent be directed, under Section 14 of the Indian Arbitration Act, 1940, to file the award in that court. The first respondent submitted that the award was invalid, unenforceable and liable to be set aside under the provisions of the said Act. The learned Judge, as aforestated, allowed the petition. The decision rendered by Potter, J. in the Commercial Court is of some importance because the jurisdiction of the English Courts was discussed. The learned Judge said: Neither of the parties having filed an appeal from the judgment of Potter, J., its finding bind them. Based upon these findings, it was contended by Mr. S.J.Sorabjee, learned counsel for the appellant, that the petition filed by the first respondent in the High Court at Bombay fell outside the jurisdiction of that Court for a direction to the second respondent to file his award in court could be given only by the courts administering the curial law, that is to say the courts in England. The answer of Mr. Banerjee, learned counsel for the first respondent, is that the award having been made, the procedural or curial law had ceased to have effect, and accordingly, the courts administering the curial law and no jurisdiction to issue to the second respondent a direction to file his award therein. This, then, is the central issue in the appeal: what is the area of operation of the curial law. In Bank Mellat v. Helliniki Techniki S.A., 1984 (1) QB 291, the Court of Appeal said that the fundamental principle was that in the absence of any contractual provision to the country, "the procedural (or curial) law governing arbitrations' was that of the forum of the arbitration, since this was the system of law with which the agreement to arbitrate in the particular forum would have its closest connection. Parties to international arbitrations might well choose London as a convenient neutral forum and "English law will, as the curial law, apply to the conduct of the arbitration; and the parties will, by holding their arbitration here, subject themselves for that purpose to English law......." (Emphasis supplied.) In Naviera Amazonica Peruana S.A. vs. Compania International De Seguros Peru, 1988 (1) Lloyds Law Report 116, Lord Justice Kerr summarised the state of the relevant jurisprudence thus: He said, "Prima facie, i.e. in the absence of some express and clear provision to the contrary it must follow that an agreement that the curial or procedural law of an arbitration is to be law of X has the consequence that X is also to be the "seat" of the arbitration. The lex fori is then the law of X, and accordingly X is the agreed forum of the arbitration. A further consequence is then that the Courts which are competent to control or assistant the arbitration are the Courts exercising jurisdiction at X". The learned Judge observed that there was no reason in theory which precluded "parties to agree that an arbitration shall be held at a place or in country X but subject to the procedural laws of Y". (Emphasis supplied.) In the Law and Practice of Commercial Arbitration in England, Second Edition by Mustill and Boyd, there is a chapter on "The applicable law and the jurisdiction of the Court". Under the subtitle, "Law Governing The Arbitration", it is said, "An agreed reference to arbitration involves two groups of obligations. The first concerns the mutual obligations of the parties to submit future disputes, or an existing dispute to arbitration, and to abide by the award of a tribunal constituted in accordance with the agreement. It is now firmly established that the arbitration agreement which creates these obligations is a separate contract, distinct from the substantive agreement in which it si usually embedded, capable of surviving the termination of the substantive agreement and susceptible of premature termination by express or implied consent, or by repudiation or frustration, in much the same manner as in more ordinary forms of contract. Since this agreement has a distinct life of its own, it may in principle be governed by a proper law of its own, which need not be the same as the law governing the substantive contact. The second group of obligations, consisting of what is generally referred to as the `curial law' of the arbitration, concerns the manner in which the parties and the arbitrator are required to conduct the reference of a particular dispute. According to the English theory of arbitration, these rules are to be ascertained by reference to the express or implied terms of the agreement to arbitrate. The being so, it will be found in the great majority of cases that the curial law, i.e. the law governing the conduct of the reference, is the same as the law governing the obligation to arbitrate. It is, however, open to the parties to submit, expressly or by implication, the conduct of the reference to different law from the one governing the underlying arbitration agreement. In such a case, the court looks first at the arbitration agreement to see whether the dispute is one which should be arbitrated, and which has validly been made the subject of the reference; it then looks to the curial law to see how that reference should be conducted; and then returns to the first law in order to give effect to the resulting award. XXX XXX XXX It may therefore be seen that problems arising out of an arbitration may, at least in theory, call for the application of any one or more of the following laws- 1. The proper law of the contract, i.e. the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen. 2. The proper law of the arbitration agreement, i.e. the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award. 3. The curial law, i.e. the law governing the conduct of the individual reference. XXX XXX XXX 1. The proper law of the arbitration agreement governs the validity of the arbitration agreement, the question whether a dispute lies within the scope of the arbitration agreement; the validity of the notice of arbitration; the constitution of the tribunal; the question whether an award lies within the jurisdiction of the arbitrator; the formal validity of the award; the question whether the parties have been discharged from any obligation to arbitrate future disputes. 2. The curial law governs' the manner in which the reference is to be conducted; the procedural powers and duties of the arbitrator; questions of evidence; the determination of the proper law of the contract. 3. The proper law of the reference governs; the question whether the parties have been discharged from their obligation to continue with the reference of the individual dispute. XXX XXX XXX The conclusion that we reach is that the curial law operates during the continuance of the proceeding before the arbitrator to govern procedure and conduct thereof. The courts administering the curial law have the authority to entertain applications by parties to arbitrations being conducted within their jurisdiction for the purpose of ensuring that the procedure that is adopted in the proceedings before the arbitrator conforms to the requirements of the curial law and for reliefs incidental thereto. Such authority of the courts administering the curial law ceases when the proceedings before the arbitrator are concluded. The proceedings before the arbitrator commence when he enters upon the reference and conclude with the making of the award. As the work by Mustill and Boyd aforementioned puts, it with the making of a valid award the arbitrator's authority, powers and duties in the reference come to an end and he is "functus officio" (page 404). The arbitrator is not obliged by law to file his award in court but he may be asked by the party seeking to enforce the award to do so. The need to file an award in court arises only if it is required to be enforced, and the need to challenge it arises if it being enforced. The enforcement process is subsequent to and independent of the proceedings before the arbitrator. It is not governed by the curial or procedural law that governed the procedure that the arbitrator followed in the conduct of the arbitrator. Mr. Sorabjee relied upon observations in Dicey and Morris on "The Conflict of Law, 12th Edition". The first Rule under the heading "Arbitration" in the Chapter on "Arbitration and Foreign Awards" reads thus: In discussing clause (2) of the Rule aforementioned, this is stated: (Emphasis supplied.) Mr. Sorabjee submitted, relying upon the proposition that the procedural law would determine what judicial remedies were available to a party "who wishes to challenge the award once it has been rendered and before it is sought to enforce it abroad", that the court that administered the curial law of the arbitration had the jurisdiction to entertain a challenge to the award and, therefore, the jurisdiction to receive it. The footnote relative to the above proposition (at pave 583) reads thus: "Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd. [1970] A.C. 583 (English remedies not available in Scots arbitration)." Mr. Banerjee submitted, and it seems to us, correctly, that the case of James Miller & Partners Vs. Whitworth Street Estates, 1970 A.C. 583, does not bear out the proposition. The facts of the case, shortly put, were these: A contract was entered into between an English company, Whitworth, and a Scottish company, James Miller. The Scottish company was to carry out work at the English company's premises in Scotland. The contract did not provide for the place of arbitration or its procedure. Disputes arose between the parties and were referred to arbitration. The arbitration was held in Scotland, in accordance with Scottish law. The English company asked the arbitrator to state his award in the form of a special case for the decision of the English courts. The arbitrator refused to do so on the ground that the arbitration was a Scottish arbitration, and he issued his final award. The issue was whether the arbitrator should be required to state his award in the form of a special case. The case was, therefore, concerned with the question of which law governed the proceedings before the arbitrator and not with the question of which law governed proceedings to set an award. We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, "and then returns to the first law in order to give effect to the resulting award". The law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. Having regard to the clear terms of Clause 17 of the contract between the appellant and the first respondent, we are in no doubt that the law governing the contract and the law governing the rights and obligations of the parties arising from their agreement to arbitrate, and, in particular, their obligations to submit disputes to arbitration and to honour the award, are governed by the law of India; nor is there any dispute in this behalf. Section 47 of the Indian Arbitration Act, 1940, reads thus: "47. Act to apply to all arbitrations. - Subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder" Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." The only other statute which is required to be considered in the context of the provisions of Section 47 of the 1940 Act is the Foreign Awards (Recognition and Enforcement) Act, 1961. For the purposes of determining whether the provision of the 1940 Act are subject to the provisions of the 1961 Act, Section 9 is relevant. It reads thus: By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. In the result, the appeal must fail, and it is dismissed with costs.	[ 665266, 1197844, 1886363, 714093, 1886363, 631834, 1120409, 371235, 76709 ]	Author: Bharucha	216,597	Sumitomo Heavy Industries Ltd vs Ongc Ltd. & Ors on 4 December, 1997	Supreme Court of India	9
	[]	null	216,598	[Section 80D(2)] [Section 80D] [Complete Act]	Central Government Act	0
JUDGMENT K. C. Das Gupta, J. 1. This is an appeal under Clause 15 of the Letters Patent from the judgment and decree of Guha-Ray, J., by which he remanded a suit for ejectment which had been instituted by the present respondent, to the trial Court, for disposal with certain directions. It may be mentioned at once that it is no longer disputed that the appellant in this Letters Patent Appeal is a thika tenant within the meaning of the words defined in the Calcutta Thika Tenancy, 1953, and it was on that basis that Guha Ray, J., gave the directions. 2. The suit for ejectment was brought by the respondent landlord on 8-8-1946, on averment that The defendant was a monthly tenant and that tenancy had been determined by a 15 days notice to quit. One of the defences taken was that the notice was insufficient. The learned trial Court took the view that notice was sufficient and decreed the suit. The judgment was delivered by him on 4-9-1948. Against that decision the tenant took an appeal to the District Judge's Court. The appeal was presented on 4-11-1948. The Court of appeal took the view that notice was insufficient and by its order dated 17-4-1950, allowed the appeal, reversed the decree of the learned Munsif and dismissed the suit. It may be mentioned that a decree for Rs. 72/- that was passed by the trial Court was not challenged in appeal and we are no longer concerned with that question. Against the decree of the First Appellate Court the landlord preferred a second appeal to this Court on 29-6-1950. This second appeal was pending in this Court on 21-10-1952, when the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, came into force. It became therefore necessary to consider how far the provisions in sub-section (2) of Section 1 of the Amending Act was of assistance to the tenant. On behalf of the tenant it was contended that as the Amending Act by its proviso to Sub-section (2) of Section 1 thereof made the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by the Amending Act applicable, subject to the provisions of Section 9 and it was further provided that these provisions shall be deemed to have always applied to all suits, appeals and proceedings on the date of the commencement of the Ordinance of 1952, the High Court hearing the second appeal was bound in law to apply the provisions of the Calcutta Thika Tenancy Act including the provisions of Sections 3 and 4 thereof, and on such application should have dismissed the suit. 3. Guha Ray, J., was, however, of opinion that it would not be right to read the proviso of Sub-section (2) of Section 1 literally and that what the Legislature must be taken to have meant by the proviso was that only such provisions of the Act which had not the result of destroying a cause of action that had already accrued to a landlord should be given effect to. I have no hesitation in agreeing respectfully with Guha Ray, J. that after the notice to quit was served the landlord had a vested right and a statute must not be interpreted to have affected the vested right unless it clearly appears to have done so. In deciding however, whether the statute has taken away a vested right it is not proper for the Court to try to gauge the intention, of the Legislature by anything except the words used in the statute. When the words are clear the Court is not justified in considering the fairness or otherwise of the provisions. The Legislature is the best judge of what is fair or not when it em-barks on a policy of taking away rights and it will be dangerous for the Court to try to estimate the. Legislature's intention by a consideration of the hardships that might be caused to parties. This principle has been laid down in a large number of cases which it is unnecessary to mention. 4. The question, therefore, is whether the Legislature has, in the present case, clearly intend ed that the vested right would be taken away. In my judgment this is the necessary and inescapable conclusion if the natural meaning is given to the words used. Indeed I can see no sense in saying, that the provisions of the Act shall apply to all pending appeals unless thereby the Legislature wanted to say that rights which are inconsistent with these provisions disappear. It is only fair to take Legislature to have meant what it says. And when it does say that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by Calcutta Thika Tenancy (Amendment) Act, 1953,. shall, subject to the provisions of Section 9 also apply and be deemed to have always applied to all suitss appeals and proceedings pending before any Court on a certain date, it must have meant that the Court before whom the suit or appeal or proceed ings are pending will give effect to such provisions. If it was the intention of the Legislature that cer- 'tain provisions, namely, provisions which affect a right that had already accrued could not apply, it was to be expected that the Legislature should say so. As the Courts have no right to take away from any party the benefit of a provision of law which the Legislature has extended to him, I con-, sicier myself bound to hold that even though at provision of the Act may have the result of des- troyirig a vested right in any party, the provisions must be enforced. l 5. If the provisions are enforced it is obvious that in the present suit the plaintiff cannot possibly succeed. For even if he may establish grounds of ejectment enumerated in Section 3 it is not I possible for him to satisfy the requirements of Section 4 of the Act. 6. I have, therefore, come to the conclusion that this appeal must be allowed, the judgment and decree of Guha Ray J. set aside and the judgment and decree of the learned Subordinate Judge restored. In the peculiar circumstances of this case parties will bear their own costs throughout. In view of the above order, the cross-objection is dismissed. Guha, J. 7. I agree.	[ 226821, 1596533, 226821, 1596533, 1596533, 230008, 101389, 226821, 1596533, 230008, 101389 ]	Author: K C Dasgupta	216,599	Ajit Kumar Pal vs Sadhan Chandra Pal on 15 March, 1956	Calcutta High Court	11
Gujarat High Court Case Information System Print CR.MA/3797/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3797 of 2008 In CRIMINAL APPEAL No. 177 of 2005 ===================================================== HAJARATSHA IDRUSHA - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ===================================================== Appearance : THROUGH JAIL for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/03/2008 ORAL ORDER1. Applicant-convict seeks temporary bail on the ground that he wish to admit his son in school. It may, however, be noted that the applicant was granted temporary bail for a period of 20 days in December, 2006 and for 21 days as recently as in December, 2007. No ground for fresh temporary bail is made out. Application is, therefore, dismissed. Applicant be informed accordingly. (AKIL KURESHI, J.) ashish// Top	[]	Author: Akil Kureshi,&Nbsp;	216,600	Hajaratsha vs State on 22 March, 2011	Gujarat High Court	0
ORDER S.V. Maruthi, J. 1. This Writ Petition is filed for a direction to the respondents to fix the land value in Survey No. 455/B/A of Guntakal Village consisting of Ac. 4.91 cents as Agricultural land and to register the General Power of Attorney accordingly. The land covered by Survey No. 455/B/A was purchased by Sri. Atla Venkata Subba Reddy and Smt. C. Vijaya Meri by virtue of Registered Sale Deeds dated 13-11-1981 and 16-11-1981 for a consideration of Rs. 40,000/- and Rs. 30,000/- respectively. The lands are agricultural lands. The owners proposed to execute the General Power of Attorney in favour of the petitioner for the purpose of managing the same. Therefore they have filed an application before the Sub Registrar, Guntakal, requesting him to furnish the valuation certificate relating to tine said Survey No. The Sub-Registrar stated that as per the market value, guide-lines regarding the rate of Rs. 117/- shall be adopted per square yard in respect of Survey No. 455/B/A of Guntakal Village. Aggrieved by the same, the present writ petition is filed. 2. The learned counsel for the petitioner mainly; contends that as it is Agricultural land, it cannot be valued as non-agricultural land on square yard basis. He also submits that the Municipality itself has certified that the final lay- out for the land in Survey No. 455/B/A. of Guntakal Village is not approved by the Mundpal Council. In view of the non-approval of the lay-out, the land is used as an agricultural land by cultivating the same and therefore it could not have been valued on square yard basis, and it should be valued as agricultural land. 3. In the Counter Affidavit submitted by the respondents, it is stated that the petitioner has not shown the land in Survey No. 455/B/A to the Sub Registrar whether it is an agricultural land or non-agricultural land. It is also stated that for the fixation of agricultural rate for Survey No. 455/B/A, the Committee of Registration Department will decide after spot inspection of the land in Survey No. 455/B /A. 4. Since the respondents say that without inspecting the land the land cannot be valued as agricultural land, the petitioner is directed to make an application to the Sub Registrar for the Inspection of the land and on such inspection, the respondents are directed to value the land for the purpose of managing the same by the General Power of Attorney. The petitioner is further directed to file the application requesting the Sub Registrar to inspect the land within two weeks from to-day and on such application being filed, the Sub Registrar is directed to inspect the land within four weeks thereafter. 5. With the above directions, the writ petition is disposed of. No costs.	[]	Author: S Maruthi	216,601	K.K. Jose vs The District Registrar And Anr. on 4 December, 1996	Andhra High Court	0
Gujarat High Court Case Information System Print CA/9663/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 9663 of 2010 In FIRST APPEAL No. 2414 of 2010 ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION & 1 - Petitioner(s) Versus VANRAJSINH JORUBHA JHALA & 3 - Respondent(s) ========================================================= Appearance : MRS VASAVDATTA BHATT for Petitioner(s) : 1 - 2. MR MEHUL S SHAH for Respondent(s) : 1, MR SURESH M SHAH for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE V. M. SAHAI Date : 31/01/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.L.DAVE) At the request of learned advocate Mrs Bhatt, by way of last opportunity, time to deposit the awarded amount is extended till 15th February 2011. S.O. to 17th February 2011. (A.L. DAVE, J.) (V.M. SAHAI, J.) zgs/-	[]	Author: A.L.Dave,&Nbsp;	216,602	Gujarat vs Vanrajsinh on 31 January, 2011	Gujarat High Court	0
In the High Court of Judicature for Rajasthan Jaipur Bench O R D E R Civil Writ Petition No.5626/2010 (Sarfraz Sami Versus State & Ors.) (& Cognate cases as per Schedule annexed) Date of Order ::: 23/04/10 Hon'ble Mr. Justice Mohammad Rafiq For petitioners - Sarva Shri Rajkumar Kasana, Mahendra Sharma, RP Saini, Dr.Rajkumar Sharma, Vijay Pathai, Sudarshan Laddha, JK Gupta, AS Shekhawat, Mrs.Suman Sharma, RA Verma, SK Gupta, YK Sharma, Suresh Kr.Pareek, Dharmendra Barala, Amardeep Atwal and RD Meena. Mr. SN Kumawat, AAG and for respondent PSC ** In some of these matters notices have not been issued, and therefore, notices were issued which were accepted by Shri SN Kumawat, AAG and with consent of learned counsel for the parties, the matters are finally disposed of. All these petitions as per Schedule A attached herewith since involve common question, hence at joint request, are being disposed of by present order. Counsel for petitioners jointly submit that petitioners were engaged/appointed as Vidhyarthi Mitra on contract basis till the persons regularly selected by Rajasthan Public Service Commission (RPSC) and Departmental Promotion committee are made available. However, services of persons who were similarly situated while working as Vidhyarthi Mitra were terminated by respondents. A bunch of 633 writ petitions (CWP-4652/2009 & cognate cases) were decided by this Court vide judgment dt.08/05/2009 with operative part ad infra: (36) Accordingly, the writ petitions are disposed of as under: I. During continuation of the work, as detailed out herein above the invocation of the last extension is arbitrary and illegal; and the consequential automatic termination orders of the petitioners are set aside. II. The RPSC/DPC selected candidates/ employees are still not available and next academic session is about to start; even urgent temporary appointments under Rule 28 of the Rules of 1971 are not possible due to short span of one month and a half left to start with the process of admission and academic session, therefore, as per the aims and objects of the Scheme, respondents are directed to consider the cases of the petitioners for continuation in service till regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available in the light of the above observations; III. Even in case of appropriate order of continuation in service till regularly selected candidates from RPSC/DPC selected persons are available, the petitioners are not entitled for wages of the vacations, in other words, when the schools are closed. IV. In case the regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available, then the respondents can terminate services of the petitioners after preparation of the seniority list on the State level as per their date of appointment and merit assigned to them, by following the principle of 'last come first go' to the extent of availability of the selected candidates and while doing so, the respondents will keep the interest of the present students and prospective students in view. Counsel submits that since issue raised in instant bunch of petitions stands decided by co-ordinate Bench of this Court vide judgment (supra), these petitions may also be decided in the light thereof. Counsel for petitioners further submit that in the light of judgment (supra), the directions have been issued by the Department of Elementary Education, Govt. of Rajasthan vide letter dt.11/08/09 to the Director of Elementary Education Bikaner to permit all such persons working as Vidhyarthi Mitra in present academic session but their continuance will be subject to final outcome of special appeals having been preferred by respondents State against judgment dt.08/05/2009. Subsequently, the Joint Director (Training), Secondary Education, Rajasthan, Bikaner has also issued another circular on 17.9.09 to the same effect. Some of the petitioners have raised their grievance that despite judgment dt. 08/05/09 of the Court and directions issued by State Government, they have not been permitted to work/discharge duties as Vidhyarthu Mitra. However, it has not been disputed by Government Counsel about controversy involved herein being decided by this Court vide judgment dt.08/05/2009 alongwith directions (supra) - against which, their only defence is that special appeals (SA(W)-1237/2009 & 525/2009 besides other cognate appeals) have been preferred by respondents State and wherein vide order dt.16/12/09, the Division Bench ordered ad infra: Since in the impugned judgment, a direction exists at para 36(IV) with regard to termination of Vidhyarthi Mitra on the basis of State level seniority list, though appointments were not made on State level list, therefore, operation of aforesaid para 36(IV) may be stayed because in absencde of termination, selected candidates cannot be appointed. Looking to the submission made, operation of the direction in para 36(IV) of the impugned judgment shall remain stayed.. However, as regards contention of petitioners Government Counsel submits that directions have been issued by the department concerned, and District Education Officer/concerned officer will ensure that in the light of judgment dt.08/05/09 (supra), the petitioners may be permitted to join and discharge their duties as Vidhyarthi Mitra; but their continuance will be subject to final outcome of special appeals preferred by respondents State, which has not been objected by petitioners' Counsel, as well. In the light of what has been observed in CWP-4652/2009 vide judgment dt.08/05/2009 alongwith directions quoted (supra), all these writ petitions as per Schedule A attached herewith stand disposed of; and the District Education Officer/concerned officer will also ensure that in the light of judgment (supra), the petitioners shall be permitted to join and discharge their duties as Vidhyarthi Mitra; however, it would be subject to afore quoted stay order and final outcome of special appeals (SA(W)-1237/09 & 525/2009 besides cognate appeals) would be binding upon all the petitioners, as well. No costs. (Mohammad Rafiq), J. anil Schedule- Judgment dated 23/04/2010. in Civil Writ Petition No.5626/2010 (Sarfraz Sami Versus State & Ors.) & Cognate cases * S.No. CWP Nos. / Name of Petitioners Versus State & Ors 1.5626/2010 : Sarfraz Sami 2.5753/2010 : Smt.Rinku 3.5752/2010 : Minu Kumari 4.5742/2010 : Deepmala Saini 5.5739/2010 : Vishnu Chand Sharma 6.5638/2010 : Bhanwar Singh 7.5767/2010 : Bahadur Mal Khatik 8.5705/2010 : Nitin Bhardwaj 9.5708/2010 : Saroj Dhaka 10.5688/2010 : Dharmendar Kumar 11.5668/2010 : Ravindra Kumar Biwal & Anr. 12.5655/2010 : Rajendra Kr.Bheel 13.5728/2010 : Gyan Prakash Haritwal 14.5722/2010 : Rajesh Kr.Bairwa & Ors. 15.5710/2010 : Smt.Ranjana Sharma 16.5709/2010 : Mool Shankar 17.5759/2010 : Dinesh Tiwari 18.5787/2010 : Pramod Kr.Jain 19.5788/2010 : Jai Ram Jat 20.5640/2010 : Narendra Singh 21.5644/2010 : Yadunath Chaturvedi 22.5653/2010 : Archana Bonlia & Ors. Versus State & Ors (Mohammad Rafiq),J. anil	[]	null	216,603	Deepmala Saini vs State Of Raj And Ors on 23 April, 2010	Rajasthan High Court	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 31674 of 2007(U) 1. BASHEER, S/O DAVOOD, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, ... Respondent For Petitioner :SRI.R.SUDHISH For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :20/11/2007 O R D E R ANTONY DOMINIC, J. =============== W.P.(C) NO. 31674 OF 2007 U ===================== Dated this the 20th day of November, 2007 J U D G M E N T Ext.P1 order of the respondent is under challenge. 2. The proceedings were initiated against the petitioner following the seizure of his vehicle on the allegation that it was engaged in unauthorised transportation of river sand. By the impugned order, petitioner is ordered to remit Rs.2,50,000/- as being the value of the vehicle and a fine of Rs.25,000/- towards the River Management Fund for release of the vehicle. 3. The finding in Ext.P1 on the basis of which the petitioner has been penalised is as follows: In view of the contentions raised, I had called for the files and the seizure mahazar dated 26/5/07 has been perused. What WPC No.31674/07 : 2 : is stated in the seizure mahazar is as follows: A comparison of what is stated in the impugned order and what is stated in the seizure mahazar shows that they are materially different. If that be so, Ext.P1 discloses non application of mind by the respondent. 4. That apart, it is the petitioner's specific contention that copy of the seizure mahazar was not given to him although it is mandatory in terms of the provisions of the Act. This also is a matter for the respondent to consider. In view of the contradiction in what is stated in the impugned order and what is stated in the seizure mahazar, I quash Ext.P1 order and remit the matter back to the respondent to reconsider the same with notice to the petitioner. If seizure mahazar has not been served on the petitioner, that shall also be arranged to be served. WPC No.31674/07 : 3 : Thereafter petitioner shall be given notice and an opportunity of hearing before final orders are passed. 5. In the meantime, it will be open to the petitioner to make an application to the respondent for interim custody, in which case, the respondent shall consider the same, subject to imposition of appropriate conditions. 6. Final orders shall be passed, as expeditiously as possible, at any rate, within two weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp	[]	null	216,604	Basheer vs The District Collector on 20 November, 2007	Kerala High Court	0
IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) NO.990 OF 2011 NAVLESH KUMAR VERSUS THE STATE OF BIHAR ----------- B.Kr. ( Dharnidhar Jha,J.) 02. 06.09.2011. This appeal shall be heard. Call for the Lower Court Records. It is true that the appellant is alleged to have fired a shot hitting the injured on his hand, thigh and back but by drawing the attention of the court to paragraph-12 of the judgment, it has been contended that the informant had admitted making three statements one in the form of a written complaint in all of which, the name of the present appellant had never appeared even as a member of the mob. In the light of the submissions, during the pendency of the appeal, let the above named appellant be released on bail on furnishing bond of Rs.10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of Additional District & Sessions Judge, Fast Track Court No.II, Sheikhpura in Sessions Case No.243 of 2004/243(B) of 2004 arising out of Ariari P.S.Case No.131 of 2002. As regards the sentence of fine, the realization thereof shall remain stayed till further orders.	[]	null	216,605	Navlesh Kumar vs The State Of Bihar on 6 September, 2011	Patna High Court - Orders	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 53 of 2009() 1. THE ORIENTAL INSURANCE CO.LTD,THODUPUZHA ... Petitioner Vs 1. SANDHYA.G, D/O LATE GOPAKUMAR, ... Respondent 2. SWAPNA.G, D/O LATE GOPAKUMAR,RESIDING 3. THE HON'BLE MOTOR ACCIDENTS CLAIMS, For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA) For Respondent : No Appearance The Hon'ble the Acting Chief Justice MR.J.B.KOSHY The Hon'ble MR. Justice V.GIRI Dated :12/01/2009 O R D E R J.B.KOSHY, Ag.C.J. & V.GIRI, J. -------------------------------------- W.A.No.53 of 2009 ------------------------------------- Dated 12th January, 2009 JUDGMENT Koshy, Ag.C.J. Father of respondents 1 and 2 sustained fatal injuries in a motor accident and succumbed to the injuries. Their mother has already passed away. In the application for compensation the Motor Accidents Claims Tribunal awarded a compensation of Rs.9,70,000/= with 6% interest from the date of application. A further direction was issued stating that if the amount is not paid within a period of six months from the date of award, the amount of compensation will carry interest at the rate of 12% per annum from the date of filing the petition. An appeal was filed by the insurance company. Ext.P2 in the writ petition is the copy of the appeal filed by the insurance company. Findings regarding negligence and quantum of compensation were challenged in Ext.P2 appeal. The direction of the Tribunal that if the compensation amount is not paid within six months from the date of the award, 12% interest will be payable was not challenged. The appeal was dismissed at the time of admission itself finding that the finding of negligence was correct and that no interference is required in the quantum of compensation. W.A.53/2009 2 Thereafter, in execution proceedings, interest at 12% was ordered as that part of the award was not challenged in appeal and that has become final. Insurance company challenged that in a writ petition. Learned single Judge found that award of the Tribunal is appealable, that appeal was filed, but, this point was not questioned and it has become binding on the insurance company which filed the appeal and that the appeal was dismissed. Contention of the insurance company is that award of interest on default of payment within a fixed time is illegal. If that is illegal, insurance company ought to have challenged that in the appeal. The award cannot be stated to be a nullity. The insurance company filed the appeal with open eyes. Without challenging that and since the award has become final, it cannot be challenged while execution proceedings are going on. Learned Judge correctly dismissed the writ petition. We see no ground to interfere with the impugned judgment. The appeal is dismissed. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE tks	[]	null	216,606	The Oriental Insurance Co.Ltd vs Sandhya.G on 12 January, 2009	Kerala High Court	0
	[]	null	216,607	[Complete Act]	Central Government Act	0
CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2010/001217/8349 Appeal No. CIC/SG/A/2010/001217 Relevant FactsRespondent : Mr. R. Prasad Public Information Officer & S.E. CLZ Municipal Corporation of Delhi, 16, Rajpur Road, Civil Lines Zone, Delhi- 54. RTI application filed on : 25/01/2010 PIO replied : 17/02/2010 First appeal filed on : 24/02/2010 First Appellate Authority Ordered on : 24/03/2010 Second Appeal received on : 07/05/2010 S.No. Information Sought Reply of the PIO 1. Whether construction in Municipal premises No. 1, Gali No. 18, 41, NO emerging from the Appeal Appellant : Mr. Rajinder Pal Singh, S/o Capt. (Dr.) Jaswant Singh, B-55, Defence Colony, New Delhi- 110024. Foota Road, Holi Chowk, A-42, Block, West Sant Nagat, Burari is in accordance with the DMC Act and the Building Bye Laws and the rules framed there under. 2. Whether it is in knowledge of JE, EE and SEof the Building No plan has been Department of the above Zone that such construction is being carried sanctioned by M.C.D. out in the premises stated herein above. 3. Whether any site plan has been granted to the occupiers/builders who Same as above. are carrying out such construction using sub-standard quality materials and encroaching upon public/Govt. land by such construction. 4. Whether it is not the statutory obligation of MCD to see that illegal Same as above. and unauthorized construction be prevented. 5. Action taken till date by authorities to prevent such illegal As per record booking construction whereby construction is going on and information is also of property is not sought by applicant to see the nature of construction and to comply standard. with information of action taken. Grounds for the First Appeal: Unsatisfactory and misleading information furnished by the PIO. Order of the First Appellate Authority (FAA): The grievance of the appellant being against the department for not taking action against the property in question; PIO, Building Department had been given notice of the same and was directed to get the property inspected and take action as per DMC Act. Grounds for the Second Appeal: The PIO willfully disobeyed the order of the FAA by neither inspecting the property in question nor taking any action as per the DMC Act.. Relevant Facts emerging during Hearing: The following were present Appellant : Mr. Rajinder Pal Singh; Respondent : Mr. A. K. Mittal, AE(B) on behalf of Mr. R. Prasad, Public Information Officer & S.E. CLZ; The FAA had directed the PIO to get the property inspected and take action. The Appellate Authority had passed an order on 24/03/2010. It is evident from the application filed by the appellant that he was drawing attention to an illegal building being constructed. It is apparent that the MCD officers did not want to stop this and hence did not take any action after the order of the FAA. Only after the notice of hearing was issued by the Commission the MCD officers have booked the said property on 26/05/2010 and informed the appellant about this on 04/06/2010. The appellant alleges that this is rest to show something on paper that the MCD officers are colluding with those who make illegal buildings and encroachments. Having observed a number of such instances the Commission understand the agony being felt by a law abiding citizens who is faced by MCD officers who thwart all attempts to make the rule of law prevail. The Respondent states that the officer responsible for not following the order of the First Appellate Authority are Mr. Jitender Panchal, JE and Mr. A. K. Mittal, AE(B); Decision: The Appeal is allowed. The information appears to have been provided. The issue before the Commission is of not supplying the complete, required information by the deemed PIO Mr. Jitender Panchal, JE and Mr. A. K. Mittal, AE(B)within 30 days as required by the law. From the facts before the Commission it is apparent that the deemed PIOs are guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the deemed PIOs actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to them, and they are directed give their reasons to the Commission to show cause why penalty should not be levied on them. They will present themselves before the Commission at the above address on 28 July 2010 at 12.00pm alongwith their written submissions showing cause why penalty should not be imposed on them as mandated under Section 20 (1). They will also submit proof of having given the information to the appellant. If there are other persons responsible for the delay in providing the information to the Appellant the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 30 June 2010 (In any correspondence on this decision, mention the complete decision number.)(SC)	[ 671631, 1369783, 1369783, 383252 ]	null	216,608	Mr.Ranjinder Pal Singh vs Mcd, Gnct Delhi on 30 June, 2010	Central Information Commission	4
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37511 of 2008(N) 1. DR.ABDUL KARIM, KHANS COTTAGE, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.S.S.RAJESH For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :18/12/2008 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 37511 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th December, 2008. J U D G M E N T The petitioner seeks the following relief: "Issue a writ of mandamus or any other appropriate order to the respondent enabling the petitioner to practice in Inbo Allopathy, Ayurvedic & Unani and Homeopathy without any interference." 2. The only respondent in the writ petition is the State of Kerala. From the very nature of the relief prayed for, there cannot be any doubt that such a prayer cannot be granted , that too, without the appropriate authorities in the party array. Therefore, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.	[]	null	216,609	Dr.Abdul Karim vs State Of Kerala on 18 December, 2008	Kerala High Court	0
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.4312 of 2010 ====================================================== Bashisth Narayan Singh .... .... Petitioner/s Versus The State Of Bihar & Ors. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ratan Kumar For the Respondent/s : Mr. (Gp3) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 02/ 27-09-2011 Four weeks' time is allowed for filing show cause on behalf of O.P. Nos. 4 and 5. Counsel appearing for Accountant General submits that show cause has already been filed on behalf of O.P. No.7, that is not on the record. On the next date the show cause filed on behalf of O.P. No. 7 must be placed on the record of the case. Put up this matter on 25th October, 2011, retaining its position. (Mridula Mishra, J) DKS/	[]	null	216,610	Bashisth Narayan Singh vs The State Of Bihar & Ors. on 27 September, 2011	Patna High Court - Orders	0
JUDGMENT B.C. Varma, J. 1. The petitioner then applied for its renewal, vide Annexures-B, D and F for the years 1987, 1988 and 1989 respectively. These applications were not disposed of. However, the petitioner went on depositing in the treasury the necessary licence fee. Although no formal orders, renewing the licence for the years 1987, 1988 and 1989, were passed, yet, from time to time, the District Magistrate, Bilaspur, issued no objection certificates for import of fire arms and ammunition, as and when required. Annexures-I-1 to I-10, annexed to the petition, are a few of such no objection certificates, which range from 3-1-1987 to 12-9-1988. The petitioner was allowed to continue the business of dealing in arms and ammunition, as before. However, on 21-1-1988, the arms and ammunition held by the petitioner in his premises were seized by the Kotwali Police and were removed to the Police Station. The seizure memo is Annexure-A. The petitioner alleges that the arms so seized also include fire arms, which had come to the petitioner's establishment for repairs and did not belong to him. The petitioner immediately approached the District Magistrate vide application dated 28-1-1989 (Annexure-K) and requested for a copy of the order, directing the aforesaid seizure. This was replied to by the District Magistrate vide his memorandum dated 6-2-1989 (Annexure R--III filed with the return). This indicates that action to effect seizure of arms and ammunition, as aforesaid, was taken in obedience of certain orders passed by the State Government in its Home Department. The petitioner was directed to contact the Home Department of the State to obtain copy of such orders. It is significant to mention here that this communication (Annexure R-III) is conspicuously silent about any order passed prior to that date, i.e., prior to 6-2-1989, rejecting the petitioner's prayer for renewal of the licence. The petitioner then immediately approached this Court through this petition on 9-2-1989. Notice of this petition was issued, in response to which return with documents, has been filed. It is in this return that the respondents, for the first time, disclosed that the petitioner's application/applications for renewal of the licence have been rejected vide order dated 19-1-89. A copy of that order has been annexed to the return as Annexure R-I. The petition was consequently amended to challenge this order as well. 2. After hearing learned counsel for the petitioner as also the Government Advocate, we are of opinion that this petition must be allowed and the seizure and the order rejecting the petitioner's application for renewal of the licence deserve to be quashed. Section 3, which falls under Chapter II of the Arms Act, 1959, forebears any person to acquire or have possession of or carry any fire arms of ammunition, without a valid licence issued in accordance with the provisions of the Act and the rules made thereunder. Any person, desiring to obtain such a licence is required to make an application under Section 13 of the Arms Act to the licensing authority, in such form, containing such particulars and accompanying such fee, as may be prescribed. On receipt of such an application, the licensing authority is required to call for a report of the officer-in-charge of the nearest police Station on that application. The licensing authority then shall consider this report and after such enquiry as it may consider necessary and subject to other provisions of Chapter III of the Act, may, by order in writing, either grant a licence or refuse to grant the same. The proviso to Sub-section (2-A) of Section 13 permits the licensing authority to proceed to make order Under Sub-section (2-A) of Section 13, either granting or refusing to grant licence, even if no report is received from the officer-in-charge of the nearest police station within the prescribed time. Section 14 of the Act provides that the licensing authority shall refuse to grant licence notwithstanding anything contained in Section 13, under certain circumstances mentioned in Clauses (a) and (b) of Sub-section (1) of Section 14. Section 15 provides for duration and renewal of licence and says that a licence Under Section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted, provided that such a licence may be granted for a shorter period, if the person by whom the licence is required, so desires or if the licensing authority, for reasons to be recorded in writing, considers in any case that the licence should be granted for a short period. Sub-section (3) of Section 15 makes provision for renewal of the licence and for that purpose makes the provisions of Sections 13 and 14 applicable, as they apply to grant of licence. 3. The position that emerges from the aforesaid provisions of the Arms Act is that a person cannot hold any arms or ammunition without a licence. This licence is granted for certain duration and under certain conditions. It shall be refused under any of the circumstances mentioned in Section 14. One of such circumstances mentioned Under Section 14(1)-(b)(ii) is where the licensing authority deems it necessary for the security of the public peace or for the public safety to refuse to grant such licence. Ordinarily, a licence shall be renewable. If, however, the, licensing authority decides not to renew the licence, it has to record its reasons in writing for so doing. As the provisions of Sections 13 and 14 have been made applicable to an application for renewal of a licence in the same manner as they apply for grant of a licence, the licensing authority is required to obtain a report of the officer-in-charge of the nearest Police Station and is also required to make such enquiry as may be considered necessary before refusing to renew the licence. One has, therefore, to see in the present case, if, while refusing renewal of licence vide Annexure R-I, the licensing authority has adhered to these provisions. 4. The order (Annexure R-I) dated 19-1-1989, by which the petitioner's application for renewal of the licence has been rejected, is passed by the Joint Secretary, Home Department (Police) of the State of Madhya Pradesh. The only reason recorded in that order for refusing renewal of the licence is the pendency of two criminal cases against the petitioner. Out of these two cases, one is Under Sections 25 and 27 of the Arms Act and was initiated in the year 1985. It is worth mentioning that although the case was instituted in the year 1985, it was not thought fit by the licensing authority to suspend the licence granted to the petitioner and which licence, as we have shown above, was valid up to 31-12-1986. This only shows that the pendency of that case was never taken as an impediment or circumstance adverse to the petitioner for holding a licence. This apart, the documents, Annexures I-1 to I-10, filed with the petition, whereby the District Magistrate, Bilaspur, issued no objection certificates to the petitioner to import certain firearms and ammunition, are again strong indications that the pendency of the case against the petitioner was never taken seriously and despite the pendency of the two criminal cases against the petitioner, he was permitted to continue to hold the arms and ammunitions and deal with them for long three years. We have also perused the challan papers of those cases annexed with the petition. All that they allege against the petitioners is his involvement in obtaining certain arms licences for dealers from one of his relatives in Hyderabad. These licences are said to be fraudulently obtained. The petitioner thus is alleged to be only remotely connected with issuance of the arms licences. Learned Government Advocate, appearing for the respondents, however, submitted at the Bar that renewal of the licence has been refused in terms of Section 14(1)(b)(ii). The order (Annexure R-1), however, does not support this contention. It no-where indicates that renewal has been refused because it was thought necessary for sesurity of the public peace or for public safety. There is not the slightest whisper of such a reason in that order. That order, therefore, cannot be supported on this count. However, if the power to refuse to grant a licence and consequently its renewal Under Section 14 read with Section 15(3) is held in addition to the general power to refuse or grant licence, contained in Sub-section (2-A) of Section 13, then too, we are not satisfied that the renewal of the licence has been refused for any good reason. Instead, as we have indicated above, even the initiation and pendency of two criminal cases against the petitioner is not of much significance and even the respondents never took those cases as a circumstance adverse to the petitioner for holding arms and ammunition. We have shown above and even at the cost of repetition, may say again that even during this period, the District Magistrate had little objection in permitting the petitioner to import arms and ammunition and to continue to hold and deal with them. We would, therefore, hold the action of the respondents in passing the order (Annexure R-1), refusing renewal of the arms licence in favour of the petitioner, as arbitrary and contrary to the provisions of Section 13(2-A), read with Sections 14 and 15(3) of the Act. 5. This now takes us to the question of seizure of the arms. The relevant provision as to search and seizure of arms and ammunition is contained in Section 22 of the Act, which is as follows:-- "22. Search and seizure by Magistrate.--(1) Whenever any Magistrate has reason to believe -- (a) that any person, residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose; or (b) that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety, the Magistrate may, after having recorded the reason for the belief, cause a search to be made of the house or premises occupied by such person or in which the Magistrate has reason to believe that such arms and ammunition are or is to be found and may have such arms and ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession. (2) Every search under this section shall be conducted by or in the presence of a Magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government." The provisions of Rule 46 of the Arms Rules, 1962, must also be noticed. Clause (a) of Sub-rule (1) of Rule 46, which is relevant for our purposes is as follows:-- "46. Deposit of arms and ammunition Under Section 21.-- (1) When a licensing authority decides to suspend or revoke a licence or to refuse to renew it, he shall while communicating his decision in writing to the licensee, inform him that -- (a) Under Section 21(1) he is required to deposit within such time as may be specified in the order suspending, revoking or refusing to renew the licence, the arms or ammunition covered by the licence, either with the officer-in-charge of the nearest police-station or with a dealer holding a licence in Form XIV, or in case he is a member of the armed forces of the Union, in the unit armoury." According to this rule, the licensing authority, after taking a decision to refuse to renew the licence must communicate the decision in writing to the licencee. Along with this communication of refusal to renew the licence, the licensing authority is further obliged to inform the licensee that in terms of Section 21(1) of the Act, he (licensee) is required to deposit the arms and ammunition covered by the licence, either with the officer-in-charge of the nearest Police Station or with a dealer holding licence in Form XIV, or, in case he is a member of armed forces of the Union, in the unit armoury. Further, the licensing authority has to specify the time during which the arms and ammunition covered by the licence, have to be so deposited. Obviously, nothing of this kind was done in the present case. There appears to be substance in the petitioner's contention that the order refusing to renew the licence was never communicated to the petitioner. We have shown above that the order was passed by the State Government at Bhopal on 19-1-1989. There is nothing in the order to indicate that the same was ever communicated to the petitioner. The letter (Annexure R-1) is addressed to the District Magistrate and a copy of it has been sent to the Commissioner, Bilaspur. It bears no endorsement of communication of that letter/order to the petitioner. There is further no document showing that the petitioner was served with a copy of that letter by the District Magistrate, Bilaspur or by any other authority. It is also clear that as required by Rule 46, the petitioner was never communicated any direction to deposit the arms or ammunition, either with the officer-in-charge of the nearest Police Station or with a dealer holding a licence in Form XIV. That being so, it cannot be said that on 20-1-1989, when the seizure was effected at 10 a.m. the petitioner held arms or ammunition illegally or for any unlawful purpose. There is also nothing to suggest that any Magistrate has recorded reasons for his belief that the petitioner could not be left in possession of the arms and ammunition without danger to public peace or safety. We have not been shown any order of the Magistrate, directing the Police Officers to make a search of the petitioner's house or to effect seizure. Even if we were to assume the existence of any such order by the Magistrate, the record does not show that any of the conditions mentioned in Clause (a) or (b) of Sub-section (1) of Section 22 existed, permitting the Magistrate to effect seizure of arms and ammunition possessed by the petitioner. For the aforesaid reasons, we hold the seizure of the arms, vide Annexure-A as illegal. 6. We allow this petition and quash the seizure of arms and ammunition vide Annexure-A as also the order, Annexure R-1, dated 19-1-1989, whereby the application of the petitioner for renewal of the licence has been rejected. The authorities shall now proceed to consider the application of the petitioner for renewal of licence in accordance with law, expeditiously. There shall be no order as to costs. The security amount, if any, be refunded to the petitioner.	[ 1785562, 1785562, 1785562, 662031, 1785562, 662031, 1972990, 1092263, 1972990, 1785562, 662031, 1934415, 662031, 1602068, 1785562, 662031, 73862, 244673, 229834, 662031, 925052, 1785562, 1785562, 662031, 925052, 418869, 161536, 381918, 381918, 418869 ]	Author: B Varma	216,611	Amrik Chand Saluja vs State Of M.P. And Ors. on 7 November, 1989	Madhya Pradesh High Court	30
	[]	null	216,612	[Section 620A] [Complete Act]	Central Government Act	0
JUDGMENT 1. The State has preferred this appeal against the order of acquittal passed by the learned Judicial Magistrate, First Class of Malegaon on 9th of April 1979 in Criminal Case No. 618 of 1973. By the said order the learned trial Magistrate acquitted the respondent, hereinafter referred to as "the accused", of the offence punishable under Section 16(i)(a) read with Section 7(i) and Section 2(i)(c) of the Prevention of Food Adulteration Act. According to the prosecution the accused made a statutory sale of 450 grammes of what has been called Shahajira to the Food Inspector of Malegaon. The sample which was sent to the Public Analyser was found to contain nearly 75 per cent of extraneous matter. That at least is the report of the Public Analyst. On this basis the prosecution was launched against the accused. In support of its case the prosecution examined the Food Inspector and one of the panchas who was, according to the prosecution, a witness to the purchase of the sample and the subsequent steps to be taken before sending the sample to the Public Analyst. 2. The learned trial Magistrate found that the panch examined as P.W. 2 did not support the Food Inspector in any of the particulars of the prosecution case. I have myself gone through the deposition of the panch (P.W. 2) and find that in the examination-in-chief itself he has not said anything which would corroborate the testimony of the Food Inspector. The learned trial Magistrate thought that such corroboration was necessary and since it was not forthcoming he acquitted the accused, as mentioned above. 3. Mr. Suryawanshi, the learned Public Prosecutor, appearing in support of this appeal, has criticised the approach of the learned trial Magistrate by contending that in law it is not necessary that there should be corroboration to the deposition of the Food Inspector if the case given out by the Food Inspector is found to be acceptable by he Court. In the instant case the learned trial Magistrate has, says Mr. Suryawanshi, put the cart before the horse and without examining whether the Food Inspector's evidence is acceptable or not proceeded to reject it on the ground that thee is no corroboration from the panch. If this were the only ground on which the order of acquittal could be passed I would have examined the contentions of Mr. Suryawanshi in greater details. However, Mr. Ganatra, the learned Advocate appearing for the accused has brought to may notice certain facts which make it impossible for me to interfere with the order of acquittal. 4. The statutory sale took place on 25th of February 1973. Sometime thereafter the sample must have been sent to the Public Analyst. The date of the report of the Public Analyst is 1st April 1973. Thereafter on 28th of June 1973 the complaint was filed in the Court of the learned trial Magistrate. For more than a year nothing happened and on 5th of December 1974 the report of the Public Analyst was given to the accused. Thereafter for nearly three years again nothing happened and on 18th of July 1977 summons was issued by the Court to the accused to appear before the Court on 5th of August 1977. Mr. Ganatra has pointed out that from the bald recitation of the facts above it is crystal clear that Rule 9(j) of the Prevention of Food Adulteration Rules has been contravened in he instant case and the prosecution could never hope to succeed on this ground alone. This contention of Mr. Ganatra had to be upheld. Rule 9 of the Prevention of Food Adulteration Rules prescribed the duties of a Food Inspector. On the date on which the sample in the instant case was taken, Rule 9(j) was in the following terms :- "To send by hand or registered post a copy of the report received in Form III form the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder as soon as the case is filed in the Court." It may be mentioned that this Rule had come into effect on 24th of August 1968 and remained in the same form till 23rd of May 1974 when it was amended as follows :- "To send by registered post a copy of the report received in Form II from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. however, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and the report need not be sent." The report of the Public Analyst has been given to the accused in the instant case nearly 1 1/2 years after the complaint was filed. There is no difficulty in saying that thee was a gross violation of Rule 9(j) as it stood on the date on which the complaint was filed. 5. Clause (j) of Rule 9 was totally repealed with effect from 4th of January 1977 and one rule, namely R. 9-A, has now come into force to deal with the same subject-matter with which originally Rule 9(j) deal ad that is in the following terms :- "The Local (Health) Authority shall immediately after the institution of prosection forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to be person, if any, whose name address and other particulars have been disclosed under Section 14A of the Act : Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action in intended under sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst." 6. It will be seen that the present Rule 9-A requires the Local (Health) Authority to forward of the analysis to the person from whom the sample of the article is taken by the Food Inspector immediately after the institution of prosecution. This part of the rule is somewhat analogous to Rule 9(j) that will be applicable to the facts of the present case. Interpreting this Rule 9-A, this Court has, in State of Maharashtra v. Tukaram, 1982 Cri LJ 1462, held that the word "immediately" means "forthwith" and the accused in entitled to acquittal if a copy of the report of the analysis is not sent to him forthwith. The facts of Tukaram's case disclose that there was a delay of six days, after the institution of the prosecution, in the sending of the report to the accused. Even then this Court held that the accused was entitled to an acquittal on the ground of the contravention of Rule 9-A which, I have already pointed out above, is somewhat analogous to Rule 9(j) as it originally stood and as it should apply to the facts of this case. The order of acquittal passed by the learned trial Magistrate, therefore, deserves to be confirmed on this ground which has been pressed by Mr. Ganatra. 7. In he result, the appeal is dismissed. The order of acquittal is passed by the learned Judicial Magistrate, First Class, Malegaon in Criminal Case No. 618 of 1973 is confirmed. 8. Appeal dismissed.	[ 29573653, 134223461, 128134290, 134223461, 129080 ]	null	216,613	The State Of Maharashtra vs B.B. Kothavade on 17 September, 1982	Bombay High Court	5
THE HIGH COURT OF MADHYA PRADESH CRR-2974-2017 sh (SUBHASH TIWARI Vs THE STATE OF MADHYA PRADESH) e 1 ad Jabalpur, Dated : 01-11-2017 The case is taken up on mention. Pr Shri P.K. Saxena, counsel for the petitioner. a Shri Deependra Mishra, Government Advocate for the hy respondent/State. ad Heard on admission. Admit. M Learned Government Advocate for the of respondent/State accepts notice on behalf of the respondent/State; as such, no further notice is required. rt Let record of the Courts below be requisitioned. ou Heard on I.A.No.20424/2017 for suspension of C sentence and grant of bail filed on behalf of petitioner h Subhash Tiwari. ig A perusal of the record reveals that petitioner has H been convicted under Section 332 of the Indian Penal Code and has been sentenced to undergo effective rigorous imprisonment for a period of six months and fine in the sum of Rs.2,000/-, with default stipulation. It has been submitted on behalf of the petitioner that petitioner has been in custody since 25.10.2017 that is the date of the judgment of the appellate Court; therefore, it has been prayed that the application be allowed and petitioner be released on bail. Learned Government Advocate for the respondent/State has opposed the application. sh However, keeping in view the quantum of sentence imposed upon the petitioner and the period already e undergone by him, he deserves to be enlarged on bail. ad Consequently, this first application for suspension Pr of sentence and grant of bail filed on behalf of petitioner Subhash Tiwari, is allowed. a hy It is directed that on depositing the fine amount and furnishing a personal bond in the sum of Rs.40,000/- ad with one solvent surety in the same amount to the M satisfaction of the trial Court for his appearance before the Registry of this Court on 18.06.2018 and on such of other dates as may be fixed in this behalf, the rt substantive jail sentence imposed upon the petitioner ou shall stand suspended and he shall be released on bail. Certified copy as per rules. C h ig (C V SIRPURKAR) H JUDGE vai VAISHALI AGRAWAL 2017.11.01 22:27:26 -07'00'	[ 1440821 ]	null	216,614	Subhash Tiwari vs The State Of Madhya Pradesh on 1 November, 2017	Madhya Pradesh High Court	1
Security Code Check for Accessing Judgment/Order Document eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document Security Code: GO Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer System designed and developed at Computer Centre, High Court, Allahabad.	[]	null	216,615	Dev Karan And Another vs D.M. Jaunpur And Others on 23 August, 2010	Allahabad High Court	0
JUDGMENT G. Ramanujulu Naidu, J. 1. The above tax revision case is preferred by the petitioner questioning the order dated 19th April, 1896, passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad (hereinafter referred to as "the Tribunal"), dismissing its appeal preferred against the order of the Deputy Commissioner (Commercial Taxes), Warrangal. 2. The relevant facts giving rise to the above tax revision case, which are not in dispute, lie in a narrow compass : The petitioner is a registered dealer under the Andhra Pradesh General Sales Tax and Central Sales Tax Acts, trading in paddy and rice at Warrangal. For the assessment year 1978-79, the assessing authority subjected a turnover of Rs. 30,623.97 representing the inter-State sales of rice effected by the petitioner and not covered by declarations in form C, to tax of Rs. 673.88 under section 8(2)(a) of the Central Sales Tax Act. The Deputy Commissioner (Commercial Taxes), Warrangal, however, reopened the assessment in exercise of powers conferred upon him under section 20(2) of the Act, and subjected the said turnover to tax in a sum of Rs. 2,450. The assessing authority first determined tax on the turnover of Rs. 30,623.97 at the rate of 4 per cent. From out of the said amount, he deducted the amount of tax levied on the corresponding purchase turnover of paddy, and after arriving at the difference, the same was doubled. The Deputy Commissioner (Commercial Taxes), Warrangal, who revised the order of the assessing authority, subjected the entire turnover to tax at 8 per cent. which is double the rate of 4 per cent. applicable to sale of rice under the Andhra Pradesh General Sales Tax Act and from out of the total amount so arrived at, whatever tax the corresponding value of paddy suffered was deducted. The petitioner having unsuccessfully challenged the order of the Deputy Commissioner before the Tribunal preferred the above tax revision case. 3. The question which arises for our consideration is, what is the method of computation of liability to tax under section 8(2)(a) of the Central Sales Tax Act in respect of inter-State sales of rice effected by the assessee and not covered by the declarations in form C ? 4. To answer the question, it is necessary to notice the relevant provisions of both the Acts : Under section 6 of the Central Sales Tax Act, every dealer is liable to pay tax, subject to the other provisions of the Act, on all sales of goods effected by him in the course of inter-State trade or commerce. Under section 8(1) of the Central Sales Tax Act, rate of tax in respect of inter-State sales effected in favour of a registered dealer is 4 per cent. Sub-section (4) of section 8, however, makes it clear that the concessional rate of tax at 4 per cent. can be claimed only on production of a declaration in form C covering the goods taxed. Where such a declaration is not furnished, sub-section (2) of section 8 enacts a penal rate of tax which, in respect of declared goods, shall be calculated at twice the rate applicable to the sale or purchase of goods inside the appropriate State and, in the case of goods other than declared goods, shall be calculated at the rate of 10 per cent. or at the rate applicable to sale or purchase of such goods inside the appropriate State, whichever is higher. 5. Paddy and rice are declared goods with effect from 7th September, 1976. Section 14 of the Central Sales Tax Act lists out "declared goods". Paddy and rice are included in the list. Section 15 of the Act incorporates restrictions and conditions to which every State law pertaining to sales tax must conform. Clause (c) of section 15 enacts that, where tax has been levied under a State law in respect of the sale or purchase inside the State of any paddy, tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy. In other words, under the State law, if the paddy from out of which rice was produced had suffered tax, the same should be deducted by quantifying liability to tax on rice. 6. Section 6 of the Andhra Pradesh General Sales Tax Act provides for levy of tax in respect of "declared goods" and it enacts that, irrespective of quantum of turnover, a dealer is liable to pay tax only at the point of sale or purchase specified against each of the items mentioned in Schedule III of the Act. The proviso to section 6 makes it clear that, where any declared goods on which tax has been levied are sold in the course of the inter-State trade or commerce and tax has been paid under the Central Sales Tax Act in respect of the sale of such goods, the tax levied under the Andhra Pradesh General Sales Tax Act shall be reimbursed to the dealer who effected sale in the course of inter-State trade or commerce. Paddy and rice are listed as items 21 and 22 of the Third Schedule to the Act. Paddy is liable to tax at the point of first purchase in the State, and rice is exigible to tax at the point of first sale in the State. Explanation III to entries 21 and 22 provides that, where tax has been levied under the Andhra Pradesh General Sales Tax Act in respect of sale or purchase inside the State of any paddy, the tax leviable on rice procured from out of that paddy shall be reduced by the amount of tax on such paddy. It is, therefore, clear that the proviso to section 6 of the Andhra Pradesh General Sales Tax Act read with Explanation III to entries 21 and 22 of the Third Schedule to the Act, conforms to the mandate contained in section 15(c) of the Central Sales Tax Act. 7. Admittedly, the turnover which is the subject-matter of this tax revision case represents sales of declared goods outside the State of Andhra Pradesh effected by the assessee and unsupported by any declarations in form C. The said goods are, therefore, liable to tax under section 8(2)(a) of the Act. Specific language employed in section 8(2)(a) of the Central Sales Tax Act is that the tax payable "shall be calculated at twice the rate applicable to the sale or purchase of goods inside the appropriate State". The rate of tax applicable to the sale of rice inside the State of Andhra Pradesh is 4 per cent. as specified against item 22 of the Third Schedule to the Act. Liability to tax under section 8(2)(a) has to be quantified with reference to that rate and at double that rate. Emphasis is on the expression "calculated at twice the rate". Sri Dasaratharama Reddi, learned counsel appearing' for the assessee, would like us to interpret the expression "rate" as meaning the amount of tax ultimately levied. There is no warrant for such an interpretation. It is well-settled that the words of a statute must be given their ordinary meaning. Given the said meaning, the expression "calculated at twice the rate" applicable to the sale of goods inside the appropriate State would only mean that the goods, vix., the rice, sold by the petitioner outside the State of Andhra Pradesh and not supported by declarations in form C is liable to tax at the rate of 8 per cent., i.e., double the rate of 4 per cent. applicable to sale of rice inside the State of Andhra Pradesh. Explanation III to entries 21 and 22 of the Third Schedule to the Act does not alter or revise the rate; it only provides for a concession to the extent indicated therein. The Deputy Commissioner (Commercial Taxes), Warrangal, rightly quantified the liability to tax on the turnover representing the sale of rice effected by the petitioner outside the State of Andhra Pradesh and not supported by any declarations in form C. The Tribunal, in its well reasoned order, upheld the action of the Deputy Commissioner. 8. Sri Dasaratharama Reddi, the learned counsel appearing for the petitioner, however, relies upon the decision of a Division Bench of this Court in Aitita Narasaiah Co. v. State of Andhra Pradesh [1979] 43 STC 183, in respect of his submission that the word "rate" occurring in section 8(2)(a) of the Act, could only mean the amount of tax which becomes actually payable after giving rebate as provided under Explanation III to entries 21 and 22 of the Third Schedule to the Act. We have carefully perused the said decision. There is nothing in the decision which supports the submission of the learned counsel for the petitioner. 9. In the result, the T.R.C. is dismissed. No costs. Advocate's fee Rs. 200. 10. Petition dismissed.	[ 1645178, 890594, 74935028, 890594, 331124, 1149316, 1808776, 1808776, 450196, 1116546, 1116546, 331124, 1645178, 1116546, 890594, 890594, 890594, 1799024, 890594 ]	Author: G R Naidu	216,616	Sri Ganesh Trading Company vs The State Of Andhra Pradesh on 29 March, 1988	Andhra High Court	19
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.2931 of 2015 In Civil Writ Jurisdiction Case No. 4715 of 2015 ====================================================== Jamaluddin Khan .... .... Petitioner/s Versus The State of Bihar Represented Through Sri Ravi Mittal The Principal Secretary Department of Industry Govt. of Bihar Patna & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Krishna Chandra For the Respondent/s : Mr. Jawahar Pd. Karn ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER2 02-12-2015 Mr. Chandra for the petitioner is present. Let a copy of the contempt application be served on the counsel representing the Union of India and receipt thereof be filed within 05 days. List after 07 days. (Kishore Kumar Mandal, J) HR/-	[]	null	216,617	Jamaluddin Khan vs The State Of Bihar Represented ... on 2 December, 2015	Patna High Court - Orders	0
IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20436 of 2011 Ravindra Rai Versus The State Of Bihar ----------- Praveen/- ( Akhilesh Chandra, J.) 02 14/07/2011 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. Petitioner is one of the two named accused in this three years old case, wherein co-accused who is none else than the father of the petitioner is in custody and facing trial, but due to abstention, investigation against the petitioner, as submitted, is still pending. No doubt, during trial statement of the informant is something otherwise than what he has stated in the First Information Report. In view of the conduct of the petitioner, he is not entitled for the privilege sought. Hence, prayer for anticipatory bail of the petitioner, namely, Ravindra Rai, in connection with Bachhwara P.S. Case No. 135 of 2008, pending in the court of learned Chief Judicial Magistrate, Begusarai, is hereby rejected.	[]	null	216,618	Ravindra Rai vs The State Of Bihar on 14 July, 2011	Patna High Court - Orders	0
Court No. - 30 Case :- WRIT - C No. - 674 of 2009 Petitioner :- Sunil Kumar Respondent :- State Of U.P. & Others Petitioner Counsel :- Sunil Kumar,In Person Respondent Counsel :- C.S.C. Hon'ble Abhinava Upadhya,J. Sri Sunil Kumar has filed rejoinder affidavit today, which is taken on record. He prays that the matter be taken up in the next cause list. As prayed, list in the next cause list. Order Date :- 6.1.2010 VS.	[]	null	216,619	Sunil Kumar vs State Of U.P. & Others on 6 January, 2010	Allahabad High Court	0
IN THE HIGH COURT OF JUDICATURE AT PATNA F.A. No.389 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Yadunandan Yadav, S/o Gulabchand Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent. With F.A. No.250 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Briksh Singh S/o Chholot Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A . No.252 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1.Sarjug Yadav, S/o Khedan Yadav, 2. Kishun Yadav 3. Mistri Yadav Both sons of Khedan Yadav. All residents of Village Nasibuchak, P.S.Fatwah, District- Patna. --Respondent With F.A. No.253 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Most. Sundari Devi W/o Late Ram Vijay Singh 2. Ran Vinay Singh 3. Baijnath Singh 4. Sudhir Singh sons of Fauira Singh All residents of Village Sorakothi, P.S.Fatwah, District- Patna. --Respondent With F.A. No.254 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Priya Ranjan Singh, S/o Ram Tahal Singh, resident of Village Bhudhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.255 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ballabh Singh S/o Chandeshwar Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.256 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Chandradeo Singh son of Moti Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.259 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ishwar Bhagat, S/o Sidhu Bhagat, resident of Village Kalyanpur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.262 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Ram Chandra Singh S/o Dasrath Singh 2. Ram Babu Singh S/o Dasarath Singh, -3- Both residents of Village Budhuuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.264 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Ram Prakash Rai 2. Mohan Rai 3. Dinesh Rai 4. Dinanath Rai 5. Ramji Rai All sons of Bhola Rai, residents of Village Raypur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.266 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Badamo Devi W/o Late Ramchandra Rai, resident of Village Raipur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.269 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bishnu Yadav, S/o Behari Yadav, resident of Village Nohta, P.S. Fatwah, District-Patna. --Respondent With F.A. No.270 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tika Rai son of Late Ganga Rai, resident of Village Raipur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.273 of 1995 -4- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rama Singh, S/o Siri Singh, resident of Village Nasibuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.275 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Chanchala Devi W/o Rama Singh, resident of Village Nehta, P.S. Fatwah, District-Patna. --Respondent With F.A. No.276 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Parmanand Nagbanshi S/o Late Hajari Prasad, resident of Village Raypur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.278 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ganauri Yadav, S/o Lakhan Yadav, resident of Village Nasibuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.279 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sanjay Kumar, S/o Sachidanand Singh, resident of Village Budhuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.280 of 1995 1. The State of Bihar -5- 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Smt. Maya Devi wife of Ramjee Singh 2. Ramji Singh S/o Mohan Singh, Both residents of Village Budhuchak, P.S. Fatwah,, District- Patna. --Respondents With F.A. No.281 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rajesh Kumar Singh , S/o Sachidanand Singh, resident of Village Budhuchak, P.S. Fatwah,, District-Patna. --Respondent With F.A. No.282 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bijay Singh, S/o Khyali Singh, resident of Village Nasibuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.283 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sudhir Kumar, S/o Braj Ballabh Singh, resident of Village Budhuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.284 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tika Rai S/o Late Ganga Bhagat, resident of Village Raipura, P.S. Fatwah,, District-Patna. --Respondent With F.A. No.286 of 1995 -6- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Hari Narayan Yadav 2. Balmki Yadav Both sons of Jiwan Yadav, residents of Village Kalayanpur, P.S. Fatwah, District-Patna. --Respondents With F.A. No.294 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bhola Nath son of Ishwar Rai, resident of Village- Raipura, P.S. Fatwah, District-Patna. --Respondent With F.A. No.299 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Dukhan Singh S/o Sita Ram Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.301 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mostt. Sudamiya Devi W/o Jawahar Rai, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.304 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baldeo Prasad Singh S/o Dhanu Singh, resident of Village Nahta, P.S.Fatwah, District-Patna. --Respondent With -7- F.A. No.306 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Raj Ballabh Singh S/o Chandni Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.309 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Tiliya Devi W/o Sukhia, resident of Village- Raypur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.312 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tulsi Yadav S/o Bihari Yadav, resident of Village -Johai, P.S.Fatwah, District-Patna. --Respondent With F.A. No.313 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tika Rai son of Ganga Bhagat, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.314 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Lakhan Yadav S/o Laxman Yadav, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.316 of 1995 -8- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Dwarika Prasad S/o Ishwar Prasad, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.317 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Madan Kumar S/o Ramdeo Singh, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.320 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Arbind Kumar S/o Bilat Sah, resident of Village Sorakothi, P.S.Fatwah, District-Patna. --Respondent With F.A. No.327 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baldeo Singh S/o Kamesbar Singh, resident of Village- Kalyanpur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.328 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheoji Singh S/o Chalitar Yadav, resident of Village- Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.329 of 1995 -9- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Ishwar Bhagat S/o Dhurkeli Yadav, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.331 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Hari Kishun Singh S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.333 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Most. Badamo Devi, W/o Late Ramchandra, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.334 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahanth Ram Ishwar Das Chela Ram Krishna, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.336 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramdas Prasad S/o Late Janak Rai, resident of Village- Kalyanpur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.337 of 1995 1. The State of Bihar - 10 - 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Janak Rai S/o Karun Rai 2. Raundra Rai S/o Janak Rai 3. Smt. Sunita Devi w/o Janak Rai, All resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.338 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sukhdeo Yadav, S/o Barhu Yadav, resident of Village -Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.358 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Hari Narain Yadav, S/o Bhag Rai Yadav, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.359 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Bhograj Yadav, son of Dhanu Yadav, resident of Village- Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.366 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Dalpati Devi W/o Ganga Sagar, resident of Village- Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.367 of 1995 - 11 - 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1(i) Rajiv Ranjan (ii) Satya Prakash Ranjan (iii) Narendra Kumar Ranjan (iv) Om Prakash Ranjan (v) Jai Prakash Ranjan (vi) Arbind Kumar Ranjan All sons of Late Sukhari Singh, resident of Village- Bhudachak, P.S.Fatwah, District-Patna. --Respondents With F.A. No.368 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Narsingh Prasad, S/o Keshwar Singh, resident of Village- Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.371 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baijnath Singh S/o Hajari Singh, resident of Village - Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.373 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Chandrika Singh Son of Dukhan Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.376 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 12 - Jetu Yadav son of Sri Prasad Yadav, resident of Village - Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.377 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bhagat Yadav, S/o Sidhu Yadav, resident of Village Kalyanpur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.378 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Ranjit Kumar son of Sachidanand Singh, resident of Village Bhudhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.382 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Mukesh Kumar S/o Brij Ballab Singh, resident of Village- Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.384 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Parmila Kumari D/o Brij Ballabh Singh, resident of Village - Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.386 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 13 - Sidheshwar Yadav S/o Guljari Yadav, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A.No.388 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Prit Yadav, S/o Doma Yadav, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.390 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ambika Prasad Singh, S/o Ram Sohawan Singh, resident of Village -Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.395 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Gautam Kumar Singh S/o Ramjee Singh, resident of Village - Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.396 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Nandan Singh S/o Gulabchand Singh, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.401 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 14 - Amir Singh, S/o Ram Sohawan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.402 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Anup Lal Singh, S/o Ram Sohawan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.404 of 1995 1. The State of Bihar 2. Union of India through, Deputy General Manager, Eastern Railway, Calcutta. 3. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ball Kishun Yadav S/o Sri Prasad Yadav, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. -- Respondent With F.A. No.405 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus America Singh, S/o Kailash Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.406 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Jagat Prasad Singh, S/o Kailash Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.407 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. - 15 - Versus Rameshwar Prasad, S/o Bhatlu Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.409 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramanand Yadav, S/o Dularchand Yadav, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.411 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Arjun Singh, S/o Shivnandan Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.413 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Brijnandan Singh, S/o Gulabchand Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.417 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Hari Kishun Singh, S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.418 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 16 - Smt. Kaushalya Devi, W/o Jagat Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.419 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Balusahi Singh, S/o Kailash Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.421 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Balram Yadav, S/o Deo Nandan Sah, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.423 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mithu Yadav, S/o Deo Nandan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.424 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramesh Sah, S/o Ramdeo Sah, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.425 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 17 - Brijesh Singh, S/o Ramdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.426 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Jitendra Kumar Nagbanshi, S/o Parmanand Nagbanshi, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.427 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Upendra Kumar Nagbanshi, S/o Parmanand Nagbanshi, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.428 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Bindra Devi, W/o Vermanand Rajbanshi, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.429 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Raju Singh, S/o Ramdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.435 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 18 - GangaYadav, S/o Banshi Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.436 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ashok Singh, S/o Ramdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.437 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Nasib Lall Yadav, S/o Bhajan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.271 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rambarat Yadav, S/o Bhandu Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.414 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rama Ashish Yadav, S/o Bhajoo Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.422 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 19 - Sajiwan Yadav, S/o Deonandan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.303 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Devendra Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.249 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bishun Rai, S/o Bhawan Rai, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.251 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Birajia Devi, W/o Khedan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.274 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Lagan Yadav, S/o Gusari Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.288 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 20 - Surendra Singh, S/o Madho Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.290 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Jagdeo Singh, S/o Khayali Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.298 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baliram Singh, S/o Ramprit Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.300 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ran Nandan Singh, S/o Sheo Nandan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.305 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramashray Yadav, S/o Barhu Yadav, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.310 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 21 - Janak Yadav, S/o Guljori Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.319 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Khedan Singh, S/o Kali Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.324 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Dulari Singh, S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.325 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahendra Prasad, S/o Jaggu Rai, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.330 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Yogeshwar Yadav, S/o Guljari Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.340 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 22 - Smt. Sumitra Devi, W/o Late Sheo Nandan Yadav, resident of Village Sonakothi, P.S.Fatwah, District-Patna. --Respondent With F.A. No.344 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Priyawarta Prakash, S/o Baldeo Prasad, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.345 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bijendra Singh, S/o Sheo Nandan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.348 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Umesh Singh, S/o Rameshwar Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.352 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Binay Kumar, S/o Ram Bhajan, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.355 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 23 - Surendra Prasad, S/o Basudeo Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.363 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Nagendra Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.365 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Parmanand Singh, S/o Ramcharan Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.369 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheonandan Singh, S/o Ramchandra Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.370 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Birendra Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.372 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 24 - Smt. Alakhi Devi, W/o Jittu Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.375 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahanth Ram Sunder Sharan, Chela Late Mahanth Ram Lakhan Das, resident of Village Raipura, P.S.Fatwah, District- Patna. --Respondent With F.A. No.385 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheoji Yadav, S/o Bhadu Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.387 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Rup Yadav, S/o Guljari Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.397 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Naresh Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.399 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 25 - Satendra Kumar, S/o Rameshwar Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.403 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Munaka Kuer, W/o Kailash Gope, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.408 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Chandra Singh, S/o Siri Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.410 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Kailash Yadav, S/o Kali Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.412 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Dulari Singh, S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.415 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 26 - Smt. Kiran Devi, W/o Anil Kumar Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.416 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Manju Devi, W/o Ashok Kumar, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.430 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ravindra Prasad, S/o Nawal Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.431 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahendra Singh, S/o Nasal Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.433 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sidheshwar Yadav, S/o Sahdeo Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.434 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 27 - Sidheshwar Prasad, S/o Late Sahdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.438 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Anandi Devi, W/o Ram Briksh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.247 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramashish Prasad, S/o Munshi Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.335 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheoji Yadav, S/o Barhu Yadav, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.353 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Binod Kumar, S/o Mahendra Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent ----------- For the appellant -State : Mr. Narmdeshwar Jha, A.A.G.-VII Mr. Anil Kumar Jha, G.A.-II Mr. Harendra Prasad Singh, G.A.-VI Mr.Sanjay Kumar, G.P. XIV. - 28 - For the Railways : Mr.Sabbir Ahmad, Advocate. Mr. Mahesh Prasad, Advocate. For respondent : Mr. R.C.Sinha, Advocate. Mr. S.K.Yadav, Advocate. Mr. P.C.Yadav, Advocate. Mrs. Sheela Sharma, Advocate. Mr. Rakesh Ranjan, Advocate. ------- P R E S E N T: THE HON'BLE THE CHIEF JUSTICE JUDGMENT ( 09.04.2010) Dipak Misra, C.J. In this batch of appeals, the challenge is to the award dated 26.11.1994 passed by the learned Special Land Acquisition Judge, III, Patna in L.A.Case No.1 of 1993 and other connected cases. 2. A notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') for acquisition of 74.515 acres of land situate in village Raipura, P.S. Fatwah, District-Patna for construction of Railway Godown. The Land Acquisition Officer determined the price at Rs.2403/- per katha. The awardees not being satisfied with the same filed an application for reference to the Civil Court and the Land Acquisition Officer referred the matter to the Civil Court. 3. Before the Civil Court, it was contended that the claimants were entitled to Rs.50,000/- per katha as that was the price at the time of acquisition. It was also contended that the Land - 29 - Acquisition Officer had not taken into consideration the documents on record and had arbitrarily determined the price. 4. Before the Reference Judge, number of witnesses were examined on behalf of the claimants and documents were exhibited to highlight how the transactions were made which would show the land was sold at much higher rate. 5. The learned Reference Judge referred to the sale deeds vide Ext.-1 series produced on behalf of the awardees. Ext.-1 is the certified copy of the sale deed dated 05.04.1989 in respect of Survey Plot No.1029 of Village Raipura, whereby one katha of land was sold for Rs.10,000/-. Vide Ext.-1/A, 1/3rd katha was sold at Rs.8,000/-. Ext.-1/B is the sale deed by which an area of 5 kathas was sold for Rs.45,000/-. Ext.-C is a sale deed by which one katha of land was sold at Rs.11,000/-. He has also referred to Exts. A, B and C, the valuation report, valuation khatiyan and the sale statements on which the Land Acquisition Judge has relied. 6. It is worth noting the Land Acquisition Officer had awarded Rs.2403/- per katha relying on the three documents, namely, Ext.A, B and C. The Reference court relying on the contemporaneous sale deeds determined the price at Rs.11,000/- per katha. 7. While determining the compensation, the court is required to keep in mind the law that has been crystalised by the - 30 - Apex Court in the decisions rendered in Ahmedabad Municipal Corporation and Others Vs. Shardaben and others (1996) 8 SCC 93, Hookiyar Singh and others Vs. Special Land Acquisition Officer, Moradabad and another, (1996) 3 SCC 766, State of U.P. and others Vs. Ram Kumari Devi (Smt) and others, (1996) 8 SCC 577 and Gujarat Industrial Development Corporation Vs. Narrottambhai Morarbhai and another, (1996) 11 SCC 159. 8. In the case at hand, there are number of sale deeds which were exhibited, and the same would show the price per katha varied from Rs.9,000/- to Rs.11,000/-. As the Land Acquisition Officer had fixed the price per katha, the learned reference Judge could not be said to be gone by determining the price per acre. When the said principle is accepted, the only thing remains for consideration is the determination of quantum. The acquired area of the transaction covered in the sale deeds is almost adjacent to the land. The said fact is not disputed by learned counsel for the parties. 9. Regarding being had to the proximity of the area and the contemporaneous sale deeds and the oral evidence brought on record and the principle that has been fixed by the Lordships of the Apex Court and the component of guess work which can be taken aid of, I am of the considered opinion the valuation should be determined at Rs.8,000/- per katha and accordingly, the award - 31 - passed by the Reference Judge is modified and the claimants would be entitled to compensation at the rate of Rs.8,000/- per katha. Needless to say they shall be entitled all statutory benefits including the interest on solatium as per the decision rendered in Sunder Vs. Union of India, AIR 2001 SC 3516. 10. In the result, the appeals are allowed in part. The award shall be modified accordingly. The modified award shall be satisfied within four months. The parties shall bear their respective costs throughout. ( Dipak Misra, C.J.) Sunil/	[ 169774 ]	null	216,620	The State Of Bihar vs Upendra Kumar Nagbanshi on 9 April, 2010	Patna High Court	1
JUDGMENT Parihar, J. 1. A trial for an offence under Section 302 and 302/34 ITC has been pending against the petitioner before the Sessions Judge, Kota. The Sessions Judge, Kota transferred the above case to the Additional Sessions Judge (Fast Track) No. 2, Kota, vide order dated 2.6.2001. After transfer of the sessions case to the Additional Sessions Judge (Fast Track) No. 2, Kota, the petitioner filed an application on 9.7.2001 before the above court for transferring the matter back to the Sessions Court, Kota, where the trial was earlier pending. The application of the petitioner was rejected by the trial court vide order dated 31.7.2001. The present petition for transfer of the case, under Section 407 Cr.P.C. has been filed by the petitioner for transferring the trial back to the Sessions Court, Kota mainly on the ground that the trial had almost been completed before the Sessions Court, Kota and, at this stage, the transfer of the trial court not be made to the other court. 2. Mr. K.K. Sharma, learned counsel for the petitioner, has relied on the judgment of this court in the case of "Nasruddin v. State of Rajasthan" (1), decided on 11.9.2000. 3. After hearing learned counsel for the petitioner, 1 have carefully gone through the material on record as also the order impugned in the present petition. 4. The State Government, vide Notification dated 31.3.2001, created/established 40 courts of Additional District & Sessions Judge (Fast Track Courts) at various places in the State of Rajasthan, for disposal of the pending sessions cases. The High Court, vide order dated 30.5.2001, directed and authorised all the District & Sessions Judges concerned, in whose jurisdiction such Fast Track Courts have been created/ established, to transfer preferably those Sessions Cases which are pending for more than two years and in which accused persons are in judicial custody from their courts or the courts of Additional District & Sessions Judges to the newly created/established courts of Additional District & Sessions Judges (Fast Track). 5. Under the order and directions of this Court, the sessions case, in the present matter, was also transferred to the Court of Additional Sessions Judge (Fast Track) No. 2, Kota by the Sessions Judge, Kota. They very purpose of creating/establishing Fast Track Courts was to give relief to the accused whose trials were pending for long. Powers under Section 407 and 408 Cr.P.C. have not been disputed so far, however, in the present matter, since the transfer has been made under the directions and authorisation of this Court, in my opinion, no interference is called for by this court in the present petition. If such petitions are entertained by this Court, the very purpose of establishing Fast Track Courts shall be frustrated. The judgment cited at the Bar by learned counsel for the petitioner is not applicable in the facts of the present case. 6. Accordingly, the petition is dismissed. 7. This Court, while granting time to learned counsel for the petitioner to submit some documents, also passed an interim order on 19.9.2001, directing the trial court not to decide the case finally till the next date. Since the petition for transfer itself has been dismissed, the trial court is now directed to conclude the trial expeditiously. 8. A copy of this order be sent to the learned trial Court immediately.	[ 834094, 834094, 1327851 ]	Author: Parihar	216,623	Kamlesh Paharia vs State Of Rajasthan on 4 October, 2001	Rajasthan High Court	3
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. S. Shyam, learned Counsel for the petitioners and Mr. I. Choudhury, learned Standing Counsel, P.W.D. Also heard Mr. H.K. Mahanta, learned Government Advocate, Assam. 2. The petitioners, who are 9 in number, are retired employees of the Public Works Department of the State of Assam. They had retired on different dates in the year 2000, 2001 and 2002 while holding either the post of Senior Grade junior Engineer or Assistant Engineer. The non-finalization of the entitlement of the petitioners to pension and the consequential non-payment of the pensionary dues is what has led to the initiation of the present writ application. 3. The facts are long and an attempt must be made to recite only what is essential. Pursuant to the recommendations of the Pay Commission, the Government of Assam, way back in the year 1989, took the decision to introduce a senior grade pay scale to eligible Junior Engineers of different departments with effect from 1.1.1989. The aforesaid decision was taken to remove stagnation in service. The petitioners being qualified and eligible in terms of the eligibility prescribed were given the benefit of senior grade pay scale in the post of Junior Engineer. When the question of fixation of their pay arose, a dispute/difference arose as to whether such pay should be regulated under F.R.22(1)(a)(1) or F.R.22(1)(a)(2). The Government took the decision that Junior Engineers who were granted the senior grade pay scale not having been promoted to a higher post, the fixation of pay is to be made by adhering to the provisions of F.R.22(1)(a)(2). However, any excess drawal by an incumbent is not to be recovered. The aforesaid decision was reflected in two Office Memorandums dated 25.9.1995 and 2.5.1998. The two decisions of the Government as reflected in the Office Memorandums in question were called into question by the Association representing the Diploma Holder Junior Engineers of the State before this Court. The point at issue before the Court need not be recited in the present order inasmuch as by a subsequent Notification dated 27.10.2003, the Government appears to have revised its earlier decision by holding that the fixation of pay of Junior Engineers is required to be made by following the provisions F.R.22(1)(a)(1). On the basis of the aforesaid Notification dated 27.10.2003 the writ petition filed by the diploma holder Junior Engineers Association was closed by this Court by order 13.2.2004 which, however, has been sought to be reopened by the filing of a Writ Appeal, i.e., W.A. No. 261 of 2004 before this Court at the instance of the Chief Secretary to the Government of Assam, and the Commissioner and Secretary to the Government of Assam, P.W.D. The aforesaid Writ Appeal No. 261/2004 is presently pending before this Court. As the fixation of pay by following either of the provisions of F.R. 22(1) would result in two different situation which in turn could effect the pensionary entitlement of the incumbents, such entitlement of the petitioners have been withheld to await the verdict of this Court in Writ Appeal No. 261/2004. It may also be noticed at this stage that provisional pension paid to the petitioners by fixing their pay scale as per F.R.22(1)(a)(1) has also been discontinued. 4. The petitioners are retired Government employees in whose favour provisional pension orders have been passed by fixing their pay by application of the provisions of F.R.22(1)(a)(1). The Government Notification, i.e., the Notification dated 27.10.2003 is presently holding the field in terms of which the pay of the petitioners is required to be fixed by following the provision of F.R.22(1)(a)(1). Though the question has been agitated in Writ Appeal No. 261/2004 there is no interim order from this Court. In such a situation there can be little doubt that the withholding of the finalisation of the entitlement of the petitioners to pension merely on the ground of pendency of Writ Appeal No. 261/2004 will not be justified. The petitioners are entitled to receive pension which must be paid to them by the State. The only question is on what basis such pensionary entitlement of the petitioners is to be fixed in a situation where the question of applicability of either of the two parts of F.R.22 is presently pending before this Court. 5. Pension being a benefit earned by an incumbent in Government service after years of dedicated service rendered, the inclination of the Courts would be to ensure that such benefits are allowed to the concerned incumbents without any curtailment. The petitioners have been paid provisional pension by application of F.R.22(1)(a)(1). The Government Notification in force entitles them to have the benefit of pay fixation by application of the provisions of F.R.22(1)(a)(1). Though Writ Appeal No. 261/2004 is pending, there is no interim direction or restraint from this Court. In such circumstances, this Court is of the considered view that the pensionay entitlement of the petitioners must be finalized by the State by fixing their pay in the senior grade pay scale of Junior Engineers by adhering/following the provisions of F.R.22(1)(a)(1), subject to such adjustment as may be required to be made following such decision as may be rendered by this Court in Writ Appeal 261/2004, a course of action to which learned Counsel for the petitioners has agreed to abide by. The concerned authority in the State Government including the competent authority in the Finance Department shall do all that is needful to ensure that the direction of this Court as above is carried out to enable the petitioners to receive their pensionary entitlement including arrears in terms of the present direction within a period of three months from the date of receipt of a certified copy of this order. 6. Writ application is allowed as indicated above.	[]	Author: R Gogoi	216,624	Prasanna Mahanta And Ors. vs State Of Assam And Ors. on 18 August, 2005	Gauhati High Court	0
Gujarat High Court Case Information System Print FA/571/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 571 of 2010 ========================================================= DHRUPATBA NARENDRASINH ZALA - Appellant(s) Versus PREMJIBHAI RAMJIBHAI DALVADI & 2 - Defendant(s) ========================================================= Appearance : MR MEHUL S SHAH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 MR SURESH M SHAH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 None for Defendant(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 19/04/2010 ORAL ORDER Notice returnable on 18th June 2010. The registry shall call for the records and proceedings pertaining to the Motor Accident Claim Petition No. 161 of 2003 from the Motor Accident Claims Tribunal (Auxiliary), Dhrangadhra so as to reach this Court on or before 17th June 2010. (K.M.THAKER,J.) Suresh* Top	[]	Author: K.M.Thaker,&Nbsp;	216,625	Dhrupatba vs Premjibhai on 19 April, 2010	Gujarat High Court	0
.:shziTs1a;e;1:h& A.Mam1ekar, % A =. R!<._>i Zatpat NagarAnao1. Belgaum. __'The Diviaiona}. Manager MFA.No.2I243/2008 1N THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAI) DATED THIS THE 21%'? DAY OF JANUARY BEFORE % 'V u THE 1-i0N'BLE MR.JUsTIc:§f. B.s.Pa.'m'.'j;j u.1r.A.1Io.a1ﬁ2.' :2o(S_$B_ ,z f: M u BETWEEN: The Divisional Manager, National Insurance Co. Ltd.., _ Ramdcv Galli, Be@um. v '_ _ V .__ _ ..APPELLANT (By Sri Laxman B.Mannoddar',AV_A§iv.:')'V 3 AND: 1. Shri Jameclahemaﬁ, S/0 Liya1rat~Hu'a'sci:n; .. Age: _ 40, 'Bt,1Vsi11cs-_s,' ' " R/9: Zatpat Celgny, Angel, {cg-::"h!aj0;V', Business, 'R/'G2 H.NC§39:/16, Upasngar, - nshri Shékh Nabisab Shaikh Maheboob, 2 Age; Major, Ooc: Budmess, ' United India Inst:-ranoe'Co. Ltd., Mazuti Gem, Belgaum. ..RESPONDENTSMFA.No.21243/2008 2 This appml is filed under Section l'?'3(1) of M.vV-..._Act against the judgment and award dated 0'?'.06.2()(}8 MVC No.2'540/ 2005 on the ﬁk: of the Presiding Track Court-I as Member, Addl. MACIX, Belgaum,__ :_a" compensation of Rs.14,'750/-- with interest @ 6% -pja. date of petition till deposit. This apml is coming on for delivered the: fo11owi:ug:- _ ()1. There is a delay of 23 daysv'Vii12.:ﬁIi;).g Before issuing notice on the £21' delay, I have heard the learned the.' regarding 02. - Insurance Company is directed the negligence against S V the "anus Hggnda Scooter. _ ti ~--~ respondent no.1 hcrcin mat with an a££§<:fncié;;{ when he was riding his Hero Honda _m0toit--ycI::;j" ' registration No.GA--02/Z 9408. The " " 'T '0<;c11rred when a Kine' tic Honda scooter bcarmg' {ggggsmlaon No.GA-02/L 4335 comm' g from the opposite dashw sigma' st the Han; Honda motomycic driven by Lvfhe claimant. The ciajat fell dawn and sustained head injury and injuries ta other parts of the body. H: was shﬁed Bf. MP'A.No.21243/2008 3 to Goa Medical College and Hospital for treatment. On the report submitted by the Head Constable, a case was registcmd. 04. The injured claimant movw the Ciaims compensation alicging that the acckient thé' acﬁmnablc negligence on the pan offhc u Honda Scooter. Before the Ciaimg hi examined himself as P.W.1 amipne He pmduccd and marked Tiipugh the respondent ~-- insurance the it did not lead any evidence gxcept 'bf the insurance Poiicy. 05. The the evidence on mcord V. the due to the nzgligcncc on the it akso found that the claimant had to the accident by his negligcnm. Based V on evidence, the 'Fr.ihunal quammﬁcd' thc payable at Rs.29,50€)/--~. As it held that the was Iiabk: to an extent of 50%, the appellant T ' inémanoc Company who is: the insurer of the Kﬁactic Honda " Scooter was saddhd with the Iiabﬂity to pay a sum sf Rs.14,750]--- along with the interest at 9% p.a. from the date of W( MFA. No.2 E243/2008 4 petitian tiil its deposit. In this appeal, the ap}sc}_Eaj;1t.x - Insurance Company is aggrieved by the negligcnce on the part of the x'is:1::j1j"9_f scooter. O6. Learned counsel for mg a§'}mHaﬁ{-Ins1:- _"_ submits that the FIR am; theﬁ-.pa°;¢ "c£_the "H::%_.@onstahLc disclose that the the negligence on the part of ' motorcycle and therefore ¢z'.s.i:<;A¥§.'v'i't'1vV_vf§s¥':§;}r:ning 50% Iiabiiity on the 07. ®unscl for the appellant and on cageful gr mc:§ateria1s on record including the - ﬁnd,-:,,'f}%jg§%As untied nihzanai, I ﬁnd that the 'l'rib1maI has :§vig1cncc of the claimant who has stated that 1112' :3; mcident he became unconscious and he . Vwas ﬁat position to bdge any compiam t and in that Vibe complaint came to be lodged by the Peiioe Head He has further explaincd as to 13,0175' the accident " In the absence of any other rebuttal cvidanoe led by u A. the Insuxance Company particularly in View of its omission to lead the evidence of the rider of the Kinetic Honda scooter, the M MFA. No.21243,12O08 Tribunal has persuazicd itself to mean: a accident occurmd due to the fault of both the rider of the Kineﬁc Home scooter. In such » cannot be said that the ﬁndings perverse or ilicgal. TI:1c:reforc, .E do nbiﬁnd any L. appeal. Hence, the same deservfﬁér 08. Since the appeal :.o"1i"V:1 x.;Ax:it.s, the application ﬁled sac.-king Coniifkilaﬁogg. bf Sd/-» Judge FKS	[]	Author: B.S.Patil	216,626	The Divisional Manager vs Shri Jameelhemad S/O Liyakat ... on 21 January, 2009	Karnataka High Court	0
JUDGMENT Page, J. 1. This case raises an important question as to the rights of a mortgagee of premises which at the time when the mortgage was executed were in the occupation of a tenant of the mortgagor. The material facts are as follows: In 1907 two persons by name Hyam and Jones, who at that time were the owners of the premises in suit, No. 3-1 Mangoe Lane, let a portion thereof to the defendants as monthly tenants at the rent of Rs. 150 a month. On the 13th July 1914 Hyam and Jones mortgaged certain premises, including the premiss in suit to M.A. Sassoon and others. On the 13th January 1917 the mortgagees filed a mortgage suit against Hyam and Jones for an order for the sale of the mortgaged premises. On the 16th March 1917 M.A. Sassoon, one of the mortgagees, was appointed receiver of the said premises by order of the Court. On the 17th July 1917 a preliminary decree for sale was passed. 2. Now, Hyam was accustomed to make out the defendant's rent bills, and to obtain the rent up till the time when the appointment of the Receiver was made, and thereafter until the date of the agreement to which I am about to refer, the course adopted for the purpose of collecting the rent was that Hyam made out the rent bills and endorsed them to Sassoon and the money was collected by Sassoon's peon. In 1920 the premises in suit were in need of repair, and on the 7th June 1920 an agreement was entered into between Hyam and Jones on the one hand and the defendants on the other whereby the defendants advanced to Hyam and Jones Rs. 7,800 on that date, Rs. 1,500 on the 20th October 1920, and Rs. 2,500 on the 29fch December 1920 in order to provide funds for the repair and improvement of the premises while Hyam and Jones on their part undertook to expend the money advanced on repairs, and to treat the sums so paid as rent paid in advance. It was further agreed that after the work of repair and improvement had been carried out the rent payable should be increased to Rs. 200. After the 7th June 1920 no further rent bills were made out or rent collected. I find that this agreement was made, and that the above statement of facts correctly represents the arrangement which was made, and what took place in respect there of. 3. Further, although the defendants were not aware that the mortgage to Sassoon and others had been executed, I am satisfied on the evidence that the mortgagees were fully apprised of the nature of the agreement of the 7th of June 1920, and from the evidence adduced before me I draw the inference that the mortgagees gave their sanction to it. I am invited by the plaintiffs to come to a conclusion from the evidence that the mortgagees neither knew nor approved of this agreement, but, in my opinion, the natural and reasonable inference to be drawn is to the contrary effect. Sassoon was not only a mortgagee, but the receiver of the rents and profits derived from the mortgaged promises. I am at a loss to understand when Sassoon after the 7th June 1920 found that the rent was no longer being paid monthly as heretofore or at all why he did not protest and demand payment of the rent unless he was aware and approved of the agreement between Hyam and Jones and the defendants. In my opinion, the true view is that the Sassoon mortgagees fully understood, and were privy to, this agreement. In July 1921 Hyam and Jones were minded to pay off the Sassoon mortgage and on the 12th July 1921 they granted a mortgage of the said premises to the plaintiffs for six lakhs, and interest thereon at 12 per cent. On the same day with, the proceeds which resulted from the execution of the plaintiffs' mortgage Hyam and Jones (as appears from the petition of the Sassoon mortgagees dated 22nd February 1922) paid to the Solicitors for the said mortgagees a sum of Rupees 6,92,093 which admittedly was accepted by Messrs. Morgan & Co,, their attorneys, in full satisfaction of the Sassoon mortgagee's claim for principal and interest due under the decree passed in the mortgage suit. Thereupon Morgan & Co., gave to Hyam and Jones a receipt in the following terms: Suit No. 270-16 M.A. Sassoon v. J.I.J. Hyam. Received from Messrs. Hyam and Jones a cheque for Rs. 7,02,000 only, viz., Rs. 6,92,093-3 in full satisfaction of the plaintiff's claim for principal and interest; due under the decree herein and Rs. 9,906-13-2-0 on account of the costs of the suit. We undertake to refund excess, if any, on adjustment of the costs of his suit. (Stamped with a one-anna stamp and dated 12th July 1921). 4. On completion of the transaction the title-deeds were handed to Hyam and Jones Solicitors. Subsequently it transpired, according to the computation made by Morgan & Co., that the claim of the Sassoon mortgagees by mistake had been underestimated to the extent of Rs. 25,779-8-3 and on the 2nd March 1922 the said mortgagees applied by petition to the Court for an order for the sale of the mortgaged premises for recovery of the amount alleged still to be outstanding in respect of the sum due under the said mortgage-decree. An order for sale was made, and pursuant thereto, on the 24th March 1923, at an auction sale held by the Registrar of the High Court, the plaintiff purchased the mortgaged premises including the premises in suit for Rs. 1,00,000 subject to the mortgage dated 12th July 1921 in favour of the plaintiffs (see condition of sale XV, the order of 26th April 1228, and the order of 17th May 1923). It appears that the mortgage to the plaintiffs was executed on the 12th July 1921, and not on the 12th July 1922. But, in my opinion, for the purpose of this suit, it is immaterial upon which of those dates it was granted. On the 28th March 1923 B. N. Basu & Co., Solicitors for the plaintiffs, wrote to the defendants the following letter: Dear Sirs, Re. 3 and 3-1 Mangoe Lane. We are instructed by our clients Messrs, Tilokechand of No. 8-3 Rupchand Roy Street, Calcutta, that at a sale held by the Registrar of the High Court on the 24th instant, the above property was sold and our clients Messrs. Tilokechand were declared the highest bidders and purchasers at the sale. We are instructed to call upon you not to pay any rent to any person other than our client. Should you do so, such payment will be entirely at your own risk and penalty and will not be recognized by our client. Yours faithfully (Sd.) B.N. Basu & Co. 5. On the 31st May, the current rent not having been paid to the plaintiffs, the plaintiffs' Solicitors again wrote to the defendants: Dear Sir, Re. 3-1 Mangoe Lane. We are instructed by our clients Messrs. Tilokechand the owners of the above premises, to call upon you, which we hereby do, to quit and vacate the portion of the said premises occupied by you on expiry of the month of June 1923. Should you fail to vacate in pursuance of the above notice, legal proceedings will be taken to eject you without further reference. You have not paid rent for the above permises for a long time. 6. Now, the defendants did not vacate the premises as requested in accordance with the said notice to quit, or at all. If the agreement between the mortgagors and the defendants of 7th June 1920 is valid and binding upon the plaintiffs, the plaintiffs by reason of the Calcutta Rent Act are not entitled to eject the defendants. The question therefore, which I have to determine is whether or not the agreement of 7th June 1920 is valid and binding upon the plaintiffs. The plaintiffs contend that if the payments made by the defendants in June, October and December 1920 are to be treated as payments of rent in advance the payment of rent to a mortgagor, before it has accrued due, does not bar the claim of a mortgagees of the premises, after notice of his interest therein has been given to the tenant to recover the rent accruing there from as and when it falls due. On the other hand, if these payments are not to be treated as payments of rent, but as advances to Hyam and Jones as landlords from the defendants as tenants, upon the terms that on the dates when the rent becomes due, such advances were to be treated as the fulfillment of the tenant's obligation to pay rent, the plaintiffs contend that such a transaction amounted to a collateral agreement which will not affect or control the mortgagees' rights and interest in the premises and is one which the plaintiffs as mortgagees or as auction purchasers are not under any obligation to respect. 7. As regards the first contention, if the premises upon which it is based are sound, I am not disposed to disagree with, the conclusion which is drawn therefrom. But, in my opinion, these sums were not, and are not to be regarded as having been paid as rent for this reason : that on the dates when the rent becomes payable, the landlords, having assigned the reversion, had rendered themselves incapable of giving a valid release of the same, or a valid discharge for the sums so paid as rent. Payment of rent to them was not payment of rent to persons entitled to receive it, and such payments would afford no defence to a claim for payment of the rent by the person to whom the reversion had been transferred. As Mr. Justice Wilier pointed in De-Nicols v. Saunders [1870] 5 P.C. 58. It is clear that the Common Law authorities which say that payment before notice is good against a mortgagee, and which are represented by Watts v. Ognoll [1791] Cro. Jac. 192, have no application to the present case, they apply only to a person fulfilling his obligation to one who, at the time it is fulfilled, is the apparent reversioner, which is similar to payment to a creditor who has assigned the debt without notice to the debtor. These oases depend upon a rule of general jurisprudence not confined to cases in action, though It seams to have been lost sight of in some recent cases, viz., that if a parson enters into a contract, and without notice of any assignment, fulfils it to the person with whom he made the contract, ha is discharged from his obligation J that is a rule which is declared rather than enacted by Anne, Order 16, Section 10. That Statute did away with the necessity for attornment, but protected the tenant in cases where he had paid the rent due from him before notice of the assignment; this provision of the Statute, however, clearly applies to the fulfilment of an obligation to pay rent imposed by the lease. There has bean no such payment here for payment of rent before it is due is not a fulfilment of the obligation imposed by the covenant to pay rent, but is, in fact, an advance to the landlord, with in agreement that on the day when the rent becomes due such advance shall be treated as a fulfilment of the obligation to pay the. rent. 8. Although the correctness of this decision appears to have been doubted by Farwell, L.J., in Green v. Rheinberg [1911] 104 L.T. 149, in my opinion the ratio decidendi of Mr. Justice Willes' judgment which was repeated by the Court of Common Pleas to which decision he was a party in Cook v. Guerra [1872] 7 C.P. 132, is unimpeachable and is an accurate statement of the law. Sea Ashburton v. Nocton [1915] 1 Ch. 274. 9. As regards the second contention which counsel for the plaintiffs has urged before me, I find as a fast that the agreement of the 7th June 1920 was prior in date to the mortgage of the 12th July 1921 and, in my opinion, the plaintiffs must be deemed to have received constructive notice of this agreement before they became parties to the mortgage, and are under an obligation to the defendants to respect the terms thereof. The equitable principle to be applied in the circumstances of this case may be gathered from a perusal of the following cases : Daniels v. Davison [1809] 16 Ves. Jun. 249; Allen v. Anthony [1816] 1 Mer. 282; Barnhart v. Greenskeilds [1853] 9 Moo. P.C. 18; Holmes v. Powell [1856] 8 Deg. M. & G. 572; Morrogh v. Aileyne [1869] 7 Eq. 487; Hunt v. Luck [1901] 1 Ch. 45; Hunt v. Luck [1902] 1 Ch. 428; Green v. Rheinberg [1911] 104 L.T. 1419 and Ashburton. v. Nocton [1914] 2 Ch. 211; Ashburton v. Nocton [1915] 1 Ch. 274. In cases where the proprietary title to premises in the occupation of a tenant is assigned, it is incumbent upon the assignee to make enquiries of the tenant as to the extent of his rights and interest in the premises. If the tenant, in answer to such an enquiry, represents his rights in the premises, to be other than those which he possesses no doubt in a case where the assignee has accepted the assignment in reliance upon such a representation he will thereafter be precluded as against the assignee from asserting his rights to be other than those which he has stated. But assuming that a correct answer is received, or that; no enquiry is made by the assignee, in either case, in my opinion, the assignment will be subject to the tenant's rights and interests in the premises. And the principle is to be applied alike in cases where the assignee is a mortgagee as in cases where he is a purchaser of the premises. See Green v. Rheinberg [1911] 104 L.T. 149. It would offend the conscience were it to be held that the rights of the tenants in such circumstances were subject to defeasance or curtailment and, in my opinion, the mortgagor by transferring his interest in the reversion is not entitled thereby to resile from his agreement or to derogate from his grant and the assignee takes the reversionary interest subject to the rights and interest of the tenant in the premises. In Daniels v. Davison [1809] 16 Ves. Jun. 249, Lord Eldon (Lord Chancellor) observes that there is considerable authority for the opinion I hold, that, where there is a tenant in possession under a lease, or an agreement, a person, purchasing part of the estate, must be bound to enquire, on what terms that person is in possession. 10. Again in Allen v. Anthony [1816] 1 Mer. 282, Lord Eldon re-stated the principle, which was an interesting case in which a bill was filed in Chancery by the owner of the fee simple of an estate for an account of timber felled by the defendant on the estates of the plaintiff and for incidental relief. It appeared that the predecessor of the plaintiff in 1799 had agreed to demise to one Izard for 21 years, at a certain rent, the premises in question, with reservation to herself and her heirs of all the timber and limber-like tress and liberty to cut and carry away the same. Nine years later the defendant obtained possession of the promises under an execution in an action brought by him against Izard, and in the following year 1809 the then owner of the estate, Sarah Kier, agreed to sell to the defendant all the timber except fruit trees for £200. Subsequently Sarah Kier conveyed the reversion to Archer from whom the plaintiff's father purchased it, and the question in the case was whether the proprietary interest of the plaintiff in the estate was subject to the agreement which had been made by Sarah Kier with the defendant. 11. In the course of his judgment Lord Eldon observed: It is so far settled as not to be disputed, that a person purchasing, where there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have; Douglas v. Wliitterwrong [1802] 7 Ves. Jun. 436 N. And there is no doubt that, if the defendant had been untitled to the trees on the estate, under the agreement by which he held the estate itself, the plaintiff would be bound by the authority of the several cases in which it has been so decided. But the question here is, whether there is any difference in the case when the right of the tenant to the timber arises by a contract made independent of, and posterior to, the contract under which he holds possession of the estate, and on the best consideration that I am able to give to the subject, I think it would be going on a distinction much too thin to determine that he may be restrained from the exercise of that right in the latter case, although he could not have been so restrained if his title to the timber had been coincident with his title to the possession of the estate. There is no more reason in the one case than in the other to say that the purchaser was not bound to make enquiry as to the nature and extent of the tenant's interest. He must, therefore, suffer the consequence of his neglect to take that obvious precaution. 12. In Barnhart v. Greensheilds [1853] 9 Moo. P.C. 18, Mr. Pemberton Leigh (afterwards Lord Kingsdown), stated the principle thus: With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of the land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taylor v. Stibbert [1794] 2 Ves. Jun. 437, but also to interests under collateral agreements as in Daniels v. Davison [1809] 16 Ves. Jun. 249 and Allen v. Anthony [1816] 1 Mer. 282 the principle being the same in both classes of cases; namely, that the possession of the tenant is notice that he has some interest in the land, and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to enquire what that interest is, or to give effect to it, whatever it may be. 13. The language of Lord Eldon in Daniels v. Davison [1809] 16 Ves. Jun. 249 is to the same effect, and when some years after he had again to consider the circumstances, he states the rule in these words: It is so far settled as not to be disputed that a parson purchasing, where there is a tenant in possession if he neglects to enquire into the title, must take subject to such right as the tenant may have. 14. In Holmes v. Powell [1856] 8 Deg. M. & G. 572 Lord Justice Knight Bruce states the principle in somewhat different language. In the course of his judgment he observer: I apprehend that by the law of England when a mm is of right and de facto in the possession of a corporeal hereditament, he is entitled to impute knowledge of that possession to all who deal for any interest in the property conflicting or inconsistent with the title or alleged title under which he is in possession or which he has a right to connect with his possession of the property. It is equally a part of the law of the country, as I understand it, that a man who knows or cannot be heard to deny that he knows another to be in the possession of a certain property, cannot for any civil purpose, as against him at least, be heard to deny having thereby notice of the title or alleged title under which or in respect of which the former is and claims to to be in that possession. 15. Lord Justice Swinfen Eady in Ashburton v. Nocton [1915] 1 Ch. 274 laid down that: A pre-payment will be good, as to the amount of the rent which becomes actually due before notice has been given to the tenant by the mortgagee, although not as to the residue; Cook v. Guerra [1872] 7 C.P. 132. Green v. Rheinberg [1911] 104 L.T. 149 was a clear case, as there the landlord had, prior to the mortgage, released the rent to the lessee and tenant in possession, and under the doctrine of Daniels v. Davison [1809] 16 Ves. Jun. 249 the subsequent mortgagee was affected with notice of the interest which the tenant had in the land. If the arrangement between mortgagor and tenant for pre-payment of rent, or for setting off future rent against money due from the mortgagor to the tenant, be made subsequent to the date of the mortgage, such arrangement will be treated as a collateral bargain between those parties and not binding upon the mortgagee. 16. The decision in Municipal Permanent Building Society v. Smith [1889] 22 Q.B.D. 70, to which I was referred, turned upon the true contraction to be given to certain sections of the Conveyancing Act of 1881, and. is not an authority adverse to the principle of law to which I have referred. The plaintiffs admitted in the plaint which they filed in this suit that at the date when they became auction purchasers of the premises they were first mortgagees of the same and purchased the same subject to their mortgage. 17. Did the plaintiff's obtain any higher rights against the defendants than they possessed as first mortgagees by becoming purchasers at the auction sale? What was it that they purchased? The property subject to their own mortgage, and the rights and interest of the defendants in the premises. In other words, they purchased for one lakh the equity of redemption of the premises being or including the interest of the mortgagors therein. Bat if the interest which they possessed as first mortgagees was subject to the rights of the defendants under the agreement of 7th June 1920, did they become exempted from their obligations under the agreement of 7th June 1920 by acquiring subsequently the equity of redemption? In my opinion, clearly not. I go further and say that as at the date when they purchased the equity of redemption the mortgagor's interest in the premises was subject to the agreement, the interest of the mortgagors which in effect the purchasers acquired at the auction sale, was saddled with the mortgagor's obligation under the agreement. It was further contended that by acquiring the property at the auction-sale the plaintiffs became entitled to the interest of the Sassoon mortgagees and that as the Sassoon mortgage was not subject to the agreement of the 7th June 1920 (having been executed on a date prior to that on which the agreement was entered into) their interest as assignees of the Sassoon mortgage was not affected thereby. For the reasons which I have given, in my opinion that is not the true effect of the transaction, but assuming this contention to be so far in accordance with the fact that it might reasonably be urged that after the purchase the plaintiffs stood in the place of the Sassoon mortgagees, in my opinion, the plaintiffs remained equally bound by the agreement of the 7th June. 18. As I have already stated the Sassoon mortgagees were aware and approved of the agreement of the 7th June 1920 and if a mortgagee is privy to, and has sanctioned a collateral agreement between the mortgagor and the tenant see the observations of Denman, C.J., in Evans v. Elliot [1838] 9 Ad. & E. 342, in my opinion, a subsequent assignee of the mortgagee's interest is not to be permitted to assert that his interest in the premises is not affected by the agreement, because the agreement was entered into at a date subsequent to that on which the mortgage was executed. Upon what basis of reason or fairness is a contention to the contrary to be supported? I can see none and I know of no authority in favour of so inequitable a proposition. On the contrary, in my opinion, the principles and authorities to which I have referred are opposed to any such contention. For these, reasons, in my opinion, the plaintiff's claim cannot be sustained and the suit must be dismissed.	[]	Author: Page	216,627	Tilokechand Surana And Anr. vs J.B. Beattie And Co. on 19 May, 1924	Calcutta High Court	0
	[]	null	216,628	[Section 9(3)] [Section 9] [Complete Act]	Central Government Act	0
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 31108 of 2008(C) 1. ANANDAN, SIMLA KIZHAKKATHIL, ... Petitioner 2. SARASWATHY, SARASWATHI SADANAM, 3. RAJAMMA, GEETHA MANDIRAM, 4. OMANA, ANANDA VILASOM, PERAYAM, ESTATE 5. POWLY, KALANGUVILA 6. SARASWATHY AMMA, 7. THANKAMMA, SANTHOSH MANDIRAM, 8. SAVITHRI, CHARUVILA VEEDU, 9. SARASAMMA, CHIRAKKARA PUTHENVEEDU, 10. NALINI, KUTHIKKATTUVILAVEEDU, 11. INDIRA, MELATHILVEEDU, 12. SARASAMMA, KOCHUKUNUMPURATHU VEEDU, 13. RAJAMMA, CHAMAVILA, 14. NANI, NELLIKKAVILA VADAKKATHIL, 15. SUMATHI, CHARUVILA VEEDU, 16. GOMATHI, CHARUVILA VEEDU, 17. SHERIFA BEEVI, THADAVILA PUTHENVEEDU, 18. RAJAMMA, ASARIVILA, THAZHAMTHEKKU. 19. BABY, CHIRAKKARA PUTHENVEEDU, 20. AMBUJAKSHYA AMMA, NADAYIL 21. SUMATHI, THUMPARA MELETHIL 22. RAJAMMA, THUMPARA MELATHILVEEDU, 23. VASANTHAKUMARY, MUNDAKKALTHODI, 24. AYSHA BEEVI, MAVILAZHIKOM, 25. BHANUMATHI, KIZHAKKEATTATHU, 26. S.RAMAKRISHNAN, KUNNUMPURATHU VEEDU, 27. VILASINI, KUNNUMPURATHU VEEDU, 28. RUKHIYA UMMA, 29. RATNAMMA, KUMARAVILASOM, 30. MEENAKSHI, SHEEBA BHAVAN, 31. DEVASANAN, CHALUVILA PADINNJATTATHIL, 32. DEVAKI AMMA, MURALCE MANDIRAM, Vs 1. THE KERALA STATE CASHEW DEVELOPMENT ... Respondent 2. THE MANAGING DIRECTOR, THE KERALA STATE For Petitioner :SRI.C.K.PRASAD For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :05/10/2009 O R D E R S.SIRI JAGAN, J. ================== W.P(C).No.31108 of 2008 ================== Dated this the 5th day of October, 2009 J U D G M E N T sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge The petitioners are retired employees of the 1st respondent Kerala State Cashew Development Corporation Ltd. Their grievance in this writ petition is that gratuity due to them has not been paid by the 1st respondent, although the petitioners retired years ago. The petitioners, therefore, seek the following reliefs: 2. A statement has been filed by the Corporation, in which the only contention raised is that because of paucity of funds, they are not able to pay gratuity due to their retired employees. Although in O.P.No.6586/2002 a learned Single Judge of this Court had permitted the 1st respondent to pay gratuity in accordance with the priority of the date of retirement, that was set aside by the Division Bench in W.A. No.1079/2002. The counsel for the 1st respondent would submit that that matter has been taken in appeal before the Supreme Court and in those cases, the judgments of this Court have been stayed. Despite the contentions raised by the 1st respondent, in so far as the liability is 2 not disputed, I do not think that the petitioners should be denied their statutory right. In fact in Ext.P1 judgment in respect of similar employees I had directed payment of gratuity within a period of four months. 3. In the above circumstances, this writ petition is also disposed of with a direction to the 1st respondent to pay gratuity due to the petitioners within a period of four months from today along with interest. However, I note the submission made by the counsel for the 1st respondent that out of the 32 petitioners, gratuity due to nine of them has already been disbursed, which is not disputed by the counsel for the petitioners. Sd/-	[]	null	216,629	Anandan vs The Kerala State Cashew ... on 5 October, 2009	Kerala High Court	0
Gujarat High Court Case Information System Print SCA/9209/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9209 of 2010 ========================================================= HINDALCO INDUSTRIES LIMITED - Petitioner(s) Versus RAJYA GENERAL KAMDAR MANDAL & 1 - Respondent(s) ========================================================= Appearance : MR KM PATEL, LD.SENIOR COUNSEL WITH MR VARUN K.PATEL for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 06/08/2010 ORAL ORDERHeard Mr.K.M. Patel, learned Senior Counsel appearing for the petitioner. Notice, returnable on 30th August 2010. In the meantime, there will be ad interim relief in terms of paragraph 10(B). Direct Service is permitted. (K.S. Jhaveri, J) Aakar Top	[]	Author: Ks Jhaveri,&Nbsp;	216,631	Hindalco vs Rajya on 6 August, 2010	Gujarat High Court	0
	[]	null	216,632	[Section 16] [Complete Act]	Central Government Act	0
Gujarat High Court Case Information System Print FA/4558/2008 8/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4558 of 2008 To FIRST APPEAL No. 4560 of 2008 ========================================================= NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus ZALABHAI HAJURBHAI DAMOR & 12 - Defendant(s) ========================================================= Appearance : MS MEGHA JANI for Appellant(s) : 1, None for Defendant(s) : 1, 7,9 - 10, 10.2.1, 12, MS SNEHA A JOSHI for Defendant(s) : 2 - 6, 8, MR HASMUKH THAKKER for Defendant(s) : 11, MR SAVAN N PANDYA for Defendant(s) : 12.2.1, 12.2.2,12.2.3 - for Defendant(s) : 0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 18/09/2008 ORAL ORDERHeard learned advocate Ms. Megha Jani on behalf of New India Assurance Co. Ltd. The appellant insurance company has challenged common award passed by Motor Accident Claims Tribunal, Sabarkantha District at Sabalpur ? Modasa in MACP no. 73/90, 72/90 and 59/90 dated 8/3/2006. The claims Tribunal has awarded Rs. 2,31,000/-, Rs. 1,85,500/- and Rs. 1,82,200/- in MACP no. 73/90, 72/90 and 59/90 respectively with 7.5% interest. These three cases are fatal and claimants have filed claim petitions for compensation of deceased who died in the said accident. Learned advocate Ms. Jani appearing for appellant raised contention before this Court that Tribunal has committed gross error in holding liability upon appellant insurance company for paying compensation. She submitted that Tribunal has failed to appreciate contention of appellant to the effect that Jeep was plied for carriage of more than passengers then permissible. As per policy, seating capacity is stated to be 5 + 1. As against this, as is mentioned in the FIR, 16 persons were traveling in the Jeep. These 16 persons are named in the FIR. Not only that she submitted that depositions also support the fact that on the day of accident 15 to 17 persons were traveling. She submitted that Tribunal has not accepted contention of appellant insurance company to the effect that since Jeep was overloaded and was used for carriage of 17 passengers as against 6, there is a breach of terms and conditions of policy and appellant insurance company is not liable to indemnify the insured. She submitted that even without prejudice to first contention liability of company because of additional premium was paid by owner comes to Rs. 15,000/- only per person as per policy, where Rs. 50/- per person was paid by owner. Therefore, it is beyond to policy as per premium paid by owner per person. Except that no other contention raised by learned advocate Ms. Jani before this Court. The accident occurred on 5/1/1990 about 6.30 a.m. where persons were coming from Modasa in Taxi being a No. GRW 9838 where owner is respondent no. 5 and driver is respondent no. 4. Meanwhile, at about 7.30 a.m. when they reached to Modasa near Sabalpur Patia in turning, Taxi driver has slow the Jeep. At that occasion, opponent no. 1 who was having ownership of Truck of opponent no. 2 No. CIO 9321 came from Modasa in rash and negligent manner carelessly without giving horn dashed to Taxi. Because of dashed or impact given by truck to Taxi, Taxi was dashed with tree and stand near tree. In the said accident, person those who are traveling in Taxi were injured and three persons were died on the spot, for that, claim petition was filed by claimants. The reply was filed by insurance company and denying averments made in claim petition. The insurance company of Truck made allegation against Jeep and Insurance company of Jeep made allegation against Truck in their written statement. The contention raised by present appellant before claims Tribunal that Jeep was overloaded then permit under the Rules. So, as per terms and conditions of insurance policy, insurance company is not liable. Before claims Tribunal vide exh 113 panchnama, vide exh 114 inquest panchnama of deceased Ambaben, vide exh 115 P.M. report of deceased Ambaben, vide exh 116 inquest panchnama of Bhurabhai Damorbhai, vide exh 133 inquest panchnama of deceased Nathiben, vide exh 134 P. M. report of Nathiben, vide exh 130 xerox of complain filed by complainant, vide exh 126 P.M. report of Sukhabhai, vide exh 112 oral evidence of Dolabhai Manabhai Damor, vide exh 117 oral evidence of Zalabhai Hajurbhai Damor and vide exh 109 oral evidence of Galiben Bhurabhai Damor was produced. Vide exh 123 Kantibhai Samanbhai Patel was examined and vide exh 124 affidavit of Kantibhai Samanbhai Patel were produced. Vide exh 127 Laxmanbhai Masurbhai Damor was examined and vide exh 122 he was produced an affidavit. Except that none was examined before claims Tribunal. All three persons were traveling in Jeep. After considering submissions made by three learned advocates and documentary evidence in para 16, the Tribunal has examined the question of negligence and also examined liability of insurance company. The insurance company has raised contention for breach of terms and conditions which was proved by appellant, therefore, no liability is passed on upon insurance company. In respect to contention that Jeep was overloaded and premium for only six persons were paid, but at the time of accident more than 15 to 17 persons were traveling, it amounts to breach of terms and condition of insurance policy, Tribunal has considered that Owner has committed error in allowing 15 to 17 passengers in Jeep who was having insurance of only five persons by paying additional amount of Rs. 50/- per person, but liability of insurance company is remained to satisfy award, though there may be breached of terms and conditions of insurance policy committed by insured. The persons those who were traveling are considered to be an occupants of Vehicle. The Jeep is considered to be passenger vehicle not goods vehicle. In passenger vehicle, liability of insurance company is to indemnify the owner in case if any amount is to be paid as compensation to claimants. This Jeep is not private vehicle. The Jeep was plied as Taxi, where passengers were traveling. Therefore, claims Tribunal has examined issue that in case if owner has committed any breach, remedy is available with insurance company to recover from owner after paying amount to claimants. Therefore, claims Tribunal has decided entire liability upon insurance company to satisfy award because an additional premium of Rs. 50/- was paid by insured for one passenger and it covers five passengers and Rs. 250/- paid being an additional amount. Whether risk of paid passenger is covered only Rs. 50/- or more or not, for that, insurance company has not led any evidence before claims Tribunal. The terms and conditions of insurance policy not proved by insurance company before claims Tribunal. None was examined by insurance company before claims Tribunal. Therefore, a moment, additional amount has been paid being premium for five passengers Rs. 250/- then it is a duty of insurance company to satisfy award because insurance company has not led any evidence to justify their stands about limited liability. Therefore, in absence of evidence from insurance company, conclusion of claims Tribunal is right that additional premium was paid by insured for five passengers plus driver then insurance company is liable to satisfy award passed by claims Tribunal. Therefore, according to my opinion, claims Tribunal has rightly examined issue about liability, which has been raised before this Court and looking to the fact that in accident five passengers received injuries and three died, liability is upon insurance company to satisfy award. According to my opinion, tribunal has not committed any error in deciding issue of liability on the basis of insurance policy, which was on record. Therefore, finding given by claims Tribunal is just and proper and can not considered to be contrary on record or baseless and perverse. The contentions, raised by learned advocate Ms. Jani can not be accepted and same are rejected in absence of evidence from insurance company. Hence, there is no substance in the present appeal. Accordingly, present appeal is dismissed. The amount which are deposited by insurance company before Registry of this Court are directed to be transmitted immediately to the concern claims Tribunal. The amount of compensation as directed by claims Tribunal together with costs and interest are deposited by insurance company before claims Tribunal and out of that 40% amount is disbursed in favour of respondent claimants as per order passed by this Court and remaining amount is already invested in any Nationalized bank for a period of five years. In case, if, claimants are required any amount then they may approach to claims Tribunal and claims Tribunal will consider such application and pass appropriate disbursement order in their favour, as and when such occasion arise. Accordingly, today, all three appeals are dismissed by this Court. Therefore, no order is required to be passed in civil applications. Accordingly, civil application are also disposed of. (H.K.RATHOD, J) asma Top	[]	Author: H.K.Rathod,&Nbsp;	216,633	New vs Zalabhai on 18 September, 2008	Gujarat High Court	0
ORDER B. L. CHHIBBER, A. M. : The common dispute raised in these two appeals by the assessee is that the learned CIT(A) is not justified in confirming an addition of Rs. 99,000 for the asst. yr. 1982-83 and of Rs. 12,72,980 for asst. yr. 1981-82 belonging to the estate of her late husband to her income. 2. The relevant facts are that late Shri Anandrao Paur, the Ex-ruler of the erstwhile State of Dhar, died intestate on 25th April, 1980, leaving behind certain immovable and movable properties as his estate and his widow, the assessee, as his only legal heir. In the case of the assessee for the asst. yr. 1982-83, the ITO made an addition of Rs. 99,000 and Rs. 12,72,980 for asst. yr. 1981-82 on account of income from the estate of her deceased husband. By his order dt. 24th Feb., 1986 relating to asst. yr. 1982-83 passed under S. 250 of the IT Act, the CIT(A) deleted the aforesaid addition of Rs. 99,000. 3. Subsequently, the ITO filed an application under S. 154 of the Act before the CIT(A), requesting him to rectify the mistake apparent form record. In that behalf the ITO pointed out that the deceased had died intestate leaving no will behind him whereas in disposing of assessees appeal against the assessment order, the CIT(A) had proceeded to delete the addition on the assumption that a will had been left by the deceased. Thus, according to the learned ITO, the CIT(A) made a mistake apparent from record rectifiable under S. 154 of the IT Act. The learned CIT(A) accepted the contention of the ITO by confirming the addition of Rs. 99,000 made by the ITO in the assessment of the assessee. 4. Being aggrieved by the subsequent order of the CIT(A), the assessee came in appeal before the Tribunal with the following grounds : "1. The learned CIT(A) has erred in law as well as in fact in making an addition of Rs. 99,000 belonging to the estate of late Anandrao Paur the ex-ruler of Dhar on the ground that the appellant is the sole survivor of her deceased husband. 2. Your appellant prays that unless the administration of the estate is complete, the income from property left by late Anandrao Paur does not devolve on the legal heir, and should not be included in the income of the appellant. 3. Your appellant further submits that the property left by late Shri Anandrao Paur remains the property of the estate till all the statutory liabilities are paid off. 4. Your appellant therefore prays that income of the estate of late Anandrao Paur included in the total income of the legal heir Shrimati Mrunalinidevi Paur of Dhar be deleted. 5. Your appellant relies on the judgment reported in the case of CIT vs. Bakshi Sampuran Singh (1982) 13 ITR 650 (P&H). 6. Your appellant craves leave to add, alter, amend and/or withdraw any of the grounds of appeal at the time of hearing of the appeal." It would be noticed that the assessee has not challenged the applicability of the provision of S. 154 of the Act. However, when the appeal came up for hearing before the Division Bench, the assessee sought to raise the following additional ground : "That order under S. 154 passed by learned CIT(A) is beyond jurisdiction as it raises highly debated points of law and hence it be cancelled as such." In his order, the learned Judicial Member, after discussing the circumstances under which action under S. 154 of the Act could be taken, admitted the aforesaid additional ground and set aside the order of the CIT(A) dt. 17th March, 1986 as under : "11. To sum up, we are of the opinion that the effect of amendment made to his appellate order passed by the CIT(A) under S. 250 of the Act by recourse to action under S. 154 was rendering decision on highly debatable points of law whereupon there could have been possibility of two contrary opinions. Such being our opinion, we find it difficult to sustain the order under appeal. 12. In the result, this appeal succeeds and the order of the CIT(A) passed on 17th March, 1986 under S. 154 is set aside and that passed by him on 24th Feb., 1985, under S. 250 is hereby restored." 10. The learned Accountant Member, on the other hand, also admitted the additional ground. However, he sustained the order of the CIT(A) dt. 17th March, 1986 and refused to deal with the merits of the case as under : "6. The CIT(A) after receiving the application of the ITO had two option before his first of these being to recall his earlier order dt. 24th Feb., 1986 and to re-hear the appeal. This would have been the ideal thing for him to do on the facts of the case. The second option was to pass another order in continuation/supersession of the earlier order and it is this course which the learned CIT(A) adopted. In my opinion the order dt. 17th March, 1986 passed by the CIT(A) under S. 154 was perfectly valid in law since it tantamounted to recall/supersession of the earlier order dt. 24th Feb., 1986 and was for all purposes an order under S. 250. I wholly agree with the observations of my learned brother vis-a-vis the provisions of S. 154 and the situations to which these are applicable but would reiterate that these would not apply to the facts of the present case. 7. In the final analysis, I would reject the additional ground raised by the assessee. I may mention at this stage that we heard both the parties on the merits of the case as well but since my learned brother has not adjudicated upon these I am not in a position to express my views. The merits would be required to be decided after the difference of opinion has been resolved by the Third Member." 5. Since there was difference of opinion between the two Members of the Division Bench, the matter was referred to the Third Member (Sr. Vice-President) who after hearing both the parties, by his order dt. 23rd Oct., 1992 directed as under : "After going through carefully, the orders of my learned colleagues, I am inclined to agree with the conclusion arrived at by the learned Accountant Member that the CIT(A) was justified in passing the order dt. 17th March, 1986 under S. 154 of the Act. However, since both the learned Members have not expressed their opinion on the merits of the inclusion of Rs. 99,000 in the total income of the assessee, the mater is restored back to the Division Bench for passing the order according to the majority decision, as well as for the disposal of the appeal on merits, after hearing both the parties." 6. In accordance with the directions (supra), we proceed to decide the appeal relating to the asst. yr. 1982-83 on merits. For the asst. yr. 1981-82, the facts are identical to those relating to the asst. yr. 1982-83 except that the account involved is Rs. 12,72,980 and the learned CIT(A) while dismissing the appeal of the assessee has followed his predecessors order relating to asst. yr. 1982-83, under S. 154 of the Act. Accordingly, our decision in ITA No. 1583/A/86 relating to the asst. yr. 1982-83 will apply mutatis mutandis to the asst. yr. 1981-82. 7. Shri K. C. Patel learned counsel for the assessee, submitted that on merits the case stands squarely covered by the decision of Punjab & Haryana High Court in the case of CIT vs. Bakshi Sampuran Singh (1982) 133 ITR 650 (P&H). The learned counsel further submitted that the assessee was only an administrator of the estate of the late ex-ruler and till the administrator of estate of the late ex-ruler and till the administration of estate was complete, the provisions of S. 168 will apply. The learned counsel further submitted that the estate of the late ex-ruler of the erstwhile State of Dhar has been assessed to tax on substantive basis from the asst. yrs. 1981-82 to 1987-88 both under the income-tax and wealth-tax as per the details on page 9 of the paper book. The estate duty case of the late ex-ruler was completed in the year 1988 and only thereafter the administration of the estate came to an end and the assessee inherited the estate of late Shri Anandrao Paur. The learned counsel submitted that assessing the estate in the hands of the assessee will amount to double taxation which is not permissible under the law and in support of this contention, he relied upon the observations on page 247 of Chaturvedi & Pithisarias Income-tax Law, 4th Edition. 8. Shri M. S. Rai, the learned Senior Departmental Representative, submitted that the facts of the present case are distinguishable from the facts of Bakshi Sampuran Singhs case (supra) where the deceased had left a will in favour of his only son. In the present case the late Shri Anandrai Paur had not left any will and the assessee being a sole surviving heir to the deceased of her late husband was liable to be taxed in respect of the income arising out of the estate. According to the learned Senior. Departmental Representative, the provisions of S. 168 are not applicable in this case, as there was no will and hence there was no executor. He placed reliance on the judgment of Bombay High Court in the case of CWT vs. Keshub Mahindra (1983) 139 ITR 22 (Bom) and the judgment of Kerala High Court in the case of K. Kunhi Mohammad Hajee vs. State of Kerala & Anr. (1974) 93 ITR 193 (Ker). 9. We have considered the rival submissions in the light of decisions cited before us. No doubt, the assessee is a sole surviving heir to the estate of her late husband. This fact alone will not lead to the conclusion that the assessee has inherited the estate right from the date her husband expired. The important aspect which the authorities below have ignored is the administration of the estate. The assessee has been assessed on substantive basis in respect of the estate of her late husband both to income-tax and wealth-tax by the ITO, Indore from the asst. yrs. 1981-82 to 1987-88. It is a fundamental rule of the Law of Taxation that, unless otherwise expressly provided, income cannot be taxed twice - Laxmipat Singhania vs. CIT (1969) 72 ITR 291, 294 (SC). This fact shows that the administration of the estate was not complete during the two assessment years under appeal before us. This fact also stands established that the estate duty case of the late ex-ruler of Dhar was finalised in the year 1988. The case of the assessee stands squarely covered by the decision of the Supreme Court in the case of Navnitlal Sakarlal vs. CIT (1992) 193 ITR 16 (SC). In this case, B died on 31st Dec., 1957, leaving a will executed on 6th Oct., 1956 wherein he had directed that his properties come up after payment of debts, taxes, estate duty, municipal tax and other outstandings as well as medical expenses, expenses for obsequial ceremonies and charity shall, after his death, be taken possession of by his two grandsons (of whom the appellant was one) and they shall use or enjoy them as they desired. No executor was appointed in the will. The ITO sought to assess Navnitlal Sakarlal (a legatee) in respect of a half share in the income from the properties. The Tribunal held that the estate of B was being administered by the two legatees and, hence, a separate assessment was to be made in respect of the estate under S. 168. On a reference, the Gujarat High Court reversed the decision of the Tribunal holding that the residuary estate must be said to have been ascertained, as it was capable or easily capable of being ascertained. On appeal, the Honble Supreme Court reversing the decision of the High Court held that there was nothing to suggest that the payment of the estate duty was delayed deliberately by Navnitlal Sakarlal and to show that the only thing that remained to be done was the payment of estate duty. There was no information on record regarding the various assets and liabilities of the estate shown by the executor. No attempt had been made to find out whether there were any other outstanding liabilities and when these were discharged. The Honble Supreme Court further held that the fact that estate duty was a personal liability of the heirs and was a charge on the immovable properties passing on death did not detract from the duties and responsibilities of the executor, as an accountable person, to make satisfactory arrangements for the payment of the estate duty. The fact that a part of the estate duty liability was outstanding could not be ignored in deciding the issue as to whether the administration was complete. The Honble Supreme Court approved the judgment of Punjab & Haryana High Court in the case of CIT vs. Bakshi Sampuran Singh (supra) and of the Honble Calcutta High Court in the case of CIT vs. A Ghosh (1986) 159 ITR 124 (Cal) holding that "In fact, even in what may be described as much clearer situations and where the executor was also the sole beneficiary, it has been held that the administration is not complete". 10. We accordingly reverse the orders of the authorities below and hold that the assessee is not liable to be assessed in respect of Rs. 99,000 for the asst. yr. 1982-83 and Rs. 12,72,980 for the asst. yr. 1981-82 belonging to the estate of late Shri Anandrao Paur, the ex-ruler of Dhar. 11. In the result, the appeals are allowed.	[ 618603, 1951329, 1951329, 364325, 1951329, 1951329, 1951329, 618603, 1951329, 1951329, 618603, 1951329, 618603, 1951329, 1951329, 1951329, 364325, 1721837, 1721837, 916661, 922215, 1912701, 1721837, 364325, 284559 ]	null	216,634	Mrunalinidevi Paur Of Dhar vs Income Tax Officer. on 29 October, 1993	Income Tax Appellate Tribunal - Ahmedabad	25
IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.38 of 2009 VEENA KUMARI @ VEENA SINHA @ MUNNI Versus HIRA LAL & ORS. **** /6/ 12 August Put up after two 2010 weeks, as prayed for. ( Gopal Prasad, J. ) S.A.	[]	null	216,635	Veena Kumari @ Veena Sinha @ Munni vs Hira Lal &Amp; Ors on 12 August, 2010	Patna High Court - Orders	0
	[]	null	216,637	[Complete Act]	Central Government Act	0

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[]

Author: N.Ananda

216,528

Sri Y Venubabu S/O Late Prasad Rao vs R Jagannath S/O Late B.H..Rajanna on 8 March, 2010

Karnataka High Court

0

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 09TH DAY OF JULY, 2020 BEFORE THE HON'BLE MR.JUSTICE P.N.DESAI CRIMINAL APPEAL NO.3693/2012 BETWEEN: ANISHMIYAN S/O MEHEMOODMIYAN @ MAMUSAB NOW AGED: 38 YEARS OCC: AGRICULTURE R/O: GHODAMPALLI TQ & DIST: BIDAR. .... APPELLANT (BY SRI ANIL KUMAR NAVADAGI, ADVOCATE) AND: THE STATE THROUGH RURAL POLICE STATION, BIDAR TQ & DIST: BIDAR. ... RESPONDENT (BY SRI GURURAJ V. HASILKAR, HCGP) THIS APPEAL IS FILED UNDER SECTION 374 (2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 15.11.2012 OF SPL. JUDGE AND ADDL. DIST. AND SESSIONS JUDGE, BIDAR IN SPL.C.C. (SCS/STS) NO.54/2012 AND ACQUIT THE APPELLANT HEREIN FOR THE CHARGES FOR WHICH HE WAS CONVICTED. THIS APPEAL HAVING BEEN HEARD, RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING; 2 JUDGMENT 56. However, learned Sessions Judge misdirected himself in believing the prosecution This appeal is arises out of judgment of conviction passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Spl. C.C. (SCs/STs) No.54/2012 dated 15.11.2012 whereby sentenced the accused to undergo S.I. for one year and to pay fine of Rs.1,000/- in default S.I. for three months for the offence punishable under Sections 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short hereinafter referred as "SC and ST (PA) Act, 1989") and he further sentenced to undergo S.I. for one year and to pay fine of Rs.1,000/- in default S.I. for three months of the offence punishable under Section 325 of IPC. The sentences and in default sentences shall run concurrently. 02. Brief case of the prosecution is that, complainant-Ramanna is working as Gram-Sevak in Godampalli village Tq: Bidar. It is further case of the 3 prosecution that accused in this case was constructing the house without permission and illegally in Government land. It is further case of the prosecution that it is the duty of PW.1-Ramanna being Gram-Sevak to inform the higher officer, about anybody encroaching the government land for constructing house illegally. He found that accused-Anismiya has constructed the house at Sy.No.15 belonging to Government and he is also trying to sell the government land by taking money from others. So, in this regard he brought notice to his higher officer one Rajkumar i.e., PW.12-village accountant. This PW.12 had directed the accused to stop the construction work one-year back. In this regard the accused is having enmity and ill-will against complainant-PW.4. 03. It is further case of the prosecution that on 16.08.2012 at about 07.00 p.m. the accused was sitting below the Neem Tree near Hotel which is situated near 4 panchayat office. At that time accused came there with an intention to assault him and abused him by taking his caste that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla". He pushed the complainant on the ground and assaulted with hands. After that complainant returned to his house and went to Hospital at Bidar. On 17.08.2012 he lodged the complaint against the accused. Thereafter, the police recorded his statement and registered the complaint as per Ex.P.5. 04. PW.13-Namdev ASI who was Station House Officer of Bidar Rural Police Station received MLC report from the Government Hospital, Bidar at 4.00 p.m., as per Ex.P.4. Thereafter, he went to the hospital and recorded the statement of the complainant as per Ex.P.5 and registered a case in crime No.63/2012, sent FIR to 5 the Court and thereafter he handed over further investigation to Dy.S.P. Bidar. 05. PW.15-Jyoti Vaijanath-Dy.S.P. is the Investigating Officer. On 19-08-2012 he secured panchas and conducted the scene of offence panchnama as per Ex.P.6. He has recorded the further statement of the complainant-Ramanna. He sent his officials to search the accused. On 22-08-2012 he recorded the statement of witnesses Rajkumar, Rajeppa, Sharnappa, Ashok, Siddareddy and Maqsood. On 24- 08-2012 he arrested the accused and produced before the Court along with his report then he collected the wound certificate and also received caste certificate from the Tahasildar and also collected the scene of offence and map. After completing the investigation he filed the charge sheet against the accused for the offences punishable under Sections 504, 325 and 506 of Indian Penal Code and under Section 3 (1) (x) of the Scheduled 6 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 06. The Special Court took cognizance of offence thereafter furnishing the prosecution papers, charge was framed against the accused for the offences punishable under Sections 325 and 506 of Indian Penal Code and under Section 3(1) (x) of the SC and ST (PA) Act, 1989 only. The accused pleaded not guilty. Thereafter the case was posted for prosecution evidence. The prosecution in all examined 15 witnesses as PWs.1 to 15 and got marked 10 documents as per Exs.P.1 to Ex.P.10. 07. After recording evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused has denied the incriminating evidence appearing against him. He has not chosen to lead defense evidence. 08. After hearing both sides, learned Sessions Judge acquitted the accused for the offence punishable under section 506 of Indian Penal Code and convicted the accused for the offences punishable under Sections 3(1) (x) of the SC and ST (PA) Act, 1989 and under Section 325 of Indian Penal Code. 09. Aggrieved by the same, the appellant has preferred this appeal on the following grounds: That the Judgment and order of sentence passed by the Trial Court is illegal, arbitrary and against the facts of the case. The evidence of prosecution is full of inconsistencies, discrepancies and contradictions and there is no prima-facie evidence to connect the appellant with the incident. Hence, the Judgment of the Trial Court has resulted in grave miscarriage of justice. The FIR is fabricated and concocted. The entire Judgment of the Trial Court is warf and woof. The evidence of PW.4 has completely given go-bye to the 8 case set up by the investigating agency. The version put up by the complainant is contrary to his written complaint-Ex.P.5. The framing of charges under the provisions of the SC and ST (PA) Act, 1989, since the act being a Special Act, a special mens rea is required to for the commission of an offence under the Act and unless the acts complained of are out of and out of casteist attack, the charge is not tenable. The Judgment is passed on assumptions and surmises and conjectures. The Judgment and order passed by the Trial Court is liable to be set aside. 10. I have heard Sri. Anil Kumar Navadagi learned counsel for appellant/accused and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for respondent-State. 11. Learned counsel for the appellant/accused argued mainly on four points viz., that there is a delay in lodging the complaint though according to 9 prosecution the incident has taken place on 16-08-2012 at 7.00 p.m., and the FIR came to be registered on 17- 08-2012. So, there is a delay in lodging the complaint, this delay has given rise to concoct the story and embellishment, that itself creates a doubt that is fatal to the prosecution case. 12. The second point is, according to the learned counsel for appellant though in the complaint the complainant has mentioned that the abuse and assault on him is not only by this accused, but also by the son of the accused, but he has given the name of this accused only, this creates doubt about theory of assault. 13. The third point regarding non production of x-report, learned counsel for the accused argued that the evidence of the Doctor regarding fracture to the right thumb cannot be believed as x-ray report is not produced before the Court. In support of his contention 10 he relied upon decision of Division Bench reported in Criminal Appeal No.530 of 2002 (A) dated: 03-03- 2010 2011 KCR 2759 State V/s Sheenappa Gowda and Others, wherein it is held as under: Held, both trial Court and Appellate Court had concurrently accepted evidence of PW.s3 and 4, who were injured eye witnesses to incident- Nothing had been elicited in their cross-examination to disbelieve their evidence and their evidence was corroborated by 11 evidence of Doctor/PW.1 and wound certificates issued by him as per Exs. P1 and P2- Thus it was clear that prosecution had proved beyond reasonable doubt that Accused had committed offences as alleged against them and Assaulted PWs 3 and 4 and caused injury to them by forming an unlawful assembly, armed with deadly weapons and committed trespass into path way- However it was well settled that when prosecution alleged that grievous injury had been caused, it was necessary for prosecution to prove same beyond reasonable doubt - Thus unless prosecution produces X- ray for confirmation of fracture opined by Doctor on medical examination clinically, it could not be said that Accused have caused grievous injury of fracture - It was true that in cross-examination of PW.1, Accused had not disputed nature of injuries spoken to by PW.1 - Moreover same would not dispense with production X-ray by prosecution to prove beyond reasonable doubt that injured had sustained fracture of middle phalanx, which was an opinion given by PW.1 Doctor only on 12 clinical examination of PW.4 injured - Therefore finding of Sessions Judge holding that prosecution had failed to prove that Accused Nos.1 to 3 and 5 had committed offence punishable under section 326 of IPC and offence committed by them fall within ambit of section 324 of IPC was justified - Appeal partly allowed. Criminal - sections 324 and 149 of Indian Penal Code, 1860 (I.P.C.) - Whether both Courts below had justified sustained conviction of Respondents 1 and 3 herein for offence punishable under Section 324 of I.P.C. - Held, offence under Section 324 of I.P.C. was punishable with imprisonment of either description for term which might extend to three years or with fine or with both - Further having regard to fact that incident occurred on 30th April, 1993 and about nine years had elapsed prior to date of judgment of Sessions Judge 24th January, 2002, Sessions Judge had rightly held that it was not proper to sentence Accused to imprisonment at that stage - Therefore as on today since nearly 17 years had elapsed after incident, it would not be proper to 13 sentence Accused with corporal punishment of imprisonment - Hence having regard to nature of simple injuries sustained by PWs. 3 and 4 and other fact of case and situation bearing upon question of sentence, it would be appropriate to sentence Respondents 1 and 3 to pay fine and in default of payment of fine to undergo simple imprisonment for three months for offence punishable under Section 324 of I.P.C. r/w 149 of I.P.C. - Appeal partly allowed. Ratio Decidendi" Order of conviction shall be sustained, if prosecution proves his case beyond reasonable doubt." 14. Last point urged by the learned counsel for the appellant is that the Investigating Officer in the cadre of Dy. Superintendent of Police is required to be authorized as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity's) Rules, 1995. So, the entire investigation is vitiated as he is not authorized by the competent officer as required under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity's) Rules, 1995. 14 15. As against this, learned High Court Government Pleader argued that the prosecution witnesses have supported the charge leveled against the accused. The independent witnesses have also supported the prosecution case. The incident has taken place at Ghodampalli Gram Panchayat on 16-08-2012 at 7.00 p.m., it is a remote village and it is 15 Kms away from Bidar city. May be due to non-availability of the transportation, the victim immediately could not come to the hospital. But, he went to the hospital at night i.e., early hours at 1.30 a.m. and it is the duty of the Doctors to send the information regarding medico legal case to the concerned police station, if there is any delay about the medico legal case or sending the report or there is any delay on the part of Investigating Officer that cannot be attributed to the prosecution case and the evidence of the victim injured cannot be disbelieved on that point the medical certificate is produced and it is not objected by the accused side, so mere non 15 production of x-ray report will not render the medical evidence as not admissible. On the other hand, the Doctor has given evidence. Regarding the Investigating Officer appointment that will not vitiate the investigation as the investigation has been done by Dy.S.P cadre officer as per Rule-7. In this case also the Investigating Officer is Dy.S.P cadre. So, the investigation does not vitiate. Further as the independent prosecution witnesses have supported the case and Investigating Officer is also examined. The Trial Court has rightly convicted the accused. Hence, the learned High Court Government Pleader prays to dismiss the appeal. 16. From the above material on record, the points that would arise for my consideration are as under:- 02. Whether prosecution has proved its case beyond all reasonable doubt on the above mentioned date, time and place the accused caused grievous hurt voluntarily hurt without being provoked and that hurt has been caused of any of described under Section 320 of Indian Penal Code? 03. Whether the Judgment of conviction of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this Court? 17. On perusing of prosecution evidence it is evident that admittedly the accused belongs to Muslim community and the complainant belongs to SC community. Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under:- 18 18. There is a decision of Hon'ble Supreme Court reported in AIR 2011 S.C. 1905 in the case of Asmathunnisa vs. State of A.P., the Hon'ble Supreme Court has considered the scope of Section 3 (1) (x) of the SC and ST (PA) Act, 1989 and held as under:- 19 19. Further the Hon'ble Supreme Court referred the decision reported in (2008) 12 SCC 531 equivalent (2008 AIR SCW 6901). The paragraph No.12 of the said judgment which reads as under:- 20. It is necessary that in order to constitute the accusation of an offence under Section 3 (1) (x) of the SC and ST (PA) Act, 1989 there must be an allegation that the accused has intentionally insulted or intimidates the complainant in a place which was within public view and such insult or intimidation was done with the intention to humiliate the complainant. There must be an intentional insult, intimidation with an intention to insult a member of Scheduled Castes and Scheduled Tribes by a non Scheduled Castes and Scheduled Tribes member. The insult must have been done in any place within the public view. The intention 21 to humiliate makes it abundantly clear that mens rea is an essential ingredient. If there is no proof of intentionally insult and humiliate the complainant, it cannot make offence under Section 3 (1) (x) of the the SC and ST (PA) Act, 1989. Simply, addressing a person by his caste without intention to insult or intimidate does not constitute an offence the said Section. Whether there was intent to insult or humiliate by using word will of course depend on context in which it was used. 21. In order to prove its case the prosecution has examined in all 15 witnesses as PWs.1 to 15. PW.4- Ramanna is the complainant. In his evidence he has stated that he belongs to Scheduled Caste Holiya Community and accused belongs to Muslim Community. He has stated that about one month prior to he giving evidence at about 7.00 p.m. he was taking Tea near the Neem Tree situated by the side of Hotel of Panchayat Katta at Ghodampalli village. Accused came 22 there and abused him by taking his caste as Holiya Sulemagana. Accused further kicked him and twisted his thumb of right hand and he sustained injuries. 22. It is further stated by PW.4-Ramanna- complainant that accused was constructing a house in government land and he has informed the same to the Village Accountant. He has brought the village accountant and shown the spot. The village accountant told the accused not to construct the house at the spot. So, for that reason accused assaulted him. The people who gathered there separated the scuffle. Sharanappa, Rajappa, Siddareddy, Prabhu and Ashok are present at the spot. Due to the said abuse of accused by taking his caste, he has humiliated and insulted him. Thereafter, he went to the Hospital and taken treatment. Police came to Hospital on the next day morning and recorded his statement. The complaint is marked as Ex.P.5. Then on next day the police came to the spot and prepared panchanama. 23. In the cross-examination by accused, it is suggested that accused already constructed a house about two years back, the same is denied by the complainant. He further stated that one Maqsood is the owner of the said Hotel. When he was sitting near the Hotel the accused came there and owner of the Hotel saw the incident. It is suggested that, his caste is Christian and he did not belongs to Holiya Community, but he denied it. He has further stated that there are public in the Hotel at that time, but he could not say the names of the person inside the Hotel. After assault he went to the Hospital and police came on the next day morning. It is suggested that himself and village accountant were harassing the accused since one year, but he has denied it. It is suggested that to harass the accused he is deposing falsely before the Court, but he has denied it. It is suggested that he demanded money from the accused, when he failed to pay money, he has 24 filed false complaint against accused about abuse and assault, he has denied it. This is all his evidence. 24. It is evident that in Ex.P.5-complaint itself he has stated that this accused-Anismiya was warned by the village accountant PW.12-Rajkumar for trying to construct the house about one year back. So, for that reason the accused has got enmity with him. When complainant was sitting under the Neem Tree suddenly he assaulted the complainant and pushed him on the ground and assaulted all over the body. The incident has taken place on 16.08.2012 at about 07.00 p.m. He has stated in Ex.P.5 that the accused has abused the complainant by saying that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla" and assaulted him. Nowhere he has stated that any of these witnesses who are examined before the Court were present or tried to rescue the complainant. Even he has 25 not stated in Ex.P.5 that accused has intentionally insulted him to humiliate in a public view. The reason for the assault is regarding stopping the illegal construction alleged to have been started by the accused about one year back. So, why accused kept that enmity for about one year is not forthcoming. In Ex.P.5-compliant though PW.4-complainant has stated about the assault on him, but he never stated that accused intentionally insulted the complainant and humiliated him in a public view by taking his caste with an intention to humiliate him. Before the Court PW.4- Ramanna-complainant has simply given different version. He has stated that when he was sitting under Neem Tree near Hotel of Panchayat Katta, accused came there and abused him in filthy language stating that "Holiya Sulemagana" by taking his caste, kicked and twisted his right thumb and assaulted all over the body. So, according to him first accused has abused him. Here the words used as stated in Ex.P.5 are "Holiya 26 Sulemagane Neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla", but, all these words are not stated by him. He simply stated that accused abused stating that "Holiya Sulemagane". Only he has stated that he has abused him by his caste. But no other abusive words are stated to have been used by the accused or any threat stated by him as mentioned in Ex.P.5. Even he has stated that the accused has abused the complainant as he has stopped the construction work. So, the intention of the accused to insult or humiliate by taking his caste is not there, but according to PW.4- Ramanna because construction was stopped accused assaulted him. For the first time he has stated that the people were gathered there and separated the scuffle. But in Ex.P.5 he has stated that nobody came and separated the quarrel. It was also not stated that at about 07.00 p.m. whether there was light or not. Because in the month of August usually the sunset will 27 be between 06.30 to 06.40 p.m. and there will early darkness. Though he has stated in Ex.P.5 that his statement has been recorded by the police as per Ex.P.5 and Ex.P.5(a) is his signature. The complainant stated that he has not filed any written complaint. He has stated that the police have recorded his complaint. He could not state contents of his complaint. So, his evidence is contrary to the evidence of ASI-PW.13 who has received Ex.P.5. 25. ASI-PW.13-Namdev stated that on 17.08.2012 at about 04.00 p.m. he has received a MLC note from Government Hospital, Bidar. He went to the Hospital and the PW.4-Ramanna-Complainant has given written application, which is marked at Ex.P.5. But in the cross-examination he has stated that he has not recorded the statement of the complainant. So, this evidence creates doubt about variation of Ex.P.5 and also the evidence of PW.4-Ramanna-Complainant about the intentional insult and abused and assault by the 28 accused by taking his caste. But in the cross- examination he has admitted that accused had constructed a house in the government land. It was about one year back he had informed to village accountant. So, for one year back incident, now accused has abused him with his caste that is his case. He has stated that there was no talk between himself and accused before assault which is again contrary and inconsistent with the report of the complainant. As per Ex.P.5 the accused first abused and assaulted thereafter and threatened him. He has stated that he could not mention the name of the persons who were inside the Hotel. The Hotel owner is also inside the Hotel. There is no corroboration to his evidence by other witnesses. 26. PW.7-Maqsood said to be the person having Hotel in Ghodampalli. He has stated different version of abuse, which are not stated by PW.4-complainant either 29 in his complaint or in his oral evidence. This witness has stated that accused abused the complainant as "Sulemagane", "Chodimagane" and "Holiya Sulemagane", then he closed his Hotel. So, this type of abusive words are not at all stated by PW.4-complainant such as "Sulemagane" and "Chodimagane". This witness added some more words, which are not at all stated by PW.4-complainant or mentioned in Ex.P.5. Even he did not state about the threatening words or continued words or abuse after using words "Holiya Sulemagane" as mentioned in Ex.P.5-complaint. This witness talk only in respect of abuse by the accused by taking caste. No further word as mentioned in Ex.P.5-complaint is stated. He has stated time of incident was between 07.30 to 08.00 p.m. Definitely there must be darkness. Whether there is light or not, is not stated by him. He has denied about the assault by the accused and not supported the prosecution case about assault. The prosecution has treated this witness as hostile witness 30 and cross-examined. In the cross-examination he has stated that complainant alone was sitting at the Katta. He has also not stated about presence of any other witnesses at the time of incident. He clearly admitted that he was inside the Hotel at the time of incident. So, possibility of this witness seeing the incident or abuse does not arise at all. When he was inside the Hotel, then how he could hear such words at 07.30 p.m. or 08.00 p.m. darkness which are stated to have been used by accused is not forthcoming. It is not safe to believe his evidence about abuse by accused taking his caste with intentionally insult with an intention to humiliate this complaint by the accused. Why he has closed the Hotel immediately and went back to the house is not forthcoming. He has stated that he has not given statement before the police as per Ex.P.7. He has not seen any assault by accused. So, this type of evidence creates doubt about his presence. 27. PW.8-Siddareddy another eyewitness for prosecution, has not supported the prosecution case was treated as hostile witness and cross-examination was made at length by prosecution, but nothing helpful to the prosecution case is elicited. 28. PW.9-Ashok is the coolie. Admittedly, he also belongs to complainant's caste and his ancestors and complainant ancestors are same. His evidence is contrary to evidence of PW.7-Maqsood. Because he has stated that other persons are also present at the Katta. He has stated that incident had taken place at about 07.00 to 07.30 p.m. when he was near the Hotel of Muslim at Panchayat at Ghodampalli. Why he has come there and why he was present there is not forthcoming. In the cross-examination he has stated that accused and complainant were quarreling with each other and accused abused as "Holiya Sulemagane" and both were abusing each other. So, according to him this 32 complainant-PW.4 also abused the accused and this accused also abused the complainant. The complainant abused him as only "Sulemagane". He has not stated any other abusive words as per Ex.P.5-written complaint. But only stated about abused by caste. In the cross-examination he has stated that both are quarreling with each other. The name of this witness is not mentioned in the complaint-Ex.P.5 nor mentioned by the Hotel owner. He has not stated, if at all he was present why he did not try to pacify the quarrel or tried to rescue the complainant, who admittedly belongs to his community and they are of same caste. Why he was simply watching this incident is not forthcoming. His conduct makes the prosecution case more doubtful. Why he was present there at the time of incident that to in the darkness?, how he has seen the incident in the darkness is not forthcoming. He being the chance witness, it is not safe to believe this witness regarding abusive words as stated by this witness. Even in the 33 examination-in-chief he has not stated where the complainant was sitting where the incident has taken place. Simply he has stated that on 16.08.2012 at about 07.30 p.m. when he was near Hotel of Muslim a Panchayat at Ghodampalli, the accused came there and abused the complainant saying that "Holiya Sulemagana". Where this complainant was sitting, where the incident has taken place, where was the Hotel and which place the abusive words or assault took place, nothing is forthcoming. So, scene of offence/place, itself is not stated by this witness. Therefore, it is not safe to believe the evidence of this witness about intentionally insult and causing humiliation to PW.4-compaliant by taking his caste and assault. His presence itself is doubtful. 29. Similarly, PW.10-Sharnappa has also given evidence. Admittedly, in the cross-examination he admits that he belongs to SC Holiya community and 34 complainant also belongs to SC Holiya community. In the examination-in-chief he has stated that accused belongs to Muslim caste and complainant belongs to SC Holiya community. He further stated that about a month back at about 07.30 p.m. when complainant was at panchayat near the Hotel of Maqsood, the accused abused the complainant as "Holiya Sulemagane" and assaulted with hands and caused fracture on his right thumb. Again it is not forthcoming why and how this witness came there. If at all it was 07.30 p.m. in darkness how he saw the incident. He has stated that the complainant was at panchayat near the Hotel. On the other hand it is case of PW.4-complainant that he was sitting under Neem Tree. So, this type of evidence shows that he is also chance witness. At 07.30 p.m. why he was present in that place is not forthcoming, what he was doing, why he was present, nothing is forthcoming. In the cross-examination he clearly admitted that he did not know any talks between 35 complainant and accused prior to the incident. Even he could not say the name of persons who were sitting at panchayat Katta. So, that itself creates a doubt about presence of this witness. It is suggested that he belong to complainant's caste and deposing falsely. He has also not stated about the abusive words as stated by complainant in his written complaint-Ex.P.5, which is given after long delay. Simply, these witnesses have stated that accused abused as "Holiya Sulemagane". That is not the only case of prosecution, there are other words of abuse threat on him and he has used threatening words as per Ex.P.5. Not a single word of threat is said to have been given by accused is stated, except stating that accused abused by taking caste of PW.4-Complainant. It is not safe to believe his evidence. Because, he has not stated the name of any of witnesses who were stated to be present at the time of incident nor he has stated that he tried to pacify the quarrel. What he was doing, why he was standing, why he was 36 watching the incident is not forthcoming. It is not safe to believe his evidence. 30. PW.11-Rajappa is another witness. He has stated in his evidence that about 07.00 to 08.00 p.m. prior one month of he giving evidence, he was sitting on Katta near the Temple and accused abused the complainant as "Holiya Sulemagane" and assaulted the complainant with hands and caused fracture on his thumb and PW.11 went back to his house. He never stated the scene of offence as near any Hotel where incident has taken place as per prosecution. He has not stated as to why he was sitting at Temple Katta is not forthcoming. But there is no Temple either in the scene of offence sketch map or any witnesses stated about any Temple. Even abusive words as stated in Ex.P.5- Complaiant is not forthcoming. How he was watching the incident is not forthcoming and why he returned to his house is also not forthcoming. He did not know 37 whether any other persons tried to pacify the quarrel. In the cross-examination he stated that distance between Temple Katta and Panchayat Katta is about 60 to 70 feet. Only he has heard the abusive language. So, that means he was for away i.e., 70 feet away from panchayat Katta. He never stated about Neem Tree or any Hotel. So, that Temple Katta is not at all stated by any of the witnesses. This type of evidence of PW.11 creates doubt about his presence. It clearly indicates that it is not safe to believe his evidence. 31. PW.12-Rajkumar is Village Accountant in his evidence he has clearly stated that on 17.08.2012 the son of the complainant told him that accused assaulted his father and abused him in filthy language. Thereafter he saw the complainant is having fracture on his right thumb. He enquired the complainant-Ramanna and he has narrated the incident. The complainant told that as they have stopped the construction of the house of the 38 accused on the information of the complainant, that is why the accused assaulted him. He never stated that complainant told before him that accused abused him by taking his caste as "Holiya Sulemagane" intentionally insulted or humiliated him as stated by other witnesses. Of course he has not seen the incident. He has stated that he has asked accused to stop the construction work about 06 months back. So, his evidence also does not corroborate to abusive words as used by accused and stated by other witnesses, thereby creates doubt about prosecution allegations for the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 32. There is a delay in lodging the complaint. The incident though has taken place on 16.08.2012 at about 07.00 p.m. The FIR was registered on 17.08.2012 at 17.30 p.m. As per the evidence of PW.4 the FIR is given to the Spl. Judge on 17.08.2012 at about 10.30 39 p.m. There is also endorsement as per Ex.P.9 in this regard. So, there is more than 24 hours delay in sending FIR to the Court. Names of none of the witnesses were mentioned in the complaint-Ex.P.5, which was at earliest point of time. The abusive words stated by the complainant by taking his caste with an intention to humiliate him are inconsistent with words mentioned in Ex.P.5-complainant, which is filed after long laps of time, which itself is doubtful. 33. The presence of other witnesses at the time of incident itself is doubtful. The abusive words stated by the witnesses do not indicate that he used word giving threat by accused as mentioned in Ex.P.5. It appears stereo type or parrot like story stated by all witnesses only taking his caste as "Holiya Sulemagane". The presence of these witnesses itself is doubtful at the time of incident. 34. The pancha witness-PW.6-Prabhu has stated that panchanama is already prepared before he arrived at the spot and also stated that only police taken his signature. He did not know contents of the mahazar. 35. PW.5-Ramesh has also stated that the police have told him that the galata took place in the spot and shown the spot and prepared panchanama and he has signed in the panchanama. He never stated the presence of anybody at the time of panchanama. 36. On the other hand, Ex.P.6 spot panchanama clearly indicates that complainant himself was present and shown the scene of offence/place. But presence of complainant is not stated by the panchas. So, spot panchanama was drawn after two days of the incident. So, it may be that there was quarrel between them. It appears that complainant tried to make out a case of abuse by the accused by taking his caste. It is admitted, by complainant that there is ill-will against him and accused was having grudge over the complainant as he 41 had informed the village accountant about the accused constructing house at government place. The village accountant has also supported the complainant. But the possibility of this complaint taking advantage of his caste and trying to implicate the accused under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and assault also cannot be ruled out. 37. None of the witnesses have stated about threatening words used by the accused. There is darkness the prosecution have not explained how those witnesses have seen the incident. It is not safe to believe their evidence regarding intentional insult and abuse or assault by the accused by taking his caste with an intention to humiliate him within a public view cannot be accepted at all. 38. In fact since complainant and other witnesses admitted that the complainant belongs to 42 Scheduled Caste community, but there is no evidence has been placed before the Court to show that the complainant belongs to Scheduled Caste community. Because, Tahasildar has stated that he has given report on the basis of report of the revenue inspector. But no such revenue report or caste certificate is produced before the Court. No notification has been produced to show the caste of the accused and complainant. But accused admitted in the cross-examination that PW.4 belongs to Scheduled Caste community and other witnesses they are also belongs to Scheduled Caste community. So, from that cross-examination it may be inferred that the complainant also belongs to Scheduled Caste community. Exact Scheduled Caste cannot be made out. Otherwise, there was no legally admissible evidence in this regard. But anyway, it appears that this witness try to make out a case by making allegation under atrocities act which is not proved by the prosecution. Therefore, it is not safe to believe the 43 evidence in this regard about offence under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 39. Regarding offence punishable under Section 325 of IPC it is evident that the evidence of PW.4- Injured-Ramanna is to be considered in the light of admitted fact that the accused has ill-will against the complaint. PW.4-Ramanna has stated in his evidence that the accused when he was sitting under Neem Tree near Hotel the accused came there and abused him and twisted his right thumb and assaulted him and kicked him. But in his complaint-Ex.P.5 he has stated that the accused and his son came there when he was sitting near Neem Tree near Hotel and assaulted the complainant and pushed him on the ground by abusing threatened him and hit him. So, he lodged the complaint against this accused and his son. Of course accused son name is not mentioned. Subsequently, son of the accused was dropped. In Ex.P.6 i.e., spot 44 panchanama dated 19.08.2012 the scene of offence which is shown by the complainant-Ramanna, wherein it is mentioned that at that time this accused-Anismiya and his son Saddam both came there and abused and assaulted and caused internal injuries. So, nowhere either in Ex.P.-5-complaint or in Ex.P.6-spot panchanama which is said to be reported on 19.08.2012 there is nothing about the causing of any fracture. But it is only mentioned caused simple hurt. 40. PW.3-Dr. Prashant is the medical officer Government Hospital, at Bidar. He stated on 17.08.2012 at about 01.32 a.m. night Ramanna- complainant came to the Hospital with a history of assault and he has examined him and found following injuries;- 45 41. The doctor opined that injury No.1 is grievous in nature and injury No.2 is simple in nature. He has issued the wound certificate and the same is marked as per Ex.P.3. Injuries are within 05 hours and they are fresh. There is fist of thumb, injury No.1 can be caused with quarrel and by kicking injury No.2 can be caused. The MLC report is marked as per Ex.P.4. 42. The Doctor has issued the wound certificate as per ExP.3 on 23.08.2012 and same is received by PW.13-ASI-Namdev on 25.08.2012. Of course date of x- ray is also not mentioned in Ex.P.3. Learned counsel for the accused-appellant stated that x-ray is not produced. Even in the MLC report as per Ex.P.4 there is nothing about the fracture. 43. The contents of Ex.P.5 which is filed after long delay does not contain any fracture to PW.4- Ramanna. Further, regarding fracture what is the treatment he has taken is not forthcoming. No medical 46 records were produced before the Trial Court to show the nature of treatment taken by this injured. The Doctor in his examination-in-chief stated that the injury No.1 can be caused with quarrel. The doctor has not stated that by twisting the hands, such injury can be caused. So, in his examination-in-chief no suggestion is made whether twisting the right hand thumb such injury could be caused. The doctor is of the opinion that injuries can be caused in quarrel cannot be believed at all. Because, in what type of quarrel such injuries can be caused must be stated by the doctor. Nothing has been stated regarding the injury sustained by the injured by twisting right hand thumb by this accused. So, the second injury is abrasion over right knee joint. The doctor stated that by kicking the injury No.2 can be caused. The oral evidence does not corroborate with the theory of assault as stated by doctor. As per Ex.P.5, none of the witnesses stated about kicking by the accused to the complainant. The doctor has stated that 47 injury No.2 is simple in nature. The doctor has not stated that such injuries can be caused if a person was pushed on the ground and assaulted. How such injury caused by kicking is not forthcoming. It is not the case of prosecution that accused kicked the complainant and caused that injury. Therefore, oral and documentary evidence are inconsistent with medical evidence. 44. PW.7-Maqsood who is having Hotel has stated that he has not seen any assault or twist of right hand thumb. The prosecution has treated him as hostile. Nothing is elicited from him about the twisting of right hand thumb nor did he pacify the quarrel. Even he has no complain about the injury. 45. PW.8-Siddaraya who is eyewitness is also not supported the evidence with regard to twist of right hand thumb or causing any injuries. 46. PW.9-Ashok has also not stated about that accused has twisted the thumb of right hand of the complainant. Simply, in the cross-examination he stated that both accused and complainant are abusing each other. So, that means even complainant also abusing and quarreling with accused. Simply, he has stated that his right thumb was broken, which cannot be believed. How can he say that the thumb of the right hand was broken, is not forthcoming. 47. PW.10-Sharnappa is another witness whose evidence is not believable. He has stated about the assault by accused to the complainant and he assaulted on his right hand thumb. How can he ascertain the fracture was caused, is not forthcoming. The accused has abused the complainant's caste and his presence itself is doubtful. He has stated that the police have not enquired him. 48. PW.11-Rajappa has stated that he was sitting near the Temple of Katta. He has stated that accused assaulted the complainant with his hands and complainant sustained fracture and he went to his house. So, how the complainant has sustained fracture is not stated or twisting by his thumb, is not stated by this witness. 49. PW.12-Rajkumar-Village Accountant is only hearsay witness. Though he is a village accountant, he has not stated anything about the abusive words. The complainant's son informed him on the next day about the incident. He has also not stated because of assault by this accused, the complainant has sustained injuries. 50. As already stated if at all the complainant sustained injuries or fracture, he could not have kept quiet for such long time. Here already as discussed above, there is inconsistency in the oral evidence of 50 PW.4 and Ex.P.5-complaint regarding contents of Ex.P.5 and nature of assault. Though complainant all along contended that it is accused and his son both came and assaulted him, but son of the accused was left out for the reason known to Investigating Officer and complainant. 51. Though as per the prosecution documents the panchanama was drawn on 09.08.2012 the name of son of the accused appears as Saddam, but nothing has been stated by this witness. He has stated that accused suddenly assaulted and pushed him on the ground and assaulted all over his body. But there are no hurt or pain anywhere in the body. If he had fallen on the ground, there should be some injuries on his back. None of the witnesses has stated that this accused pushed the complainant on the ground. 52. Since, FIR has been lodged after long time of the incident, in view of the enmity and ill-will it is not 51 safe to believe uncorroborated evidence of PW.4. Because, theory of assault as stated by him is inconsistent with the contents of Ex.P.5-complaint. Both of them abused and there is possibility of fall on the ground and due to fall there is possibility that complainant may be sustained serious injuries. But it is not safe to believe the evidence of PW.5-Ramesh regarding this accused caused fracture by twisting his hands. The evidence of prosecution in this regard is doubtful and particularly in view of the delay of more than 24 hours in sending FIR to the Court, it creates further doubt. 53. PW.4-Ramanna-Complainant is not a uneducated person and he is the Gram-Sevak. In fact he met the village accountant on the next day. In spite of that the complaint came to be registered only in the evening at 05.30 p.m. nearly after 22 hours of the incident. It reached to the learned Magistrate only after 24 hours after the incident. 54. Whenever there is ill-will or enmity Court is to consider the prosecution witnesses evidence carefully. Admittedly, in this case according to PW.4 this accused is having ill-will against the complainant. According to the complainant he has informed about the construction of house to the village accountant about one year back. So, complainant himself stated that he is not in good terms with the accused. Therefore, his evidence is to be considered as interested witness. Accused is having ill-will against him, as the complainant informed about the encroachment of government land to the village accountant. But there are no records in this regard. There may be some quarrel taken place between the accused and complainant. But it is not like so as alleged by the prosecution. There is lot of difference between must be true and may be true. If there are two views possible then the view favourable to the accused is to be accepted. The ill-will is like a double edged weapon it 53 cuts either way. So, when the complainant or accused are having ill-will their evidence will have to be scrutinized carefully. There are material contradiction and inconsistency in the evidence of prosecution witnesses about the material particulars. In my opinion very presence of eyewitnesses is doubtful. The theory of oral evidence about the threat and twisting of right- hand thumb does not corroborate with the medical evidence. In view of the unexplained and abnormal delay in lodging the complaint, the evidence of prosecution suffers from inherent improbabilities. 55. In the light of the principles stated by the Apex Court in the decision referred above if the evidence of prosecution is considered, then it is evident that somehow complainant wants to implicate the accused. But prosecution failed to prove the same by legally admissible evidence. Therefore, possibility of complainant sustaining any such fracture, is not due to 54 incident but it may be for some other reason and some other place. Therefore, as the evidence of prosecution witnesses creates doubt in the mind of the Court, the accused is entitled for the benefit of doubt. witnesses about the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is totally inconsistent and contradiction in the evidence of prosecution about the exact words of abused by the accused when compared to statement of complainant i.e., Ex.P.5, which itself is filed after long time of delay which is not satisfactorily explained. It is fatal to the case of prosecution case. 57. The learned Sessions Judge has not appreciated the evidence of prosecution in a proper prospective. The learned Sessions Judge has not 55 assigned the proper reasons regarding long delay in lodging FIR. The learned Sessions Judge has not considered the inconsistency about the assault as per medical evidence. The learned Sessions Judge has not given any reasons as to how these witnesses were present at the time of alleged incident. The learned Sessions Judge has not given proper reasons for believing the chance witnesses, whose names were not mentioned in complaint-Ex.P.5. The learned Sessions Judge has not appreciated the evidence of prosecution witnesses in the light of the settled principles regarding appreciation of evidence cases and as per the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also in considering the theory of assault. 58. If the evidence of prosecution is considered then in my considered view the charges that accused intentionally insulted or intimidated with an intention to 56 humiliate the complainant knowing that he belongs to Scheduled Caste community within a public view, is not forthcoming. The prosecution has failed to prove that intentional insult or intentional to humiliation to this complainant by the accused taking his caste. So, the order passed by the learned Sessions Judge needs interference. Accordingly, points No.1 and 2 are answered in the Negative and point No.3 is answered in the Affirmative. 59. For the reasons stated above, I proceed to pass the following... ORDER The appeal is allowed. The judgment of conviction and sentence passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Special C.C. (SCs/STc) No.54 of 2012 dated 15.11.2012, is hereby set-aside. 57 The appellant-accused by name Anishmiyan s/o Mehemoodmiyan @ Mamusab is hereby acquitted of the offence punishable under Sections 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also of the offence punishable under Section 325 of Indian Penal Code. The bail bond of the accused and the bond executed by the surety, if any, is hereby cancelled. The amount of fine if any is already deposited, the same is ordered to be refunded to the accused- appellant. Send back the records of the Trial Court forthwith. Sd/- JUDGE KJJ/MNS

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Author: P.N.Desai

216,529

Anishmiyan @ Mamusab vs The State Through Rural Police ... on 9 July, 2020

Karnataka High Court

43

RULINGS AAR No. 609 of 2003 Decided On: 25.11.2004 Appellants: In Re: Instrumentarium Corporation Vs. Respondent: Hon'ble Judges: Syed Shah Mohammed Quadri, J. (Chairman) and K.D. Singh, Member Counsels: For Appellant/Petitioner/Plaintiff: Rahul Krishna Mitra and Parikshit Datta, Advs. For CIT: G.E. Vahanvati and Sanjay Puri, Advs. Subject: Direct Taxation Acts/Rules/Orders: Income Tax Act, 1961 - Sections 92 to 92(F), 92(1), 92(2), 92(3), 245N, 245R(2) and 245S JUDGMENT Syed Shah Mohammed Quadri, J. (Chairman) 1. M/s Datex-Ohmeda (India) (P) Ltd. (for short the 'Datex') is an Indian company and is a tax resident of India. It is a wholly-owned subsidiary company of M/s Instrumentarium Corporation, Finland, a non-resident company, a tax resident of Finland (for short 'Instrumentarium') which has not been assessed under the IT Act, 1961 (for short the "Act"), in India. Instrumentarium is engaged in the business, inter alia, of manufacturing and selling of medical equipments. Datex operates as 'distributor' of the Instrumentarium in Indian market. On 26th Aug., 2002, Instrumentarium and Datex entered into a loan agreement under which Instrumentarium granted a loan in US dollar equivalent to Indian Rs. 360 million for the purpose of general business of Datex. The loan is said to be free of interest. Datex has filed copies of the loan agreement with the RBI to comply its requirement. The Convention between the Republic of India and the Republic of Finland for the Avoidance of Double Taxation with respect to Taxes on Income and on Capital was concluded on 10th June, 1983, notified on 20th Nov., 1984, and subsequently amended by notification dt. 13th Aug., 1998, (referred to in this ruling as the "Treaty"). Instrumentarium filed this application under Section 245Q(1) of the Act seeking advance ruling of the Authority on the following questions : (i) Whether the granting of loan amounting to Rs. 360 millions by the applicant, being a non-resident corporate assessee, in favour of Datex-Ohmeda (India) (P) Ltd. (hereinafter referred to as "Datex"), which is its wholly-owned subsidiary company incorporated in India, without charging any interest, and accordingly without adhering to the principles of arm's length price, actually results in the Government exchequer or the tax revenue of the country being benefited ? (ii) Whether any payment of interest by Datex on the loan amounting to Rs. 360 million granted in its favour by the applicant, upto the arm's length price would have entailed a tax saving in its hands to the extent of 36.75 per cent of such interest and that the said interest would have been subject to income-tax in India in the hands of the applicant at the rate of 10 per cent on gross basis, with the result that any payment of such interest would have actually eroded the tax revenue of India to the extent of the tax differential, namely, 26.75 per cent [36.75 per cent-10 per cent] of such interest ? (iii) Whether, having regard to the statement of objects and reasons of the legislation relating to transfer pricing, which clarifies the legislative intent in enacting the same, namely, to curb the practice adopted by multinational group of companies in India of manipulating the prices charged and paid in intra-group transactions, which led to erosion of tax revenues, where the granting of loan amounting to Rs. 360 million by the applicant in favour of Datex without charging any interest, and accordingly without adhering to the principles of arm's length price, actually results in the Government exchequer or the tax revenue of the country being benefited, the applicant is required to comply with the provisions of the IT Act, 1961 (hereinafter referred to as the "Act") containing the legislation relating to transfer pricing, namely, Sections 92 to 92F of the Act, with respect to the said transaction of loan and accordingly charged interest as per the principles of arm's length price from Datex ? 2. On 22nd April, 2004, the Authority permitted the applicant to urge the following two additional questions : (a) Whether, in view of the provisions of Article 25(1) of the DTAA entered into by the Government of India with the Government of Finland (hereinafter for the sake of brevity, referred to as the "India-Finland Tax Treaty") in exercise of the powers conferred upon it by Section 90(1) of the IT Act, 1961 (hereinafter referred to as the "Act"), the applicant, being a company incorporated in Finland and accordingly both a national as well as a tax resident of Finland, is not subject to the rigours of the transfer pricing legislation of India contained in Sections 92 to 92F of the Act, with respect to the transaction of interest-free loan equivalent to Rs. - 360 million granted by it in favour of its wholly-owned subsidiary company incorporated in India, namely, Datex-Ohmeda (India) (P) Ltd. (hereinafter referred to as "Datex") and accordingly is not required to charge any arm's length price of interest on such loan ? (b) Whether, since any company, which is incorporated under the laws of India and is also a national and a tax resident of India, is not mandatorily required to charge any interest on loans given to its related parties, e.g., subsidiary companies, situated in India, inasmuch as, the Act is not empowered, in absence of any transfer pricing legislation relating to an element of income with respect to transaction between two entities, both of which are tax residents of India, to impose any income-tax on any notional interest in the hands of the Indian company granting the loan, in view of the provisions of non- discrimination contained in Article 25(1) of the India-Finland Tax Treaty, the applicant is also not required to charge any arm's length price of interest on the loan equivalent to Rs. 360 million granted by it in favour of Datex and accordingly, no income-tax may be imposed on the applicant with respect to any such notional interest by invoking the provisions of the transfer pricing legislation of India contained in Sections 92 to 92F of the Act ? 3. The Director of IT (International Taxation), Kolkata {for short the "CIT"), submitted the following comments to the application. The applicant did not frame any question of law for seeking advance ruling. The transaction of loan is between a non-resident company and its wholly-owned subsidiary Indian company which squarely comes within the arena of Section 92(1) of the Act. Once the transaction falls under Section 92, the other provisions viz., Sections 92C, 92D, 92E will apply and in appropriate cases Section 92CA will also apply. Section 92(1) has to be implemented as it stands. There is no ambiguity in the provision in regard to the international transaction which is defined in Section 92B{1) of the Act. The provisions of Sections 92 to 92F give rise to no mischief or absurdity and the assumption of the applicant that following those provisions would produce unjust results is a figment of imagination. If it fails to comply with the requirements of Sections 92D and 92E of the Act, it has to face the consequences. The applicant is trying to sidetrack the provisions relating to transfer pricing. No determination on a question on law as is required under Section 245N of the Act by the Authority for Advance Ruling is called for and on the facts and in the circumstances of the present petition, no such question is involved. Neither any interest is paid by Datex to Instrumentarium nor any interest is payable as per the Agreement, therefore, advance ruling is sought not on actual facts but on hypothetical question. It is also submitted that cl. (ii) of Sub-section (2) of Section 245R of the Act enjoins the Authority not to allow the application involving determination of fair market value of any property. The AO has to determine, at an appropriate stage, the quantum of interest, which should be paid by Datex to Instrumentarium, having regard to the international market. It will also examine the question as to whether not charging of interest on the loan is a convenient strategy crafted by the non-resident company as part of its global strategy to avoid incidence of tax in the other Contracting State where the subsidiary company is located, i.e., India and the present application is an attempt to pre-empt any such exercise by the AO and, therefore, it should be rejected. The Parliament in its wisdom did not intend that issues arising from or related to an international transaction should not go through the entire gamut of the provisions of Sections 92 to 92F and there should be a prior determination by the Authority which is not a tax enforcing authority. In regard to the additional questions, it is stated that the term 'national' is defined under Article 3(l)(d) of the Treaty. The definition shows that Article 24 of the Treaty can be invoked by any individual, legal person, partnership and association. Companies are not included within the definition of "national". Therefore, the Instrumentarium is not entitled to the protection on the ground of 'nationality' under Article 24 of the Treaty. There is no discrimination in application of transfer pricing provisions to Instrumentarium vis-a-vis any national of India placed in the same circumstances. Transfer pricing provisions are based on the concept of residence and discrimination mentioned in Article 24 of the Treaty is based on the concept of nationality, and it requires that the nationals of Contracting State, placed in the same circumstances, shall not be discriminated against, on the basis of their nationality. In the present case, the nationality of the Instrumentarium is not the reason for application of transfer pricing provisions but its residential status. An Indian national who is a resident of Finland will also be subjected to the same provisions of transfer pricing in case he enters into international transaction. 4. At the outset we may note that the aforementioned questions are more in the nature of paraphrases of questions rather than questions postulated in Section 245Q(1) of the Act. However, question No. 2 is not pressed and question No. 3 is reframed to read as under: "Whether the applicant is required to comply with the provisions of the IT Act, 1961 {hereinafter referred to as the "Act"), containing the legislation relating to transfer pricing, namely, ss, 92 to 92F of the Act, with respect to the said transaction of loan and accordingly charge interest as per the principles of arm's length price from Datex." 5. Mr. Rahul Krishna Mitra, chartered accountant, appeared for the applicant; after pointing out the salient features of Sections 92, 92(1), 93(3) and the legislative intent in introducing the new transfer pricing legislation, he submitted that provisions of the Treaty would override the provisions of the Act in regard to the rate of tax applicable on interest as being more favourable to the applicant as per Section 90(2) of the Act; in regard to the transaction of granting loan of Rs. 360 million by the applicant to Datex, if negotiated as per the principles of arm's length price, the Government exchequer would have lost an amount of Rs. 9.63 million, being the tax differential computed at 26.75 per cent of arm's length price interest and would result in erosion to tax revenue in India; a literal interpretation of Section 92(1) of the Act which would require adherence to the principles of arm's length price and accordingly, charging of interest at arm's length rate by the applicant on the loan of Rs. 3.60 million granted to Datex would lead to frustrating the legislative intent in enacting the provisions of transfer pricing, as the same would actually result in erosion of tax revenue of the country, therefore, it is not intended to apply in cases where the adoption of arm's length price determined under the Act would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction. In Circular No. 14 of 2001, issued by the CBDT, which is binding on the IT Department, it is clearly stated that the legislation relating to transfer pricing is not intended to be applied in cases where the adoption of arm's length price determination under the Act would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction. On the other hand, if no interest is paid by Datex to the applicant, as it is conceived of in the instant case, the Government exchequer is actually benefited and it is for this reason Sub-section (3) of Section 92 provides that where the adoption of arm's length price in relation to an international taxation has the effect of reducing income of an assessee and increasing its loss, then the provisions of Section 92(1) of the Act, which require any income arising from an international transaction to be computed having regard to the arm's length price, would not apply so as to confer a benefit on the assessee. The learned chartered accountant on the said premise persuaded us to so construe the provisions of Section 92 even by modifying the language used by the legislature or even doing some violence to it so as to achieve the obvious intention of the legislature as, in his submission, the plain literal interpretation of the statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature. 6. For the CIT initially, Mr. Sanjay Puri, Addl. DIT (International Taxation), Kolkata, appeared. Having regard to the complexity of the issues, we considered it appropriate to request the learned Solicitor General of India to assist us in this case. We record our appreciation of the learned Solicitor General for responding to our request. He placed the following written propositions on record and addressed us accordingly : 1. This is not a case of "interpretation". Section 92 cannot be displaced in the guise of interpretation. 2. The Authority in substance is being called upon to direct that Section 92 should not be given effect to. This cannot be done. 3. What is sought to be done at this stage is to enforce a premature application of Section 92(3), which can only be at the stage of assessment with full facts being placed before the AO. 4. If a notice were to be given to the applicant that interest on an "arm's length" basis ought to have been charged, and that. income has escaped assessment, it would not be open to the applicant to resist the same saying that it would be detrimental to the interests of Revenue. This is not a defence available to a non-resident; it is a matter for the Revenue to decide. 5. The application is based on a hypothesis (p. 17) that the question of a loss does not make a difference. This is hardly an "admitted" position. 6. What is sought (to) be achieved is that the principle of "arm's length price" be not adhered to. The Authority has no jurisdiction to order "non-adherence" to statutory provisions. 7. The Authority has no jurisdiction to order that Section 92(1) be not applied or implemented. The Authority, which is constituted under the Act, has no such power and even a Court exercising Constitutional powers such as under Article 226 would be unable to do so. In substance, the case of the applicant is that, as applying the arm's length price to give effect to Sub-section (1) of Section 92 in the case of the applicant results in loss to the Revenue, the provisions of Sub-section (3) ought to be applied and power under Section 92(1) should not be exercised. The contention of the learned Solicitor General is that the applicant is seeking to enforce a premature application of Sub-section (3) of Section 92 which can be invoked only at the stage of assessment with full facts being placed before the AO and that in the guise of interpretation, Section 92 cannot be displaced by seeking advance ruling from the Authority that the principle of arm's length price be not adhered to. It is argued that the Authority has ho jurisdiction to order "non-adherence" to statutory provisions and that a Court exercising Constitutional powers such as under Article 226 would be unable to do so, therefore, the Authority which is constituted under the Act, could not exercise such a power. 7. Before adverting to the above contentions, it would be necessary to refer to the provisions of the Act dealing with advance rulings. Section 245N(a) defines "advance ruling" as follows : "(a) "advance ruling" means- (i) a determination by the Authority in relation to a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant; or (ii) a determination by the Authority in relation to [the tax liability of a non- resident arising out of] a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with such non-resident, and such determination shall include the determination of any question of law or of fact specified in the application. (iii) x x x x x x The definition of advance ruling comprises of three categories of determination by the Authority. The first category speaks of a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant, referred to in Sub-clause (i) which is couched in wider terms; such a transaction may be with a resident or another non-resident. Notwithstanding the width of the language of Sub-clause (i) a proposed question of law or of fact must relate to tax liability (income-tax including capital gains) of the applicant arising out of such transaction and not to consequences of implementation of provisions of the Act on the State exchequer and the like. The second category relates to a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with a non-resident and a proposed question of law or of fact concerning the tax liability of such a non-resident. A determination or decision on a question of law or of fact by the Authority in respect of an issue relating to computation of total income which is pending before any IT authority or the Tribunal, falls under the third category. The proposed questions in this application do not evidently pertain to the second or the third category. Our determination in regard to the proposed questions will, therefore, be confined to the issues insofar as they fall within Sub-clause (i) of cl. (a) of Section 245N. It will be apposite to observe at this stage that, having regard to both the concept of advance ruling as well as the language employed in cl. (a) of Section 245N- transaction proposed to be undertaken-determination of a question of law or of fact by the Authority has to be much before the stage of assessment/ determination by the AO. Indeed, in view of Section 245S of the Act, the ruling of the Authority in respect of an applicant and the transaction, is binding on the CIT and the IT authorities subordinate to him, therefore, the AO has to give effect to the advance ruling in assessment and the other proceedings. It would, therefore, be incorrect to contend that before the assessment by the AO, the question in regard to transfer pricing cannot be determined by the Authority, if otherwise it is open to it so to do. 8. Chapter X of the Act embodies special provisions relating to avoidance of tax. Section 92 which deals with computation of income from international transaction having regard to arm's length price, Section 92A which defines "associated enterprise" and Section 92B which incorporates "meaning of international transaction" for purposes of Sections 92, 92C, 92D, 92E, fall within the said Chapter. There is no controversy about the applicant and Datex being associated enterprises within the meaning of Section 92A and the transaction of granting (interest-free) loan by the applicant to Datex falling within the meaning of Section 92B, respectively. The main issue relates to application of Sub-sections (1) and (2) of Section 92 to the transaction in question in the light of the provisions of Sub-section (3) of Section 92 of the Act. We may read here Section 92 of the Act: Section 92 (1) Any income arising from an international transaction shall be computed having regard to the arm's length price. Explanation : For the removal of doubts, it is hereby clarified that the allowance for any expense or interest arising from an international transaction shall also be determined having regard to the arm's length price. (2) Where in an international transaction, two or more associated enterprises enter into a mutual agreement or arrangement for the allocation or apportionment of, or any contribution to, any cost or expense incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises, the cost or expense allocated or apportioned to, or, as the case rriay be, contributed by, any such enterprise shall be determined having regard to the arm's length price of such benefit, service or facility, as the case may be. (3) The provisions of this section shall not apply in a case where the computation of income under Sub-section (1) or the determination of the allowance for any expense or interest under that sub-section, or the determination of any cost or expense allocated or apportioned, or, as the case may be, contributed under Sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. The mandate contained in Sub-section (1) of Section 92 is that any income arising from an international transaction shall be computed having regard to the arm's length price. Sub-section (2) of Section 92 requires that where, in an international transaction, two or more associated enterprises enter into a mutual agreement or arrangement for the allocation or apportionment of, or any contribution to any costs or expenses incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises, the cost or expense allocated or apportioned to, or as the case may be, contributed by such enterprise shall be determined having regard to the arm's length price of such benefit, service or facility, as the case may be. The centre of controversy in this case is Sub-section (3) of Section 92 which enjoins that the provisions of Section 92 shall not be applied in a case where the computation Of income under Sub-section (1) or the determination of the allowance for any expense or interest under that sub-section or the determination of any cost or expense allocated or apportioned, as the case may be, contributed under Sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case may be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. 9. With the expansion of global operations of multinational companies well- equipped in tax planning to minimize tax incidence of various countries in which they operate, there has been a corresponding legislative activity to counter such measures. The application of principle of transfer pricing is one such measure. The provisions of transfer pricing were first introduced by substituting Sections 92 to 92F for the then existing Section 92 by Finance Act, 2001; however, they were also substituted by new set of provisions-ss. 92 to 92F- by the Finance Act, 2002, w.e.f. 1st April, 2002. The said new provisions, supported by the rules, now provide a detailed statutory machinery for computation of reasonable and equitable profits and tax in India in the case of multinational enterprises. 10. It will be useful to refer to the notes on the Finance Bill, 2001. "New legislation to curb tax avoidance by abuse of transfer pricing. The increasing participation of multinational groups in economic activities in the. country has given rise to new and complex issues emerging from transactions entered into between two. or more enterprises belonging to the same multinational group. The profits derived by such enterprises carrying on business in India can be controlled by the multinational group, by manipulating the prices charged and paid in such intra-group transactions, thereby, leading to erosion of tax revenues. With a view to provide a statutory framework which can lead to computation of reasonable, fair and equitable profits and tax in India, in the case of such multinational enterprises, new provisions are proposed to be introduced in the IT Act. These provisions relate to computation of income from international transactions having regard to the arm's length price, meaning of associated enterprise, meaning of international transaction, determination of arm's length price, keeping and maintaining of information and documents by persons entering into international transactions, furnishing of a report from an accountant by persons entering into such transactions and definitions of certain expressions occurring in the said sections. It is proposed to substitute Section 92 with a new section to provide that any income arising from an international transaction shall be computed having regard to the arm's length price. It further provides that the costs or expenses allocated or apportioned between two or more associated enterprises shall be at arm's length prices. The proposed new Sections 92A and 92B provide meanings of the expressions "associated enterprise" and- "international transaction" with reference to which the income is to be computed under the new Section 92.........." After coming into force of the said provisions, CBDT issued Circular No. 14 of 2001 on 11th May, 2001 (22nd Nov., 2001), containing explanatory notes, inter alia, on transfer pricing in para 55.5 which, insofar as they are relevant, read : "The basic intention underlying the new transfer pricing regulation is to prevent shifting out of profits by manipulating prices charged or paid in international transaction, thereby eroding the country's tax base. The new Section 92 is, therefore, not intended to be applied in cases where the adoption of the arm's length price determined under the regulations would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction." From a plain reading of the material quoted above, it becomes evident that where the adoption of arm's length price under Sub-sections (1) and (2) of Section 92 would result in decrease in the overall tax incidence in India in respect of the parties involved in the international transaction, Sub-section (3) enjoins that principle of arm's length price shall not be given effect to. 11. Of the questions posed before us, referred to above, question No. 1 requires us to determine whether loan of Rs. 360 million by the applicant to Datex without charging interest and without adhering to the principle of arm's length price actually results in the Government exchequer or the tax revenue of the country being benefited. And question No. 3 is consequential, at least in part, to our ruling on the first question. Apparently question No. 1 appears to fall under Sub-clause (i) of cl. (a) of Section 245N but on a close examination, it becomes clear that it falls outside the ambit of the sub-clause because the question requires us to determine the effect of the transaction of loan between the applicant and Datex on Government exchequer or the tax revenue of the country as to whether it is being benefited or not. This implies a determination by Authority not in regard to tax implications of the transaction on the non- resident applicant but the impact of adhering to the principle of arm's length price embodied in Sub-sections (1) and (2) of Section 92 on the revenue of the State. We are afraid that such a determination is clearly outside the ambit of and not within the meaning of the expression "advance ruling" incorporated in Sub-clause (i) of cl. (a) of Section 245N of the Act. Adverting to question No. 3, as reframed, it will be necessary to bear in mind the scheme of Sections 92, 92A, 92B. The AO is enjoined to work out the arm's length price as per Sub-sections (1) and (2) of Section 92 following the method outlined in Section 92C. If he considers necessary or expedient so to do, he may with the previous approval of the CIT, refer the computation of arm's length price in relation to the international transaction to the Transfer Pricing Officer under Section 92CA. The Transfer Pricing Officer has to determine the arm's length price after notice to the assessee. On the basis of such determination, the AO has to compute the total income of the assessee. It is only if the AO comes to the conclusion that the interest of the Revenue would be better served by not applying Sub-sections (1) and (2) than by adhering to them, Sub-section (3) would be attracted and the AO will have to proceed with the assessment without giving effect to Sub-sections (1) and (2). Without complying with the statutory requirements it will be too presumptuous to assume the said transaction is beneficial for the Revenue and then invoke Sub-section (3) of Section 92. 12. To consider the applicability of Sub-section (3) of Section 92, we have perused the loan agreement between the applicant and the Datex, dt. 26th Aug., 2002. Clauses 5. 6 and 7 of the agreement are relevant for our purpose. "5. Repayment The borrower shall repay the principal amount of the loan in a bullet payment of three years maturity calculated from the first day of loan period. On the maturity of the loan the borrower will pay back to the lender equivalent amount in US dollars of 360,000,000 rupees (Rupees Three Hundred and sixty million only) at the exchange rate prevalent on the date of repayment of the loan as full discharge of the loan. 6. Interest rate The loan will be made available by the lender to the borrower free of any interest. 7. Overdue interest If the payment is delayed, default interest of 16 per cent will be charged. Overdue interest is calculated for the period beginning from the maturity date and ending to date the principal amount is received to the lender's bank account. The overdue interest shall be paid with the principal amount." Though Clause 6 provides that the loan will be made available by the lender to the borrower free of any interest, Clause 7 stipulates that if the payment is delayed, default interest of 16 per cent will be charged which has to be calculated for the period beginning from the maturity date and ending to date the principal amount is received to the lender's bank account. The overdue interest has to be paid with the principal amount. Clause 5 requires that the borrower shall repay the principal amount of loan in a bullet payment of three years maturity calculated from the first day of loan period. It appears to us that Clause 6 cannot be read in isolation; it has to be taken in conjunction with els. 5 and 7 which stipulate about repayment of loan and for payment on overdue interest. Without knowing the exact position in regard to the repayment of loan or the applicability of overdue interest, it will be premature to assume that the rate of interest is 0 per cent and proceed to pronounce ruling on that premise. 13. In this context, it is important to notice proviso (ii) to Sub-section (2) of Section 245R of the Act, which gives no option to the Authority except to reject the application where the question raised in the application involves determination of fair market value of any property. There can be no dispute that determination of arm's length price involves determination of fair market rate of interest. The sine qua non for applicability of Sub-section (3) of Section 92 is the finding that the computation of income under Sub-section (1) or determination of the allowance for any expense or interest under that sub-section read with the Explanation or the determination of any cost or expense allocated or apportioned, or, as the case may be, contributed under Sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case may be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. Having regard to the aforementioned provision-proviso (ii) to Sub-section (2) of Section 245R of the Act-it is a prohibited exercise for the Authority. Indeed the Authority is enjoined to reject the application if the question involves determination of fair market value of the property. It follows that the Authority cannot pronounce any ruling on the applicability of Sub-section (3) of Section 92 of the Act. 14. In the light of the above discussion, the applicant has no option but to comply with the provisions of the Act including the legislation relating to transfer pricing, namely, Sections 92 to 92F of the Act with respect to the said transaction of loan. Whether or not the applicant would charge the interest, as per the principles of the arm's length price, on the said loan advanced to Datex, having regard to its contractual obligation, is a matter for the applicant to consider but for the purposes of the Act the rate of interest will have to be taken as per the principles of arm's length price. 15. No arguments are addressed on the additional questions. 16. In the result, we rule on : (i) question No. 1 that the question does not fall within the meaning of the expression "advance ruling" incorporated in Sub-clause (i) of cl. (a) of Section 245N of the Act; (ii) question No. 2, we decline to pronounce any ruling as it is not pressed; (iii) question No. 3 that the applicant is required to comply with the provisions of the IT Act containing the legislation relating to transfer pricing namely Sections 92 to 92F with respect to the said transaction of loan and accordingly, interest for purposes of those provisions will be chargeable as per the principles of arm's length price. Before parting with this case, we thank the learned Solicitor General for rendering useful assistance to the Authority.

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null

216,530

In Re: Instrumentarium ... vs Unknown on 25 November, 2004

Authority Tribunal

107

S.No. Writ Petition No. Criminal Case No. (1) W.P. No. 2522/84 Criminal Cases Nos. 186/83, 187/83, 188/83,189/83, 197/83, 203/83, 204/83 and 232/83. (2) W.P. No. 2516/84 Criminal Cases Nos. 196/83, 231/83 (3) W.P. No. 2517/84 Criminal Cases Nos. 199/83, 200/83,201/83, 202/83. (4) W.P. No. 2518/84 Criminal Cases Nos. 193/83, 194/83, 198/83. (5) W.P. No. 2519/84 Criminal Cases Nos. 180/83, 181/83, 182/83, 183/83, 184/83, 185/83, 230/83. (6) W.P. No. 2520/84 Criminal Cases Nos. 190/83, 191/83, 192/83, 195/83. (7) W.P. No. 2521/84 Criminal Cases Nos. 205/83, 206/83, 207/83, 208/83. 3. During trial, the petitioners apprehended that they will not get fair and just trial, hence they applied under Section 407 of the Code of Criminal Procedure, 1973 (for short 'the Code') before the Sessions Judge, for transfer of the cases to the Court of Judicial Magistrate First Class of the competent jurisdiction; that prayer was rejected. Hence the petitioners have filed the aforesaid petitions challenging the constitutional validity of Section 21 of the Act. 4. All the aforesaid petitions were heard by a Division Bench of this Court. The Division Bench after having anxiously considered the question raised in the petitions was of the opinion that the matter deserves to be considered by a larger Bench; hence referred the matter accordingly vide order dated 11th August, 1995. ORDER S.K. Dubey, J. 1. This order shall govern the disposal of Misc. Petition No. 2516 of 1984, Krishnapal Singh v. State of M. P. and Anr.; Misc. Petition No. 2517 of 1984, Pannalal v. State of M. P. and Anr.; Misc. Petition No. 2518 of 1984, Yashwant Singh v. State of M. P. and Anr.; Misc. Petition No. 2519 of 1984, Ramchandra Singh v. State of M. P. and Anr.; Misc. Petition No. 2520 of 1984, Mandatar Singh v. State of M. P. and Anr. and Misc. Petition No. 2521 of 1984, Surendra Singh v. State of M. P. and Anr.. 2. The petitioners in all the petitions are agriculturists, who for their agricultural operations hired labour, Bhils of Tahsil Petalwad, district Jhabua. On some complaints, after investigation concerning Police filed charge sheets under Sections 16, 17 and 18 of the Bonded Labour System (Abolition) Act, 1976 (for short 'the Act') against the petitioners, in the Court of Sub-Divisional Magistrate, Petalwad (for short 'the S.D.M.') in Criminal Case Numbers as mentioned below :5. The petitioners contended that Article 50 of the Constitution lays down that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. Directive principles of the State policy are conscience of the Constitution and embodies the philosophy of the Constitution and its basic under pinning and values. The anxiety of the Constitution makers was to keep the Judiciary far away from any form of executive control or interference. After the enforcement of the Code, the trial of any offence by an Executive Magistrate is excluded." Section 4 of the Code deals with trial of offences under the Indian Penal Code and other laws. Section 5 contains saving provisions. The effect of conjoint reading of Section 4(2) and section of the Code is that an offence has to be investigated, inquired into, tried or otherwise dealt with in accordance with the provisions of the Code unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. There is no such provisions in the Act regulating the manner or place of investigating or inquiring into the offences under the Act. Section 21 of the Act enables the State Government to confer powers on an Executive Magistrate for the trial of the offences under the Act and if such power is conferred, such Executive Magistrate is deemed for the purposes of the Code to be a Judicial Magistrate of the First Class or Second Class as the case may be. If no such power is conferred by the State Government on an Executive Magistrate, all offences under the Act are to be tried by Judicial Magistrate. Thus, after the conferment of power on an Executive Magistrate by the State Government under Section 21 of the Act, the jurisdiction of an Executive Magistrate and of Judicial Magistrate remains concurrent. The trial by an Executive Magistrate of the offences is neither fair nor reasonable and is biased as the S.D.M. remains the member of the Vigilance Committee constituted under Section 13 of the Act and acts as a Chairman of the Committee, or he nominates another person as Chairman of the Committee. The Vigilance Committee discharges its function as enumerated in Section 13 of the Act. A look at the provisions of Sections 13 and 14 of the Act will show that Vigilance Committee is acting as a complainant or a party. Therefore, the bias during the trial by S.D.M. is apparent. Such trial violates Article 21 of the Constitution, which prevents encroachment upon personal liberty by Executive save in accordance with law. Even if there is not bias, such a trial does not inspire confidence in the accused. Therefore, Section 21 of the Act violates Articles 14 and 21 of the Constitution. In support of the contentions, Shri Purushottam Shastri, learned counsel for the petitioner placed reliance on - Union of India v. Sankal Chand Himmatlal Sheth and Anr., AIR 1977 SC 2328; Olga Tellis and Ors. v. Bombay Municipal Corporation, AIR 1986 SC 180; Neeraja Choudhary v. State of M. P., AIR 1984 SC 1099 and Full Bench decision of Punjab and Haryana High Court in Sukhdev Singh Dhindasa v. State of Punjab, 1985 Cri. L.J. 1739. 6. Shri R. S. Jha, learned Govt. Advocate contended that Parliament enacted the Act to abolish bondage system in different parts of the country under which the debtor or his descendants or dependants have to work for the creditor without reasonable wages or with no wages in order to extinguish the debt. At times several generations work under bondage for repayment of paltry sum which had been taken by some remote ancestor. The interest rates are exorbitant, such bondage could not be interpreted to be result of any legitimate contract or agreement. The system implies infringement of the basic human rights and destruction of the dignity of human labour. Article 23(1) of the Constitution prohibits 'Begar' and other similar forms of forced labour and further provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. The Act being a welfare legislation for the upliftment of the downtrodden, it has provided various measures for implementing in the proper spirit for achieving the noble object. If any person is found contravening the provisions of the Act which have been made offences punishable under the Act, to grant relief to the bonded labour in speedy manner the Central Government in the Act made an enabling provision under Section 21 of the Act whereby the State Government can confer on the Executive Magistrate power for conduct of the judicial inquiry and trial who thereupon is deemed to be Judicial Magistrate for the purposes of the Code. Even on conferment of the power, the jurisdiction of the Judicial Magistrate and the Executive Magistrate on whom the powers to conduct the trial has been conferred, remains concurrent. The trial is to be conducted in accordance with the procedure prescribed under the code. A party accused of such an offence at the trial can avail the remedy of appeal or revision as the case may be and hence it cannot be contended that the trial by an Executive Magistrate who is for all purposes is a Judicial Magistrate is not just and fair and violates Article 21 of the Constitution; to support the contention reliance is placed on the decision of the Supreme Court in the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. However, he fairly cited another decision of the Supreme Court in the case of Special Courts Bill, 1978, AIR 1979 SC 478 and referred to paragraphs 94 and 95 of the judgment, which supports the contention of the petitioners. 7. Smt. Indira Nair, learned counsel for Union of India submitted that Section 21 of the Act is only an enabling provision and if the power is conferred by the State Government on Executive Magistrate, the jurisdiction of the Executive Magistrate and the Judicial Magistrate remains concurrent. Therefore, Section 21 of the Act does not offend Article 50 of the Constitution in any manner. The trial by the Executive Magistrate of offences under the Act also does not violate Article 21 of the Constitution. A decision of the Karnataka High Court in case of State of Karnataka v. Gangiah, 1979 Cr. L.J. 732 was cited. In any case if this Court is of the view that there will be no fair trial, the notification empowering the Executive Magistrate or the S.D.M. may be quashed as was done by the Bombay High Court in case of Govind Shanwar Chatal v. Dattatraya Waman Bhanushali, 1992(2) Cr. L.J. 1228. 8. The Act was enacted by the Parliament to assist abolition of bonded labour system as in various parts of the country, particularly remote areas, a system of usury, under which the debtor or his descendants or dependants have to work for the creditor without reasonable wages or with no wages in order to extinguish the debt, exists. At times several generations work under bondage for repayment of a paltry sum which had been taken by some remote ancestor. The interest rates are exorbitant and such bondage cannot be interpreted to be the result of any legitimate contract or agreement. The system implies infringement of the basic human rights and destruction of the dignity of human labour. Article 23(1) of the Constitution prohibits 'Begar' and other similar forms of forced labour and further provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. Article 35(a)(ii) of the Constitution confers the power on Parliament only to make laws for punishment for those acts which are declared to be offences under Part III of the Constitution. The bonded labour system offends Article 23(1) of the Constitution. Accordingly the Bonded Labour System (Abolition) Ordinance, 1975 was promulgated by the President. By the said Ordinance the Bonded Labour System was abolished and the Bonded Labourers were freed and discharged from any obligation to render any bonded labour and their bonded debts were also extinguished. The Ordinance further afforded protection to the freed bonded labourers from eviction from their homestead. Contravention of the provisions of the Ordinance were made offences punishable in accordance with law. This Ordinance was replaced by the Act which came into force with retrospective effect from October 25, 1975. 9. A cursory look at the provisions of the Act shows that Section 2 deals with definitions wherein Section 2(e) defines 'bonded labour', Section 2(f) defines 'bonded labourer'. Section 2(g) defines 'bonded labour system', as the system of forced or partly forced labour under which a debtor enters, or has, or is presumed to have entered into an agreement with the creditor to the effect that - (i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or (v) by reason of his birth in any particular caste or community; he would render by himself or through any member of his family, or any person dependant on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages. Section 3 gives overriding effect to the provisions of the Act inconsistent with the provisions of any enactment or instrument agreement. Section 4 deals with the abolition of bonded labour system on commencement of the Act. Section 5 of the Act lays down that on the commencement of the Act, any custom or tradition or any contract, agreement or other instrument (whether entered into or executed before or after the commencement of this Act) by virtue of which any person, is required to do any work or render any service as a bonded labourer, shall be void and inoperative. Sections 6 to 9 in Chapter III deal with extinguishment of liability to repay the debt. Sections 10 to 12 of Chapter IV deal with Implementing Authorities. Sections 13 to 15 of Chapter V deal with Vigilance Committees. Section 13 of the Act provides that every State Government shall constitute such number of Vigilance Committees in each district and each Sub-Division as it may think fit. Sub-section (2) of Section 13 deals with constitution of Vigilance Committee in a district. Sub-section (3) of Section 13 deals with the constitution of Vigilance Committees in a Sub-Division of which the persons enumerated in clauses (a) to (f) shall be members and S.D.M. or a person nominated by him shall be the Chairman. Sub-section (4) provides that each Vigilance Committee shall regulate its own procedure and have secretarial assistance, as may be necessary provided by the District Magistrate in relation to Vigilance Committee in district and in the Sub-Division by the Sub-Divisional Magistrate. Section 14 deals with functions of the Vigilance Committee as enumerated in clauses (a) to (f) of sub-section (1), Clause (d) of sub-section (1) of Section 14 casts a duty on Vigilance Committee to keep an eye on the number of offences of which cognizance has been taken under this Act, clause (e) speaks of making a, survey as to whether there is any offence of which cognizance ought to be taken under this Act and clause (f) requires Vigilance Committee to defend any suit instituted against a freed bonded labourer or a member of his family of any other person dependent on him for the recovery of the whole or part of any bonded debt or any other debt which is claimed by such person to be bonded debt. Section 15 deals with burden of proof, which provides that whenever any debt is claimed by a bonded labourer, or a Vigilance Committee to be a bonded debt the burden of proof that such debt is not a bonded debt shall lie on the creditor. Chapter VI deals with offences and procedure for trial. Section 16 provides that whoever, after the commencement of the Act compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees. Section 17 deals with the punishment for advancement of bonded debt; sentence provided for such an act is the same as is provided under Section 16 of the Act. Section 18 deals with the punishment for extracting bonded labour under the bonded labour system, punishable with imprisonment which may extend to 3 years and also a fine which may extend to Rs. 2,000/- and out of the fine, if recovered the payment shall be made to the bonded labourer at the rate of rupees five for each day for which the bonded labour was extracted from him. Section 20 deals with the abetment of an offence, which shall be punishable with the same punishment as is provided for the offence which has been abetted. Section 21 speaks of offences to be tried by Executive Magistrate which reads thus - "21. Offences to be tried by Executive Magistrate. - (1) The State Government may confer, on an Executive Magistrate, the powers of a Judicial Magistrate of the First Class or of the Second class for the trial of the offences under this Act, and on such conferment of powers, the Executive Magistrate, on whom the powers are so conferred, shall be deemed, for the purposes of the Code of Criminal Procedure, 1973, to be a Judicial Magistrate of the first class or of second class, as the case may be. (2) An offence under this Act may be tried summarily by a Magistrate." Section 22 of the Act provides that every offence under the Act shall be cognizable and bailable. Section 23 of the Act deals with the offences by companies. Section 24 to Section 27 of Chapter VII deals with miscellaneous provisions. 10. Part IV of the Constitution deals with the Directive Principles of State Policy. Article 50 of Part IV of the Constitution provides that the State shall take steps to separate the Judiciary from the Executive in public services of the State. True the Directive Principles of the State Policy cannot as such be enforced by Courts. But while considering the question of enforcement of fundamental rights of a citizen, it is open to the Courts to be guided by the Directive Principles to ensure that in doing justice the principles contained therein are maintained. Fundamental rights and the Directive Principles constitute "Conscience of the Constitution". The Constitution aims at bringing about a synthesis between 'Fundamental Rights' and 'Directive Principles' of the State Policy by giving to the former a place of pride and to the latter a place of permanence; together they form core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the Welfare State contemplated by the Constitution - See - Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; V. Markendeya and Ors. v. State of Andhra Pradesh and Ors., (1989) 3 SCC 191. 11. In Union of India v. Sankalchand Himatlal Sheth and Anr., AIR 1977 SC 2328, P.N. Bhagwati, J. (as he then was) has observed in paragraph 52 that Article 50 is the "Conscience of the Constitution" and embodies the social philosophy of the Constitution and its basic under pinnings and values, plainly revealing without any scope for doubt or debate, the intent of the Constitution-makers, to immunise the Judiciary from any form of executive control or interference. The independence of the Judiciary is a fighting faith of our Constitution. Fearless justice is the cardinal creed of our founding document. 12. It was in that light that when the Code of 1973 was enacted, complete separation of Judiciary with Executive was made. Chapter II of the Code deals with the constitution of Criminal Courts and the Offices. Section 6 deals with Classes of Criminal Courts. It says that besides the High Courts and the Courts constituted under any law, other than the Code, there shall be, in every State, the following classes of Criminal Courts,- namely, (i) Courts of Session; (ii) Judicial Magistrates of the first class and in metropolitan areas, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. From the set up of the classes of Criminal Courts, it is apparent that the scheme of separation of the Judiciary from the Executive has been implemented. All Judicial Magistrates are under the control of the Sessions Judge and the Executive Magistrates who are very few in number, under the control of the District Magistrate, which would be evident from Section 15 of the Code. On enforcement of the Code, there has been complete separation of Judiciary from the Executive in whole of the country. This has been done to implement the mandate under Article 50 of the Constitution which requires that State shall take steps to separate the Judiciary from Executive. By merging the judicial function in the executive, the basic structure of the Constitution is affected; justice and fair trial cannot be ensured by the Executive Magistrates in as much as they are not required to be legally qualified and trained persons and in actual practice are required to perform various other functions. Their powers under the Code are limited for the purposes of maintenance of law and order or dealing with the cases of the nature as provided in Chapter VIII to Chapter X of the Code; while the Judicial Magistrate, who remains under the exclusive control of the Court of Session and the High Court has to conduct judicial inquiry and trial of cases of various offences by recording judicial decisions. In fact the functions of the Judiciary and Executive are quite different. In other words it is clear that the Executive Magistrate has no role to play in conducting judicial trial and recording judicial decisions. However, in spite of the separation of Judiciary from Executive, Section 21 of the Act enables the State Government to confer judicial power on an Executive Magistrate or the S.D.M. to try offences judicially and to render judicial decisions and by virtue of the conferment of such power on Executive Magistrate, such Executive Magistrate for the purposes of the Code, for the trial of the offences under the Act is deemed to be Judicial Magistrate of first class or second class as the case may be. This is opposed to the policy of separation of Judiciary from the Executive and is against the 'conscience of the Constitution' contained in Article 50 of the Constitution. 13. Besides the fact that some of the Executive Magistrates are not Law Graduates and are not well versed with the practice and procedure and functioning of the judicial system, they are Members/Chairman of Vigilance Committees whose function, inter alia, is to watch the number of offences of which cognizance has been taken and to survey as to whether there is any offence of which cognizance ought to be taken. The trial before such a Magistrate may not always be biased, yet the accused may entertain reasonable apprehension on account of attending circumstances that he will not get a fair trial. The cardinal principle of administering justice is that the justice must not only be done but must be seen to be done; here it would be appropriate to refer to the observations of the Supreme Court in paragraph 94 in case of In re Special Court Bill, 1978 (supra): "94. Though this is so, the provisions of the Bill appear to us to be unfair and unjust in three important respects. In the first place, there is no provision in the bill for the transfer of cases from one special Court to another. The manner in which a Judge conducts himself may disclose a bias, in which case the interest of justice would require that the trial of the case ought to be withdrawn from him. There are other cases in which a Judge may not in fact be biased and yet the accused may entertain reasonable apprehension on account of attendant circumstances that he will not get a fair trial. It is of the utmost importance that justice must not only be done but must be seen to be done. To compel an accused to submit to the jurisdiction of a Court which, in fact, is biased or is reasonably apprehended to be biased is a violation of the fundamental principles of natural justice and a denial of fair play. There are yet other cases in which expediency or convenience may require the transfer of a case, even if no bias is involved. The absence of provision for transfer of trials in appropriate cases may undermine the very confidence of the people in the Special Courts as an institution set up for dispensing justice." 14. The case of Kartar Singh v. State of Punjab (supra) deals with provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 and Terrorist Affected Areas (Special Courts) Act, 1984 which were examined by the Supreme Court in the light of the Articles 50, 14 and 21 of the Constitution. In our opinion, the case is distinguishable as it does not deal with trial of the offences by Executive Magistrate. In that case constitution of a Designated Court was considered to be parallel to Court of Session since Sessions Judge or Additional Sessions Judge are to be appointed as Judges of the Designated Court. The Supreme Court in the said case also held Section 20(3) of the said Act to be valid. The provision deals with the power of Executive Magistrates to record confessions, while holding Section 20(3) as valid, the Supreme Court observed in paragraph 317 thus : "Though we are holding that this section is constitutionally valid, we, in order to remove the apprehension expressed by the learned counsel that the Executive Magistrates and the Special Executive Magistrates who are under the control of the State may not be having judicial integrity and independence as possessed by the Judicial Magistrate and the recording of confessions and statements by those Executive Magistrates may not be free from any possible oblique motive, are of the opinion that it would be always desirable and appreciable that a confession or statement of a person is recorded by the Judicial Magistrate whenever the Magistrate is available in preference to the Executive Magistrates unless there is compelling and justifiable reason to get the confession or statement, recorded by the Executive or Special Executive Magistrates. 15. The conferment of the powers under Section 21 of the Act on an Executive Magistrate is for trial of the offences under the Act and not to attend pre-trial steps. There is difference between the inquiry, investigation and trial. The Executive Magistrate on whom the power is conferred can try offences under the Act. They are warrant cases. If a case is instituted otherwise than on a police report, the Court is required to hold an inquiry before framing of the charge. This cannot be done unless the expression "trial" is considered in its widest sense so as to include inquiry at pre-charge stage. Ordinarily trial in a warrant case commences after a charge is drawn up under Section 246 of the Code. Trial is a judicial proceeding before the Court which ends in conviction or acquittal. In warrant cases instituted on a police report proceedings starting with Section 238 including discharge or framing of charges under Section 239 or Section 240 amount to a trial. See - V.C. Shukla v. State, AIR 1980 SC 962. But when a case is instituted on a private complaint the Magistrate conducts inquiry till the framing of the charge and then the inquiry is turned into a trial. As the power is conferred only for trial of the offences under the Act, it is difficult to hold that the Executive Magistrate can exercise powers under Section 167 of the Code regarding a remand etc. or conduct pre-charge inquiry. 16. Article 21 of the Constitution provides that procedure by law must be fair, just and reasonable and the accused should have satisfaction that he will get a fair and just trial. Therefore, on enforcement of the Code there was separation of Judiciary from the Executive. The fact that an appeal or revision is to be heard by the Court of Session or High Court would not cure the defect, as it is of the greatest importance that trial should inspire confidence and when under the procedure prescribed it cannot inspire confidence, such a procedure should be held to be invalid, unjust and unfair and also contrary to the provisions of the Code. 17. As the Sub-Divisional Magistrate or the Executive Magistrate plays an important role under the scheme of the Act and S.D.M. remains the Chairman of the Vigilance Committee, there is a force in the contention that the trial of the offences under the Act will be biased or there will be reasonable apprehension of bias in the trial by an Executive Magistrate which is violative of the principles of natural justice and denial of fair play. 18. Counsel for the respondents could not point out the benefit which would be derived by vesting judicial powers on the Executive Magistrates by the enabling provision under Section 21 of the Act which is not only against Article 50 of the Constitution but also against the Articles 14 and 21 and also the scheme of the Code. Therefore, we are of the opinion that Section 21 of the Act which enables the State Government to confer on an Executive Magistrate the powers of a Judicial Magistrate of first class or second class for the trial of the offences under the Act, offends Articles 21, 14 and 50 of the Constitution. The Full Bench decision of Punjab and Haryana High Court in the case of Sukhdev Singh v. State of Punjab (supra) supports our view. 19. It is contended that the jurisdiction is concurrent and, therefore, the cases can be transferred for trial by the Judicial Magistrate as ordered by the Bombay High Court in Govind Shanwar Chatal v. Dattatraya Waman Bhanushali (supra). This, of course, can be done. But that is not the way out, as, in our view, as and when any notification is issued conferring power on an Executive Magistrate for trial of the offences under the Act, the question will have to be dealt with. There should be fair trial and equal protection of law. Therefore, when offences under the Act can be tried effectively and speedily by the Judicial Magistrates, the question of trial by an Executive Magistrate does not arise particularly when it generates an apprehension in the mind of the accused that the trial before such Executive Magistrate will be biased as being the member of the Vigilance Committee. 20. As a result of the aforesaid discussion, we declare that the enabling provision contained in Section 21 of the Act violates Articles 21, 14 and 50 of the Constitution. Consequently trial against the petitioners for the offences under the Act by the Sub-Divisional Magistrate cannot proceed. All the cases referred to in paragraph 2 above shall stand transferred to the Court of concerned Judicial Magistrate, First Class, records shall be transmitted. As the cases are pending since 1983, the cases shall be disposed of in accordance with law expeditiously within the outer limit of six months. The parties to the cases shall appear before Judicial Magistrate, First Class, Petalwad on 1st November, 1995. If the petitioners fail to appear, their presence shall be secured by process of law. 21. As we have struck down Section 21 of the Act, the cases pending under the Act before the Executive Magistrates or Sub-Divisional Magistrates shall also stand transferred to concerned Judicial Magistrates and for that Executive Magistrates or Sub-Divisional Magistrates shall take steps and shall transmit the records to the appropriate Judicial Magistrates.

[ 834094, 590201, 164079564, 932781, 1254993, 410356, 236421, 115031, 267258, 192717, 445276, 1329373, 1569253, 129856, 76327, 445276, 445276, 590201, 445276, 590201, 849714, 849714, 849714, 347759, 1199182, 590201, 4572688, 709776, 1012224, 152457, 705639, 1189857, 590201, 445276, 1199182, 1813801, 590201, 590201, 192717, 1199182, 1998766, 1998334, 1189857, 705639, 976848, 705639, 947165, 1031236, 1212047, 1411619, 272161, 446256, 129856, 1168823, 1259061, 849714, 849714, 849714, 347759, 347759, 902188, 236421, 115031, 236421, 267258, 521952, 590201, 445276, 360715, 246003, 1641607, 192717, 257876, 978175, 4572688, 192717, 445276, 1168823, 445276, 707235, 445276, 192717, 445276, 590201, 445276, 192717, 1813801, 206811, 521952, 521952, 590201, 1859700, 1189857, 1189857, 1189857, 1687975, 1199182, 445276, 445276, 590201, 192717, 445276, 590201, 152457, 1998334, 590201, 590201 ]

Author: S Dubey

216,532

Hanumantsing Kubersing vs State Of Madhya Pradesh And Anr. on 28 September, 1995

Madhya Pradesh High Court

107

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35547 of 2010 MD. RAZZAQUE @ RAZZAQUE S/O MD. AAINUL Versus STATE OF BIHAR ----------- Narendra/ ( Anjana Prakash, J. ) 3. 25.3.2011 Heard learned Counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence u/ss.395 and 412 of the Indian Penal Code. Considering that the petitioner is in custody since 16.8.2010 since the sim card of the wife of the petitioner was used by the petitioner on the stolen Mobile and he has fair antecedents, 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 C.J.M., Araria in Araria (Tarabari) P.S. Case No.221 of 2010, subject to the conditions (i) That one of the bailor shall be the wife of the petitioner and the other bailor 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 case of similar nature after -2- his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on 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 if he fails to do so on two consecutive dates, his bail will be liable to be cancelled.

[ 1569253 ]

null

216,533

Md.Razzaque @ Razzaque vs State Of Bihar on 25 March, 2011

Patna High Court - Orders

1

JUDGMENT P.K. Bahri, J. (1) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act (for short 'the Act') challenging the eviction order dated April 21, 1986, passed by Shri G.D. Dhanuka, Additional Rent Controller, Delhi on the ground of eviction covered by clause (e) of sub-section (1) of Section 14 of the Act. (2) The learned counsel for the petitioner has challenged the impugned order in arguments only on two points; firstly, that the legal heirs of deceased tenant Bhagwan Dass were not sought to be imp leaded as respondents in the eviction petition pending before the Additional Rent Controller, hence, the eviction petition should be deemed to have abated; secondly that is has not been proved from the evidence brought on the record by the respondent that the premises in question had been let out only for residential purposes. Counsel for the petitioners was frank enough not to challenge the findings of the Additional Rent Controller with regard to the respondent being owner of the premises in question and the respondent being not in possession of any reasonably suitable accommodation and his bonafide requirement for the premises in question for occupation as residence for himself and his family members dependent upon him for the purposes of residence. (3) Now taking up the first point, it is clear from the record that the eviction petition was filed against Bhagwan Dass in May 1981 and Bhagwan Dass had filed an application seeking leave to appear and defend the eviction petition but the Additional Rent Controller had dismissed the said application and bad passed the eviction order treating the facts slated in the eviction petition as correct. Bhagwan Dass had filed civil revision in the High Court seeking selling aside of the aforesaid order. During the pendency of the civil revision in the High Court, Bhagwan Dass admittedly had died and his legal heirs were substituted as petitioners in the civil revision in place of Bhagwan Dass and ultimately vide order dated July 16, 1984,YogeshwarDayal,J.(as His Lordship then was) allowed the Civil Revision No. 211/82 and granted the leave to defend to the legal heirs of Bhagwan Dass and gave the directions to the parties to appear before the trial Court on August 6, 1984, on which date written statement shall be filed. It is true that one of the points raised before the High Court was whether all or any of the legal heirs of Bhagwan Dass sought to be brought on record could be termed as legal heirs for the purposes of amended definition of 'tenant' given in the Act. This question was left open for decision by the High Court with the observations, that in view of the objections raised by the respondent landlord and the counsel for the petitioner, the heirs mentioned in the application are brought on record for purposes of this revision petition only and not for the purposes of ejectment application, and the question as to who are the legal heirs for the purposes of ejectment application will be decided by the trial Court. This particular observation of the High Court does not mean that the legal heirs already substituted, if not objected to in the proceedings before the Additional Rent Controller, could not participate in the proceedings or any new order was required to be made by the Additional Rent Controller for bringing the said legal heirs on-record for the purposes of deciding the eviction petition. The aforesaid observations were made by the Court for the benefit of the landlord because if landlord was to agitate the plea that none of the or some of the legal heirs of Bhagwan Dass tenant were not covered by the definition of "tenant" given in the Act and thus were not entitled to be allowed to contest the eviction petition, the High Court left the question open for decision of the Additional Rent Controller if such a point was to be raised by the landlord. It does not mean that if landlord was not to raise any such plea before the Additional Rent Controller even then the landlord was legally bound to bring an application before the Additional Rent Controller for substituting the legal heirs as respondents in the eviction petition when they have been already substituted in the revision petition. The legal position in respect of substitution of legal heirs in the appeal or in the revision is quite clear that once the legal heirs have been substituted in the appellate court or in revisional court, there is no necessity of bringing any application before the trial Court for substituting the legal heirs in the proceedings and the proceedings do not abate for omission to make any such application. (4) In Radhaballav Choubey & others v. Mahadev Choubey & others, , it has been observed that when there is a substitution in a pending appeal in the High Court and the matter is remanded to the court below, on remand, the court itself has to see that the names of those, who are dead, should be removed from the record and those, who are already substituted in the High Court should be brought on the record. Similar was the view taken in Hema Dibya v. Amarendra Kishore Das and others, . In this case. a plaintiff's suit was dismissed in default and an application was moved for restoration of the suit which was also dismissed. An appeal was filed and during the pendency of the appeal, the plaintiff appellant had died and his legal representatives were substituted and the appeal was allowed and the suit was restored and the matter was remanded to the court for deciding it on merits. It was held that it was unnecessary that the legal representatives should have been again substituted in the suit. In Panna Lal Agrawala v. Kanhaiya Lal Jain & others, and Harbans Lal v. Ved Parkash, , same principle was reiterated. The aforesaid judgments follow the law laid down by the Supreme Court in Rangubai Kom Sankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe & others, . In this case the Supreme Court has clearly laid down that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will ensure for the benefit of all the subsequent stages of the suit. So, in Kanailal Dholey and others v. Kalicharan Chatterjee and others, , it was laid down that if plea of abatement is not raised in the Lower Court, then such a plea could not be allowed to be raised in appeal when no prejudice is shown to have been caused by failure to bring the legal representatives of the deceased on record in a formal manner. In the present case, legal heirs of the deceased-tenant had filed the written statement and had contested the eviction petition on merits and after full trial the case was decided and in no manner these legal heirs have been prejudiced by inability of the Additional Rent Controller to make any formal order substituting them in place of deceased tenant. (5) At the time of admission'of this civil revision Sultan Singh, .L, had made reference to Union of India v. Ram Charan (deceased) through his L.Rs, . I have gone through that judgment and find that the same is completely distinguishable. In the said judgment, the Supreme Court bad only laid down well-known principle of law that if suit had abated, then there is no reason for the court to invoke any inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading the legal representatives of the deceased. It was pointed out that the abatement could be set aside only on the grounds mentioned in Order Xxii Rule 9 of the Code of Civil Procedure. However in the present case, eviction petition cannot be deemed to be abated in view of the ratio of law laid down by the Supreme Court in Rangubai (supra). No judgment has been cited by the learned counsel for the petitioner taking any different view. Hence, I hold that there is no merit in this contention of the learned counsel for the petitioners that eviction petition should be deemed to have abated. (6) It has been vehemently argued by the learned counsel for the petitioner that the Additional Rent Controller has completely gone wrong in returning the finding with regard to the letting purpose. He has committed a grave illegality in determining the question of letting purpose by placing the onus on the petitioners that the letting purpose was for composite purposes. So, he has argued that the findings of the Additional Rent Controller being perverse should be set aside by this Court. It is settled law that this Court in exercising its power of revision as conferred be Section 25-B(8) of the Act can set aside a finding of fact given by the Controller if it is shown that the findings is based on illegal principles of law or has been based on no evidence or has been arrived at ignoring important evidence existing on the record because in such a case such a finding would be a perverse finding. It is also true that in order to get eviction of the tenant on the ground of bonafide requirement for residence, one of the all important ingredients to be proved by the landlord is that the premises in question have been let out to the tenant for residential purposes only. The onus to prove this ingredient is always heavy on the landlord. It is also settled that if there is clear evidence available in any shape showing the letting purpose then that evidence must be given its due importance. But where there is no document of letting executed between the parties or there is no direct evidence of letting available, then the letting purpose has to be determined keeping in view the nature of the demised premises, the locality where the premises are situate and the dominant user for which the premises let out have been used since the very inception of the tenancy. (7) Now coming to the facts in the present case, the letting took place admittedly 40 years or so prior to the filing of the eviction petition. It has also come out in evidence that one Har Gopal Mathur was the owner of this property and presumably he had inducted Bhagwan Dass as tenant in the premises in question. He had sold this property to Champa Devi and Manohar Lal and said Champa Devi and Manohar Lal had sold the property to Ram Chander and the respondent has inherited the premises in question on the basis of the will executed by his father Ram Chander. Either of the parties has not produced the original owner of the property who had inducted Bhagwan Dass as tenant. Bhagwan Dass had died before the evidence was taken in this case. So the two persons who were the parties to the contract of tenancy initially, who could be the best persons to know about the letting purpose of the premises in question, could not depose about the fact for obvious reasons. Before I appraise the evidence led before the Additional Rent Controller with regard to the letting purpose, I must refer to the initial plea taken by Bhagwan Dass in his affidavit and the application filed seeking leave to defend the eviction case. In the eviction petition it has been averred clearly by the respondent that the prem.ses in question comprising of one kotha, one room, one kitchen, one tin shed and a courtyard on the first floor, shown in red colour in the site plan filed Along with the eviction petition, with common use of latrine on the ground floor stood let out to Bhagwan Dass for residential purposes only. In the application dated May 29, 1981 and the affidavit of the same date, Bhagwan Dass did not at all controvert this particular plea that the premises had been let out for residential purposes only. The only plea taken by him was that he had been using the premises in question for residential-cum-commercial purposes. There is a lot of difference between the pleas as to the letting purpose and the user of the premises. So, there was an implied admission in the affidavit of Bhagwan Dass that the premises had been initially let out for residential purposes only. With regard to his plea that the premises bad been used for residential-cum-commercial purposes, the question assumes importance in a different manner ; whether such user could lead to any legal or factual inference that letting purpose had at any time changed ? No plea was taken by Bhagwan Dass that the letting purpose had at any time changed with the consent of any of the landlords. It is true that before the filing of the eviction petition the landlord-respondent had served a notice of eviction, copy of which being Ex. AW3/1 and reply was received on behalf of Bhagwan Dass, the same being Ex. AW3/4. in which plea was taken by Bhagwan Dass that the premises had been let out for residential-cum-commercial purposes. But after the eviction petition was filed and necessary summons were served on Bhagwan Dass, he in his application and the affidavit aforesaid did not take this plea meaning thereby that Bhagwan Dass did not want to take any plea which may be shown to be false in evidence later on. He was not perhaps keen to give wrong or false fact in his sworn affidavit. But after Bhagwan Dass had died, the petitioners filed the written statement taking this plea that in fact, premises had been let out initially for composite purposes. I am afraid that this plea was beyond the pleas taken in the leave to defend application and the affidavit of Bhagwan Dass and could not be given any importance. (8) It is, indeed, not disputed that Bhagwan Dass with his wife and two sons and two daughter-! lived in the demised premises. It is true that about 40 years ago when be took the premises on rent, he and his wife initially might be residing in the said premises and children might have been born later on. The accomodation in question is not big one. No case was set up that any portion of the demised premises was exclusively used for any particular commercial activity by Bhagwan Dass, rather Bhagwan Dass, in his affidavit had mentioned in para 8 that it was the landlord-respondent who had threatened him that Bhagwan Dass using the premises for residential-cum-commercial purposes inasmuch as Bhagwan Dass was carrying on the business of repairs of watches and clocks in the said premises. Bhagwan Dass himself did not categorically make any averment in the affidavit that he was using any particular portion of the demised premises exclusively for any commercial activity. The respondent-landlord has brought on record Ex. AW2 1, a copy of the entries from the house-tax record, which show that the portion in possession of Bhagwan Dass was residential and so also all other portions in that house and he also proved on record counterfoils of rent receipts Exs.AW3/12 toAW3/16 issued by his father to Bhagwan Dass which also bear signatures of Bhagwan Dass and they show that the premises let out to Bhagwan Dass are residential. In his cross-examination, Mark 'A' and Ex. D rent receipts were brought on record which did not indicate the nature of the premises but no rent receipts, to which the counterfoils Ex. AW3/12 to AW3/16 partained, were brought on record by the petitioners to show that entry in the counterfoils showing the nature of the demised premises as residential was incorrect. Apart from the aforesaid documentary evidence, the respondent coming as bids own witness as AW3 made a categorical statement that Bhagwan Dass was employed in a printing press in Faridabad. No suggestion in crossexamination was given that in fact, Bhagwan Dass was never employed in any printing press at Faridabad at any time. It may be that the respondent did not know the name of the printing press or the exact address of the said printing press where Bhagwan Dass employed but the fact remains that his testimony in this regard remained unchallenged. Even AW4 Hari 0m had made a statement that according to his opinion, Bhagwan Dass was employed in a press. No suggestion was even given to him that Bhagwan Dass was never employed in any printing press at any time. RW1, one of the petitioners, appeared in the witness box and he also did not make any categorical statement on oath that his father was never employed in any printing press. RW2 Ram Pratap who admitted that he was relation of Bhagwan Dass also did not slate on oath that Bhagwan Dass was not employed in any printing press, rather he expressed ignorance as to whether Bhagwan Dass was employed in any printing press or not. If Bhagwan Dass had not been employed in printing press this witness, who claimed to be not only a relation of Bhagwan Dass but was also having some contact with Bhagwan Dass regarding repair of watches, would not have made such an evasive statement. RW3 Champa Devi also could not deny the suggestion categorically as to whether Bhagwan Dass was employed in any printing press or not. She only deposed that she had never objected to Bhagwan Dass carrying on repair of certain watches in the premises in question She deposed that the previous owner, whom she named as Shri Saxena wrongly, had told her that he had let out the premises for composite purposes to Bhagwan Dass but this testimony of Champa Devi does not appear to be correct because she could not deny the suggestion that she had been issuing rent receipts and preserving counterfoils thereof but she could not say as to what letting purpose had been mentioned therein. She made a statement that she had destroyed the counterfoil rent receipts. However, the fact remains that even according to her testimony, the premises let out to Bhagwan Dass were being used for residential purposes as long as she was the owner although, according to her, Bhagwan Dass also carried on repair of watches in the premises. She did not say that any specific portion of the premises bad been used by Bhagwan Dass exclusively for purposes of repairing the watches. Rent receipt issued by her would have been the best evidence to show whether she consented to premises being used for commercial purposes. With-holding of rent receipts by the petitioners leads one to draw an adverse inference that if produced the same would have shown the letting purpose as residential only. So, her testimony has been rightly disbelieved by the Addl. Rent Controller that the previous owner told her that premises stand let out for composite purpose or she gave any consent for commercial user. Even the testimonies of RW1 & RW2 do not show that any particular portion of the premises in question had been at any time earmarked for any commercial activity either by Bhagwan Dass Or by his legal representatives. So, the dominant user of the demised premises admittedly was residential at all relevant times. If Bhagwan Dass was bringing certain watches from some shopkeepers and was repairing them and then handing back those watchers to shopkeepers, it does not mean that he was using the premises predominantly for any commercial activity. It is not the case that any customers were visiting the premises in question for getting their watches repaired from Bhagwan Dass. Counsel for the petitioners has argued that there was no plea taken by the landlord in the petition or in the replication that Bhagwan Dass was employed in a printing press. So, any evidence led on that fact should be not given any importance. I do not agree. After all the landlord was only to prove from evidence that the premises had been let out for residential purposes. He was not to plead in the pleadings as to the avocation of Bhagwan Dass because that was subject matter of evidence. From the evidence it is apparent that the petitioners, legal heirs of Bhagwan Dass, had not cared to rebut the testimony of the respondent that Bhagwan Dass employed in a printing press. (9) So, examined from all angles, keeping in view the initial pleas taken by Bhagwan Dass in the eviction case. an irresistible conclusion can be reached that the premises bad been let out for residential premises only when it is clearly shown that house where the premises are located is residential nature and is located in residential locality and the premises in question had been used predominantly for residential purposes. Hence, I come to the conclusion that the finding of the Additional Rent Controller with regard to the letting purpose is not illegal even though the Additional Rent Controller approached ihe question by wrongly placing onus on the petitioners (legal heirs of the tenant). I, hence, negative this contention of the learned counsel for the petitioners as well. No other point has been urged before me. (10) I find no merit in this civil revision which I, hereby, dismiss. But in view of the peculiar facts of the case, I leave the parties to bear their own costs and I also grant one month's time to the petitioner for vacating the premises.

[ 679372, 367290, 752077, 914186, 1384287, 1994812, 1539480, 1709389, 1386437, 679372 ]

Author: P Bahri

216,535

Babu Lal And Ors. vs Satya Narain on 24 May, 1988

Delhi High Court

10

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-26104 of 2009 Date of decision: November 20, 2009 Kulwant Kaur -Petitioner Versus State of Punjab & others -RespondentsCoram Hon'ble Mr. Justice Rajan Gupta Present: Mr. Johny Goyal, Advocate, for the petitioner. Mr. Shilesh Gupta, DAG, Punjab. Rajan Gupta, J.(Oral) Counsel for the petitioner submits that he has instructions to withdraw this petition. Dismissed as withdrawn. [Rajan Gupta] Judge November 20, 2009. 'ask'

[]

null

216,536

Kulwant Kaur vs State Of Punjab & Others on 20 November, 2009

Punjab-Haryana High Court

0

Title: Need to order berthing of two urea ships at Gopalpur (Orissa) in the months of November, and December, 2000 with a view to provide employment to cyclone-hit people of Ganjam district. SHRI ANADI SAHU (BERHAMPUR, ORISSA): Sir, Gopalpur is a fair-weather minor Port in Ganjam district of Orissa. It is operational from November to March, every year. A number of ships come to this Port during this period. Till 1995, Urea ships were coming to this Port. However, anchoring of Urea ships in Gopalpur Port were stopped thereafter. After the supercyclone, the people of Ganjam are not getting adequate work. If Urea ships are brought to this Port in November and December, people will get work. In addition, farmers will get urea at a cheaper rate. I request the Government of India to order for berthing of two Urea ships at Gopalpur in the months of November and December, 2000. 1443 hours (Mr. Deputy-Speaker in the Chair)

[]

null

216,537

Need To Order Berthing Of Two Urea Ships At Gopalpur (Orissa) In The ... on 8 May, 2000

Lok Sabha Debates

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 11470 of 2008(M) 1. KOLLAM PRASAD,SECRETARY, ... Petitioner Vs 1. THE SUB INSPECTOR OF POLICE, ... Respondent For Petitioner :SRI.R.REJI For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MRS. Justice M.C.HARI RANI Dated :11/06/2008 O R D E R K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 11470 OF 2008-M ----------------------------------------- Dated 11th June, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner has approached this Court, alleging that the respondent Sub Inspector of Police is harassing him. The respondent has filed a statement, stating that a crime has been registered against one Mr.Johnson George under Sections 419 and 420 of the I.P.C. The said Mr.Johnson George is a member of the Executive Committee of the Human Rights Protection Council of Kerala, headed by the writ petitioner. In connection with the investigation into that crime, the petitioner was served with notice to appear before the investigating officer. The respondent further submits that he has no intention to harass the petitioner. This submission is recorded. If the presence of the petitioner is necessary in connection with the investigation of any case, the respondent may issue notice to the WPC 11470/08 2 petitioner as per the provisions of the Criminal Procedure Code. The Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/

[ 1667388, 1436241, 445276 ]

null

216,538

Kollam Prasad vs The Sub Inspector Of Police on 11 June, 2008

Kerala High Court

3

JUDGMENT M.R. Hariharan Nair, J. 1. The petitioner contends that he is entitled to the benefit of Ext. P4 Government Order relating to regularisation of physically handicapped provisional employees. 2. The appointment of the petitioner was under Ext. P2 order issued by the District Registrar (General), Kannur on 24.1.1998. On completion of the period of 281 days he was ousted from service. Learned Counsel for the petitioner submits that the appointment being under Rule 9(a)(i) of the K.S. & S.S.R., there is absolutely no justification for denying regularisation in view of the specific conditions in Ext. P4 Government Order and that denial of the relief through Ext. P5 is unjustified. 3. Learned Government Pleader submitted that the mention of Rule 9(a)(i) of K.S. & S.S.R. in Ext. P2 is actually a mistake (Committed by the appointing officer and that it is evident from Ext. P2 that the appointment was on daily wages and not under Rule 9(a)(i). The position, according to him, has been made clear in Ext. P5 order also. The benefit under Ext. P4, the Government Pleader submits, is available only to candidates appointed under Rule 9(a)(i) and is unavailable to those appointed on daily wage basis. 4. There are some obvious inconsistencies between the versions available in Ext. P2 and P5. The justification for denial of the reliefs under Ext. P4 is that the appointment is not under Rule 9(a)(i) and was only on daily wages. On the other hand, it is mentioned in Ext. P2, inter alia, that the appointment is on a temporary basis under Rule 9(a)(i) of the K.S. & S.S.R. upto 16.4.1998 or till the work is completed, whichever is earlier. The work referred to therein is made mention in the subject portion of Ext. P2 as work relating to Amnesty Scheme and further clarified in the counter filed in the case. It is mentioned in the counter that the appointment was not against any termination post or leave vacancy, but was made only on a temporary basis in connection with Amnesty scheme (compounding scheme) for undervalued documents and that the petitioner worked on daily wages pursuant to Ext. P2 during the period from 31.1.1998 to 16.4.1998, 18.5.98 to 20.6.98 and from 13.7.98 to 30.11.1998 and was paid only wages at the rate mentioned in Ext. P2, viz. at the rate of Rs. 707- per day and that too only for the working days. 5. In view of the apparent inconsistencies in the two versions contained in Exts. P2 and P5, i.e. one making it clear that the appointment is on daily wages at the rate of Rs. 70/- per working day and the other being that the appointment is on temporary basis under Rule 9(a)(i) of the K.S. & S.S.R., the question that first falls for consideration is whether the appointment envisaged in Ext. P2 is actually one under Rule 9(a)(i) of the K.S. & S.S.R. 6. Rule 9(a)(i) of the K.S. & S.S.R. aforementioned is quoted below : 9 (a)(i): Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily : Provided that before a person is appointed under this clause, persons who are admittedly senior to him shall also be appointed even if they are absent from duty, whether on leave (other than leave without allowances for taking up other employment) or on foreign service or on deputation or for any other valid reason, except due to suspension, and allowed to continue as such subject to the condition that persons so appointed shall not be eligible for the higher time scale of pay by virtue of such appointments unless otherwise specifically ordered by the Government." In order that an appointment be made under Rule 9(a)(i), the following ingredients appear essential : 1. The appointment should be in public interest. 2. The appointment should be to meet the emergency, which has already arisen. 3. The appointment should be made to fill up a vacancy with immediate effect. 4. It should be in a post borne on the cadre of a service, class or category. 5. There should be undue delay in making regular appointment in accordance with the K.S. & S.S.R. or Special Rules. Part I Rule 2(18) of the K.S. & S.S.R refers to cadre. According to this provision, the permanent cadre of each service, class, category and grade shall be determined by the State Government. Rule 12(4) of Part I K.S.R. stipulates that cadre means strength of a service or part of a service sanctioned as a separate unit. Rule 12(35) of Part I K.S.R. refers to time scale of pay. According to this a time scale of pay could be subject to conditions prescribed in the Rules raised by periodical increments from a minimum to a maximum. A joint reading of the aforesaid provisions will make it clear that one of the essential ingredients for application of Rule 9(a)(i) of K.S. & S.S.R is that the appointment should be against a regular post albeit on a temporary basis to meet the need for immediate appointment considering the exigencies and also taking into account the possible delay in filling up the vacancy. When the terms of Ext. P2 are construed in that background, what is clear is that the said appointment was not against a regular post, but only on a purely temporary basis made to meet the temporary need to complete the work of amnesty scheme, which itself was available only for a particular period. Ext. P2 does not contemplates any rise in pay by way of increment; nor does it mention that the appointment is to a post already in existence. Of course there is reference to Rule 9(a)(i) of K.S. & S.S.R. also therein; but this is obviously a wrong statement. The position is also made clear in Ext. P5. 7. The question of entitlement of the petitioner to the benefits contemplated in Ext. P4 will now be considered. The preamble of the said Government Order makes it clear that the question of regularising the service of the physically handicapped provisional (temporary) employees who were engaged in service during the Golden Jubilee year of the India's Independence was engaging the attention of the Government and pending final decision in the matter the instructions mentioned in the order was issued. Clauses (i) and (ii) of the Government Order reads as follows : (i) The physically handicapped provisional (temporary employees who were engaged in public services through the Employment Exchanges under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 at any time during the period from 1.1.97 to 14.8.1998 and who are still continuing in service will be retained in service on a purely provisional basis, until further orders. (ii) The physically handicapped (temporary) employees who were engaged in public services through the Employment Exchanges under Rule 9(a)(i) during the period from 1.1.1997 to 14.8.1998 and ousted from service (on completion of 180 days of service) or account of expiry of vacancies consequent on joining duty of nominees of Public Service Commission or for other reasons, will be re-appointed on a purely provisional basis and allowed to continue until further orders." 8. The petitioner, no doubt, was appointed during the period aforementioned, but Clauses (i) and (ii) aforementioned, both apply to persons appointed under Rule 9(a)(i) only. I have already found that Ext. P2 appointment is not one under Rule 9(a)(i) though there is reference to that provision in Ext. P2. No relief is seen contemplated in Ext. P4 to persons like the petitioners, who are employed on daily wages, the wages being payable only on working days and the appointment being not against any regular vacancy or post. 9. The question whether persons like the petitioner employed in another department were entitled to the benefit of Ext. P4 order came up for consideration of a Bench of this Court in State of Kerala and Ors. v. Kumari Sasikala, W.A. No. 1462 of 1998. On a consideration of the relevant aspects the Bench was of the view that the benefit would be available only to those appointed under Rule 9(a)(i) of the K.S. & S.S.R. and unavailable to contract employees. In the circumstances I am of the view that the petitioner herein is not entitled to the benefits contemplated in Ext. P4 Government Order. The Original Petition in the circumstances is without merit and it is dismissed. Nothing contained in this judgment will, however, impede the petitioner filing application, if any, to the Government seeking regularisation. If any such request is made, that can be considered by the Government on the merits and appropriate orders passed.

[]

Author: M H Nair

216,539

Musthafa V.K. vs The Distt. Registrar (General) ... on 27 March, 2001

Kerala High Court

0

IN THE HIGH COURT OF' KARNATAKA AT BANGA§§{}I§EA4 DATED THIS THE 6'?" 'DAY 0:? Aueustlf; 4_ BE13'ORE~~~ 4 V THE HON' BLE MRS. .JUs'r1¢I.yw:'ésN§}Ui.'A CRIMINAL % V' BETWEEN » .. V' Karthanda Appaiah @ P'm'::)hu*.L : Son of Uthappa, Aged 46 yeam 1 Resident of Echner Village' " " Post, Ponnampé'£«N_é-2:1 Virajpct Ta111k.V V « Kodagu A V. PETITIONER (By Srgi; V AND Smt, @ Jubi Wifqof K. Appaiah, Aged 43 years * _ Hysddlgar vﬁiage 3:.' 'Fast, Vizajpet Taluk . Distzict RESPONDENT {Bj.%__}%2f/ 'Associates, Advocates) Criminal Petition is ﬁled under Section 482 Cr.P,C. " :1' » ''€3&1cV'Advocate for the paiitioncr praying that this Horfblc may be plcascd to call for mcords in Criminal Revision % .. Fetﬁzian No. 54/2005 dated 16.2.2906 on the ﬁle «mf the A]3~H()C District and Sessions Judge, Fast Track Court at Virajpet and cansequcnﬂy allow the Cr1.R.P. No. 54/2005 ﬁled by the petitioner herein, under Section 397 of Cr.P.C. Crl.M.C. No.32/2005. " This Petition coming on for made the following: A Heard the learned .t}1e so also the learned Counsel for _ 2. It is ?t1bt;1ieiii_Vdis;pui?e" ' preésent petitioner was the respomie"nt--.vthe--.V»i\£é1g.f;iSh"?.te§ in proceedings launched under Seetiprl maintenance not only for hersekf bet £5: An interim awaxd of maintenance caj:r1§:;tp_LA\beVvaw'é'ﬁleci____&_tt.t}ae rate of Rs.10{)O/- and Rs. 500/-- per ' ofwife and son respectively by an interim order H the same came to be questioned in Cnmm' ' al Re§$is§.os:§,r Petition No. 54/ 2005. Before the First Revisional tin factual consideration that the second petiﬁoner in the ggtaiéeedings under Section 125 Cr.P.(3., the son was looked after ' Vt by the husband, the await} of Rs.5GO/ - as interim maintenance towards him came to be Withdmwn. So far as award of maintenance of Rs. 10%] -- in favour of me respondent/wife, the 3 Revisional Court eonﬁnaaed the said order without interfering with the said award. Aggrieved by the same, tl::k:'--.»jp17ese1:1t petition. is filed under Section 482 Cr.P.C. of the pmceedings under Section 125 Cr.P.(3. 3. According to the 1eaIneg;{....C(_)unse.l"fc51": this is nothing short ofabuse of ivoi; gs " approached seeking mainterienzx coiieeeling ﬂ'1'eA{.1'E?x€:.tVVo£3' her being in cam and custody of ~ ﬁot in dispute that meihieiianee was an exparte order. The "p1'derV'e.xfai.-Iiee' questioned in the Sessions Court. The vozfler an interlocutory order cammt be V. qiviéeiﬁgiiiﬁd by vpetifion under Section 397 Cr.P. C. What ' Veéueld .__done under Section 39'? Cr.P.C., cannot be "agei'}.ieve(:i by ﬁiing an application under Section 482 Cr; P course it can be done provicied them is abuse of ., 'preeese of law by the Court. As a matter of fact, in the present the Sessions Cimzrt; iiself has modiﬁed the award of u "in¥;erine. maintenance. 'fhereibxe, there is no question (sf considering the award cf maintenance in favour of the son, Wha is in custody of the husband. maintenance in favour of the H maintenance of the son is wi»thdIa\av§i2.A.:""E?he1cifoit:,'A. mat "of the matter need not be gone: 'ofzzce There is no question of the party at this stage, which has to Court. 5. F'<ii§\ V:2'2.:§)ove, the proceedings under vbeﬁdismissed. Accordingly, the petiuﬁn. = % 321/ - JUDGE

[ 1457888, 1679850, 1457888, 1445515, 445276 ]

Author: Manjula Chellur

216,540

Karthanda Appaiah @ Prabhu vs Smt Karthamada Poovamma @ Jubi on 6 August, 2009

Karnataka High Court

5

[]

null

216,541

[Section 57] [Complete Act]

Central Government Act

0

ORDER C.K. Mahajan, J. CRP No. 1197/2003 & CM No. 2709/2003 1. The present petition is directed against the order dated 1.9.2003 passed by Addl. District Judge, Delhi dismissing the appeal of the petitioner. 2. Briefly the facts are that the respondent filed a suit for damages and mesne profits against the petitioner. On account of non-appearace of the Counsel for the petitioner on 16.5.1996, the petitioner was proceeded ex parte. The petitioner filed an application under Order 9 Rule 7, CPC for setting aside the ex parte order. The application was also dismissed on 8.12.1997. Thereafter, the learned Civil Judge passed ex parte judgment dated 2.9.1998 in favor of the respondent passing a decree of Rs. 27,096/- against the petitioner. Aggrieved by the said judgment, the petitioner filed an application under Order 9 Rule 13, CPC which was also dismissed by Civil Judge on 14.5.1999, Thereafter, the petitioner filed an appeal before the learned Addl. District Judge, Delhi which was also dismissed. It is stated that as per the procedure of the petitioner, one Mr. D.P. Vats, Attorney was attached with the Counsel for the petitioner. The said attorney handed over the charge to Mr. Pradeep Sharma, Attorney, who after taking over the charge absented himself from the office for more than three months. The keys of the almirah in which the case files and case diary were kept by him were with Mr. Pradeep Sharma. 3. Learned Counsel for the petitioner contends that non-appearance of the Counsel for the petitioner was neither intentional nor deliberate but due to the fact that the petitioner's clerk who had kept the case files and case diary in the almirah was absenting himself from the office for more than three months and therefore the case file could not be made available to the Counsel for petitioner. 4. The petition is opposed by Counsel for the respondent. Learned Counsel contends that since the petitioner failed to show sufficient cause for non-appearance before the Trial Court, the petitioners were rightly proceeded ex parte. The orders of the Trial Court and the learned Addl. District Judge are reasoned orders and the petitioner has failed to show jurisdictional infirmity in the said orders. The powers of the Court under Section 115 of the CPC are limited to the extent that only a jurisdictional infirmity can be cured by the Courts. Reliance has been placed on Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr., . 5. I have heard learned Counsel for the parties and also perused the order of the Trial Court as well as of the Appellate Court. 6. The learned Addl. District Judge in the impugned order has observed that the application under Order 9 Rule 13, CPC is supported by the affidavit of Counsel for the petitioner. No material was placed on record to show that Counsel was authorised on behalf of the petitioner to swear the affidavit. The averments made in the application under Order 9 Rule 13, CPC reflect negligence on the part of the attorney of the petitioner and no explanation is forthcoming for his absence for almost seven months. No material had been placed on record to establish that the said attorney was in fact absent during the said period. No departmental action appeared to have been taken against the said attorney. The avernments made in the application were not in the personal knowledge of the Counsel as he was not associated with the case during trial. It was also observed that the petitioner failed to establish sufficient cause for non-appearance. It was also observed that after the petitioner was proceeded ex parte, the suit remained pending in the Trial Court for almost two years and the petitioner or its Counsel took no steps to pursue the suit. If the attorney was not available, alternate arrangements ought to have been made. It is not stated as to what efforts were made to locate the attorney or the files. Inaction and callous approach is writ large and does not merit indulgence of this Court. 7. The scope of revisional jurisdiction under Section 115, CPC is restricted and it is only where there is a jurisdictions error or illegality or material irregularity in the exercise of jurisdiction that this Court can interfere. It is well settled that in exercise of jurisdiction, the finding of fact recorded by the Courts below cannot be reversed. 8. In Harshavardhan Chokkani v. Bhupendra N. Patel, , the Supreme Court held as under: "...Nontheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the revisional Court cannot be equated with the powers of the Appellate Court. In examining the legality and propriety of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power...." In view of the aforesaid discussion, in my considered opinion, the impugned order is a well reasoned order and does not suffer from any jurisdictional error, illegality or material infirmity which calls for interference by this Court under the revisional power under Section 115 of the Code of Civil Procedure. The findings are neither perverse nor have resulted in any injustice to the petitioners. Dismissed.

[ 663930, 1812884 ]

Author: C Mahajan

216,542

New Delhi Municipal Council And ... vs Sohan Lal on 18 February, 2005

Delhi High Court

2

JUDGMENT Anoop V. Mohta, J. 1. Heard. The present appeal has been preferred by the original appellant, thereby, challenged the judgment dated 24-4-1986, passed by the Motor Accident Claims Tribunal, Buldhana in Claim Petition No. 16/1984, whereby, the total amount of Rs. 14,000/- under Section 110-A of the Motor Vehicles Act, 1939 (for short 'Old Act') was awarded. 2. The Advocate appearing for the claimant restricted his case only in reference to the compensation in respect of "General Damages". No other points argued and/or pressed by the Advocate for the appellant. The learned Tribunal, after considering the evidence, as well as, the material placed on the record, and after taking into consideration the injuries sustained by the claimant has awarded total compensation under this head of General Damages at Rs. 1000/- only. The learned Advocate appearing for the appellant, therefore, contended that the General Damages as awarded is on the lower side and it should have been on the higher side. He ST relied on , State of Kerala v. P. Vijaykumaran Nair. The basic reliance is on the para No. 8 which is reproduced as under : "8. Turning to the quantum of damages, we may preface the discussions by observing that the person physically injured may recover compensation both for his pecuniary losses and non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, namely the loss of earnings and other gains which he would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury. The courts have sub-divided the non-pecuniary losses into three categories viz. pain and suffering, loss of amenities of life and loss of expectation of life. The question whether the damages should be itemised or whether it is more proper to make a global award need not be discussed as the Tribunal has itemised the award and nothing turns upon the propriety of the dichotomy in the appeal, the concept of pecuniary loss is self-explanatory which requires no elaboration but the kindred concept of non-pecuniary loss justifies in brief exposition. In the following discussion we have though it more convenient to draw upon Mc Gregor on Damages rather than cull relevant passages from decided cases. "Non-pecuniary loss is a very different field. Little can be stated with certainty as to the amount of damages awardable for such toss caused by personal physical injury. Indeed full compensation cannot be given in the sense that no amount can fully compensate for a serious physical injury. Beyond this, no yard-stick exists for measuring in money the compensation to be accorded a given amount of physical pain or mental suffering because, as far as money goes, the loss is imponderable, and any amount awarded must be in the nature of conventional sum" (Mc Gregor on Damages, 14th Edition, para 1211). "Pain and suffering is the first of the two main heads of non-pecuniary loss. Both past and prospective pain and suffering are covered, although the past loss is not claimed as special damages in the pleadings as it is not quantifiable with exactitude. Past and prospective loss are therefore claimed together as general damages". (Ibid para 1212). "The term 'pain and suffering' has been used so constantly by the courts without any clear distinction between the two words that it is now a term of art. It has been suggested that 'pain' is the immediately felt effect on the nerves and brain of some lesion, or injury to a part of the body, while 'suffering' is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include, for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the injury inflicted by the defendant." (Ibid para 1213), "Loss of amenities of life is the second of the two main heads of non-pecuniary loss." (Ibid para 3218) "This head of damages (loss of amenities of life) concentrates on the curtailment of the plaintiff's enjoyment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue the activities he pursued before hand. Birkett L.J. put it thus is Manley v. Rugby Portiant Cement Co. (1951) C. A. No. 286. "There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life, the man who has had both legs removed will never again go upon his walking excursions - things of that kind - loss of amenities." (Ibid para 1219) Later in the same para the learned author observes that "The appearance of loss of amenities as a distinct head of damage is however, a modern development. Not until the middle of the century does it, begin to become mentioned as such in the reports". He continues : "It is doubtful whether this was intended to reflect a substantive change in the law; the idea of loss of amenities can be subsumed under 'pain and suffering', taking that term in its wide connotation, and no doubt that was what had been done with this element of loss before 1950." As to the award the author states : "As with pain and suffering it is virtually impossible to give clear guidance on amounts, since here two awards vary with the particular injury, the particular circumstances and the particular judge. Before 1970 there was the difficulty that judges have tended to make global awards for all the plaintiff's losses, pecuniary and non-pecuniary, and today even where they are separated, a single figure is generally arrived at which brackets the compensation for loss of amenities with the compensation for pain and suffering." 3. The provisions as argued and as discussed above, is settled principle of law and need no further elaboration. Such claim shall depend upon the facts and evidence of each case. However, the question is, whether this court at this stage should interfere with the findings given by the court below, which was based on material evidence placed on record, including due assessment of the other damages as awarded. The said principle is also settled and observed in para No. 10, of the judgment referred (supra), which reads as under : "10. ... The ground upon which a court of appeal would interfere by reassessment of the damages has been stated by Groor L.J. In Flint v. Lovell, (1935) 1 KB 354 (CA) in the following passage which has been approved by the House of Lords in Davies v. Powell Duffryn Collieries, (1942)AC 601, and by the Privy Council in Nanco v. British Columbia Electric Ry. (1951) AC 601. "This court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was to extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled." Thus the two grounds of interference are that the judge has acted on a wrong principle of law and that he had made an entirely erroneous estimate of the damages. Although the tribunal cannot be said to have acted upon any wrong principle of law we feel that the oversight of the pathetic condition of the petitioner which is established by his evidence and corroborated by the testimony of R.W. 1 has led to an entirely erroneous estimate of the damages on his head." 4. Therefore, even on the basis of the above principle, I am of the view that there is no case made out for interference. We have gone through the evidence led by the parties in support of the various damages. As we are concerned with General Damages, there is no specific case or evidence or averment made for claiming Rs. 15000/- towards general damages. There is no dispute that it is difficult for the parties to claim any specific amount and/or to lead any evidence in support of "pains and sufferings". However, in the facts and circumstances, considering other damages as were already awarded, as per material placed on record. I see there is no reason to interfere with the order passed by the Court below, of awarding Rs. 1000/- towards general damages. Even otherwise total compensation of all other heads cannot be overlooked while considering claim for such damages. In the facts and circumstances of the case, there is nothing pointed out that the order is perverse or based on wrong principle of law and/or is entirely erroneous assessment of the damages. The evidence led on record and as corroborated by the testimony of other witnesses in the facts and circumstances of the case, the general damages as awarded cannot be said to be erroneous assessment of damages as contended. 5. In view of this the appeal is dismissed. No order as to costs.

[ 785258, 11488 ]

Author: A V Mohta

216,543

Vasant S/O Jairam Badodekar vs Prakash S/O Bhiku Warhade And Anr. on 15 June, 2004

Bombay High Court

2

1 Central Information Commission Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi110066 Telefax:01126180532 & 01126107254 websitecic.gov.in Appeal : No. CIC/DS/A/2011/000486 Appellant /Complainant : Shri Milap Choraria, Delhi Public Authority : Income Tax Department, Kolkata (Sh. A. Mallick, CPIO - through video Conferencing) Date of Hearing : 14 November 2011 Date of Decision : 14 November 2011 Facts: 1. Appellant submitted RTI application dated 15 February 2009 before the CPIO, office of the Income Tax Officer, Ward 5 (1), Kolkata - enclosed herewith as Annexure A. 2. After taking action under section 11 of the Act, Vide CPIO order dated 18 March 2009, appellant was informed that information as requested could not be disclosed as the thirdparty had raised objection. 3. Appellant preferred appeal dated 1 April 2009 before the first appellate authority. 4. Matter was decided vide FAA order dated 5 May 2009. 5. Appellant moved the Commission in second appeal. 6. Matter was heard today. Appellant was present as above in person. Respondent was present at Kolkata and made submissions via videoconferencing. Decision notice 7. Both parties have been heard. Respondent states that information pertaining to gifts, presents and details of expenditure on account of the marriage of the daughter of the thirdparty to the son of the Appeal : No. CIC/DS/A/2011/000486 2 appellant, which was included in the balance sheet and form part of the income tax returns of the third party could not be disclosed under the provisions of section 8 (1)(j) of the Act. Appellant stated that based on FIR No 1512007 in dowry matter, criminal case had been instituted by the state of West Bengal against the appellant and was presently in the 7 JM Court, Howrah. Therefore on the ratio given in the case of Shri Manoj Saini No. CIC/LS/A/2010/001044DS dated 24 March 2011, Commission directs the respondent CPIO to, after taking action under the provisions of section 10 of the RTI Act disclose all expenditure on account of marriage including gifts, presents etc as reflected in the balance sheet of the thirdparty for the financial year 1995 - 96 (as the marriage was on 26 January 1996) after severing other portions of the income tax returns, provide information to the appellant within three weeks of receipt of the order. This disclosure is in larger public interest wherein both parties must have equal opportunity before the court of law for securing Administration of Justice. (Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy: (T. K. Mohapatra) Dy. Secretary & Dy. Registrar Tel. No. 01126105027 Copy to: 1. Shri Milap Choraria B5/52. Sector7, Rohini Delhi110085 2. The CPIO Income Tax Officer, Ward5(1)Kol Aayakar Bhawan P7, Chowringhee Square 8th Floor Kolkata700069 3. The Joint Commissioner of Income Tax Range5/Kolkata Aayakar Bhawan Appeal : No. CIC/DS/A/2011/000486 3 P7, Chowringhee Square 8th Floor Kolkata700069 Appeal : No. CIC/DS/A/2011/000486

[]

null

216,544

Mr.Milap Choraria vs Cbdt on 14 November, 2011

Central Information Commission

0

IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1088 of 2010 In CWJC No. 5837 of 2008 ================================================ AMARKANT MADHUKAR Versus THE STATE OF BIHAR & ORS. ================================================ Appearance: For the appellant: Mr Arbind Kumar Anand, Advocate. =============================================== CORAM: HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR JUSTICE JYOTI SARAN ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE) 3. 01.09.2010. At the request of the learned Advocate Mr Arbind Kumar Anand, appearing for the appellant, stand over to 8th September 2010. ( R.M. Doshit, CJ ) ( Jyoti Saran, J ) Dilip

[]

null

216,545

Amarkant Madhukar vs The State Of Bihar &Amp; Ors on 1 September, 2010

Patna High Court - Orders

0

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15771 of 2011 1. Keshav Kumar Son of Kamta Prasad Resident of Village- Wazirpur, P.O. And P.S.- Bikram, District- Patna-Petitioner Versus 1. The State Of Bihar through the Secretary, Department Of Home, Govt. Of Bihar, Patna 2. The Director General of Police, Bihar, Patna 3. The Deputy Inspector General of Police, Patna Division, Patna 4. The Chairman, Central Region, Constable Selection Board, Patna through the S.P. Patna 5. The Chairman, Constable Selection Board, Darbhanga, Through the S.P. Darbhanga ---------------Respondents ---------------------------------- 2 27.9.2011 Heard learned counsel for the petitioner and learned counsel for the State. Contention of learned counsel for the petitioner is that the case of the petitioner is fully covered by the decision of the Division Bench of this Court rendered in LPA No. 831 of 2009 and other analogous cases disposed of on 28.6.2011, the case of Ajay Kumar & others vs. State of Bihar & others reported in 2011 (3) PLJR 575 This writ application is disposed of with a direction to the respondents that if the case of the petitioner comes within the ambit of the said decision, his case will also be considered in light of the same. ( Ajay Kumar Tripathi, J.) RPS

[ 45977833 ]

null

216,546

Keshav Kumar vs The State Of Bihar & Ors on 27 September, 2011

Patna High Court - Orders

1

JUDGMENT Pratt, J. 1. On this application, the first point that arises is one of limitation. Under Section 10(a) the application must be made within nine months of the date when the plaintiff obtains possession. The application ought, therefore, to have been made on or before September 30, 1922. The motion, however, was not made till four days later, i.e., October 4, 1922. Mr. Taleyarkhan contends that the application is in time, because notice of motion was given on August 25, 1922, returnable on August 31, 1922, and that a copy of that notice of motion was lodged with the Prothonotary as required by Rule 322 on the day on which it was given, that is, on August 25, 1922. He contends that that is the day from which limitation should run, and that the mere fact that the notice of motion was not brought on was due to the solicitor's impression that as the Rent Suit Judge was not sitting on Original Side, the bringing on of the motion might be deferred. That is of course a mistake, for the motion could have been brought on before any Judge. But the real point is whether the date on which the copy of the notice of motion was lodged with the Prothonotary should be taken as the date of the application or the date on which the motion was brought on in Court. On this point, I feel no hesitation in deciding that the date of the application is the date on which the motion was brought on. It is only when the motion is brought on that an application can be said to be made to the Court. The notice of motion is not a proceeding in Court, it is merely an expression of an intention to apply to the Court given to the other party for his information. Similarly the copy of the notice of motion lodged with the Prothonotary does not amount to an application; it is only an intimation to the Court that an application is intended to be made. I am fortified in this construction of the rule by the case of Hinga Bibee v. Munna Bibee (1903) I.L.R. 31 Cal. 150. 2. Mr. Taleyarkhan draws my attention to the case of Kuttayan Chetty v. Ellappa Chetty (1907) 17 M.L.J. 215. There the plaintiff's Vakil applied to the Registrar for an issue of the notice of motion according to the rules of that Court and a notice of motion was accordingly issued by the Registrar. The Madras High Court held that the date of the application to the Registrar for the issue of the notice of motion was the terminus a quo for the purpose of limitation. But the distinction is obvious, for under the Madras High Court's Rules, It is the Court that issues notice of motion. Therefore an application to the Court to issue notice presupposes that an application has been made to the Court. Under the rules of this Court, no application is made to the Court for issuing notice of motion and the Court is not moved until the day in which the motion is brought on. The motion, therefore, is time-barred and I must dismiss it with costs.

[ 1091217 ]

Author: Pratt

216,547

Nazarally T. Singaporevalla vs V.V. Kanemar Venkapiya on 12 October, 1922

Bombay High Court

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 576 of 2001 Date of decision: 12th February, 2009 Teja Singh ... Petitioner Versus Binder Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Lalit Garg, Advocate for the petitioner. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Teja Singh son of Moti Singh against Binder Singh alias Balwinder Singh and Balbir Kaur alias Birpal Kaur, who were tried in case FIR No. 76 dated 26.10.1999 registered at Police Station Joga under Sections 302, 506, 341 IPC. Accused respondents were acquitted by the Court of Additional Sessions Judge, Mansa vide judgment and order dated 1st February, 2001. Briefly stated, prosecution case is that on 25th October, 1999 Teja Singh had made a statement (Ex. PB) to Bant Singh ASI, wherein he stated that he was a resident of village Burj Rathi and was an agriculturist. Balbir Kaur accused was married to his son Nachhatar Singh about seven years ago. Date of marriage was said to be before 26th October, 1999. Balbir Kaur had given birth to a son aged three years and a daughter Sandeep Kaur aged six years. It was stated by the complainant that his daughter-in-law Balbir Kaur had developed illicit relations with Binder Singh co-accused. Binder Singh used to come to meet Binder Kaur to the Criminal Revision No. 576 of 2001 2 annoyance of Nachhatar Singh. On the night intervening 14th and 15th October, 1999, Teja Singh complainant and his wife Surjit Kaur were sleeping in the courtyard and Nachhatar Singh along with his wife and children was sleeping inside a room of the house. At about 11.00 p.m. a person entered into the room of Nachhatar Singh. Light was switched on and Teja Singh got up and went towards the room of Nachhatar Singh. Balbir Kaur had held Nachhatar Singh by his arms, whereas Binder Singh, who had entered the room, gave leg blows on the stomach of Nachhatar Singh. Nachhatar Singh raised alarm, upon which Surjit Kaur got up and came in the room. On the alarm raised by Teja Singh and Surjit Kaur, Binder Singh and Balbir Kaur left the spot. Occurrence in the present case, has taken place on 14th October, 1999 at 11.00 p.m. Nachhatar Singh died on 26th October, 1999. Thereafter, the present FIR was lodged. Autopsy on the dead body of Nachhatar Singh was conducted by Dr.O.P. Aggarwal PW-4. He found following injuries: Teja Singh PW-2 and Surjit Kaur PW-3 appeared as eye witnesses. Trial Court held that the conduct of Teja Singh PW-2 and Surjit Kaur PW-3 was highly unnatural and improbable. Taking various factors into consideration, the trial Court came to the conclusion that they were not eye witnesses of the occurrence. Trial Court further took into consideration the delay in lodging of the report and held that prosecution version is doubtful. Court further held that Nachhatar Singh remained alive after 26th October, 1999 and for a period of 13 days, he had not told regarding the occurrence to the police, relatives or parents. The Court further held that Dr.Kiran Garg PW-1, to whose clinic Nachhatar Singh was allegedly taken at the first instance has not supported the prosecution case regarding his admission. Court further held that Dr.Kulwant Singh PW-6 admitted during cross-examination that there was no injury on the large lobe of liver or large intestines of Nachhatar Singh. Dr.Karamjit Singh PW-5 during cross- examination stated that there was one or two symptoms of typhoid in relation to the injury on the person of Nachhatar Singh. He further stated that if urinal and stool did not pass, then some of the symptoms of injury No.1, on the person of Nachhatar Singh, would be associated. The Court further held that Dr.Gurvail Singh PW-10 had stated that Nachhatar Singh was treated. He was thoroughly examined, investigated and diagnosed as a case of intestinal obstruction with peritonitis with jaundice. He further admitted in his cross-examination that Nachhatar Singh died on account of intestinal obstruction with peritonitis with Jaundice. The trial Court further held that it could not be said that simply that death of Nachhatar Singh was caused on account of alleged violence. No State appeal has been filed. The findings given by the Court below suffer from no infirmity. It was held in AIR 1968 Supreme Court 707 Mahendra Partap Singh vs. Sarju Singh and another, relying upon D.Stephens vs. Nosibolla, AIR 1951 SC 196, as under: (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re- weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. "In other words" said this Court, "the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them." Similar view was reiterated by Hon'ble apex Court in Bansi Lal and others vs. Laxman Singh, (1986) 3 Supreme Court Cases 444. Again, Hon'ble apex Court, in Ramu alias Ram Kumar and others, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh vs. Khuman Singh and another, (1998) Supreme Court Cases (Cri) 1574 and in Bindeshwari Prasad Singh vs. Criminal Revision No. 576 of 2001 7 State of Bihar, 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal. It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere. I find no merit in the instant revision petition to interfere while exercising revisional jurisdiction as learned counsel for petitioner has failed to point out any illegality or irregularity. There is no merit in the present revision petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE February 12, 2009 rps

[ 1560742, 180217, 1599401, 1835803, 496819, 749737, 1012887, 1761214 ]

null

216,548

Teja Singh vs Binder Singh And Others on 12 February, 2009

Punjab-Haryana High Court

8

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 125 of 2003 -------------------------------------------------------------- DINESHBHAI NATVARLAL PUJARA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 125 of 2003 MR SATYEN B RAWAL for Petitioner No. 1 Mr.S.J.Dave, A.P.P. for Respondent No. 1 RULE SERVED BY DS for Respondent No. 2-3 -------------------------------------------------------------- CORAM : MR.JUSTICE D.H.WAGHELA Date of Order: 02/05/2003 ORAL ORDER 1.This petition under Article 226 and 227 of the Constitution of India is made with a prayer to issue necessary directions directing the respondent no.3 to renew the licence of the petitioner under the provisions of the Arms Act,1959. 2.The application of the petitioner for renewal of the licence was rejected by order dated 19-10-2001 by the learned Additional District Magistrate, Surendranagar, and the appeal preferred therefrom being Application no.456/2001 was also rejected by the Deputy Secretary of the Government, by his order dated 23rd December,2002. It was submitted on behalf of the petitioner that the arm in question could not be produced before the authorities due to sufficient reasons, and there were also sufficient reasons to condone the delay. The learned A.P.P. Mr.Dave fairly conceded that the application of the petitioner for renewal required reconsideration, and the matter may be remanded to the learned Additional District Magistrate, for deciding the application of the applicant in accordance with law. 3.Therefore, by consent, the aforesaid orders of the learned Additional District Magistrate, Surendranagar, and the order of the Deputy Secretary are hereby quashed, and the learned District Magistrate, Surendranagar, is directed to hear and dispose of the application of the petitioner for renewal of the licence in accordance with law and as early as practicable. 4.The application is accordingly partly allowed. Rule is made absolute accordingly with no orders as to costs. Direct service is permitted. (D.H.Waghela,J.) stanley-dhw.

[ 1712542, 1331149, 1934415 ]

Author: D.H.Waghela,&Nbsp;

216,549

Special Criminal Application No. ... vs Mr.S.J.Dave on 3 August, 2010

Gujarat High Court

3

Court No. - 43 Case :- CRIMINAL APPEAL No. - 5821 of 2009 Petitioner :- Alveley Singh & Another Respondent :- State Of U.P.Petitioner Counsel :- G.R.S. Pal Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad J. Lay before another Hon'b1e Judge after seeking nomination from Hon'b1e the Chief Justice. Order Date :- 18.1.2010 Gss

[]

null

216,550

Alveley Singh & Another vs State Of U.P. on 18 January, 2010

Allahabad High Court

0

JUDGMENT H. H. Kantharia, J. 1. In these four petitions under Article 226 of the Constitution, facts are common and the law points are the same and, therefore, they are being disposed of by this common judgment. 2. The petitioners, in all the writ petitions, were in the employment of the second respondent. They were charge-sheeted on 24th November, 1981, inter alia, alleging against them that they assaulted one D.T. Jadhav, second respondent's Security Officer/Incharge, near Vasai Railway Station on 15th November, 1981 at about 6.30 p.m. The charge framed against them was 'riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline". The petitioners submitted their written explanations on 30th November, 1981 denying the charges levelled against them as false and fabricated and further contending that they were being victimised for their trade union activities. The petitioners were suspended pending domestic enquiries. Thereafter, domestic enquiries were held by one Namdco K. Aher. The petitioners participated in the said enquiries and were defended by one P. Ganguli, a trade union representative. The Enquiry Officer held the petitioners guilty of the charges levelled against them and relying upon his findings, the second respondent-company vide their letters dated 18th January, 1983 dismissed the petitioners with effect from 20th January, 1983. The petitioners resisted their dismissals by letters dated 23rd January, 1983 that the same were illegal and improper. 3. Thereafter, the petitioners approched the Government Labour Officer and lodged complaints with him and raised industrial disputes for their reinstatement vide letters dated 25th February, 1983 addressed to the Commissioner of Labour. The Conciliation Officer initiated conciliation proceedings but the disputes could not be settled and, therefore, failure reports were submitted. The Deputy Commissioner of Labour by his orders dated 22nd November, 1983 refused to refer the disputes relating to the petitioner's demands for reinstatement on the ground that the references were, prima facie, not justified having regard to the merits of enquiries, nature of misconduct and punishment awarded. The said orders of the Deputy Commissioner of Labour refusing to make references under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") are impugned in these four petitions. 4. Mr. Kochar, learned Advocate appearing on behalf of the petitioners, submits that the reasons advanced by the Deputy Commissioner of Labour in not making the references are no reasons in the eyes of law and if at all they can be termed as reasons, they are too inadequate to refuse references. Mr. Kochar further submits that in any event the Government cannot take upon itself to adjudicate industrial disputes which can be done only either by the Labour Court or the Industrial Tribunal. In the submission of Mr. Kochar, the powers of the Labour Court and/or Industrial Tribunal under Section 11A of the Act cannot be usurped by the Government by refusing to make references. Mr. Kochar then urges that a harmonious reading of Sections 10(1), 11A and 12(5) of the Act shows that the petitioners have a legal right to justify their demands before the Labour Court or the Industrial Tribunal as to how and why their dismissals from service were invalid, improper and incorrect in law and they cannot be deprived of this legal right by refusing to make references to the proper forum. If references are made, the Labour Court or the Industrial Tribunal could also go into the question of adequacy of the punishment qua the misconduct alleged against the petitioners, further submits Mr. Kochar. 5. Mr. Gokhale, learned Assistant Government Pleader appearing on behalf of the first respondent-State of Maharashtra, submits that the powers of the Government under Section 10(1) read with Section 12(5) of the Act are absolutely discretionary and the Government may be justified in refusing to make references for reasons to be recorded in writing after going through the entire record. Mr. Gokhale also submits that in these cases the record shows that the petitioners had indulged in violent activities of assaults and on consideration of the enquiry reports, the Deputy Commissioner of Labour was satisfied that there was no prima facie case for reference, having regard to the merits of the enquiries held against the petitioners and the nature of the misconduct and the punishment awarded to them. In the alternative, Mr. Gokhale submits that at the most this Court may refer back the matters to the Deputy Commissioner of Labour for re-considering whether references should be made or not. 6. Now, after a Conciliation Officer submits a failure report under Section 12(4) of the Act, the appropriate Government is required to consider whether a reference should or should not be made to the appropriate authority. Sub-section (5) of Section 12 of the Act provides: "If, on consideration of the report referred to in Sub-section (4),the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor." It may be noted here that if the Government decides to make a reference it has to be done under Section 10(1) of the Act which provides: "Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing - (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the third Schedule, to a Tribunal for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule ; and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c): ........ ........ ........ ........ ........ A bare perusal of these provisions of law makes it clear that the powers vested in the Government to make a reference, are discretionary. But when the Government chooses not to make a reference it has to : record reasons for not doing so and communicate the same to the concerned parties. This is a mandatory duty of the Government. 7. In our cases, the Deputy Commissioner of Labour passed identical orders and, for convenience sake, we may quote here the impugned order appearing in Writ Petition No. 627 of 1984. It reads as under: "In exercise of the powers conferred on me by Government vide Government notification, Industries, Energy and Labour Department No. IDA 1379/3496 (i) Lab-9, dated 20th April, 1979 issued in supersession of Government Notification, Industries and Labour Department No. IDA 1369/117365/Lab-n, dated 9th April, 1969, I have to state that I have considered the report dated 24-8-1983 submitted to me by the Conciliation Officer, under Sub-section (4) of Section 12 of the Industrial Disputes Act, 1947 (XIV of 1947), in respect of the above dispute and I am satisfied that there is no case for reference thereof under Sub-section (5) of Section 12 for the reasons that the reference is, prima facie not justified having regard to the merits of enquiry, nature of misconduct and the punishment awarded." A mere glance at this order shows that the Deputy Commissioner of Labour was exercising, having been invested with the powers of the appropriate Government, had to be exercised reasonably with utmost care and caution. While exercising such powers he should be slow in declining to make a reference because in doing so, he attempts to usurp the powers of the Labour Tribunal in going into the merits of the matter. He should bear in mind that it is only when the Government is of the considered opinion and comes to the conclusion that the claims preferred by the workmen were perverse or frivolous or bogus or were inordinately delayed that the Government may exercise its discretion and refuse to make a reference. All that the Deputy Commissioner of Labour here did was to peruse the failure report submitted by the Conciliation Officer under Section 12(4) of the Act. He gave no good reasons for refusing to make a reference except stating that prima facie there was no justification to make a reference, regard being had to the merits of the enquiry, nature of the misconduct and the punishment awarded. Thus, there is nothing in the impugned order to show whether the Deputy Commissioner of Labour had fully considered the matter and what exactly prevailed upon him to come to the conclusion that the dispute raised by the petitioner was not worth referring to the Labour Court or Industrial Tribunal. To say the least, the impugned order is very much cryptic and appears to have been passed mechanically without application of mind. The Deputy Commissioner of Labour should have made little more communicative order so that one could know what persuaded him to decline reference. The discretion vested in the Government in this regard has to be exercised properly and with acceptable reason s for the decision. 8. In the dispute between Nirmal Singh and State of Punjab and other (1984 II LLJ 396), the appellant was a "Branch Manager" of the Hoshiarpur Central Co-operative Bank Ltd. when he was dismissed following a fraudulent encashment of a draft. When, after conciliation, the matter went before the Labour Commissioner, he declined to make a reference stating that the employee was not a "workman". The employee's writ petition was dismissed in limine by the High Court and therefore he filed an appeal in the Supreme Court. The Supreme Court in that appeal held : "The Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of Section 2(s) of the Act. He has only stated that the post held by the appellant did not fall "within the category of workman". He has not given any reason to justify his conclusion". Ultimately, the Supreme Court directed the Labour Commissioner to make a reference under Section 12(5) of the Act. 9. In Workmen of Syndicate Bank, Madras v. Government of India and Anr. (1985 I LLJ 93), the management of Syndicate Bank imposed the punishment of stoppage of three increments on one of its workmen. An industrial dispute was raised by the Syndicate Bank Staff Union and the Union Government declined to refer the dispute to an Industrial Tribunal for adjudication because the charges of misconduct against the worker were proved in a duly constituted departmental enquiry and the penalty was imposed after following the required procedure. The order of the Union of India was unsuccessfully challenged before the Delhi High Court which dismissed the writ petition in limine. Hence civil appeal was filed by the workmen of Syndicate Bank, Madras in the Supreme Court, in which it was held : "It would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental enquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible managements could easily avoid a reference for adjudication and deprive the worker of the opportunity of getting the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fide or even if the penalty was imposed on the worker was totally disproportionate to the proved misconduct. Easily a claim for reference can be defeated by showing that a proper enquiry as per procedure has been held. Such a situation cannot be countenanced by law". 10. A Division Bench of this Court (Bharucha and Tipnis JJ.) while dealing with a similar point in Appeal No. 627 of 1981, arising from Writ Petition No. 451 of 1981, decided on 27th August, 1987 held : "The appropriate Government has an extremely limited administrative discretion in deciding whether or not to make a reference. In no case whatever can it perform an adjudicatory function. It cannot go into the merits of the dispute. That is squarely the preserve of the Labour Court or Industrial Tribunal. The discretion that the Government has is confined to determining whether, as a result of making a reference, there will be industrial unrest and whether the application for reference is frivolous or grossly delayed". The said Division Bench was of the opinion that it was not necessary to Elaborate on precedents in support of what they had stated and quoted the Supreme Court judgment in Bombay Union of Journalists and Ors v. The State of Bombay and Anr. which says: "...............Similarly on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal..............". The Supreme Court then said : "Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute exists or is apprehended and then refer it for adjudication on merits". 11. This becomes all the more necessary in view of the introduction of Section 11A by Act 45 of 1971, which reads as under: "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require : Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter". Thus, the provisions of Section 11A of the Act give powers to the Labour Courts and the Industrial Tribunals to give appropriate relief, including the award of lesser punishment, to the dismissed or discharged workman and, therefore, it is all the more incumbent upon the Government to make a reference and not take away the powers of the judicial authorities by refusing to make the same. In K.P. Kshatriya v. Khandelwal Udyog Ltd. and Ors. (1980 II LLJ 261)(1981 Lab IC 1611) a Division Bench of this Court held : "The power conferred under Section 10 to make a reference or not, is indeed discretionary and that the Government is not bound to make a reference of any dispute because a party or a union or the employer demands such a reference. Even so, the Government is under an obligation to exercise the discretion, reasonably and by reference only to relevant considerations. One of the relevant considerations, while making or refusing to make a reference, after the introduction of Section 11A, must necessarily be that the employee is entitled to get the evidence as to the proof of his misconduct reviewed in such a reference as also the quantum of punishment, even if the misconduct is held to have been proved. In other words, the circumstances that the disciplinary authority or the appellate authority over the same has applied its mind to the evidence on record and had bona fide come to some conclusion as to the proof of misconduct and the quantum of punishment by itself is not sufficient to refuse to make reference''. It was further held : "In the altered legal situation, the Government has to consider prima facie whether there is anything in the evidence which may goad or persuade the Labour Court or the Industrial Tribunal to change its opinion as to the conclusion of misconduct or the quantum of punishment therefor. The Government may refuse to make a reference if in their prima facie opinion the right of getting evidence reviewed already recorded and the right of getting reviewed the quantum of punishment awarded, is bound to be of no practical use in a particular case.'' 12. Mr. Gokhale drew my attention to a judgment of the Supreme Court in Ram Avtar Sharma and Ors. v. State of Haryana and Anr. wherein it was held that since Section 10 of the Industrial Disputes Act required the Government to be satisfied that an industrial dispute existed or was apprehended, it would permit the Government "to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony." There is no dispute about this position in law that the powers vested in the Government under Section 10(1) read with Section 12(5) of the Act are discretionary and the Government may refuse to make a reference if prima facie the Government is satisfied that a party in raising a dispute did it for frivolous and bogus reasons or for extraneous and irrelevant considerations rather than for justice or industrial peace and harmony. There is nothing in the impugned order passed by the Deputy Commissioner of Labour, in our case, to show that the claims of the petitioner were frivolous or bogus or were put forth for extraneous and irrelevant reasons and not for justice or industrial peace and harmony. Therefore, the authority cited by Mr. Gokhale does not help him. 13. Mr. Gokhale submits that the above judgment of the Supreme Court was referred to and relied upon by a Division Bench of this Court (Bharucha and Tipnis, JJ.) in Appeal No. 662 of 1984, arising from Writ Petition No. 912 of 1984, decided on 23rd July, 1987. The facts and circumstances obtaining in the case before the division Bench are distinguishable. In that case, while refusing to make a reference, the Deputy Commissioner of Labour gave four reasons as under :- "I am satisfied that there is no case for reference thereof under Sub-section (5) of Section 12 for the reasons that (1) the workmen were involved in serious acts of misconducts, like assault, etc.; (2) the attempts of the employer to hold regular enquiry against them were frustrated by the workmen themselves, either by giving threats to the witness or by obstructing the process of enquiry; (3) the action of the employer in terminating the services of these workmen is as per Standing Orders which appears to be bona fide and there is nothing to indicate any mala fide, vindictiveness or victimisation; and (4) I do not find it expedient to refer the dispute to adjudication as the same will not be conducive to industrial peace." It is in such facts and circumstances of that case that the Division Bench was of the opinion that it was not expedient to refer the dispute for adjudication and there were no justifiable reasons to intervene in the matter under Article 226 of the Constitution. As stated earlier, the Deputy Commissioner of Labour in our case did not assign any good, acceptable reasons for refusing to make a reference, hence, this judgment of the Division Bench is also of no avail to Mr. Gokhale. 14. Regarding the submission of Mr. Gokhale that if I am not to uphold the impugned orders of the Deputy Commissioner of Labour, I may direct the Government to re-consider the matters, I am not able to persuade myself to agree with Mr. Gokhale in view of the law laid down by the Supreme Court in Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nadu and Management of India Cements Ltd. v. S.C.A.T. (1983 I LLJ 460), Nirmal Singh v. State of Punjab and Ors. (1984 II LLJ 396) (1984 Lab IC 1312), The M.P. Irrigation Karmachari Sangh v. The State of Madhya Pradesh and Anr. (1985 I LLJ 519) (1985 Lab IC 932) and this Court in Rohinton P. Daruwalla v. Dy. Commissioner of Labour (Conciliation). Bombay (1985 I CLR 126) and Krishna Babu Ghadigaonkar and etc. v. State of Maharashtra and other (1986 Lab IC 1664) directing the State Government to make reference to the appropriate authority or forum under Section 12(5) of the Act. Similarly, the Gujarat High Court in Suresh Shantarm Joshi v. Regional Manager, Bank of Maharashtra, Baroda (1985 I Lab LJ 487) had directed the Central Government to make such a reference. 15. In the result, all the four petitions succeed and the same are allowed. The impugned orders passed by Deputy Commissioner of Labour refusing to make references in all the four matters are quashed and set aside. I direct the first respondent-State of Maharashtra to refer the disputes raised by the four petitioners to appropriate Labour Courts or Industrial Tribunals under Section 10(1) read with Section 12(5)of the Act for proper adjudication within two weeks of the receipt of the writs.

[ 1712542, 347928, 1968818, 760439, 1968818, 347928, 760439, 347928, 625936, 1570927, 760439, 1570927, 1570927, 625936, 1418464, 347928, 411139, 75183, 1669932, 1968818, 1968818, 577611, 1669932, 1968818, 455901, 1669932, 760439, 347928, 1570927, 1712542, 1310042, 1041213, 101565707, 1948366, 347928, 1627971, 760439, 347928 ]

Author: H H Kantharia

216,551

Bhagwan Dhondu Tarkar vs State Of Maharashtra And Ors. on 4 September, 1987

Bombay High Court

38

20. No alternative accommodation was offered at least in writing to the Judge on or about the date fn answer to his clear assertion that he has not able to find any alternative accommodation. It might also be stated that according to the Judge during the whole of this period tie was almost a solitary resident in the Circuit House where all the three other remaining suites lay vacant most of the time, between the 8th January to 21st January, 1964. 21. On the 9th January, 1964, the Additional District Magistrate again under the orders of the District "I may mention here that the behaviour of Sri Roy Subordinate Judge, Nadia in violating the rules of the Circuit House as well as in defying the direction issued by the competent authority, was quite Unbecoming of the position he holds ...... instead he chose to create a scene . . . . . . !n passing I may further state that the Hon'ble Sri Faziur frahaman has expressed his cur-prfse than a member of the judiciary should violate the rules and defy the orders of the 'competent authorities regarding the occupation of the Circuit House." It shows that a person, simply because he is an officer of the State has no right to waste public funds in liis defence if his actions are held to be grossly mala fide improper and throughout illegal and contemptuous. In this case as the State is already appearing in support of the Rule an order on the District Magistrate to pay the costs to the State may be in vain but this Court hav- ing regard to its findings here, thinks it fit to order that the District Magistrate should bear his costs personally and not be allowed* to call upon the public funds of the Government to defend such grossly, contumacious and illegal acts wliich he has committed in this case. JUDGMENT P.B. Mukharji, J. 1. On this Rule the District Magistrate of Nadia Mr. Debabrata Bandopadhyay, I.A. S., is standing his trial for contempt of court, on the ground of forcibly turning out Mr. M. Roy, the learned Subordinate Judge, Nadia from his residence at Circuit House and thereby compelling him to leave his station of justice and also making it imposst- ble for him to hold his Court for four days and a half and bringing down the Judge, In the estimation of the local public. The situation is unprecedented in the annals ef public services in India. The facts and circumstances revealed on the record, are of momentous significance. Affidavits disclose most distressing and deplorable features in the administration, which will continue to serve as a serious warning and lesson long after the memory of this case fades away. 2. On the 22nd January, 1964, by the order of this Magistrate the learned Subordinate Judge of the district was literally driven out of his room in the Circuit House at Nadia, where he was obliged to stay for acute want of accommodation in the district. At the relevant hour and the time the learned Judge was actually conducting a sessions case and performing his judicial duties in the Court. While he was in the court, under orders of this Magistrate, the Judge's room was locked in his absence. Under this District Magistrate's orders the Judge's personal belongings were seized, publicly inventoried before public witnesses of the place where the learned Judge was expected to administer justice and command public faith and all the Judge's articles, bags and baggages were publicly carried away and despatched to the Police Mal- knana. Deprived of all his belongings except his wearng apparel and publicly humiliated in the station of his judi cial authority and jurisdiction, the Judge was left utterly destitute without a penny in his pocket so that he had to borrow money to purchase his railway ticket to return to Calcutta to make his administrative representation to this Court. 3. By that act of the Magistrate, the Court of the learned Judge could not be held and the judicial work in the district was dislocated and disrupted. In fact, the Judge could not hold his Court from 2 p.m. in the afternoon of the 22nd January 1964, the day of the incident, and the whole of the 24th, 25th, 28th and the 29th January, 1964. Under directions of this Court to finish -the sessions trial which he had begun, and to keep the magisterially battered flag of justice still flying he attendad Krishnagar Court as a daily Railway passenger from Calcutta on the 30th and the 31st January, 1964 to complete the trial. He also attended as such daily passenger on the 1st and the 3rd February, 1964 and ultimately a different room was given to him again in the Circuit; House on the 4th February, 1964 and his articles returned! Shorn of all details, these are the bare facts constituting the charge of contempt against this District Magistrate. 4. On the 3rd February, 1964, Mr. Ajit Kumar Dutt a senior learned Advocate of this Court, moved this Court for a rule in contempt by producing before this Court 9 copy of a Bengali newspaper 'Bidyut' dated the 24tr, January, 1964 published at Krishnagar drawing the attention of this Court at page 3 of that Issue of the paper under the caption. "Complaint against the District Magis-trate for illegally putting lock in the room of the Subordiate Judge". Mr. Dutt filed that newspaper in this Court and called for the issue of a Rule upon the District Magistrate of Nadia and his Nazir, to show cause whv they should not be dealt with for contempt of Court or such other order or further orders as this Court may deem fit and proper. This Court issued the rule on the District Magistrate and the Nazir who were ordered to be present in the Court. The Court' directed service upon the District Magistrate and his Nazir of the Rule and also copy of the Newspaper publication, showing the facts constituting the contempt. 5. On the 10th of February, 1964 when the rule was returned Mr. Ajit Kumar Dutt appeared for the Stale-and made his statement about the procedure to be followed. Mr. R. C. Oeb, learned Counsel for the Magistrate-and the Nazir also made his statement about the procedure to be followed in this Court. Upon hearing them the Court issued the following directions :- 1} The Subordinate Judge will affirm an affidavit by the 14th February, 1964, placing and affirming the relevant facts before this Court: 2} The Legal Remembrancer will make a short affida-vi^ disclosing copies of all relevant correspondence and-record in his office on the subject by the 14th February. 1964; 3) The Registrar, Appellate Side of this Court directed to supply copies of all correspondence on this subject in the file of this Court, one set to be given to contem-nors' Counsel and another to Mr. Dutt, by the 14th February, 1964; 4) The contemnors were directed to file their affidavit in opposition by the 24th February, 1964; and 5) The hearing of the contempt rule was fixed for the 25th February, 1964 on which date the contemnors were directed to appear in person before this Court. 6. On the 24th February, 1964 Mr. R. C. Deb, learned Counsel for the contemnors prayed for extension of time by consent of Mr. Ajit Kumar Dutt and this Court granted extension of time to the contemnors to file their affidavit in opposition by the 27th February, 1964 and the hearing of the contempt rule was adjourned to the 27th February, 1964. 7. On the 27th February, 1964 when the rule for contempt came to be heard, Mr. A. C. Mitra, the learned Standing Counsel of the Government appearing for the Slate informing this Court that the learned Advocate, Mr. A. K. Dutt who was till then appearing for the State had returned his brief. The reasons for such return of the brief have remained unexplained, though they may not be far to seek, but this Court does not think It necessary to seek them. 8. The District Magistrate filed his affidavit. But his Nazir did not, on the date when the rules for con tempt came first to be heard on the 22nd February, 1964. 9. The essential facts are not in dispute. It is not disputed that the Judge was forcibly turned out of his room, that all his personal articles Including even articles of food were seized, publicly inventoried and then despatched to the Police Malkhana, all under orders, of the District Magistrate. The defence of the District Magistrate is that he was the absolute authority to determine who is to be permitted to remain in the Circuit House and for how long under the Rules of the Circuit House. Therefore the District Magistrate's defence is that he was Justified in doing what he did. Secondly, the defence of the District Magistrate is that he had to turn out the Judge from the Circuit House because he thought it to be essential for the security of the Minister, Shri Fazlur Rahaman, Minister-in-charge of the Local Self-Government and Animal Husbandry, Veterinary Department in this State who was to visit the areas in the District affected by riots and who was to reach Krishnagar on the 22nd February, 1934 at about 4 p.m. Thirdly, his defence is that his action was not intended to obstruct administration of justice and the disruption of the court's work was net the direct but an incidental and remote result of the Judge being forced to leave the Circuit House. Fourthly, the District Magistrate says that he offered alternative accommodation to the Judge. 10. We shall take up the first defence of the Magistrate about his authority in respect of the Circuit House, along with his further, defence of alternative accommodation. 11. Rule 1 of the Circuit House divides intended occupants in two categories of Part A and Part 8. Part A includes 8 classes of persons: (1) The Governor, (2) the Minister, (3) the High Court Judges, (4) the Members of the Board of Revenue, (5) Commissioners of Divisions, (6) District Judges, (7) Heads of Departments, and (8) the Superintendent of Engineers and other officers mentioned in Part A of the list. These persons have the right of exclusive occupation according to their rank and seniority. Part B consists of officers of the first grade as defined in Subsidiary Rule 24 corresponding to Rule 22 of the Bengal Services Rules Part 2 when travelling on duty away from their headquarters and other officers. Rule 1 provides that these other officers named in Part B are also privileged to occupy the Circuit House free of charge when travelling on duty. Rule 2 provides "Circuit Houses are under the immediate charge of the Magistrate ,of the districts in which they are situated and the Magistrates are responsible for their proper maintenance and for the observance of the rules regarding them". Rule 3 says "Excepting the officers named in the list appended no officer of the Government is allowed to occupy a Circuit House without the written orders of the District Magistrate." 12. Rule 4 provides "District Magistrates may allow Circuit Houses or such rooms in them as may be set apart for the purpose (when they are not required by his Excellency the Governor or any of the officers named in the list appended) to be occupied temporarily by Gazetted officers of the Government who may be summoned on duty from outside stations or who may be posted temporarily to the station..................In all these instances previous permission must be obtained and all such cases must be forthwith reported to the Commissioner of the Division and if the occupation is to last for more than 15 days the sanction of the Commissioner must be obtained." 13. This Rule 4 continues to provide "A Magistrate-Collector, an Additional District Magistrate-Collector, or a Joint Magistrate; a District and Sessions Judge, an Additional District and Sessions Judge or an Assistant Judge .................. who has to join a district in such haste as to preclude his taking his furniture with him or whose official residence is not immediately fit for occupation .................. or for any ether adequate reasons, may be allowed to occupy Circuit Houses for a period not exceeding one month with the sanction of the Commissioner of the Division". 14. Then, Rule 6 provides "Under Rules 4 and 5 permission to occupy the whole of a Circuit House should rarely be given." 15. Then, Rule 7 says "It must be a well-understood and special condition for every person who may be allowed to occupy a Circuit House or pan of it under Rule 4 and 5 above, that he must distinctly undertake to provide accommodation for officers who are entitled to it, on the shortest notice and at whatever inconvenience to himself when such officers make short visits to out-stations, and also to vacate altogether, if such a measure is, at any time considered necessary by the District Magistrate or the Commissioner." 16. These are all the relevant rules required for the purpose of this case. One thing clear from these rules is that the District Magistrate is neither the ultimate nor the sole authority over the Circuit House but he is only in "immediate charge" as provided in Rule 2 but subject to his superior authority the Commissioner of the Division as provided in Rules 4, 5 and 7. 17. The relevant facts an this point may here be stated for a proper appreciation of the case and to see-how far these Rules justify the District Magistrate's defence. 18. The Judge in this case was transferred on the 19th December, 1963 by the High Court to the District of Nadia and was ordered to join and resume his duties at Krishnagar on and from the forenoon of the 2nd January, 1964. The Judge therefore wrote to the District Magistrate to make arrangements for bis stay at Krishna-gar for 10 days from 1-1-64 to 10-1-64. On the 23rd December, 1963 the District Magistrate wrote to the Judge reserving his accommodation in Room Bo. IV of the Circuit House from 1-1-64 afternoon to the afternoon of 10-1-64. The Judge arrived at Krishnagar to join his duties on the 1st January, 1964. The Jutige went into occupation of Room No. II instead of Room No. IV in the Circuit House according to the instructions of the District Magistrate. 19. On the 7th January 1964 the Judge wrote to the District Magistrate saying that despite his best efforts he had not been able to secure any rented accommodation till then and he therefore requested that his reservation in the local Circuit House might be continued for another period of 10 days from 10-1-64, when the current reservation was due to expire. The Additional District Magistrate under orders cf the District Magistrate wrote on the same day by his D. 0. Ho. 156JG that owing to unavoidable circumstances and pressure of accommodation in the Circurit House, permission to occupy the Circuit House beyond 10-1-64 could not be accorded. The Judge wrote back immediately on the 8th January, 1964 "I am sorry it will not be possible for me to vacate-the Circuit House on 10-1-64 as requested. I came here on transfer from West Dinajpur under orders of the Hon'ble High Court. I have been staying in the Circuit House in the absence of any official Government quarters or any rented accommodation in the town. I am further referring your correspondence to the Hon'ble High Court soliciting its instruction. I would therefore sincerely request you that you should not disturb me with such communication until I hear from the Hon'ble Court. I assure you that I shall immediately vacate the Circuit House as soon as I shall be able to find any other alternative accommodation". Magistrate wrote to the Judge saying that "the Circuit Houses are under the immediate charge of the Magistrates of the Districts in which they are situated. Without the permission of the Magistrate of the District no suite or room in the Circuit Houses could be occupied. Permission to occupy the Circuit House beyond 10-1-64 has not been accorded by the Magistrate of the District and therefore you will have to vacate the Circuit House on the morning of the 11th instant." It is significant that not a word is said even in this letter that any alternative accommodation has been secured or offered for the Judge. Immediately on that date the Judge wrote to the Additional District Magistrate saying that the matter had already been referred to the High Court and also to the Government and requesting him to stay his hands till intimation was received from the High Court and the Government. 22. On that date, the 9th January, 1964 on the eve of the expiry of the first period of stay at the Circuit House, the learned Judge, also wrote to the Registrar of Appellate Side of this Court through the District Judge, Nadia expressly stating all the facts and stating that there was no possibility of finding any accommodation in the near future, and also informing that the Collector of Nadia would not allow him to stay in the Circuit House for more than a fortnight under the rules in force. He therefore stated in that letter "I may be permitted io apply for some period of earned leave before I can rehabilitate myself in any other station where I can have a reasonable shelter or else the Government may be approached to permit me to occupy an exclusive room in the local Circuit House till a suitable accommodation is requisitioned through the Collector". The District Judge recommended the Jutige's letter for favourable consideration by Registrar of the High Court. 23. According to the learned Judge when he returned to the Circuit House from his court on the 10th January, 1964 at about 5-30 p.m. he was informed by the Circuit House menials that his room had been allotted to another gentleman and that he also noticed that his name card had been removed from the reservation board. But according to him no one turned up. It is the Judga's case that the District Magisrtrate deputed the Nazir on the llth and 12th January 1964 and other officials who made attempts to evict him by force. 24. Then followed some important events. On the 17th January the Registrar of the Appellate side of this Court wrote to the Government of West Bengal requesting to allow the Judge to 'Stay in the Circuit House till a requisitioned house was arranged or till t'ne Judge found a suitable house. Copy of this recommendation of the High Court dated the 14th January, 1964, was received by the Judge on the 17th January, 1964. The Judge also informed by D. 0. Nos. 22 and 23 both to the District Magistrate and his Additional on the 17th January, 1964 about the ''recommendation of the High Court. On that very date also I.e. 17th January, 1964 the Deputy Secretary of the Revenue Department also wrote to the 'District Magistrate informing the Board of Revenue's per- mission to the Judge to stay in a room of the Circuit House for one month, that is, till the 2nd of February, 1964 and the District Magistrate was also requested to find a suitable house by requisition for the Judge. 25. Notwithstanding these orders of the High Court and Board of Revenue, the District Magistrate on the 18th January 1964 asked the Judge to vacate the room "which you are unauthorisedly occupying within 48 hours ot receipt of this notice failing which the room would be locked out." It is unthinkable how a District Magistrate could officially write such a letter to a Judge. On the 18th January, 1964 the District Magistrate says that the Judge again requested for extension which he turned down. On that day, i.e the 18th January the Judge contacted the Judicial Secretary of this State Government over the telephone from Krishnagar and he was informed by the Secretary that the Government had already passed an order authorising his stay in the Circuit House till the end of January, 1364 and he was also in the process of communication and he was also directed by the Judicial Secretary to inform the District Magistrate about the Government order. On the 19th January, the Judge by his D. O. Nos. 26 and 27 informed the Distract Magistrate about the telephonic conversation of the Judicial Secretary. 26. Immediately the District Magistrate started moving to frustrate the Government's order of permission to the Judge to stay. On the 20th January, 1964 the District Magistrate wrote to the Member, Board of Revenue, Calcutta complaining about the "Misbehaviour of Roy the Judge)" and adding "Roy was informed that permission to stay in the Circuit House beyond 10-1-64 could not be given. Communal strife broke out In the district from 9-1-64. We were in a state of emergency. It was necessary to provide accommodation for the officers at one place. For this reason and for superior police officers mobilised on duty it was necessary to get vacant possession of the room occupied by Shri Roy (the Judge) during the period of emergency. On 11-1-64 Roy (the Judge) whose permission to occupy expired on 10-1-64 was requested to give vacant possession of his room. Instead of complying with the request Shri Roy insulted the Nazar. On 18-1-64 notice was served on Roy to vacate the room. I received a letter from Roy regarding permission of the Board of Revenue. I do not know if any such order is under issue. Roy should not be allowed to occupy the Circuit House." This letter proves that this District Magistrate was attempting to frustrate and defy the order of his superior, the Member, Board of Revenue and was determined to oust the Judge by all means. 27. When the District Magistrate had already decided that the Judge should not be allowed to occupy the Circuit House and defied the administrative direction of this Court as well as of his superior officer, the Board of Revenue, a further situation developed which the District Magistrate immediately seized to carry out his threat to evict the Judge. According to his version, on the 21st January, 1964 the District Magistrate was asked to reserve two rooms in Circuit House for the Minister mentioned. The District Magistrate at once exploits the-situation to get rid of the Judge. The Minister himself did not ask that the Judge should vacate the Circuit House. Nor did he ask for reservation of the whole Circuit House for himself, as he could have asked. He only asked for two rooms in the Circuit House. That could easily haw been given without disturbing the Judge's room. Suppressing an that fact to the Judge, on the 21st January, 1964 the Mazir of the District Magistrate comes to the Judge saying "I am directed by the u. M. to request you to vacate the-room by 8 A.M. tomorrow positively as it has been reserved for the stay of the Hon'ble Minister and his party." The Sheristadar wrote to the Nazir on the very same day saying that it was not possible for the Subordinate Judga to vacate the Circuit House as desired by O. M. Tne District Magistrate foiled so long rises to a boiling pitch on the 21st January, 1964 and sends an express telegram to the Member, Board of Revenue calling his attention to Judge's refusal to vacate the room reserved for the Minister. All this episode shows that the District Magistrate was bent upon getting rid of the Judge from the Circuit House. 28. The District Magistrate now takes steps to clear his record. On the 21st January, 1964 he writes for the first time to the Judge stating that accommodation is available both at the District Board's Duk Bungalow and the P. W. D. Rest House alleging that the Nazir had Informed him about this on the 11th January, 1964. He repeats in this letter that the Judge must vacate the room in the Circuit House which has been reserved for the Hon'ble Minister by the morning of the 22nd instant. The Judge has denied on affidavit the suggestion of the District Magistrate that his Nazir had offered him alternative accommodation on the llth January 1964. This Court wholly believes the Judge and disbelieves the District Magistrate on this point first for the simple reason that even after the llth January, 1964 many communications passed between the Judge and the District Magistrate where this specific alternative accommodation was not even hinted, although the Judge had heen asking for alternative accommodation ever since the 7th January, 1964. Secondly it is also noteworthy that the District Magistrate in his complaint to the Member, Board of Revenue even on the 10th January, 1964 never suggested that the Judge nad in fact been offered or given alternative accommodation and that he had even then refused to go from the Circuit House. It is therefore plain in our opinion that the District Magistrate's statement is untrue, if not false, that he had offered alternative accommodation to the Judge on the llth January, 1964. Thirdly about this alleged alternative accommodation, the District Magistrate is not the authority at all in respect thereof and neither the District Board's permission nor the Executive Engineer's permission for the P. W. D. Rest House who are the appropriate authorities regarding such accommodation, has been produced before me on any affidavit. Fourthly this letter of the District Magistrate dated the 21st January, 1964 to the Judge was received by the Judge on the following day at 9 a.m. when he was about to go to the Court. On the 22nd January 1964 at 1 p.m. while the Judge was engaged in Court of sessions his servant was forced out of his room in the Circuit House and the Judge's room was locked up from outside leaving ail his belongings in the room. Having heard this, the Judge went to the Circuit House but could not enter his room. He was not even then told that any alternative accommodation had been found and he could shift thera with his belongings. For these 'reasons this Court over-roles the fourth defence of this District Magistrate that he offered alternative accommodation to the Judge. The Judge was compelled to leave Krishnagar, his Judicial station and arrived In Calcutta at ID- p.m. on 22nd January, 1964. 29. This District Magistrate then became unusually active on the 22nd January 1964. He says that he himself left Krishnagar on that date in the forenoon and returned in the evening. But the machinery which he elt behind under his orders was working with relentless Speed. The Judge's room was locked by ab'out 1 p.m. on the 22nd January, 1964. By 5-15 p.m. on that very day under orders of the Magistrate the process-server of the Nada Coilectorate illegally broke open the Judge's room in the Circuit House. An inventory is ceremoniously prepared in the midst of notorious publicity. This inventory took about three hours' time from 5-15 p.m. till about 8 p.m. to be completed. Two witnesses have subscribed' their signature to that inventory, one the Principal of the Krishnagar College Sri Amiya Kumar Majumdar and the other Shri R. K. Banerjeer, Principal, B. P. C. Institute of Technology, Krishnagar. We will presently have occasion to come back to the fact how two busy and responsitte Principals of educational institutions happened to come to the Circuit House just at that very moment and had sufficient spare time and leisure to witness for long three hours the inventory and then subscribe their signatures to it. Continuing with the events of the 22nd January, 1964 we find that the Nazir of this District Magistrate makes a neti-tion before a First Class Magistrate in Nadia and obtains an order from him long^after office hours at about 9 p.m. at night, which we were told by the Counsel for the can-temnor was obtained from the 1st Class Magistrate while he was supposed to be at which is called a "Contral Room". Upon that petition the order was obtained to this effect "Let the Nazir deposit the articles at Kotwali Police station. The Officer-in-charge to deliver the article to Shri Roy as soon as he is available." The Judgs also made a report of this incident on that very day to the officer-in-charge Krishnagar police station. 30. On the next day, the 23rd January 1964 ths Judge reported the matte/ to the Registrar of the Appel-late Side of this Court and also the District Judge of Nadia. He also gave the same report to the Registrar. On the following day, i.e. the 24th January, 1964 the Bengali local newspaper 'Bidyut published this news which started the present proceedings. On that date, the 24th January, 1964 the Joint Secretary wrote to the Registrar of the Appellate Side informing him about the letter from the Board of Revenue to the District Magistrate permitting the Judge to stay in the Circuit House and enclosing a copy of that letter from the Board of Revenue to the District Magistrate. On the record there is also the letter of the Judge on the same day giving his representation to the Registrar, Appellate Side of this Court narrating those deplorable incidents and facts and stating:- "It is not possible to resume my duties untii residence in the Circuit House and my belongings lying there are resor-ed to me. I pray to the Hon'ble Court to grant me leave". On the next, the 25th January, 1964 the Registrar of the Appellate Side of this Court writes to the Joint Secretary enclosing copies of letters from the Judge to the District Judge dated respectively the 23rd and the 24th January, 1964 and stating "Permit Roy to occupy his suite until other accommodation is available atherwise the Court may be kept vacant. Pending intimation from the Government, he is directed to' proceed fin leave. Enquire the propriety of the action taken by the District, Magistrate". 31. The Board of Revenue acted promptly and sent a telegram to the District Magistrate, Nadia on the 23th January, 1964 stating "Allow this Subordinate judge to continue his occupation in the Circuit House till the end of February, or earlier if alternative accommodation can be secured in the meantime by requisition or otherwise. Copy is sent to the Registrar". 32. On the 29th January, 1964 the Registrar of the Appellate Side of this Court wrote to the Judge enclosing the copy of the telegram of the 28th January, 1964 and stating "You are to resume your duty at Krishnagar at once". On that very day the District Magistrate wrote to, the Chief Secretary of the Government of West Bengal, Sfiri R, Gapta, I.C.S., giving his explanation. 33. This Explanation of the District Magistrate to the Chief Secretary shows not only his 'conduct but also utterly deliberate and contumacious' attitude in this matter throughout evincing a deliberate plan of the District Magistrate to render it impossible for the Judge to act as a Judge and hold his court in the district. The District Magistrate, in spite of the orders of his own superior the Board of Revenue makes the following astounding allegation against the Judge:34. The Chief Secretary's reply dated the 30th January, 1964 admirably represented the great traditions of the Indian administration. This Court is of the opinion that Mr. R. Gupta, the Chief Secretary took the right and commendable view in telling the District Magistrate what he thought of the Magistrate's acts in the following unequivocal terms: "I have carefully gone through your letter (D. O. No. 226-C dated 29-1-1964} and after taking full account of the various facjs and circumstances which you have reported, I still feel that the summary eviction of the Subordinate Judge on the 22nd January, from the room so occupied in the Circuit House was neither proper nor justified. After all, a Subordinate Judge is not a private person or a clerk. He is a senior Judicial officer, of the Government and he was staying in the Circuit House beyond- the period originally allotted to him only because he had not uptil then been able to find suitable private accommodation in the town." "f appreciate the necessity to provide for the accommodation and security of HM, LSG and AH and VS, who was coming on tour-and f am also aware that the Hon'ble Ministers are entitled to occupy the whole of the Circuit House, At the same time I feel sure that the Minister hiimself would not have fnsisted on the eviction of the Subordinate Judge if he had been consulted before he was removed. The Subordinate judge's goods and articles were locked up in the room. Nor do I feel that the subordinate Judge's continued presence in another room' in the Circuit House would have jeopardiesd the security of the Minister." 35. On the correspondence and facts stated that is the brief survey of the position. 36. Now taking the first point in the defence namely that the District Magistrate has the absolute "authority to determine who is to he permitted to remain in the Circuit House and for how long under the Rules of the Circuit House, it will be clear from the rules of the Circuit House set out above that the District Magistrate is not the also lute authority. He is at best in "immediate charge. Far from the learned Judge, violating the Rules of the Circuit House, this Court holds that the District Magistrate was himself violating the Rules of the Circut House in this case and was making a most unseemly exhibition of power which the Rules did not give him. In the first place, the learned Judge was one of the persons authorised to use the Circuit House under the Rules of the Circuit Hause in the second place the extension of time which he asked from the 10th January, 1964 to stay in the Circuit. House is governed by Rule 4 which expressly provides-that where the Official residence is not fit for accommodation or for any other adequate reason, the Assistant Judge may be allowed to occupy the Circuit House for a period not exceeding one month with the sanction of the Commissioner of the Division. Therefore, when the Judge asked for extension of time his request for extension should have been placed before the, Commissioner. The District Magistrate without placing it before the Commissioner rejected it, which he had no authority under the rules to do. Thirdly, the Rules do not authorise the District Magistrate either to lock the room of any occupant or to forcibly drive him out and to seize his goods and articles. We have carefully analysed the Rules and do not find anything in them which gives him a wanton power of summary and forcible eviction of the occupant and public seizure of his goods. In doing all these, we have no hesitation in holding that the District Magistrate did acts which were not only grossly illegal and outside his powers and jurisdiction but also were deliberately contumacious to bring down the position of the Judge in public estimation and hold up the judiciary to ridicule before the public eye in the very district where the judge is expected to administer justice. Fourthly, the District Magistrate's action in seizing the goods, making inventory of them and making a petition through his Nazir for their deposit in the Police Malkhana are wholly unwarranted. Neither the Indian Penal Code nor the Criminal Procedure 'Code nor the Civil Procedure Code nor any law of this land that we know of, authorises the District Magistrate to take such a high-handed and illegal action. The 1st class Magistrate before whom the Nazir made a petition for custody of the articles was making illegal order unwarranted by the Criminal Procedure Code. It 'shows the danger that exists in this country due is the absence of separation of' the Executive from the lud-ciary. The District Magistrate could only succeed to following this wholly illegal procedure because he knew : that the 1st Class Magistrate will have to obey the been nest of the District Magistrate. If there was separation of the Executive from the Judiciary in this State such a situation would have been avoided. It is hight' time' that this State took steps to separate the Judiciary from-the Eeceeutive in the public services according to the Directive Principles raid down in Article 50 of the Constitution. This Court holds for the reasons statetd above that the District Magistrate's first defence fails, and we overrule it. 37. The District Magistrate's second line of defence that he had to turn out the Judge from the Circuit House because he thought it to be essential for the security of the Minister is baseless and groundless and is a mala fide attempt to use a blameless Minister as a convenient excuse. The most fitting answer was given by the Chief Secretary of the Government of this State. It is difficult to imagine how the presence of a Judge of the land in the Circuit House in a single room could endanger the security of a Minister of same State. The District Magistrate perhaps realised the futility of this excuse and therefore says in his affidavit before the Court and not in his numerous correspondence that although he did not for a moment regard that the Judge was a security risk in any way " He had to consider that their presence in the Circuit House would create problems for enforcement of security measures for the safety of the Hon'ble Minister". We have no hesitation in rejecting this plea as an afterthought and also as not bona fide. If the presence of the Judge was not a security risk to the Minister in the same Circuit House then any possible visitors who could be coming to see the Judge could be controlled and the Judge need not have been forcibly evicted and locked out in manner followed. Thirdly, the Minister himself only want ed two rooms in the Circuit House and did not want the entire Circuit House. Therefore, the Minister could have been given two rooms in the Circuit House with enough protection without the District Magistrate's finding an excuse to drive out the Judge living in a separate room of the Circuit House. Security of the Minister is a public duty of the District Magistrate. Security of the Courts of the land and their Judges is equally as great a public duty and sacred responsibility of, the District Magistrate of the area concerned. This Court will hope that no District Magistrate will, in future choose one security at the cost of another and thus disgrace the fair name ot public service in India. ' Lastly, this Court cannot help making a comment on the District Magistrate's attitude to malign the Judge behind his back in his letter to the Chief Secretary qiroted above dated the 28th January, 1964. It is astounding to find that the District Magistrate chose to quote the alleged opinion of a Minister not connected with the legal or the judicial department of the State 8s having expressed his surprise against a Judge violating the rules of the Circuit House. If the District Magistrate is right then he alone is responsible In poisoning the mind and ear of the Minister and telling him that the Judge had violated the Rules when in fact he did not. We would like to believe that the District Magistrate is making an incorrect statement here because the alleged opinion of the. Minister against this learned Judge has not been verified by any affidavit by the Minister and because we think it is extremely qnworthy of a District Magistrate to write about a judicial officer who is not under his charge or under his department complaining against him on the plea of an alleged opinion of a Minister who has nothing to do with the legal or a judicial department. It is a very sinister practice which should stop at once, 38. For these reasons we hold that the Rules of the 'Circuit House and the visit of the Minister do not pro- vide any defence for the contumacious acts and conduct of the District Magistrate in this case. The rules do not authorise the District Magistrate, in the first place ta refuse to grant extension beyond 10/15 days without placing the matter before the Commissioner. In refusing the extension himself the District Magistrate himself vie- lated the Rules and acted illegally and beyond his powers. In the second place, the rules of the Circuit House do not authorise and permit the District Magistrate to make a forcible eviction, to break open the lock of the occu pant, to forcibly seize his goods and personal articles, to make an inventory of them and to send them to the Police Malkhana. Such actions of the District Magistrate in the facts of this case, were wholly illegal and utwar- rantetd by the Civil and Criminal Procedure Codes of this country. The case of the State of West Bengal v. Blrendra, has no application- to the facts of this case because (1) that was concerns* with specific provisions of Sec. 3 of the Crown Grants Act expressly excluding the operation of not merely the Trasn- fer of Property- Act but also of all other laws, which the Rules of Circuit House here cannot and could not exclude and (2) because there was in the lease by the Dajmty Commissioner an express right of re-entry, which does not exist under the Rules of the Circuit House. This Court therefore overrules these two points of defence taken in behalf of the District Magistrate, ; 39. The third defence of the District Magistrate that his action was not intended to obstruct the administration of rustics and disruption of the Court's work, was not the direct but an incidental and remote result of the Judge being forced to leave the Circuit House. This Court will now examine this defence. 40. Mr. Deb appearing for the contemnor District Magistrate relied on the classical, well-known but undelivered judgment of Wilmot, J. in Rex v. Almon, reported in (1765) 97 ER 94. This was an application made to the Court by the Attorney-General for an attachment against Mr. Almon for publishing a pamphlet containing many libellous passages upon the Court and upon tne Chief Justice for his conduct both in Court and outside. It charged the Court and particularly the Chief Justice with having introduced a method of proceeding to deprive the subjects of the benefit of the Habeas Corpus Act. The opinion of Wilmot, J. was not delivered in Court in this case because the prosecution was dropped in con- sequence, as it was supposed, of the resignation of the then Attorney-General, Sir Fletcher Norton. Wilmot, at 103 of that Report observed as follows : "It is conceded that an act of violence upon his (Judge's) person, when he was making such an order, would be a contempt punishable by attachment; upon what principle? For striking a Judge in walking along the streets would not be a contempt of the Court. The reason therefore must be, that he is in the exercise of his office and discharging the function of a Judge of this Court; and if his person is under this protection, why should not his character be under the same protection? It is not for the sake of the individual, but for the sake of the public, that his person is under such protection; and in respect of the public, the imputing corruption and the perversion of justice to him in an order made by him at his Chambers, is attended with much more mischievous consequences than a blow; and therefore the reason for proceeding in this summary manner, applies with equal, if not superior, force, to one case as well as the other; there is no greater obstrution to the execution of justice from the striking a Judge, than from the abusing him, because his order lies open to be enforced or discharged, whether the Judge is struck or abused for making it." 41. Taking inspiration from this observation Mr. Deb's submission on this point is that any matter involving ft. Judge is not necessarily contempt. Undoubtedly, that is a correct proposition. The contempt is a contempt of i court. The contempt is a contempt of the administration of justice- in some sense or another. For instance, if a Judge as a member of the public, walking in the street is assaulted by an individual that does not by itself make the assault a contempt of Court. For instance, again, if a Judge who is a tenant is ousted by his landlord who obtains a decree for ejectment and then by a process of execution evicts him, such eviction will not be a contempt of Court. Similarly a Judge driving a car rashly and negligently collides with another car and is prosecuted. Such prosecution will not be contempt of Court. These in stances relating to the Judge personally and individually may be cases of assau't or other crimes or delicts but they are not contempts of court. Contempt of Court 's not a matter affecting the Judge personally but affecting His judicial office and judicial work and administration of justice. 42. ' But then these analogies have no application to the facts of the present case. This is not a case of a trespass by the District Magistrate upon the Judge or a case of a landlord executing a decree of eviction against Bis tenant. Let this be clearly understood that the District Magistrate in this case is a public officer discharging the public duties of a public office. The Circuit House is not the private property of the District Magistrate. The District Magistrate is not the landlord of the Circuit House. The Circuit House is a public property charged with public purpose and public utility maintained by taxpayers' money, and exists for fulfilling those public purposes. The Judge who is the victim in this case is also public officer, a Judicial Officer and as the Assistant Sessions Judge was occupying a room in the Circuit House By virtue of the right of his office under the Rules of the circut House. The District Magistrate as a responsible public officer of the District should know that this judi-dial officer was performing his judicial functions from day ft day and at the time when his room was locked he Was, in fact, engaged in judicial duties in the Court. As an ordinary man, far less a public officer this District Magistrate is expected to know and did know that If the Judge lost alt his personal belongings including even his previsions for food, which the District Magistrate seized, he would not be in a position to go on performing his judicial duties. The District Magistrate knew that there was acute shortage of accommodation in the district and he knew that without atternative accommodation offered to the Judge, his judicial work in the district would not be possible. The District Magistrate was made well aware of the situation in the correspondence analysed above. The District Magistrate also Knew that there was enough acommodation in the Circuit House for one single room to be safely in the 'occupation of a Judge in the district at at relevant 'times. The District Magistrate also knew that the Board of Revenue's permission had been given on the 17-1-1964. The Board of Revenue is a superior authority over the District Magistrate. This permission was received on or about the 19th January, 1954. In fact, the District Magistrate himself admits receipt of the same on the 20th January, 1954. This District Magistrate successfully defied the order of his superior the Board of Revenue to drive out the Judge. 43. A number of cases have been cited above on the law of contempt, but almost all of them deal with libel on courts or Judges. The famous case is In the matter of William Tayler, reported in 26 Cal U 345 : (AIR 1913 Cal 713) otherwise known as the Englishman's case. That was a case where the learned Chief Justice Sir Bames Peacock coming across those letters privately, issued a rule suo motu upon the contemnor, Mr. Tayler who wrote his libellous letters to the editor of the Englishman to show cause why he should not be adjudged guilty of eon-tempt of court. The Court was not even moved, in that case by any learned Advocate, as in this case. 44. In the judgment of the Division Bench in that case Sir Barnes Peacock, C. J. sitting with Dwarha Nath Mitter, J. observed as follows :- (a) "Every insult offered to a Judge in the exercise of the duty of his office is a contempt." - page 381. (b) "I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which sooner or later never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my sense tells me is wrong, to gain the daily praise of all the papers which issue from the press. I will not avoid doing that which I think right, though it should draw upon me the whole artillery of libels, Ell that falsehood and malice can invent or credulity can swallow." - Page 393. 45. The next case cited is the first famous Amrita Bazar Patrika Case, In the matter of Amrita Bazar Patrika, reported in 26 Cal U 459 : (AIR 1918 Cat 988, SB). There, Sir Ashutosh Mukherjee, J. observed: "A criminal contempt is conduct that is directed igainst the dignity and authority of the Court. A civil contempt, on the other hand, is failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Consequently in the case of a criminal contempt the proceeding is for punishment of am act committed against the majesty of the law, and, as the primary purpose of the punishment is the vindication of the public authority, the jro-ceeding conforms, as nearly as possible, to proceedings id criminal cases." - at p. 545 (of Cal LJ)': (at p. 1017 of AIR). 46. Woodroffe, Chitty and Fletcher JJ. express clearly the view that all proceedings whether in respsct , of criminal or civil contempts are of a criminal nature when the objective is to punish by fine or imprisonment. The procedure in such cases is not In all respect the same as an ordinary criminal case. Both the offence as also jurisdiction and procedure under which it Is tried are sui generis. 47. Reliance was placed on the decision ef the Privy Council in the matter of Special Reference from the Baharm Islands, reported in 1893 AC 138. That was also a case of' libel contained in a letter published in the colonial newspaper containing criticisms of the- 'conduct of ins Chief Justice of the Colony. Actually no judgment was given in that case. But a short report appears at pagss 148, 149 from which it could be seen that the two tests laid down by the Privy Council were whether the act complained of was calculated to obstruct or interfere with (1) the course of justice or (2) the due administration of the law. The Privy Council in Debiprasad Sharma v. Emperor, reported, in discussed the law of contempt, although 'that also arose out of an editorial comment published in a newspaper. At page 224 Lord Atkin relerrea with approval to the two tests above laid down in the Reference from the Bahama Islands. 48. The above two tests for contempt as laid down by the Privy Council were also emphasised by the High Court of Australia in the R. v. Nicholls, reported in (1911) 12 Comm.-W. LR 280, where Griffith, C. J, at p. 286 observed: "The only question for us to determine here is whether these words are calculated to obstruct or interfere with the course of justice or the due administration of the law in the court." That was also a libel case. The law in our view will not be different in cases other than libel and where words are not involved the acts or conduct should be judged by the same two tests namely, whether they are calculated to obstruct or interfere either with (1) the course of justice or (2) the due administration of the law in the Court. 49. Our Supreme Court has laid down the law in clearest possible terms in Brahmaprakash Sharma v. State of Utter Pradesh, , emphasising that an act or conduct which lowers the authority of the Court and weakens the sense of confidence of people in the administration of justice is contempt. Mukherjea, J. delivering the judgment of the Supreme Court in that case observed at p. 1176 (of SCR) : (at p. 13 of AIR) of the Report as follows: "It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts, It would be only repeating what has been stated so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individual; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party the authority of the court is lowered and the sense of confidence of people in the administration of justice by it is weakened." 50. Applying this test laid down by the Suprem? Court we have no hesitation in finding in the facts of this case that the acts and co'nduct of this District Magistrate are calculated to lower the authority of the Court and weaken the sense of public confidence in the administration of justice and are therefore gross and clear contempt. 51. We can pass by another case citeu before the Court namely (Vicieoo v. St. miDyn, in 1899 ac 54a laying down tne principal that the conempt of court may us committed by the publication ui scandalous mmtm respecting the court atter abdication as nell as penang a case before it, as that is not relevant for the present proceedings before us. 52. In R. v. Odham's Press Ltd., 1957-1 QBD 73 Lord Goddard C. J. laid down the principle that mens CM was no't 3 necessary constituent at d contempt ot while the court would take cognizance and punisn and that lacK oi intention or Knowledge was only material in relation to the penalty which the court would inflict and the test was whether the mauer complained of was calculated to interfere with the courts of justitce, and not whether the contemnors intended that result. In Attorney General v. Butterworth, (1963) 1 QBD 696 it is laid dowit that "contempt of court is not confined to pending cases and that victimisation of witnesses being an interference with the proper administration of justice as a continuing process in deterring potential witnesses from giving evidence in future cases, was contempt of Court whether rt was done while the proceeding was still pending or even after they had finished. If interference with the witnesses can be a contempt, interference with the Judge which the not only to the disruption and the obstruction of holding the courts but also bringing' down the Judge in the esti-mation before the public where he has to administer justice must surely be plain contempt. 53. the Privy Council in Ambard v. Attorney General, 1936 AC 322 emphasised this aspect when Lor-Atkrn observed at page 323 of the Report "Every one will recognise the importance of made taining the authority of courts in restraining and punishing interference with the administration of justice, whether the interference is in particular civil or criminal cases, or take the form of attempts to depreciate the authority of the Courts themselves. It is sufficient to say that such interference, when they amount to contempt at court, are criminal act and orders punishing them should generally speaking be treated as orders in criminal cases and leave to appeal should only be granted on the well known principles on which leave to appeal in criminal cases is given." 54. Lord Atkin in that case also approved and -applied the law laid down by Lord Russel of Killewen, C. S. in R. v. Gray, (1900) 2 GBD 36 stating. "Any act done or writing published calculated to bring a Court or a Judge of the court into contempt of lower his authority is a' contempt of court. That is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with the for administration or course of justice or the (awful process of the court is a contpmpt of Court." 55. The learned Standing Counsel also relied an s Division Bench decision- of this Court in Hembala Dasi v, Sunder Shaw, particularly relied on the observation of Chakravsrtti, K, J, saying that omission to specify the alleged act of ecantff-tempt in the notice of motion would not entail a ns-missal of the motion, even though it was desirable to give the particulars of the contempt charge in the notice of motion itself. Reference was also made to a learned single Judge's decision reported in Harikissen Khetry v. farrukh Sayer, 66 Cal WN 983. 56. Arguments were advanced from the Bar both an behalf of the contemnor as well as on behalf of the State on the paint how far this Court can commit for contempt of its subordinate courts. On the basis of certain decisions such as Kochappa v. Sachi Devi, ILR 25. Mad 494 it was argued that a district Court is not court of record and as such has no inherent power to commit for contempt. That argument is beside the ooint, because it is not the district court which is trying this case for contempt, but it is this High Court which is trying this case for contempt of its subordinate court. 57. In the Full Bench decision of the Allahabad High Court in Re: Abdul Hasan Jauhar it is laid down that the High Court as a court of record and as the protector of public justice throughout its jurisdiction has power to deal with all contempts directed against the administration of justice, whether those contempts are committed in faca of the court or outside, and independently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning Itself or whether they relate 'to proceedings concerning Inferior courts, and in the latter case whether these proceedings might or might not at some stage come before the High Court." 58. Sulaiman J. at pp. 722-23 (of ILR All) : (at .pp. 628-629 of AIR) observed as follows: "The real question which requires consideration is whether the High Court has jurisdiction to commit for contempt of an inferior court. Inferior courts in these provinces, not being King's courts, have no jurisdiction to commit for contempts not perpetrated in facie curiae They cannot punish contempts committed'out of court: Rule 26 Mad 494. If therefore the High Court also were to have no power to punish such contempts, they would go altogether unpunished, unless in particular cases they came within the provisions of the statutory penal law. 'The High Court has a general superintendence over its civil courts and watches over their proceedings, not only to prevent their exceeding their jurisdiction or otherwise acting contrary to law, but also to orevent interference with the course of justice in1 such courts. It would seem at first sight that a High Court of Justice, being the highest court in the land, and yet without power to vindicate the dignity of its subordinate courts and to protect officers of such courts, would be an anomaly which could hardly be permitted to exist in a civilised country. With- our such protection subordinate courts would soon lose their hold upon public respect and the maintenance of law and order would be rendered extremely difficult. The question, however, has become one of some difficulty because of a conflict of opinion that has prevailed in India." 59. There was some' doubt about the jurisdiction for contempt when such contempt related to contempt of subordinate courts, But the Contempt of Courts Ad 1926 and the present Contempt of Courts Act 1952 have made the position clear. Section 3 of the Contempt of .Courts Act 1952 provides power to the High Court to punish contempts, of its subordinate courts and reads as follows: "(1) Subject to the provisions of Sub-section (2) every High Court shall have end exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself. (2} No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such, contempt is an offence punishable under the Indian Penal Code." 60. Section 3 of the Contempt of Court's Act 1952 therefore empowers the High Court to punish far contempt of all the subordinate courts in the same jurisdiction, powers and authority as it has in respect of contempt of itself. 61. Article 215 of the Constitution of India declares that "Every High Court shall be a Court of record and shall have all the powers of such a court including the power to punish for contempt of itself." This Srti-cle of the Constitution read with Section 3 of the Jontempt of Courts , Act 1952 now empowers this High Court to punish for contempt not only of itself but all contempts of couris subordinate to the High Court, and invests the High Court with the same jurisdiction, powers and authority in accordance with the same procedure and practice. 62. This position was recognised by the Supreme Court in Bathina Ramkrishna Reddy v. State of Madras, pointing out to the fact that Section 2(3) of the Contempt of Court's Act 1928 excludes the jurisdiction of the High Court to take cognisance of contempt alleged to have been committed in respect of a court subordinate to it only in cases where the acts alleged to constitute contempt are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. 62a. The Supreme Court in Sukhdev Singh v. Teja Singri, AIR 1954 SC 185 lays down that the Code 'of Criminal Procedure does not apply in matters of contempt triable by the High Court and the High Court can deal with it summarily and can adopt its own procedure. All that is necessary is that the procedure should be fair and that the contemner is made aware of the charge against him and given 3 fair and reasonable opportunity to defend himself. 63. On the above case law and on the basis of the Article 215 of the Constitution read with Section 3 of the Contempt of Courts Act 1952, I am of the opinion that this Court is the custodian of the dignity and majesty of law in this State concerning not only this Court itself but also all courts subordinate, to this Court. In this case the District Magistrate by his act and conduct, stated as above, made it impossible for the subordinate Judge of the district of Nadia to hold his court and to perform his judicial duties, publicly humiliated him in trie very area of his jurisdiction and trought the [earned Judge and his court down in the estimation of the public. This I court therefore holds the District Magistrate guilty of I contempt of the subordinate Court. 64. At this stage, it will be appropriate to dispose of some technical points of objection. They are raised tf paragraph 3 of the- first affidavit of the District Magistrate affirmed on 26th February, 1964. Mr. Deb, the learned Counsel appearing for the contemner has act really pressed these points but has asked us to clarify the procedure for the future in contempt proceedings. 65. in the first place it is said that this rule should not have been issued in its criminal revisional jurisdiction. This point has really no substance. The practice and procedure of this court have long been well settled, ever since the time of Ranhin, C. J. On the 18th May 1953 Chakravartti, C. J. in Criminal Misc. Case No. 63 of 1953 passed the the following order, which indi-eatets the position: "Cases for contempt of a subordinate court which may be reported to this Court are to be dealt with judi-cially and under a standing order passed by Rankin C. I. recently repeated ,by Harris, C. J. they are to be dealt with by the Division Bench taking criminal matters. So place the papers before that Court." 66. Chakravartti, C. J. further clarified this order by an administrative direction on the 29th July, 1957 as follows: "I therefore, direct in modification of the previous orders on the subject that, in so far as the Appellate Side is concerned, applications relating to contempt moved before this Court, invoking its "special jurisdiction" shall in future be dealt with by the Criminal Section or the flule and Miscellaneous section according to the alleged contempt for which process is prayed is a criminal or a civil contempt,". 67. The jurisdiction for dealing with contempt is clear and settled now. No doubt, the High Court has 'inherent' jurisdiction for contempts of itself. In a sense "this is a special jurisdiction, but appropriately this is called the inherent jurisdiction special to the High Court. But this preset matter relates to contempt of a subordinate court and subordinate Judge in the district and the jurisdiction in respect thereof is now contained in . 'Section 3 of the Contempt of Courts Act 1952. This jurisidiction can therefore be said to be -Statutory. Rule 2 chapter 4 of Part II of the Appellate Side Rules as well as the Original Side Rule in chapter 38 deal with applications for contempt and provide that such applications should be marked or headed "special jurisdiction" with the subject-matter described as "contempt of court". But when the court acts suo motu and not on 'application' these rules do not strictly apply. The criminal Bench of this Court exercising Criminal Revisional Jurisdiction is an appropriate Bench so far as contempts of subordinate courts are concerned because it can be said to be the Bench exercising criminal revisional jurisdiction over the entire State and its subordinate courts. The contempt in this case is aiso not a civil contempt but a criminal contempt according to the decisions which "we have already discussed above. Therefore, trie heading 'Criminal Revi-sibnal Jurisdiction' cannot be said to be inappropriate. Besides, such cases as a matter of practice are also i marked as Miscellaneous cases. 68. The second technical point urged is that His State has no right to be represented and the affidavits filed on behalf of the State ought not to be treated or read as evidence in the case or otherwise used in these proceedings. The third point may aiso. be tanen togetner with this. It is that because the matter appears as "the State v. The District Magistrate of Madia and another", the State is unable to defend the contemnor in these proceedings through its iaw officers and thereto the Advocate-General is also unable to appear for him and it was submitted that as a matter of importance tt tjje contemnor as an officer of the State he should be officially defended. This third point was actually not pressed by Mr. Deb appearing for the District Magistrate and, in fact, dropped, 69. Taking these two technical points togethar, here again' the administrative orders and the practice ot this Court have been long settled. The latest is the offise order dated 1st February, 1964 authenticated by the Registrar of the Appellate Side of this Court which reads as follows: "The Hon'ble the Chief Justice has been pleasad to direct that, until farther orders, on tHe grant of a tale of this Court ini other criminal revision case, a copy of the rule and the connected petition, shall be served nn the Superintendent and Remembrancer of Legal Affairs, West Bengal." 70. The reasons for making the above order will appear from the Registrar's note before the Chief Jus tice, dated the 31st January, 1962, stating as follows- "The Superintendent anu Remembrancer of legal Affairs approached the Court in August, 1961 with vhe request that the Rule and the connected petition in other criminal case should be served 'on him' to enable him to arrange1 for representation of the State in important cases. Copies of Rule and connected petition may, if your Lord ship approves, be henceforth served on the superintendent and Remembrancer of Legal Affairs." On broad principles this Court considers that, the State is as much interested in1 upholding and maintaining the dignity of the Court, the majesty of law and the Judiciary and in preventing contempts of court and as siren it is only appropriate that the State should have notice of contempt proceedings. See also Rule 2, Chapter II, Appellate Side Rules. The Affidavit filed on behalf of the State, against which complaint is made is an affidavit by the Assistant Legal Remembrancer who was directed only to disclose the correspondence in his office and record in this matter relating to this contempt. The affidavit only produces the papers and correspondence receievd by the office of the Legal Remembrancer, Government of West Bengal from the Secretary, judicial Department. In the facts of this case that was a necessary course and the objection is unfounded and without substance. The state as siren has made no affidavit for or against the flule. Whether this particular contemnor because be is a District Magistrate and officer in the State is entitled to be defended by the Government is a matter for the Government, if may be remembered that Harris, C. J. hold- ing a District Magistrate guilty of contempt observed In the case presently to be- referred: "fortunately no costs have been incurred, otherwise we should have had no hesitation whatsoever in direct-ing this Magistrate personally to pay the costs of the proceedings." 71. So far as the title of a contempt proceeding is I concerned this court considers that the most appropriate title would be "In Re Contempt In Re: the name of the contemnor" instead of the State v. So and so unless in any particular application the State or any other applicant itself moves for a rule in contempt, in which cass the title "State or the applicant (name) v. So and so'1 may be adopted with propriety. 72. The last technical point is that the Rule is said not to specify the exact contempt and the charge. This point also has no substance. The publication in the paper 'Bidyut' set out clearly the acts of contempt namely, (1) driving the Jirdge out of the Circuit House, (2) in making it impossible for the Judge to hold his court and compelling him to leave his station of justice and, (8) bringing down the Judge in the estimation of the local public. On the authorities discussed that is sufficient, See also on this point the observations of the Supreme Court in AIR 1954 SC 186, already mentioned. 73. Before conclusion we would revert to the fact of the two Principals of the educational institutions subs cribing thsir signatures as witnesses to the inventory which took long three hours' time in the Circuit Houss and how they were present for such a long time. The following letters have been sent to the Record of this court through the Additional District Magistrate of Nadta. They are:' "[1) No. 100 CG: To The Superintendent and Remembrancer of Legal Affairs, Government of West Sengal, Calcutta 1. Dated Krishnagar, the 5th March, 1964. Sir, The inventory of articles found in the Circuit House on 22-1-1964 and the order of the Magistrate will be found in the case record. The time taken for making the inventory of the articles will be found on the last psge of the inventory. The circumustances under which the two Principals attested the inventory of articles may be seen from their letters which are enclosed in original. Yours faithfully, A. Sen, 5-3-64 Addl. District Magistrate, Madia. (2) No. 733 D/- 5-3-1964 Krishnagar College Krishnagar, Nadia West Bengal. To Sri A. Sen. I.A.S,,' Addl. District Magistrate, Nadia, Krishnagar. Ref: Your letter No. 99-CG|2J D/- 4th March, 19 W, Sir, I went to the Circuit House, Krishnagar on 22-1-1964, after my office work, to meet Sn Rahaman, Hon'b!e Minister, West Bengal in connection with a meeting of the Nadia District Peace Steering Committee to be held, on the following day. A copy of the notice of the meeting is enclosed. As I was about to leave the Circuit House after having a discussion with the Bon'ble Minister, I was requested by some members of the staff, of the Nadia Collects rate to attest a list" of articles expected to bo inside one of the rooms of the Circuit House, which was locked and was to be broken open. 1 was at first hesitant as 1 did not want mysif to be dragged into this matter. It was then ascertained from Sri Bakshi, Sub-Deputy. Magistrate, Krishnagar, that the responsibility in this matter was not mine and 1 was to act merely as a formal witness. Thereupon I attested the inventory of articles, Yours faithfully, A. K. Mazumdar Principal, Krishnagar College, To Sri A. K. Majumdar, Principal, Krishnagar Government College. The Hon'ble Shri S. M. Fazlur Rahaman, Minister-in- Charge, Departments of Animal Husbandry, Veterinaiy Ser vices, Fisheries and LS.G. has expressed his desire to meet the members of the District Peace Steering Corfl- mrtt-'e on 23-1-1964 at 9-00 A. M. in the Nadia district Board Hall You are requested to attend. Convener, S. M. Badaruddin, 21-1-1984 (S. M. Badaruddin) Attested A. K. Mazumdar, Principal, Krishnagar College. (3) No. D.O.'9 (Con)/ll: R. K. Banerjee, Principal, B. P. C. Institute of Technology. Dated 4th March, 1964. Confidential. Dear Sri Sen, You wanted to know as to why and how I had been at the local circuit hoirse on 22-1-64 in the afternoon. write to inform you that on my way to the club. I met Principal A. K. Majumdar on that day. Phncbal Majumdar was going to meet Hon'ble Minister Sn F. Rahaman at the circuit house in connection with the meeting of the Peacp Steering Committee with the Minister scheduled to be held on the next day. He reduested me to accompany him to the circuit house and I conced-ed to his request and that is how and why I went to the circuit house. Yours sincerely, Sd/- R.K. Banerjee, 4/3 To Sri A. Sen, M.A., I.A.S., Addl. Dist. Magistrate, Nadi'." .................... 74. The explanation does not seem to this Court Impressive. The Peace Steering Committee was to meet on the 23rd January and much remains unexplained why Principal A. K. Majumdar of Krishnagar College should not only be going to the Circuit House a day earlier but alSB Why he does not say how he picked up another chance witness on the way, witness Banerjee, Principal, B. P. C. Institute of Technology, who says in his turn that on his way to the club, Principal Majurndar met him and requested him to accompany him to the Circuit House. We do rot propose to take any further notice of this Fact except by making the observation that this Court will hope that in future, educational institutions and' their responsible heads will not permit themselves to be Involved in this kind of a situation. 75. Last comes the question of punishment for this contempt. Section 4 of the Contempt of Courts Act 1952 provides as follows: "Save as otherwise expressly provided by any jaw for the time being in force, a contempt of Court may be punished with simple imprisonment for a term which nay extend to six months, or with fine, which may extend to two thousand rupees, or with both; Provided that the accused may be discharged or the -punishment awarded may be remitted on apology being made to the satisfaction of the Court: Provided further that 'notwithstanding anything elsewhere contained in any law for the time being m force, no High Court -shall impose a sentence in excess-of that specified in this section for any contempt either in res-pret of itself or of a Court subordinate to it." 76. The acts complained of are in the present case deliberately and highly contemptuous, contumacious, hum!-liatng and deliberately p'anned and executed. No Dls* trict Magistrate in the history of public administration in India had the temerity to humiliate and pursue a Judge to public disgrace to the extent and manner that this District Magistrate has dote. This District Magistrate was condemned both by the learned Standing Counsel for the State as well as by his own Counsel as "arogant and Impertinent". His own counsel described him as 'pig-headed". His defiance is Unprecedented. He defied the. Rides of the Circuit House. Ho defied the orders of his superior, the Member of the Board of Revenue. He defied the Chief Secrptary of this State. He defied the administrative directions conveyed through the Registrar of this Court. He was a law unto himself and took ail law in his own hands and broke it. That he broke decency, responsibility and the minimum standards of public behaviour of one Gazetted Officer towards his 'ellow brother officer makes this contempt all the more grave. This District Magistrate is immature and young hE has not been in service for even ten years having joined the IAS in 1955 and being in training at the I.A.S. Training School until April 1956. He was posted to the high and responsible office of a District Magistrate 'in May 1952 when he was barely six years in service. Posting of immature officers in charge of a District is- a very risky end dangerous course, A District Magistrate has to perform -highly responsive duties and in the present context cf a constitutional democracy in India he has to handle many complex and delicate problems. He must be a person whose public relations have to reach at ferer-minimum standards of human behaviour. If his brother officer receives siren treatment one shudders to think now the ordinary private citizen will be treated by him- fliis ^District Magistrate is far too inexperienced his office record shows that he was an Assistant Magistrate at Berhampore from May 1956 to the middle of 1957 and was a S.D.O. in Tamluk district of Micinapore from middle of 1957 to 1958. He worked for some time as an Assistant Settlement Officer of Darjeeling from May 1958 to March, 1959 and a Settlement Officer and Superintendent cf Surveys of North Bengal and adjoining areas fram April, 1S59 to July, 1960 and in some other districts as such settlement officer and Superintendent of Surveys from July, 1960 to October, 1981. His only experience as a Magistrate, was as Additional District Magistrate in Murshidabad for only one month from March, 1962 to April, 1962 before he was given the sole responsibility of being a District Magistrate of Nadia from May, 19S2. Such a course in the tradition of the administration was unthinkable and is undesirable in public interest, when many senior and experienced State executive service officers are available. No officer in that tradition, however brilliant got Sole charge of a District Magistrate unless he had done at least double the number of years of service that this District Magistrate has done and unless he had been an Additional District Magistrate at least in two districts for a reasonable length of time to acquire-' knowledge, experience and responsibility. This Court cannot help making the comment that such trial should be avoided in future in order to prevent this unseemly ugly-public exhibition of magisterial high handedness. 77. In his first affidavit this District Magistrate netther expressed "regret" nor "apology", in paragraph 31 of his affidavit all that he said on this point was "I have had no intention ever to act in any way which could be-even remotely regarded as contempt ot court. If I nave done any act which can in any way be regarded contempt1 of court, I have done so without the least intention of committing any contempt and without appreciating mat it was a contempt, for which I am sincerely sorry." lathe glaring context of ugly facts this Court cannot ^ake the above statement as an expression even of regret or apology. If a public officer of the status and responsibility of a District Magistrate by turning the Judge in ni& district out of the Circuit House publicly, when he had no other shelter or place to live in by publicly seizing' 'his goods, by making an inventory of them before public witnesses, by despatching them to the Police Malknana and by making it impossible for the Judge to be in the district to perform his Judicial functions, did not even , realise that he was committing contempt of the subordinate Court and says he had no intention of doing so, then this court is constrained to remark that such a jer-son should not be in such a responsible position whose sense of appreciation and understanding is so sadlp-limited. 78. At the very last moment, and on the very ast day of hearing of this Rule for contempt a certain sense of responsibility appears to have dawned upon this. Dis trict Magistrate. He made an affidavit on the 6th March, 1934 wherein he said in paragraph as follows: "I had no animus against Shri M. Roy and the entire matter was distressing to me. I haw the deepest respect for this Hon'ble Court and the courts subordinate to it and I realise that I should have avoided doing any act which could have been considered even as an occasion for the issue of a rule tor tlie contempt of court against me and for this 1 express my most sincere opo-logy. 1 have and had no intention ever to act in any manner which could be even remotely regarded -as savour ing of contempt of court. If I have done any act which could in any way be regarded as contempt of court, I have done so without the least intention of committing any contempt and without appreciating that it was a contempt for which I express my sincere apology." 79. The first proviso to Section 4 of the Contempt jf Courts Act, 1952 says that "The accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of this court. The apology in this case has been very slow,' hesitant and,tardy. On the present facts of gross contempt, un-, precedented as they are, this Court considers that the proper punishment for this District Magistrate would be a sentence of a fortnight's simple imprisonment. If peresons committing such gross contempts of court were to get the impression that they will get off by ultimately tendering an apology, however slow and tardy it mig'nt je, then that would be a most unfortunate state of affairs, The law of apology and its acceptance by court ;s not in doubt. The fact of apology must be dear. The apology must be real and sincere. 80. Acceptance of an apology by a court is'not a matter of course. The language of the proviso to Sec-I tion 4 of the Contempt of Courts Act, 1952 makes it clear that the apology has to be to the "satisfaction of [the Court". Because an apology is offered the Court is not bound to accept it. A Court certainly can refuse to accept art apology if it is not to its "satisfaction" or when it is not genuine. It should be tendered at the earliest opportunity. The apology must be unequivocal I and not hedging and hypothetical. Mahajan, C. J. in M. Y. Shareef v. Hon'bie Judges of the Nagpur High Court said on behalf' of the Supreme Court in , "An apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to be a univarsal uenacea, but it is intended to be evidence of real cor;-'iriteness." The test of apology is the "real contrite- ness". In the case of English Mail In Re. Claridge, 14 Bom tR 231, where a rule was issued against the editor, the editor offered apology qualified by the words "If the Court is of opinion that any part of the paragraph would prejudice Khan of Hoti". The Court through Davar, J. at p. 233 of the Report observed "This the respondents have no right to ash. The' Court's opinion would not, be expressed till after the respondents had done what they "may be advised to do or what they may think fit to do at the arguments of Ins Rule." it has been said that apology is not a magic formula of words which has to be uttered as an incantation at the last possible moment when all else had failwl and to be used to stave off the inevitable punishment. See the observations of Vivian Bose, J. in the case of Sub-Judge, First Class, Hosangabad v. Jawharlal Ramcha'id, AIR 1940 Nag 407, where the learned Judge observed as follows at p. 408: "It appears to be felt that a man should be free to continue unfounded attacks ..... .and then when he is unable to stave off the consequences of his infamous conduct any longer, all he need do is to wave this magic formula referred to as an apology in the lu'dge's face in order to emerge triumphantly from the fray, Nothing can be further from the truth." Again in the same case at pp. 408-9 the learned Judge analysed the nature and purpose of apology in these words with which we respectfully agree; "An apology is not a weapon of defence forged *o purge the guilty of their offences. It is not an additional Insult to be hurled at the heads of those who have bean wronged. It is intended to be evidence of real contrite-ness, the manly consciousness of a wrong done, of in injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power. 0% then is it of any avail in a court of justice. But before it can have that effect it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be *an apology; it ceases to be the full, frank, manly, "coafession of a wrong done which it is intended to be. It becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards and bullies wjio do nqt hesitate to threaten others and to impugn their nonesty and character without the slightest foundation and who cringe and wail when their own safety is at stake, are treated. However, I do not intend to make a point of this in this case because of the misconception which is prevalent in these parts about the meaning, nature and effect of an apology; nor of course am I Intending to lay down any universal rule or to ignore the proviso to' S. 3, Contempt of Courts Act of 1926. I refer to the matter in these strong terms only in order that there ishould be no misconception about apologies in the future and aboiA the practice In respect of the tendering of them, and in order that there should be no possible mistake about my meaning and attitude. Mere lip service to a formula without any contrition of heart will not do." 81. The Allahabad High Court points out in Lal Behari v. State that apology is not a convenient service to be used by a person driven and compelled by the logic of events to resort to a measure which seems to him to provide the only mode of escape From the impending doom or as a last desperate throw in a game of chance hazarded by him at a time when ail else has failed and everything seems to be lost. We have anxiously considered whether this belated, dubious and graceless apology in the present case can be said to be to the satisfaction of the Court within the strict meaning of the great principles laid down regarding the nature and character of apology, just discussed. Not without hesitation we have decided to accept this apology for the limitetd purpose of only remitting the punishment' that we have considered proper. 82. The records have been so eloquent in this case that there is even a letter on record showing the approach of this District Magistrate to the Divisional Com- missioner who went to the length of describing that the contempt was a "reprisal" to the District Magistrate's action. This notorious word appears in the letter of Mr. R. Banerji, I.A.S. the Commissioner of the Presidency Oivision to the Cfcief Secretary dated the 4th February, 1964 which is annexed to the affidavit of the Assistant Legal Remembrancer before us. To meet this "reprisal" this Commissioner of the Division commends this District Magistrate as "dutiful civil servant" deserving to oe defended at public cost of the Government. It is needless to say this Commissioner of the Division while as District Magistrate of West Dinajpore was once himself convicted of being guilty of contempt on the 13th February, 1951 by Harris, C. J. and Shambhunath Banerjee, J. with the following words: "The District Magistrate wasj guilty of a clear contempt and we find him guilty of the contempt charged. 8ut for the fact that an unconditional apology has oeen offered on behalf of the District Magistrate concerned, we should have "taken a very serious view of this case. We do not however in view of this apology propose to inflict any punishment. Fortunately no costs have been incurred, otherwise we should have had no' hesitation whatsoever in directing this Magistrate personally to pay the costs of this proceedings. Rule is made absolute accordingly." These observations were made in the Criminal Misc. Case No. 17 of 1951 (Cal). Even during the trial of this case the public spectacle before the court was the pre-' sence of Magistrates who came and attended in appreciable number giving the impression to the public, that it was trial between the Executive and the Judiciary and that it was not a case but a cause and a campaign, It will be a sad day for India and her constitution if this is a true state of affairs, where two'equally necessary and indispensable limbs1 of the State, the Executive and the Judiciary, instead of responsive reciprocity and understanding of the common cause of alike serving the State, were to engage in a trial of strength and power. Constitutional democracy means checks and balances and rot internecine competition of powers between the necessary organs of the State. The constitution of an Indian Judicial Service line the Indian Administrative Service :tiay help the much needed climate of parity of understanding beetween these two essential wings of public service in India. The Court has in view the decision of the Supreme Court in , where Mahajan, C. J. at p. 765 (of SCR) : {at p. 23 of AIR), observed: "Once the fact is recognised as was done fcy the High Court here, that the members-of the Bar had not fully realised the implications of their signing such applications and were formally under the belief that their conduct in doing so was in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under' the mistaken view of their rights and duties, and in such* cases even a qualified apology may well be considered by court." The present case however can be distinguished in- many ways from the above case which dealt with (1) members of the bar with forty years' experience, (2) a single instance of signing one solitary application, and (3) debatable question of conflict of professional ethics between duty to the court and duty to the client. 83. On the same facts and on the same reasons [his Court holds the Nazir also guilty of contempt and sentences him to a fortnight's simple imprisonment but we remit that sentence wG make no order for costs against the Nazir because he acted under the orders "of the District Magistrate. 84. This Court however will continue to do its duty and administer justice and if possible, to temper it witn mercy. Having regard to the utter immaturity displayed by this District Magistrate, having regard to his extreme youth, which we hope will be better employed in the public service elsewhere not as the ruler of a district, and having regard to the apology which he has ultimately tendered on the last day of hearing of the Rule and at its conclusion, this Court makes the following order: "This Court makes' the Rule absolute and holds this District Magistrate guilty of gross contempt of the subordinate court, sentences him to a fortnight's simple imprisonment but out of mercy to him remits that punishment by accepting his belated apology under the first proviso of Section 4 of the Contempt of Courts Act, 1932. The Rule is therefore made absolute accordingly fcy holding (1) both the District Magistrate and his Nazir guilty of the contempt charged, (2) by sentencing each to a fortnight's simple imprisonment, (3) by remitting the sentence in each case by accepting their respective apologies and (4) by directing the District Magistrate in these proceedings to bear and pay his own costs and the Nazir's costs personally.' R.N. Dutt, J. 85. I agree.

[ 1569253, 445276, 192717, 445276, 515323, 1916227, 890137, 1396751, 1121027, 701797, 1569253, 1121027, 207538, 27473, 1737746, 1569253, 1569253, 1569253, 207538, 1121027, 1121027, 216552, 1222272, 1222272, 701797, 1396751, 1319749, 1121027, 1396751, 1413122, 1222272 ]

Author: P Mukharji

216,552

The State vs Debabrata Bandopadhyay, Dist. ... on 24 April, 1964

Calcutta High Court

31

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null

216,553

[Section 39] [Complete Act]

Central Government Act

0

(i) No person shall be eligible for election or as a President or election or nomination as a Councilor if he has directly or indirectly any share or interest in any contract with, by or on behalf of the Council, while owing such share or interest; or (j) has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election or (nomination) is held or made within thirty days of receipt of a notice of demand made in this behalf by the Chief Municipal Officer. ORDER S.K. Pande, J. 1. This revision under Section 26 of the M.P. Municipalities Act, 1961 (hereinafter referred to as the "Act" for convenience), is directed against the order dated 14-10-2000, passed by ADJ, Beohari in Election Case No. 1/2000, whereby the election of the petitioner Indrajeet Singh to the post of Councilor, Nagar Panchayat Jai Singh Nagar was set aside. 2. The petitioner Indrajeet Singh and respondent Jagdish Prasad were the contestants of the election of Nagar Panchayat, Jai Singh Nagar, held in December, 1999. Petitioner Indrajeet Singh submitted nomination form from Ward No. 9. At the time of scrutiny, the respondent Jagdish Prasad raised an objection to the validity of the nomination of petitioner Indrajeet Singh. It was submitted that petitioner Indrajeet Singh has entered into a contract of supply of building materials to Nagar Panchayat, Jai Singh Nagar and is in arrears of dues. Ignoring the objection aforesaid, petitioner's nomination was accepted. Petitioner-Indrajeet Singh was declared elected by a margin of 8 votes. Respondent Jagdish Prasad submitted Election Petition under Section 20 of the Act stating inter alia that the petitioner was a contractor with the Nagar Panchayat, Jai Singh Nagar and as per audit report, a huge sum is recoverable from him. As such, nomination should not have been accepted. On the basis of improper existence of nomination of the petitioner his election must be declared void under Section 22 of the Act. The petitioner resisted the election petition and stated that on the date of submission of nomination form, he was not having contract with the Nagar Panchayat, Jai Singh Nagar. No dues certificate has been issued to him on 3-12-99 certifying that he is not in arrears of any dues of Nagar Panchayat. No objection as to nomination was ever raised by respondent-Jagdish Prasad. Issuance of the demand notice by Nagar Panchayat after the election, is a malafide act and the election of the petitioner was not void, as stated. 3. The Court below has recorded a finding that there was contract between the petitioner and Nagar Panchayat, Jai Singh Nagar. As per the terms of contract as on the date of nomination, the contract was not concluded and the amount payable under it was even paid to him by delivery of cheques on 7-1-2000, 9-2- 2000, respectively. Therefore, treating the nomination of the petitioner being improperly accepted, set aside the election vide impugned order dated 14-10-2000. 4. Indrajeet Singh (D.W. 1) has stated that he had contract with the Nagar Panchayat which was of the years 1994-95, 95-96. As on the date of nomination, there was no contract between him and the Nagar Panchayat. Ex. D-1, no dues certificate was issued on him on 3-12-99. Dinesh Prasad (P.W. 2), an employee of Nagar Panchayat has stated that the contract was of the years 1994-95, 95-96. The work was carried out by the petitioner even in the year 1998-99. He was issued with the notice of demand (Ex. D-1) to make payment of Rs. 39,600/- as per the audit report. Indrajeet Singh (D.W. 1) has stated that the work order was issued to him on 1-1-98 and two months time was given to complete the work. The work was accordingly completed. In his cross-examination, Indrajeet Singh (D.W. 1) has stated that under the work order dated 1-1-98, payments were made to him on 9-2-2000 also. These payments were referred Ex. D-7 also a certificate dated 31-3-2000, issued by Nagar Panchayat, Jai Singh Nagar. Towards the work done under the contract, cheques dated 7-1-2000 and 9-2-2000 were issued to the petitioner Indrajeet Singh (D.W. 1). Dinesh Prasad (P.W. 2) has made it specific that towards the aforesaid contract, as per audit petitioner was required to pay Rs. 39,600/- to the Nagar Panchayat. Notices (Exs. P-2 and P-3) were served upon the petitioner on 4-4-2002. Accordingly, it has been amply clear that certificate dated 3-12-199 (Ex. P-1) as to no dues was issued without actually examining the report and the dues standing against the petitioner. In the final settlement the payments were made to the petitioner even on 7-1-2000 and 9-2- 2000 (Ex. D-7) as per audit the petitioner is required to make a payment of Rs. 39,600/-to the Nagar Panchayat, Jai Singh Nagar towards the contract entered into between him and Nagar Panchayat. 5. The dispute relating to dues had been adjudicated and quantified sum remained unpaid in spite of notice duly served upon the petitioner. It has been stated by the petitioner that once Ex. D-1, no dues certificate was issued and work was completed as per the work order dated 1-1-98, the contract extinguished. The final payment vide Ex. D-7 and audit objection cum demand (Ex. P-1) must not be treated in continuity. The judgment reported in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and Ors., AIR 1954 SC 236, is as under :-- (e) Representation of the People Act (1951), Section 7(d)--Contract for supply of goods--Continuation of. A contract for the supply of goods does not terminate when the goods are supplied; it continues in being till it is fully discharged by performance on both sides. It cannot be said that the moment a contract is fully executed on one side and 11 that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes it place. There is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on 'quantum meruit but if the other side contest and relied on the terms of the contract, the decision would have to rest on that basis (1905) 2 It R. 590, AIR 1931. 5. Section 7(b) of the Representation of People Act, 1951 defines the term of disqualification : (b) "disqualified" means disqualified for being chosen as and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. 7. Disqualification of the candidates under Section 35 of the M.P. Municipalities Act, 1961, is to be viewed with reference to the above definition of disqualified. Section 35 (1) (j) of the Act are as under:-- 8. Accordingly, it has been established that the petitioner Indrajeet Singh was a contractor of Nagar Panchayat, Jai Singh Nagar and the contract on the date of nomination dated 7-12-99 was in existence. Petitioner was required to make payment to the Panchayat and no dues certificate (Ex. D-1) was issued to him without taking into account the dues standing against him. Under Section 26 of the Act, revision against the impugned order is limited to the extent to see the legality of the decision being not contrary to law. The jurisdiction to entertain the petition under Section 20 of the Act was vested with the Court below and on facts and circumstances the finding recorded, vide impugned order is not contrary to law. Impugned order is affirmed. Revision fails and is dismissed. Parties to bear their costs.

[ 732821, 320017, 757933, 53008955, 146422906, 1016799, 1904694 ]

Author: S Pande

216,554

Indrajeet Singh vs Jagdish Prasad And Ors. on 7 May, 2003

Madhya Pradesh High Court

7

Court No. - 38 Case :- WRIT - A No. - 36703 of 2010 Petitioner :- Hakim Singh Respondent :- State Of U.P. And Another Petitioner Counsel :- Ashutosh Gupta Respondent Counsel :- C.S.C. Hon'ble Panka° Mithal,J. In the order dated 25.6.2010 words "respondent no.4" where ever occurring be deleted and substituted by the words "respondent no.2" and the time of two weeks for making representation shall be counted from today. Application No.177131 of 2010 is allowed. Order Date :- 2.7.2010 BK

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null

216,555

Hakim Singh vs State Of U.P. And Another on 2 July, 2010

Allahabad High Court

0

VV ' ii I __'£-'!,j+"a, Sanei:__4h,. Singari Bui lviing, Kaladka, Bantwal Taluk. IN THE HIGH cozmr ore KARNAT§K;A AT aANGf_AL'c1§;a:'_~ DATED THIS THE mm }:>Ay 05- DECEMBER" _écs@a~ BEFORE ._ _ " 'V THE HON'BLE MR. JUSTICE §HBHASH:3;=33fi A_¥_§§ELLANEOUS FIRST_§I'E_g§3AL ﬁo, "72§g f BETWEEN: National Insurance ' gna moor,Ganesh au1"id1_1ng;' " " B.C. Road. Banmal V 29.x. D1str1c_:'£,"'}:; 5'V .' A '''' ~ New 1 t4:'§:'.': ~ ' r Reg1o§sa.;.[VQff1;'£:z;e}1i:;:':,.._ V' " IIAIAP, (3--- £Z*'..'=j5'\v5"', "g.., I . ,. Bangalojre-956000;."-.."-- ' '..Appel.lant.' ' _ (By? A,N; Kri shnaswamy, A. Sr}. . ' }§['bfahes§2ara, Adv.-5.} E can: 1 . i%!_oid_ﬁku.§.5.'Ly, S/cs _L_é;te Aﬁdul Rahiman," r _ , I . 'Agjcé abeut 39 years. D.£<.. District. ..2p°.. / _/§,,,.:-,9 »'V~'C ééagﬁ d" '"/(g*'\' '~"xs_~:i.~:.r:+m fR'<f;1i.~:Ir:n* ...7[;;"/E ,7 1:13 '"02.u*r 0!" i<;"u'n:n.:k:- U22} 3,5,-aluri 5;}- r\,\ W"

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Author: Subhash B.Adi

216,556

National Insurance Co Ltd vs Moidukutty on 10 December, 2008

Karnataka High Court

0

W.P. No. 10252/2010 09.08.2010 Shri Sanjay K. Agrawal for the petitioner. Smt. A. Ruprah for the respondents. (i) Hon'ble Court be pleased to issue a writ in the nature of mandamus commanding (Krishn Kumar Lahoti) (J.K. Maheshwari) Judge Judge ap respondents to forthwith allot balance space to the petitioner for exhibition of hoardings, glow- sign and board as per terms and conditions of the agreement dt. 3/8/09. (ii) Hon'ble Court be further pleased to direct respondents to grant remission to the petitioner in proportion to the area not allotted to the petitioner for the aforesaid work. (iii) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition. At the out-set learned counsel for the petitioner submitted that the petitioner is making short grievance before this Court for issuance of direction to the respondents to decide representations Annexures- P-5 and P-6 which are pending before them since 11 th March, 2010 and 20th July, 2010. Learned counsel appearing for the respondents submitted that there is an arbitration clause in the agreement and the petitioner has issued notice for appointment of Arbitrator, which the respondents are considering. It is submitted that no directions are required in the case. As Shri Agrawal, learned counsel for the petitioner has made prayer for consideration of the representations Annexures-P-5 and P-6 by the respondents, we are not inclined to pass any order on merits of the case, but are directing respondent No. 2 to consider and decide representations of the petitioners Annexures-P-5 and P-6 expeditiously, as far as possible within 30 days from the date of communication of this order and communicate his decision to the petitioner forthwith. It is made clear that no opinion on merits of the case has been expressed by this Court and respondent No. 2 shall be free to decide and deal with the matter in accordance with law. With the aforesaid, the petition is disposed of. No order as to costs.

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null

216,557

M/S Deepa Advertising (A ... vs Secretary Union Of India on 9 August, 2010

Madhya Pradesh High Court

0

ORDER B.N. Kirpal and Syed Shah Mohammed Quadri, JJ. 1. There are two aspects which came up for consideration at this stage. One is dealing with the solid waste and the second is clearance of slums. The two are inter-related inasmuch as, as have been pointed by the Additional Solicitor General at an earlier point of time, and that is also borne out from the report of the C.P.C.B., the slums are generating lot of untreated solid waste and adding to the pollution. 2. As far as the treatment of solid waste is concerned, the affidavit on behalf of Bangalore City Corporation has been filed indicating therein the various recommendations contained in the Barman Committee Report and the response of the Commissioner, Bangalore City in respect thereof. With regard to the recommendation concerning the separation of the re-cycle able waste/non-biodegradable waste as well as domestic hazardous waste at source, the affidavit states that the Corporation has launched a scheme known as "Swachha Bangalore-Phasel". We are informed by the learned Counsel that about 60 health wards in the city have come under this scheme. The scheme envisages door to door collection of domestic waste by municipal workmen who are known here as Safai Karamcharis. We are further informed that in respect of another area, because there are no sufficient number of such workers available, the scheme of "Swachha Bangalore" is being worked by hiring private hands. Mr. Javali states that at the end of the day the cost of collection of one tonne of garbage through municipal employees comes to about Rs. 995/- per tonne per annum whereas through private hands comes to about Rs. 668/-. It, therefore, means that 50 per cent more expense is being incurred in collection of garbage through municipal employees. Mr. Javali submits that in view of this the Corporation is taking steps to see that there is no legal impediment in their way in entrusting the task of cleaning, scavenging and collection of waste through private contractOrs. A decision in this respect is for the Government to take and it is not for the Court to direct. 3. It appears to us that if a scheme like "Swachha Bangalore" can be successfully launched with satisfactory results in the metropolitan town of Bangalore, that can be and should be a role-model for other cities, especially Delhi. There is unfortunately no positive response or suggestion or innovative step taken in Delhi except to a large extent by the N.D.M.C. The response of the M.C.D. leaves much to be desired and the M.C.D. should consider and take benefit from the successful experiment of Bangalore and Calcutta. There is no reason why the large army of safai karamcharis of Delhi cannot be deputed to do door-to-door collection of garbage at least in the D.D.A. and other Government colonies to begin with. Mr. Maheshwari has submitted that this effort was tried in 1996 but it was unsuccessful. As to why it was not successful is not indicated and why it cannot be successful is not known. A similar effort of door-to-door collection should also start in the slum areas of Delhi as soon as possible in an effort to clean the same. An affidavit should be filed by the Delhi Municipal Corporation dealing with each one of the recommendations of the Barman Committee Report. 4. As we understand it, the door-to-door collection is not only mechanical but is also the responsibility of the Collectors to educate the people how to segregate the waste and to put it in different containers. 5. The N.D.M.C. in its affidavit has stated that efforts are being made to improve the sanitation and solid waste management in Delhi. The N.D.M.C. is stated to be over staffed spending 35 per cent of its revenue on pay, allowances etc. as against the world city standards of only 15 to 20 per cent. The high rate of absenteeism is stated to have been reduced amongst safai karamcharis from 30 percent to 15 per cent and it intends to reduce the same to a minimum of 10 per cent. The N.D.M.C. has stated that they should be permitted to challan the community like Residents' Welfare Association and Market Association as a group when it is not known as to from where waste has originated. How the waste is to be cleaned and who is to be identified and challaned, is for the N.D.M.C. to consider. It may do so in accordance with law. 6. As far as slum clearance is concerned, Mr. Raval, the learned Additional Solicitor General, has drawn our attention to Sections 3, 4 and 10 of the Slum Areas (Improvement and Clearance) Act, 1956 which shows that it is one of the functions of the Authority under the Act to take measures for slum improvement. He has stated that he will file an affidavit explaining as to how 700 J.J. clusters are on D.D.A. land. Prima facie it appears that vacant land lying in Delhi is an open invitation to encroachers notwithstanding the land having been acquired by Government Authorities, Delhi Administration and D.D.A. a number of years ago. The land has not been put to use as per the development plans of the D.D.A. Affidavit be filed by the D.D.A. giving explanation in respect thereto and where the land is available with the D.D.A. and the other authorities which is lying vacant it should be put to use in accordance with the provisions of the Master plan and the Development Plan within six months from today. If it is not possible to do so, the D.D.A. will give reason in respect thereto also indicating as to when the land, which is not being utilised so far, had been acquired. The M.C.D. which has filed Annexure-I to its affidavit at page 227, should indicate as to which are the agencies under the head "others" where 153 JJ clusters are stated to be stationed. Affidavits be filed within four weeks. I.A. No.../2000 (Filed in Court on behalf of Government of N.C.T. of Delhi) 7. Taken on Board. This is an application for clarification with regard to order reported as where in paragraph 9 at page 351, we have directed Government of National Capital Territory of Delhi to appoint Executive Magistrates under Section 20 and/or 21 of the CrPC. The learned Counsel states that it would be more effective if appointment of Municipal Magistrates under Section 18 is made. We clarify that our order does not preclude the appointment of Municipal Magistrates under Section 18 of the CrPC, if the Government feels that they will suffice the appointment of such Magistrates under Sections 20 and 21 of the CrPC need not then be made. The application stands disposed of. 8. Mr. Gopal Jain states that the petitioner will file a detailed Action Plan dealing with the future prevention of establishment of slums and unauthorised colonies. 9. Intervention application is dismissed. 10. To come up, with regard to the solid waste disposal in respect of Calcutta, Chennai and Mumbai, after two weeks.

[ 1376290, 1517584, 392619, 1020653, 445276, 1556590, 1337575, 1670661, 96507 ]

null

216,558

Almitra H. Patel And Anr. vs Union Of India (Uoi) And Ors. on 24 August, 2000

Supreme Court of India

9

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Author: Dr.K.Bhakthavatsala

216,559

Smt Ayesha W/O Mahaboob Jan vs State Of Karnataka Rep By Police ... on 16 April, 2009

Karnataka High Court

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30107 of 2006(S) 1. SMT.K.M. THANKAMANY, ... Petitioner Vs 1. THE CHEIF POST MASTER GENERAL, ... Respondent 2. THE DIRECTOR OF POSTAL SERVICES, 3. THE SENIOR SUPERINTENDENT OF 4. THE ASSISTSANT SUPERINTENDENT OF 5. THE UNION OF INDIA, For Petitioner :SRI.K.P.DANDAPANI (SR.) For Respondent :SRI.JOHN VARGHESE, ASSISTANT SG The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :17/02/2009 O R D E R K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- W.P.(C) No.30107 OF 2006 ---------------------------------------- Dated this the 17th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The applicant in O.A.No.53/2000 before the Central Administrative Tribunal, Ernakulam, is the writ petitioner. She was a Postal Assistant working as the Sub Post Master of Thaikkattukara Sub Post Office during 1998. She was charge sheeted by the disciplinary authority for having fraudulently withdrawn amounts from the Recurring Deposit Accounts of three persons. 2. The allegations in brief were the following: i) She, on 28.8.1998, fraudulently withdrew Rs.13,000/- from R.D.account No. 86097 of Sri.N.J.George. ii) She, on 11.12.1997, fraudulently withdrew Rs.10,000/- from the R.D. account No.86354 of Smt.A. Jansi Ratnakumari. iii) She, on 20.5.1998, fraudulently withdraw Rs.6,000/- from the R.D. account No.86554 of Smt.Girija K.A. W.P.(C) No.30107/2006 2 Thus, she has failed to maintain absolute integrity and devotion to duty in contravention of Rule 3(1)(i) and 3(1)(ii) of Central Civil Servants (Conduct) Rule 1964. She denied the charges against her. So, an enquiry was held into the allegations. The Enquiry Officer found her guilty of all the 3 charges. The Disciplinary Authority accepted the findings of the Enquiry Officer, after examining the objections filed by the delinquent against the enquiry report. Disciplinary authority awarded the punishment of dismissal from service, which was affirmed by the appellate as well as the Revisional Authorities. Challenging those orders, Ext.P1 Original Application was filed. Those orders were produced as Annexure A9, A7 and A5 in the Original Application. She also challenged Annexure A3 Enquriy Report dated 28.1.2001. 3. The respondents in the Original Application, who are the respondents in this writ petition, resisted the application by filing Ext.P2 reply statement. They submitted that the punishment has been imposed on the applicant after following the due procedure and in accordance with law. The Tribunal, after hearing both sides, dismissed the Original Application. W.P.(C) No.30107/2006 3 Before the Tribunal, the applicant tried to highlight the non- supply of a few documents and contended that the disciplinary action was taken against her in violation of the principles of natural justice. She filed a petition dated 1.7.2000 for production of documents. The available documents were produced. Main grievance highlighted by the applicant was the non production of SB-3 Cards and Error Book, concerning the Recurring Deposits. SB-3 Cards contained the signatures of the depositors. Since they were not available, specimen signature book of the Post Office was made available. Later, another request was made on 23.8.2000 seeking production of five documents. Among them the non production of second document, which is the inspection report of Thaikattukara Post Office in the year 1998 and 1999, is highlighted. According to the applicant, the said report would show that there were no adverse comments in it concerning the relevant years. The documents, requested as per the petition dt.23.8.2000, were not produced for the reason that the said request was highly belated. The said stand was upheld by the Central Administrative Tribunal also. The C.A.T. noted that the request for production of documents made on 1.7.2000 was substantially complied with and the W.P.(C) No.30107/2006 4 request for production of documents made on 23.8.2000 was rightly rejected. Based on the above findings, the Original Application was dismissed. 4. The learned counsel for the writ petitioner canvassed before us the very same point concerning non production of the records requested by her. We agree with the findings of the Tribunal that whatever documents could be produced based on the petition dated 1.7.2000 were in fact produced. The petitioner has not pleaded what prejudice has been caused to her by the production of specimen signature book instead the SB-3 card. Regarding the documents sought, as per request dated 23.8.2000, the learned counsel for the petitioner submitted that non furnishing of the preliminary enquiry or investigation report has prejudiced him. But, we notice that preliminary enquiry or investigation is held to decide whether the incumbent should be charge sheeted or not. Thereafter, the action is proceeded based on the charge sheet. Whatever information is collected in the preliminary enquiry or investigation will be contained in the charge sheet and in this case, we notice that the petitioner has been served with three charges, which were clear and specific W.P.(C) No.30107/2006 5 and the reports of the preliminary enquiry or investigation were unnecessary to defend the charges. At any rate, no prejudice has been pleaded or proved. The non-furnishing of the inspection report of the Post Office for the year 1998-1999 also is of no consequence. Having regard to the nature of the charges, even assuming, there is no adverse comments in the inspection report, the same will not in any way help the petitioner. 5. So, we are of the view that the contention of the petitioner that the enquiry was held in violation of principles of natural justice, for not furnishing to her the copies of some documents as requested, is devoid of any merit. We find no reason to interfere with the view taken by the Tribunal. As rightly held by the Tribunal, no flaw in the decision making process, which prejudiced the petitioner has been brought out. We agree with the reasons and conclusions of the Tribunal on the above aspect. In the result the writ petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) ps

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216,560

Smt.K.M. Thankamany vs The Cheif Post Master General on 17 February, 2009

Kerala High Court

0

SBCWP NO.5746/2010 - ARJUN SINGH V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.5.7.2010 1/3 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.5746/2010 Arjun Singh Versus State of Rajasthan and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.H.S.Sidhu, for the petitioner DATE OF JUDGMENT : 5th July, 2010. JUDGMENT 1. Heard the learned counsel. 2. By Annex.2, candidature of the petitioner in the selection process of Prabodhak was rejected on the ground vide item No.8 in the impugned order that he does not hold the prescribed qualification of BSTC. 3. The learned counsel for the petitioner submits that he entered into the said course of BSTC in the year 2006 and passed out SBCWP NO.5746/2010 - ARJUN SINGH V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.5.7.2010 2/3 the same on 5.7.2009. The interview for selection on the post of Prabodhak were first held, according to the petitioner in para 5, on 19.2.2010 and again on 29.6.2010. The petitioner further stated in para 5 that " the petitioner acquired the qualification of BSTC at the time of interview and therefore, he was eligible to be considered for the post of Prabodhak. The learned counsel for the petitioner relying upon the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma V/s Chander Shekhar and anr. reported in 1993 Supp. (2) SCC 611 submitted that the qualification on the date of interview should be taken into account by the respondent - authorities as it was considered in better public interest to widen the choice of selection in the said manner. 4. From the perusal of para 5 and the impugned order Annex.2 dtd.31.5.2010, it does not appear to this Court that the petitioner ever informed formally or with some documents the respondents - authorities about the factum of his having passed the said eligibility qualification of BSTC in the year 2009. Mere acquiring of said qualification even if it was to be true unless brought to the notice of the respondents, the respondents authorities cannot be faulted in passing the impugned order Annex.2 on 31.5.2010 rejecting the candidature of the petitioner on the ground that the petitioner was not eligible as per the information given in the application filed in the year 2008. Para 5 does not specifically state that the petitioner SBCWP NO.5746/2010 - ARJUN SINGH V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.5.7.2010 3/3 brought it to the notice of the respondents that he has acquired the qualification of BSTC before the earlier round of interview held on 19.2.2010. 5. Consequently, this Court is of the view that this writ petition as has been framed cannot succeed. Accordingly the present writ petition is dismissed. No order as to costs. A copy of this order be sent to the respondents immediately. (Dr.VINEET KOTHARI)J. Item No.8 Ss/-

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216,561

Arjun Singh vs State Of Raj. & Ors on 5 July, 2010

Rajasthan High Court - Jodhpur

0

Gujarat High Court Case Information System Print CA/838420/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 8384 of 2008 In SECOND APPEAL No. 68 of 2008 ========================================================= HAFSABIBI WD/O RASULBHAI MOHEMMEDBHAI - Petitioner(s) Versus SAKINA WD/O ADBULREHMAN KARIMBHAI SHETH & 8 - Respondent(s) ========================================================= Appearance : MR MA KHARADI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 None for Respondent(s) : 1,1.2.6 - 5, 5.2.1, 5.2.2, 5.2.3,5.2.4 - 6, 6.2.1, 6.2.2, 6.2.3, 6.2.4,6.2.5 - 9. MR DR BHATT for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.7, 1.2.8, 1.2.9,1.2.10 ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/07/2008 ORAL ORDER Heard. This application is misconceived inasmuch as the respondent no.4 has expired before the first appellate court delivered its judgement. Civil Application stands disposed of accordingly. Second appeal to come up on 30.07.2008. (K.S. JHAVERI, J.) Divya// Top

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Author: Ks Jhaveri,&Nbsp;

216,562

Hafsabibi vs Sakina on 23 July, 2008

Gujarat High Court

0

Security Code Check for Accessing Judgment/Order Document eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document Security Code: GO Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer System designed and developed at Computer Centre, High Court, Allahabad.

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216,563

Israil Banjara And Others vs State Of U.P. on 6 September, 2010

Allahabad High Court

0

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10617 of 2011 Randir Kumar Raushan Versus The Union Of India & Ors ----------- 02 06.07.2011 Nobody appears on behalf of the petitioner to press the application. Learned counsel for the respondent Union of India is present. Instead of dismissing this application in default, this Court grants one more opportunity. Post this matter in the same list after one week. ( Kishore K. Mandal, J. ) Sym

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216,564

Randir Kumar Raushan vs The Union Of India & Ors on 6 July, 2011

Patna High Court - Orders

0

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216,565

[Section 5] [Complete Act]

Central Government Act

0

Court No. - 1 Case :- MISC. BENCH No. - 7084 of 2010 Petitioner :- Vedant College Of Education Ghaziabad Through Its Secy. Respondent :- State Of U.P.Through Its Prin. Secy. Higher Education Lko.An Petitioner Counsel :- Mukund M.Asthana Respondent Counsel :- C.S.C,S.P.Shukla,Vinay Bhushan,W.U.Ahmad Hon'ble Pradeep Kant,J. Hon'ble Ritu Raj Awasthi,J. List and connect with Writ Petition No. 8949 (MB) of 2008. In the meantime, the benefit of the order dated 30.09.2008 passed in Writ Petition No. 8949 (M/B) of 2008, shall be available to the present petitioners also, for the academic session 2010-2011. Office is directed to issue a copy of the aforesaid order passed in Writ Petition No. 8949 (M/B) of 2008 also while issuing a certified copy of this order. Order Date :- 28.7.2010 Sachin

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216,566

Vedant College Of Education ... vs State Of U.P.Through Its Prin. ... on 28 July, 2010

Allahabad High Court

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 16105 of 1998(P) 1. V.BALAKRISHNAN ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.C.P.SUDHAKARA PRASAD (SR.) For Respondent : No Appearance The Hon'ble MR. Justice P.N.RAVINDRAN Dated :21/05/2009 O R D E R P.N.RAVINDRAN, J. ----------------------------- O.P No. 16105 of 1998-P ------------------------------ Dated this the 21st day of May, 2009. J U D G M E N T This original petition was presented on 21.8.1998, claiming seniority over the third respondent and promotion to higher posts earlier than the third respondent. The original petition was admitted and notice ordered to the respondents on 24.8.1998. However the petitioner has not taken steps to serve notice on the respondents. Though the petitioner had taken steps to implead the third respondent in a representative capacity and had filed C.M.P.No.28656 of 1998 for taking out notice of the original petition by advertisement in a news paper daily, the petitioner did not take steps on that application also. Therefore, when this Original Petition came up for hearing on 19.9.2007, the learned Single Judge passed the following order: 2. However, till date, the petitioner has not taken any step to cure the defects. More than ten years have passed after the Original Petition was filed. In my opinion, as rightly noticed by the learned Single Judge, who passed the order dated 19.9.2007, it would not be just or equitable to call upon the third respondent to defend the writ petition at this distance of time. I am therefore constrained to dismiss this Original Petition for non prosecution. Ordered accordingly. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab O.P No. 16105 of 1998-P 3

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216,567

V.Balakrishnan vs State Of Kerala on 21 May, 2009

Kerala High Court

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 21125 of 2009(O) 1. KUNJUKRISHNA PILLAI, S/O. KUNJU PILLAI ... Petitioner 2. P.M.VIKRAMAN, S/O. MADHAVAN, Vs 1. MULAMOOTTIL LEASING AND HIGHER ... Respondent For Petitioner :SRI.A.SANIL KUMAR For Respondent :SRI.V.PHILIP MATHEW The Hon'ble MR. Justice S.S.SATHEESACHANDRAN Dated :25/08/2009 O R D E R S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21125 OF 2009 -------------------------- Dated this the 25th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To call for the records leading to Ext.P3 order in E.P No. 19/2007 in O.S No.373/1999 of the Munsiff Court, Punalur and set aside the same. ii) To direct the Munsiff Court, Punalur to reconsider E.P No.19/2007 in O.S No. 373/1999 and give an opportunity to the petitioners to adduce evidence in the matter within a stipulated time as directed by this Hon'ble Court. W.P.(C).No.21125 OF 2009 Page numbers iii) To direct the Additional Munsiff Court, Punalur to grant atleast 20 installments to pay the balance decree amount and till then Ext.P3 order issuing arrest warrant against the petitioners in E.P No. 19/2007 in O.S No.373/1999 may be kept in abeyance. iv) Issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. 2. Petitioners are the judgment debtors in E.P No.19 of 2007 in O.S No.373 of 1999 on the file of the Munsiff Court, Punalur. Decree in execution was one for money. In execution of the decree, pursuant to the steps taken by the decree holder, warrant was ordered against the judgment debtors / petitioners. Order passed by the execution court directing issue of warrant vide W.P.(C).No.21125 OF 2009 Page numbers Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice being issued, the respondent / decree holder has entered appearance. I heard the counsel on both sides. The learned counsel for the petitioners submitted that petitioners are prepared to discharge the decree debt by instalments as fixed by this court. It is further submitted, a sum of Rs.6,000/- on the decree debt has already been paid. Though the counsel for the decree holder has some reservation in allowing installments, having regard to the submissions made and taking note of the facts and circumstances presented, I find, judgment debtors can be allowed to discharge the decree debt in ten equal monthly instalments. Outstanding amount with interest and W.P.(C).No.21125 OF 2009 Page numbers cost, tentatively, calculated at Rs.35,000/-, and the petitioners are directed to deposit Rs.3500/- per month on or before 5th day of every month. In case 5th of the month happens to be a holiday, the instalment payment has to made in the next working day positively. In default of payment of one instalment, the decree holder shall be at liberty to proceed for recovery of the entire outstanding amount. Whatever be the outstanding amount due after payment by nine instalments the rest of the amount shall be paid in the last instalment by the judgment debtor. Payment of installment will commence from next month onwards. Subject to the above directions, Ext.P3 order is quashed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv

[ 1331149 ]

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216,568

Kunjukrishna Pillai vs Mulamoottil Leasing And Higher on 25 August, 2009

Kerala High Court

1

Gujarat High Court Case Information System Print CA/14452/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR DELAY No. 14452 of 2007 ========================================================= GUNVANTIBEN B SANGHVI & 2 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR RAJESH K SAVJANI for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 - 2, 2.2.1,2.2.2 - for Petitioner(s) : 3, MS TRUSHA PATEL ASST.GOVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/07/2010 ORAL ORDER Learned advocate appearing on behalf of the applicants seeks permission to withdraw the present application with a liberty to file two separate Civil Applications for condonation of delay of 1266 days and 2809 days, respectively. Permission as prayed for is granted. Present application is dismissed as withdrawn with above liberty. Rule is discharged. No costs. [M.R. SHAH, J.] rafik Top

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Author: M.R. Shah,&Nbsp;

216,569

Gunvantiben vs State on 9 July, 2010

Gujarat High Court

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JUDGMENT 1. This is a plaintiff's appeal, from the judgment and decree dated 5-1-1987 passed by the I Additional City Civil Judge, Bangalore in Original Suit No. 1501 of 1982, Mr. D. Victor v Mr. L. Sundaram, claiming for declaration of title and possession and mesne profits whereby the Trial Court has dismissed the plaintiff's claim in toto. 2. The plaintiff's case as per plaint allegations is that he is the absolute owner of house property No. 40 situated in Sy. No. 106 of Kodihalli, within the jurisdiction of H.A.L. Sanitary Board, Bangalore South Taluk. The plaintiff claims that he purchased the site in dispute namely No. 40 in Sy. No. 106, Kodihalli, now bearing No. 57, Postal No. 57, Murugeshpalyam, Bangalore-70 by a registered sale deed dated 13-11-1972. The plaintiff's case is that, plaintiff out of his self earned money constructed the house on the said site No. 40. After the construction of the house by the plaintiff, the plaintiff along with his father late. Sri David and Robinson his brother started residing in the house. The defendant, who was his uncle or to say younger brother of his father, had also been permitted to stay in the house along with them and this permission to reside was given to him to live in the house with the plaintiff and his father simply on account of the plaintiffs love and affection for the defendant who was none else than the plaintiff's junior father/paternal uncle i.e., as the defendant was 'chikkappa' of the plaintiff. The plaintiffs case is that, he had left the original sale deed or the title deed relating to house with his father and his father died on 19-6-1977. That after his father's death, in spite of best efforts, the appellant could not trace the original sale deed, thereafter he obtained certified copy of the sale deed. Plaintiffs case is that, notice of assessment was issued to the plaintiff with reference to his property. After the death of his father, defendant continued to be in permissive occupation of the premises along with the plaintiff's brother, as the plaintiff was undergoing great hardship in the rented premises therefore, he demanded the defendant to vacate the premises so that he could make use of suit-house and thereafter, plaintiff revoked the permission which had been granted to the defendant to occupy the suit property, by notice dated 24-6-1981. Plaintiffs further case is that the defendant gave a reply to notice and raised untenable pleas and contended that the defendant-respondent was residing and occupying the premises in his own right. The plaintiff as such, alleged that the cause of action accrued on 24-5-1981 for filing the suit for possession and declaration of title. The plaintiff has filed the suit for.- (a)the decree declaring the plaintiff to be the absolute owner of the property in dispute; (b)decree for recovery of possession of the schedule property from the defendant; (c)decree for past mesne profit together with interest thereon at the rate of 12% and for future mesne profits under Order 20, Rule 12. In addition to the above, the plaintiff has sought decree for costs. 3. The property in dispute has been described in schedule by the plaintiff as under.- "House property built on site No. 40 in Sy. No. 106 of Kodihalli, now bearing postal No. 57, Murugeshpalyam, in the jurisdiction of H.A.L. Sanitary Board, Bangalore South Taluk, Bangalore-560 017, bounded on the East by : Site No. 49 West by : Road North by : Road South by: Site No. 41. Measuring East to West 30 feet and North to South 40 feet". 4. The defendant contested the plaintiff's case and filed written statement. That the defendant denied the plaintiff's case and stated that, it is false to allege that the suit schedule property has been the self-earned property of the plaintiff or that suit schedule site has been purchased by the plaintiff out of his self earned money. The defendant denied that the house situated at the said site was constructed out of the self earned property of the plaintiff. The defendant asserted that he purchased the suit site and constructed the house thereon out of his own earnings with the help of one Cheluvaraj. The defendant-respondent further alleged that the suit site was purchased in the name of the plaintiff, but as a benamidar due to the sentiment of love to the plaintiff. That the plaintiff xvas treated by the defendant as his own son. Defendant's case is that the defendant's elder brother was residing with the plaintiff in his rented house. The defendant used to look after plaintiff as the son. Defendant's case is that, he after purchasing the site which is revenue site, had constructed the house in the year 1974-75 and thereafter, plaintiff's father along with the members of the family came to the suit schedule property to live there. The plaintiffs father was not keeping well and died in the year 1977 under the care of the defendant. The defendant pleaded that he got married the plaintiff in the year 1975. Defendant's case is that, the plaintiff has taken undue advantage of the benami sale deed in his name. He further alleged that, the sale deed had always been in possession of the defendant-respondent and the plaintiff knew it, but concocted the story of the documents having been misplaced. The defendant denied the plaintiffs case that, defendant was in occupation of the suit schedule property by virtue of permission from the plaintiff. The defendant further alleged that, it is false to state that the defendant's possession was permissive. The defendant asserted himself as the owner of the suit property and asserted his possession to be that of the owner and not in the nature of permissive possession. The defendant further asserted that the plaintiff has no title, right or interest in the suit property. He asserted that, there was no question of revoking of the permission on 24-6-1981 and the said notice was baseless. The defendant asserted that the theory of the permission was concocted one. Defendant asserted that the plaintiff has no right, title and interest over the suit property and his claim is to be nullified. He asserted that the plaintiff has nothing to do with the property and had no cause of action to file the suit. The defendant further asserted that the suit is barred by limitation. 5. On the basis of the pleadings of the parties, the Trial Court framed the issues which read as under.- 1.Whether the plaintiff proves his title to the suit property? 2.Whether the plaintiff proves, that the defendant is in permissive possession of the suit property with the permission of the plaintiff? 3.Whether the defendant proves that the suit property belongs to him and the suit site was purchased under the registered sale deed dated 13-11-1972 by him out of his own funds, benami in the name of the plaintiff as contended in para 4 of the Written Statement? 4.Whether the suit is barred by limitation? 5.Whether the plaintiff is entitled to recover a sum of Rs. 10,080/- by way of past mesne profits from the defendant?. 6.Whether the plaintiff is entitled to the relief of declaration of title and recovery of possession of the suit property from the defendant? 7.Whether the plaintiff is entitled to future mesne profits? 8.Whether the valuation of the suit and the Court fee paid thereon is not proper? 9.Whether the defendant is entitled to exemplary costs under Section 35A of the Civil Procedure Code? 10.What order? 6. On the basis of the evidence led by the parties and after having appreciated the evidence led by the parties, the Trial Court held.- (1)That the plaintiff has failed to prove his title to suit property. (2)The plaintiff has failed to prove that the defendant has been in permissive possession of the property in suit with the permission of the plaintiff. (3)That the defendant has established that the property in dispute belonged to the defendant and the suit property was purchased under the registered sale deed dated 13-11-1972 by the defendant out of his own funds, but a benami in the name of the plaintiff as alleged in para 4 of the written statement. (4)That the suit is not barred by limitation. (5)That the plaintiff is not entitled to recover any sum or the sum of Rs. 10,080/- by way of past mesne profits. (6)That the plaintiff is not entitled to relief of declaration of title and recovery of possession from the defendant nor he is entitled to future mesne profits. (7)That the suit has been properly valued and Court fee paid is sufficient. (8) That the defendant is not entitled to any exemplary costs. (9)As the plaintiffs suit cannot be stated to be false suit, the parties should be ordered to bear their own costs. 7. After having recorded these findings, the Trial Court has dismissed the plaintiff's suit. Feeling aggrieved from the judgment and decree of the Trial Court dismissing the plaintiffs suit, the plaintiff has come up in this first appeal under Section 96 of the Code of Civil Procedure. I have heard the learned Counsel for the plaintiff-appellant Sri A. Ram Mohan and Sri K.I. Bhatta, learned Counsel for the respondent, assisted by Sri P.G.C. Chengappa on behalf of the respondent. 8. Learned Counsel for the appellant contended that the learned Trial Court erred in dismissing the plaintiffs suit for declaration and possession inspite of the fact that the title deed relating to suit property has been in favour of the plaintiff-appellant. It shows that the said site in dispute has been purchased by the plaintiff-appellant and deed shows that the consideration was paid by the plaintiff. Learned Counsel contended in view of the title deed being in favour of the appellant, the Court should have presumed the plaintiff to be the owner of the site in question over which the house exists. Learned Counsel for the plaintiff contended that the plaintiff has constructed the house and there are entries of the tax paid by the plaintiff. Learned Counsel contended that the material on the record establishes the appellant to be owner of the property in dispute. The defendant has failed to establish that plaintiff was benamidar. Learned Counsel for the appellant contended that findings of the Trial Court that the defendant has established that deed was benami in name of the plaintiff but the real owner thereof was the defendant-respondent is wrong. It did not apply correct and proper tests to determine the question of benami nature of deed, and as such, the findings of the Court below that defendant is and has been the real owner of the property in possession and the plaintiff is benamidar are erroneous on facts and in law. The learned Counsel made reference to the law laid down by Hon'ble Supreme Court in the case of Smt. Surasaibalini Debi v Phanindra Mohan Majumdar and Others. 9. Sri Mohan on behalf of the appellant contended that the possession of the defendant had been permissive and the defendant-respondent has not been able to establish that he had purchased the property for his own benefit and as such, the finding of the Court below to the effect that plaintiff was only benamidar and not the real owner and that defendant-respondent was the real owner is erroneous in law and liable to be set aside. Learned Counsel for the appellant placed reliance on the case namely, Jayadayal Poddar (deceased) by L.Rs and Another v Mst. Bibi Hazra and Others . Learned Counsel for the appellant also made reference to the decision of the Supreme Court in Nand Kishore Mehra v Sushila Mehra . 10. These contentions of the learned Counsel for the appellant have been hotly contested by the learned Counsel for the defendant-respondent. Learned Counsel for the respondent contended that there is no doubt that initial burden is on the person who claims the transaction to be benami to prove it and the defendant has discharged that burden by placing the material evidence. Learned Counsel for the respondent contended that there are yardsticks to determine the nature of transaction whether it is benami in the name of the person in whose name it stands which have been well set out by their Lordships of the Supreme Court in many cases and including the decision in Jayadayal Poddar's case, supra. Learned Counsel contended that the evidence of the defendant is coupled with that of the seller D.W. 5 which clearly establishes that the sale consideration was paid by the defendant-respondent and not by the plaintiff. The evidence of the seller coupled with the evidence of the other defendants, the learned Counsel contended, clearly establishes that the sale consideration had been paid by the defendant. Learned Counsel contended that, it is not the plaintiff's case that plaintiff had given money to defendant to pay the sale consideration nor is it the plaintiff's case that defendant was acting on behalf of the plaintiff. As such, learned Counsel contended that, sale consideration has been paid by the defendant, as admitted by the seller and defendant paid it in his own right and for his own behalf. He paid it for the purpose of an object which was in his view to serve and not for any other purpose. He paid it with the object that he may succeed in his effort to discharge his duty to get married his nephew, the plaintiff and may get a suitable match, but not with an object to hand over the title and possession of the property to the plaintiff. Learned Counsel further submitted that evidence on record including the documentary evidence produced by the defendant coupled with oral evidence, as found by the Trial Court clearly establishes that, the constructions were got made by the defendant-respondent and not by the plaintiff. Learned Counsel submitted that the findings of Court below are well supported by any documents relating to construction. No person has been produced who could say that the materials have been purchased by plaintiff. Learned Counsel for the respondent further submitted that evidence on record has been sufficient to prove that the building on site in dispute has been constructed by the defendant-respendent having spent huge amount to the tune of Rs. 25,000/-. Learned Counsel contended that the deed of sale relating to the land in dispute has always been in possession of the defendant-respondent. The defendant-respondent had been in use and occupation of the house, in his own right. Learned Counsel for respondent contended that the evidence furnished really proves all the necessary ingredients and passes necessary tests to establish that, the property in dispute had belonged to the respondent as real owner and plaintiff's name in the transfer deed in question was merely as a benamidar and not as a real owner. Learned Counsel contended that the findings of the Court below is correct and does not call for any interference, as defendant has been the owner of the property. Learned Counsel for the respondent con- tended that the decree of the Court below does not suffer from any error of fact or law and the appeal deserves to be dismissed. 11. I have applied my mind to the contentions made by the learned Counsels. It may be mentioned at the initial stage that an objection was raised on the basis of Benami Transactions (Prohibition) Act. Learned Counsel for the appellant fairly submitted that, he does not wish to press that submission, in view of the latest decision laid down by the Supreme Court in R. Rajagopal Reddy (dead) by L.Rs and Others v Smt. Padmini Chandrashekhar (dead) by L.Rs, as the said decision has already a settled issue. Laying down the law to the effect that Section 4 of the Act of 1988 cannot be applied to suit, claim or action to enforce the right in property held benami against person in whose name such property is held by any other person, if such proceedings have been initiated by or on behalf of a person claiming to be the real owner thereof, prior to coming into force of Section 4(1) of the Act. The Supreme Court further observed that disallowing of such a claim defence which earlier was available when the suit plaint or written statement was filed itself suggests that a new liability or restriction is imposed by Section 4(2) of Act on pre-existing right and such a provision cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. In view of this, learned Counsel for the appellant fairly did not press this contention. As regards to the benami nature of transaction, law has been laid down by the Supreme Court. It will be appropriate at this juncture on my part to make reference to the decision of their Lordships of the Supreme Court in the case of Smt. Surasaibalini Debi, supra. Their Lordships in above case have observed as under.- "We start with the position that the Court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material factor for establishing the case of benami but the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant's title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a case of benami notwithstanding that the purchase money did not proceed from the defendant". Their Lordships observed that in Mayne's Hindu Law it is observed as under:-- "While the source from which the money came is undoubtedly a valuable test, it cannot be considered to be the sole or conclusive criterion. For, the question whether a particular transaction is benami or not, is one of the intention, and there may be other circumstances to negative prima facie inference from the fact that the purchase money was supplied by or belonged to another. The position of the parties, their relation to one another, the motives which could govern their actions and their subsequent conduct may well rebut the presumption". In the case of Jayadayal Poddar, supra, their Lordships in para 6 of the judgment have clearly laid down as under:-- "It is well-settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or the transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether the particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. 1, viz., the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another". 12. From the reading of the above decisions, it follows that a person expressly shown as the purchaser or transferee in the deed is a document prepared after considerable deliberations, starts with initial presumption in his favour that the apparent state of affairs is real state of affairs. The burden of proving that the sale is a benami transaction and apparent purchaser is not the real owner, always rests on the person who asserts it to be a benami transaction and thus, burden has to be discharged strictly by adducing legal evidence of definite character. For determining whether a particular sale is a benami transaction or not, there is no absolute formula or a test to be uniformly laid for all situations, but there are certain guiding factors as mentioned below which may help the Court to arrive at the decision on this part and decide further the real intention and to determine the nature of transaction.- (a)The source from which the purchase money came; (b)The nature and possession of the property, after its purchase namely in whose possession the property purchased has been and in what capacity; (c)The intention of the motive behind the transaction being given the benami character; (d)The position and relationship of the parties and in particular between the claimant and the benamidar; (e)The custody of the title deeds after the sale and the conduct of the parties, even subsequent to the transaction, in dealing with the property. 13. The source from where the money came is one of the important factors. Keeping these principles in view, I proceed to examine the respective contentions. No doubt, the person, in whose name the transfer deed is, prima facie starts with initial presumption that in his favour i.e. the state of affairs as is presented by the sale deed is the real state of affairs, but it is open to the claimant to prove that, it is not the real state of affairs and it is open to a person as the defendant-respondent to prove the state of affairs as represented by the deed is not the real state of affairs and the real owner of the property is not the one whose name is shown in the deed, but the claimant himself. The sale deed Ex. B-1 in the present case no doubt reveals that the vendor has received the consideration from the vendee mentioned in the sale deed i.e., from the plaintiff. A statement of fact made in a document may be shown to be incorrect and it is open to the claimant that, really consideration has not passed on from the person named as vendee named in the deed is plaintiff but it passed from the defendant-appellant. On behalf of the defendant to prove the passing of the consideration, the defendant himself has examined as D.W. 1 and also examined D.W. 2 and the vendor as D.W. 5. D.W. 1 as per examination-in-chief deposed as under.- "On 13-11-1972 I purchased the said site from one Krishnappa. I got the site in the name of the plaintiff. Ex. D-1 is the sale deed. I had brought him as my own son and secondly he was of the mar riageable age then and thinking that if there is some property, it will be better, I got the site in his name". "I constructed a building therein, I purchased the site with a view that I should construct a house and live therein". In para 6 of the deposition he states that "my friend Cheluvaraj told me that Krishnappa was selling the site and I should purchase. Cheluvaraj had paid an advance of Rs. 700/- before the sale deed and thereafter he had come to me. Cheluvaraj had given the advance of Rs. 700/- for my site and also for his site". He also states that Cheluvaraj and himself had joint a/c relation to the purchase of the construction of the building. 14. D.W. 2 Cheluvaraju states that "both of us purchased the site from Krishnappa. I had come to know that Krishnappa's sites are for sale. Before asking the defendant I had paid advance amount of Rs. 700/- for Site Nos. 40 and 41. Ex. D-2 is the said receipt". He further states that "then I proposed to the defendant, since he is my friend, whether he intended to purchase one of the sites. I offered him Site No. 40. Myself and the defendant purchased the site for Rs. 1,500/- each". The defendant purchased the site in the name of the plaintiff. He also stated that "myself and Sundaram had given instructions to Krishnappa to purchase stamps in the name of particular persons. The defendant paid the consideration for the said site. On the date of the execution of the document, it was registered. After the document was written, the defendant went and got the plaintiff for signing the document". D.W. 2 further states that, "it is not correct to say that in order to help the defendant I am deposing in the manner told by the defendant". D.W. 5 is the vendor. In para 5 he states that "he had formed about 60 to 70 sites of 40' x 30' and had given Sundaram one of them and Cheluvaraju gave the advance for Site Nos. 40 and 45 and admits that he has received Rs. 700/- as per Ex. D-2(a)". He states in para 3 that "though advance has been paid by Cheluvaraju, at the time of sale he purchased only one site from me and another site was purchased by his friend, Sundaram. I sold each site for Rs. 1,500/- ". In para 6 of the deposition D. W. 5 states that "no person by name Victor had come to me for taking the sale deed. No person by name victor came to me to negotiate for the purchase of the site. No person by name victor ever came to me to purchase the site or to flay the consideration or to purchase the stamp paper". In the cross- examination D.W. 5 states that "it is not correct to say that D. Victor paid me Rs. 1,500/- at the time registration. Sundaram was present at the time of registration". It may be mentioned that D.W. 5 vendor has very clearly stated in para 5 that "the rest of the consideration was paid to me by Sundaram". His evidence clearly reveals that the advance money was paid by Cheluvaraju for both the plots. Cheluvaraju has stated that, he has purchased one plot and one was purchased by Sundaram. The balance of sale consideration with regard to Plot No. 40 was paid by Sundaram. This witness has denied the suggestion made from the plaintiff that Victor had paid Rs. 1,500/- at the time of registration and has stated that, it is not correct to say that Victor paid Rs. 1,500/- at the time of registration. No reason has been assigned on behalf of the plaintiff nor it has been shown why the vendor should be telling lies as suggested by the learned Counsel for the appellant. The evidence of vendor D.W. 5 clearly reveals that really the sale consideration had passed on or was paid by the defendant-respondent Sundaram to the vendor i.e., Krishnappa. There appears no reason to discard this evidence. Whoever had purchased the site from him, the vendor naturally would have so stated and as he stated that sale consideration did pass on from Sundaram to the vendor and he has stated that, instruction was given by the defendant that the deed may be made in the name of the plaintiff. It is not the case of the plaintiff that he passed on the money to the defendant and instructed him to pay the same to the vendor on behalf of the plaintiff. No such case has been taken over nor any such suggestion has been made to any of the witnesses on behalf of the plaintiff in course of cross-examination. The plaintiff's case has been that, he himself had paid the sale consideration while the case of the defendant has been that, he the defendant himself had paid the sale consideration and including the advance money to the defendant. The vendor has stated that sale consideration was paid by the defendant and I think his evidence is reliable and more reliable than that of the parties. The parties may be making conflicting statements in case and telling lies. There is no reason to disbelieve vendor when he stated as to who paid the sale consideration. No doubt, the plaintiff has stated that he has purchased the property in dispute from his own funds. But, in view of the above circumstance, the plaintiff's evidence does not appear to be of much credence and does not appear to be reliable. I have to hold that the money or the sale consideration which had been paid, had been paid by the defendant-respondent from his own funds. This having been found that the money was paid by the defendant-respondent and not by the plaintiff, it as one of the essential element has been established against plaintiff-appellant and in favour of the defendant-respondent. The other aspect is the conduct of the parties. The evidence on record reveals that, on behalf of the defendant first Cheluvaraju has negotiated and then the deed was got prepared by the defendant which may have been got to be executed in the name of the plaintiff. The question is, why the defendant got it executed in the name of the plaintiff and what was the defendant's intention in purchasing the property, was it to hand over the property to make the plaintiff owner of the property or was this got done for the benefit to the plaintiff-appellant and to confer the title to property to plaintiff or there was some other motivation? The relationship between the parties no doubt is very near one namely uncle and nephew. The plaintiff-appellant had been the son of the own brother of defendant-respondent. It is undisputed by the parties that the mother of the boy had died. The 2 brothers were living together. The defendant's case is that, he purchased the site for constructing his own house as well as it was purchased by the defendant in plaintiffs name due to the affection and moral obligation which he felt he had towards the plaintiff, as the defendant was liking him as his own son as per para 4 of the written statement. In the course of evidence led by the defendant, in para 2 he has stated that, he purchased the site in 1972 from Krishnappa and further states that, he got the site in the name of plaintiff. Ex. D-1 is the sale deed. The defendant had brought the plaintiff since he treated him as his own son. Secondly, he was of marriageable age and thinking that, if there is some property it will be better to have suitable match. In para 54 in cross-examination D.W. 1 states that "because I treated him as if my son I got the sale deed in his name, though I had my own 2 children by then". Reading of this statement of D.W. 1 in the circumstance reveals that, really the defendant had no intention that the property purchased under sale deed Ex. D-1 should go to or deemed to belong to the plaintiff. It would he unnatural that a person having his own children would so intend that his children may not get the property, but it would go to the nephew. But the fact is that the sale deed stands in the name of the plaintiff. The question is why it was so purchased. Two brothers were living together and the defendant intended that, there must be some own property in the family. He was earning and he wanted to purchase it. That, to get the better matrimonial offer for the nephew, he has stated that, he thought it would be better if the property is purchased in the name of the plaintiff. So, the intention only appears to be to get better offer for the marriage of the plaintiff and so the deed was got executed in the name of the plaintiff and the defendant neither got it executed in his own name nor in the name of his children. This really indicates that, what benefit the defendant had intended was, to get better offer for the nephew and not to pass on the title of the property to the plaintiff or to make him owner of the property. So, the motive appears to be, to pretend before others in the society that the family has possessed some property and there is some property in the name of the boy. But the real intention was not that the plaintiff should be its owner. In view of the near relationship and the intention of the defendant to fetch a good match for the plaintiff only the deed appears to have been got in the name of the plaintiff. When I look and consider the subsequent conduct as dealing with possession and control of parties over property this intention appears to be very much effective. The deed of transfer or the sale deed in question had not been in possession of the plaintiff or his father. No doubt the plaintiff has stated that, he had handed over this deed to his father and it was with his father and his father died, thereafter deed was lost. He also applied for certified copy. Except the statement of the plaintiff there is no evidence on record on behalf of the plaintiff. Once the defendant's evidence is that the deed was from the beginning in his possession and it was within the knowledge of the plaintiff. If the deed of transfer has been stolen, it does not appear that the plaintiff had made any report. The question is which the evidence has to be relied with reference to the possession of the site. This Court has to dwell into conduct of the parties. It has to be seen that who purchased the site and who got the house constructed thereon. Plaintiff's case is that, he got the house constructed. Plaintiff's evidence in this regard is his statement that he got constructed by his own funds as well as taking loan from his father and maternal uncle. In para 21 he states that "I used to bring the construction materials and so also my father. I had given some amount to the defendant to make some purchases of such materials. The defendant has not contributed anything, either for purchase of the site or for the construction of the house. 1 have spent about Rs. 25,000/- for the construction". "I had Rs. 15,000/- with me, and my father gave some amount. My maternal uncle Gyanasun-daram gave Rs. 5,000/-. I have returned his money". In para 45 he states that "I had kept accounts of the construction. I had kept the accounts in a book, I had myself written it. I have spent about Rs. 25,000/-". In para 46 he states about his salary in 1974-75 was Rs. 800 to 900/- p.m. Thereafter, he states that "I have not produced any document to show that in 1974-75 I was getting a total salary of Rs. 800A or 900/- per month. I have no documents to show about the salary when I joined and as to how it went on increasing". In para 61 of the deposition he has stated that "I had constructed the house myself and I had not given it on labour contract. One Krishnappa, mason, was engaged by me to construct the house. I had taken receipt for every thing. I cannot give the particulars as to who supplied the cement, wood and steel. My father got the electrical material for the house. My father has helped me in the construction of the house. The accounts were with my father. Myself and my father had both written those accounts. In all Rs. 25,000/- I spent. I have no document to show about the borrowings, I made, from my father and maternal uncle". A reading of the statement deposed by the plaintiff shows that, according to him, he spent a sum of Rs. 25,000/- for the construction of the house. He had some money of his own and he had taken sum of Rs. 5,000/- as loan from his maternal uncle and some money from others. He has deposed that, he had maintained accounts of expenditure and purchase of the building materials, but is not in a position to show or tell from whom he has purchased. The accounts of expenditure incurred by him in the construction of the building and purchase of the materials plaintiff claims to have maintained but has failed to produce. He has not stated that the accounts are misplaced or the accounts prepared by him have been stolen. The question arises why he has not produced those accounts, if he had incurred expenditure and maintained the accounts. No explanation is forthcoming from the plaintiff. If he had maintained the account and spent money he ought to have produced those accounts. It is failure on the part of the plaintiff to place the accounts alleged to be maintained by him, for no rhyme and reason. This Court is of the view that theory put up by the plaintiff should be taken as false. The accounts alleged would have been some material importance to throw light on the question who has spent it ought have been produced but has not been produced without any rhyme or reason as such, adverse inference may be drawn that the plaintiff's case is false. Apart from that, the plaintiff has produced P.W. 2 who is none-else than own brother-in-law of the plaintiff, who has deposed that plaintiff purchased the sites and constructed the house by his own funds. He has not disclosed the source of information as to how he had come to know that the house was constructed by the plaintiff from his own funds. Merely saying that plaintiff purchased the site from his own funds and constructed the building cannot be said to be reliable or admissible piece of evidence. He should have disclosed the source of knowledge of money or funds alleged to have been used in connection, with purchase of site and raising of construction thereon. The evidence of the P.W. 2 is not worthy of any consideration or reliance. In the cross-examination P.W. 2 says that "I have not taken part in the sale talks of the purchase of the site made by the plaintiff. I do not know when it was purchased from one Krishnappa. It was purchased in 1972. I have not gone through the sale deed of the property because it was in Kannada. In 1975 the plaintiff had read over the contents. I do not remember the dimension and schedule mentioned in the sale deed. In para 17 he has stated that "the plaintiff had spent in all Rs. 25,000/- for construction. He borrowed Rs. 5,000/- from his maternal uncle and he had his own Rs. 20,000/-. I have no personal knowledge regarding the bank balance of the plaintiff. He has further stated that "I was not present when plaintiff borrowed Rs. 5,000/- from his maternal uncle. I had no occasion to verify his accounts regarding the construction of the building". The above statement of the P.W. 2 clearly reveals that, his statement was merely made to support the plaintiffs case without any personal knowledge of the plaintiffs account or without verifying the account which plaintiff alleges to have maintained for construction of the building. The statement in para 37 by witness P.W. 2 is that he was not taking any interest in the family or his brother or sister and that he has not been much interested in the plaintiff. He has further stated that defendant was taking much interest in the family matters and in educating the children. He has stated that defendant had affection and love for the plaintiff and thinking that the plaintiff would look after his children he had purchased the site in the plaintiff's name and the plaintiff had no interest in the site until the registered deed was executed. There is no document that the plaintiff paid the advance money and his evidence and that of B.W. 2 itself appears to be unreliable. Apart from the circumstance that the plaintiff had not produced any account of expenditure alleged to have been incurred during construction of the building and which account he says that he has maintained and no reason is assigned for not producing the same. The evidence oral and documentary produced by defendant- respondent including Ex. D-3, D-4, Ex. D-32 and D-33, including plan of the building D-36 are on record. The Trial Court itself has considered the evidence of the parties and of the defendant's witness. The material observations in paras 21 to 25 of Trial Court judgment and discussion thereon where the Trial Court has discussed all evidence, oral, documentary and circumstantial and in my opinion the finding which has been arrived by the Trial Court on this aspect of the matter after considering all the material evidence, cannot be said to be suffering from any error nor can it be said to be erroneous. 15. For the reasons mentioned above, I agree that the finding of the Trial Court that construction on the site in dispute was made by the defendant-respondent after having incurred the expenditure to the tune of Rs. 25,000/- and plaintiff has failed to establish that he incurred expenditure to the construction of the site. So, this conduct of the defendant investing money on the property/site putting construction, the deed being in his possession and in particular when the plaintiff himself has stated in Ex. P-14 that "after the death of my father I could not get any document, regarding my house, since the defendant had taken them away. The documents were like sale deed, receipts and bills regarding construction of the house, After the death of my father, the defendant had taken away my documents". The plaintiff ought to have given a notice to that effect as well as to have lodged a complaint. But, he has not done so. This theory that defendant had taken away the documents, appears to be false as the plaintiff did not make any complaint to the police that defendant had taken away forcibly or stealthily the documents. Why the plaintiff has not done so, if the documents were forcibly taken away or stealthily taken or removed by the defendant from the plaintiffs possession. The natural conduct of the plaintiff would have been to have given a notice to defendant in that regard which the plaintiff has not done. These circumstances reveal that, theory of documents being in plaintiffs or plaintiffs father's possession etc., and thereafter being taken away by the defendant is false. Really it appears that, the deed of transaction i.e., the sale deed Ex. D-1 and the accounts of money spent on the construction had been with the defendant as the defendant-respondent himself had purchased the site and had incurred the expenditure in construction of the house. So, the circumstances that defendant invested money for the purchase of the site; that defendant incurred expenditure in the construction of the building, and further the documents, title deed and accounts with reference to the construction being with the defendant, really lead one to think that state of affairs, as appears from the sale deed was not real state of affairs, instead real state of affairs was something different therefrom. Apart from that, it is admitted position that the defendant had been residing in that house. No doubt plaintiff might have also resided, but later plaintiff has shifted to some other house. He himself has put up a theory of permissive possession which does not appeal to this Court. The father of the plaintiff-appellant did not object to the defendant's making use of the house. Really the money having been invested by the defendant in the purchase of the site and construction of the building, with a view that, for the plaintiff, the defendant-respondent may be able to get suitable match so he got the deed of the transaction in question made in the name of the plaintiff. The intention and motive appears only to procure good, suitable match for plaintiff-appellant and not to make the plaintiff owner of the house. The consideration had passed on to the seller as admitted by the seller from the defendant respondent. It had been contended before me by the learned Counsel for the appellant that there are tax receipts namely Ex. P-5 and P-6. These receipts reveal that they are of the period subsequent to the filing of the suit and not prior to the filing of the suit. They are not of much importance and do not help to arrive at a conclusion contrary to the case of a benami transaction being entered vide sale deed dated 13-11-1972. The Trial Court has taken into consideration of the circumstance in Ex. D-2 and thus, considering the entire set of circumstances in the light to guiding Test as set up by Their Lordships of the Supreme Court, it appears to me that the defendant succeeded in rebutting the preliminary presumption which was in favour of the plaintiff with regard to the real state of affairs. The defendant has rightly been held to have established that the deed in question was benami in nature in the name of the plaintiff-appellant and plaintiff was only a benamidar and the real possessor and owner of the property has been none else than the defendant-respondent. That at the plaintiff had no title. That as real owner of the property had been the defendant-respondent, the plaintiff-appellant had no right to get the claim made in plaint decreed. The defendant-respondent being in possession of the property as well as being the real owner and title holder of suit property as per sale deed of 1972, and the plaintiff-appellant being only name lender benamidar the plaintiff had no right to seek decree for declaration sought for nor for possession against the real owner of the property nor has been entitled to seek injunction restraining him nor plaintiff could claim any mesne profits against the same. Thus considering in my view, the Trial Court's decision does not suffer from any error of law or fact. The decisions referred by the learned Counsel for the appellant namely Nand Kishore, supra, with reference to the benami transaction referring the observations made in para 8 only indicated that "transfer to one for consideration paid by another -- where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration". The defendant has satisfied the contest. As mentioned earlier, motive has not been to confer any interest or title in property to plaintiff-appellant. Thus considering in my opinion, above decision which has been referred by the learned Counsel is not of any help to appellant. The other decisions in the case of Rajagopal Reddy is also of not much help for the decision of this case. There can be no dispute from the principles of law laid down by the decision of the Patna High Court that the person in whose name the property is purchased is presumed to be the real owner of the property-onus of proving that transaction is benami on the claimant. There can be no dispute as mentioned earlier, so far as this basic proposition is concerned. The defendant-respondent has been successful in discharging its burden on yardsticks of the law laid down in Jayadayal Poddar's case, supra, and in establishing that the transaction in question has been benami in the name of plaintiff, the plaintiff is not and has not the owner of the suit property. The Trial Court decree dismissing plaintiffs suit is correct. Thus, considering in my opinion, the present appeal is devoid of merits and is dismissed with costs. The Trial Court decree is affirmed herewith.

[ 57071259, 17891642, 170336297, 170999038, 170999038 ]

null

216,570

D. Victor vs L. Sundaram (Deceased) By L.Rs. on 13 March, 1998

Karnataka High Court

5

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP.No. 600 of 2009() 1. GOPINATHAN ... Petitioner Vs 1. STATE OF KERALA AND OTHERS ... Respondent For Petitioner :SRI.C.A.ANOOP For Respondent : No Appearance The Hon'ble MR. Justice S.S.SATHEESACHANDRAN Dated :11/11/2009 O R D E R S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.600 OF 2009 -------------------------- Dated this the 11th day of November 2009 ------------------------------------- ORDER Revision is directed against the order dated 30/09/2009 in A.A No. 12 of 2007 passed by the Appellate Authority(Land Reforms), Thrissur. The revision petitioners had filed an appeal before the Appellate Authority challenging an order passed by the Land Tribunal, Wadakkanchery in O.A No. 2296/1976 issuing a purchase certificate in favour of the predecessor of the respondents in the revision. The revision petitioners are in possession of the property in respect of which the purchase certificate had been obtained by the applicant in the above O.A and the certificate had been so obtained fraudulently after making some corrections in the name of the applicant in the application moved by another person was the crux of the case canvassed in the appeal to impeach the C.R.P.No.600 OF 2009 Page numbers certificate issued by the Land Tribunal. The Appellate Authority was not satisfied of the grounds canvassed by the revision petitioner to challenge the certificate which had been issued by the tribunal nearly 30 years ago. At the time of hearing of the revision, impeaching the correctness of the order passed by the Appellate Authority, the learned counsel for the petitioner confined his submissions to seek permission to canvass his challenges against the order issued by the Land Tribunal in the O.A No.2296/1976 in favour of the predecessor of the respondents by way of a suit before the Civil Court. Since the petitioners have got a case that the issue of purchase certificate by the tribunal is vitiated by fraud they may be given a chance to challenge that certificate in the competent civil court as provided by law is the submission of the counsel. It is open to the petitioner to seek whatever remedies available C.R.P.No.600 OF 2009 Page numbers under law to impeach the correctness of the purchase certificate issued in the O.A by the Land Tribunal. Reserving the right of the petitioner to seek such remedies, if so available, the revision is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv

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216,571

Gopinathan vs State Of Kerala And Others on 11 November, 2009

Kerala High Court

0

Gujarat High Court Case Information System Print CA/11113/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 11113 of 2010 In LETTERS PATENT APPEAL No. 405 of 2010 In SPECIAL CIVIL APPLICATION No. 24225 of 2005 With CIVIL APPLICATION No. 11114 of 2010 In LETTERS PATENT APPEAL No. 403 of 2010 To CIVIL APPLICATION No. 11117 of 2010 In LETTERS PATENT APPEAL No. 428 of 2010 With CIVIL APPLICATION No. 14486 of 2010 In LETTERS PATENT APPEAL (STAMP NUMBER) No. 2190 of 2010 ========================================= PATEL KALYANBHAI TEJABHAI - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================= Appearance : MR KB PUJARA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 3. MR J G VAGHELA for Respondent(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/12/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) S.O. to 15.12.2010 at the request of learned AGP with the statement that necessary instructions as regards the stand of the Government will be taken by that time and no further adjournment will be sought on behalf of the respondents. [D.H.WAGHELA, J.] [J.C.UPADHYAYA, J.] JYOTI Top

[]

Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;

216,572

Patel vs State on 3 December, 2010

Gujarat High Court

0

APL391.15.odt 1/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APL) NO.391 OF 2015 APPLICANTS: 1. Prakash Bhaskarrao Nandurkar, Aged about 60 years, Secretary of Satchikitsai Prasarak Mandal Shri Satya Sai Vidhya Nagari, Yavatmal, Tq. and District Yavatmal. 2. Sau. Jaishree Omprakash Mishra, Aged about 45 years, Incharge, Head Mistress of Dr. Nandurkar Vidyalaya, Shri Satya Sai Vidya Nagari, Yavatmal, Tq. and District Yavatmal. -VERSUS- RESPONDENTS: 1. Ku. Saroj Panditrao Datir, Aged about 29 years, R/o C/o Shri Dilip Tarpe, Ujwal Nagar, Near Gulhane Kirana Shop, Deep Nagar, Yavatmal, Tq. and District Yavatmal. 2. State of Maharashtra (formal party) Shri A. S. Kilor Advocate with Ms. Deepali Sapkal, Advocate for the applicants. Dr. A. De Advocate with Ms. Komal Mundle, Advocate for non- applicant no.1. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 2/11 Shri A. Madiwale, Addl. Public Prosecutor for respondent no.2. CORAM: A.S. CHANDURKAR, J. DATED: NOVEMBER 08, 2017 ORAL JUDGMENT : 1. By this application filed under Section 482 of the Code of Criminal Procedure, 1973, order dated 9-4-2015 passed by the learned Additional Sessions Judge, Yavatmal is under challenge. By that order, the revision application seeking to challenge the order dated 27-6-2014 rejecting the application for dropping the proceedings as being barred by limitation has been rejected. 2. The facts in brief are that the non-applicant no.1 was in the employment with an institution of which the applicant no.1 was the Secretary and the applicant no.2 was the incharge Head Mistress. The services of the non-applicant were terminated on 23-6-2003. This order was challenged by filing an appeal under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1971 (for short, the said Act). The appeal ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 3/11 was allowed on 28th June, 2007 by directing reinstatement of the non-applicant no.1 with back wages. This order was challenged by the present applicants by filing Writ Petition No.3254/2007. By judgment dated 28-9-2007, the said writ petition was partly allowed. It was directed that if the services of the non-applicant no.1 were reinstated within a period of eight weeks, she would not be entitled for back wages. If, however, she was not reinstated within a period of eight weeks, the non-applicant no.1 would be entitled to execute the order of grant of back wages. This order passed in the Writ Petition attained finality on 31-1-2008 when the Letters Patent Appeal filed by the applicants came to be dismissed. 3. According to the non-applicant no.1, as there was non-compliance with the directions issued in the order of the School Tribunal as confirmed by this Court, she filed Contempt Petition No.142/2008. This contempt petition was disposed of on 4-8-2009 by observing that there was no wilful disobedience of the orders passed. It was clarified that the non-applicant no.1 was entitled for legal remedies available for executing that order. The miscellaneous application ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:52 ::: APL391.15.odt 4/11 seeking review of this judgment was disposed of on 10-2-2010. Thereafter, on 15-6-2010, the non-applicant no.1 filed a complaint under Section 13 of the said Act. The learned Magistrate on 21-2-2011 issued process only against the present applicants who were accused Nos.4 and 12. The applicants then filed an application for dropping the proceedings on the ground that they were barred by limitation. By order dated 27-6-2014 this application came to be rejected on the ground that it was not tenable. The applicants then filed revision application challenging this order. By the impugned order, the revision application has been dismissed. 4. Shri A. S. Kilor, learned Counsel for the applicants submitted that the Sessions Court committed an error in coming to the conclusion that the proceedings were filed within limitation. According to him, in view of provisions of Section 468 of the Code, the complaint ought to have been filed within one year from the date of commission of the offence. The offence as alleged was for non-implementation of the order of the School Tribunal that was passed on 20-6-2007. It was submitted that immediately on the expiry ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 5/11 of period of eight weeks, the non-applicant no.1 was sought to be reinstated in view of the communication dated 26-11-2007. Despite this letter, the non-applicant no.1 joined services on 24-10-2008. He referred to the findings recorded in the Contempt Petition as well as the review application to urge that it was clearly held that no wilful breach had been committed by the applicants in the matter of implementation of the orders passed in favour of non-applicant no.1. It was submitted that there was no continuing cause of action and the present proceedings had been filed after the review application came to be dismissed. It was also urged that separate execution proceedings for recovering the arrears of salary had been filed. According to the learned Counsel, continuation of this proceeding amounted to abuse of the process of law and the same was, therefore, liable to be quashed in exercise of the powers under Section 482 of the Code. 5. Dr. A. De, learned Counsel for the non-applicant no.1 supported the impugned order. It was submitted that the proceedings under Section 13 of the said Act were filed within limitation and process was rightly issued by the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 6/11 learned Magistrate. It was submitted that two remedies were available for enforcing the order of the School Tribunal. The civil remedy was by way of execution while the present proceedings under Section 13 of the said Act were for disobedience of the order. After the review application was disposed of, the present complaint came to be filed on 15-6-2010. In view of Section 472 of the Code, the breach was continuing in nature and hence, it could not be said that the proceedings were barred by limitation. In support of his submissions, the learned Counsel placed reliance on the decisions in Vilas Shankarrao Deshmukh and another vs. S. A. Ghode, Principal, Navprabhat Vidya Mandir and others 2001 (1) Mh.L.J. 261, Saroj Pundlikrao Datir vs. Prakash Nandurkar and others 2009(6) Mh.L.J. 235, Shriprakash Chandmal Bora and anr. vs. Mutyal Vilas Rambau 2004(2) Mh.L.J. 927 and Shaikh Badarunnisa Begum Shaikh Abbas vs. State of Maharashtra and others 2004 (2) Mh.L.J. 407. It was, therefore, submitted that the impugned order did not call for any interference and the present proceedings deserve to be dismissed. 6. I have heard the learned Counsel for the parties at ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 7/11 length and I have also perused the documents filed on record. It is not in dispute that the order passed by the School Tribunal was challenged by filing Writ Petition No.3254/2007. In that writ petition on the concession made on behalf of the non-applicant no.1, time of eight weeks was granted to reinstate her and if the same was done she was held disentitled for back wages. The period of eight weeks came to an end on 23-11-2007. On 26-11-2007, a communication was issued by the applicants calling upon the non-applicant no.1 to join the services. The non-applicant no.1 joined her services on 24-10-2008. 7. At this stage, it is necessary to refer to the observations of this Court in the Contempt Petition that was filed by the non-applicant no.1. While considering the question as to whether there was any wilful disobedience of the order of stay, it was observed that the applicants had complied with the directions as regards reinstatement in view of communication dated 26-11-2007. Though the period of eight weeks expired on 23-11-2007, there were two intervening holidays. In this backdrop, it was held that it could not be said that the applicants had committed wilful ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 8/11 disobedience of the orders as passed. The finding to that effect is recorded in para 19 of that judgment and it was clarified that the legal remedy for executing the orders as passed could be taken. In the review application filed by the non-applicant no.1, this Court refused to review that order and observed that the original order could be executed by demanding back wages as well as salary. It is thus clear from the aforesaid order that on 4-8-2009 while dismissing the contempt petition as well as on 10-2-2010 while dismissing the review petition, it was held that there was no wilful disobedience of the orders passed in the proceedings. 8. In the proceedings filed under Section 13 of the said Act, it is the grievance of the non-applicant no.1 that aforesaid orders of the School Tribunal as well as the orders of this Court were not complied. These proceedings were filed on 15-6-2010 with the cause of action being shown as commencing from 20-6-2007. While according to the non- applicant no.1 there was a continuing cause of action, according to the applicants the proceedings ought to have been filed within a period of one year as per Section 468 of the Code. Proceedings under Section 13 of the said Act have ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 9/11 been held to be independent in nature in Shaikh Badarunnisa (supra). In Shriprakash Chandmal Bora (supra) it was held that if punishment is sought to be imposed, a criminal complaint can be filed and if execution is sought, the civil Court can be approached. 9. Under Section 13 of the said Act if the management fails without any reasonable excuse to comply with any direction issued by the Tribunal, the management could be liable on conviction to be punished. On perusal of the Contempt Petition as well as the application filed under Section 13 of the said Act, it is clear that the grievance of the non-applicant no.1 is with regard to non-compliance of the order of reinstatement within a period of eight weeks. For the purposes of the claim for back wages, separate execution proceedings have been filed which are pending. Under Section 468 of the Code, the complaint under Section 13 was required to be filed within a period of one year as the punishment if imposed was imprisonment for fifteen days. Under Section 472 of the Code, if there is a continuing offence a fresh period of limitation would begin to run at every moment of the time during which the offence ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 10/11 continued. 10. The facts indicate that pursuant to communication dated 26-11-2007, the non-applicant no.1 joined her duties on 24-10-2008. A separate dispute with regard to back wages and its recovery is pending. This Court in the Contempt Petition having recorded a specific finding that there was no wilful disobedience of the order passed by the School Tribunal or in the writ petition after noting the fact that the non-applicant no.1 had joined her duties thereafter, said finding cannot be ignored. In fact, the non-applicant no.1 joined her duties after a specific order in that regard was passed by this Court. The period of eight weeks having expired on 23-11-2007 and non-applicant having joined duties thereafter the grievance, if any, under Section 13 was required to be made within a period of one year from 23-11-2007 or even from the date of joining which is 24-10-2008. It having been specifically held in the Contempt Petition on 4-8-2009 as well as on 10-2-2010 that there was no wilful disobedience in the matter of reinstatement, the alleged offence in that regard cannot be said to be of continuing nature. The complaint under Section 13 of the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 ::: APL391.15.odt 11/11 said Act having been filed on 15-6-2010, it is clear that the proceedings were barred by limitation. The learned Magistrate ought to have allowed the application at Exhibit- 47. The Sessions Court also committed an error by holding that the offence was continuing in nature especially when the order of reinstatement was complied with and the petitioner had joined duties. 11. In view of aforesaid, the order dated 27-6-2014 passed below Exhibit-47 as well as the judgment of the Sessions Court in Revision No.66/2014 are quashed and set aside. The application below Exhibit-47 is allowed in terms of its prayer. The criminal application is allowed in aforesaid terms with no order as to costs. JUDGE /MULEY/ ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:35:53 :::

[ 1679850, 1889786, 1599077, 1679850, 1889786, 1889786, 574291, 977859, 1658375, 925450, 1889786, 1599077, 1889786, 1889786, 1889786, 1599077, 1889786, 574291, 1889786, 1889786 ]

null

216,573

Prakash Bhaskarrao Nandurkar And ... vs Ku. Saroj Panditrao Datir And ... on 8 November, 2017

Bombay High Court

20

Court No. - 33 Case :- CRIMINAL MISC. WRIT PETITION No. - 10888 of 2010 Petitioner :- Ahsan Raza & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Sharique Ahmed Respondent Counsel :- Govt. Advocate Hon'ble V.K. Shukla,J. Hon'ble Ran Vijai Singh,J. Learned A.G.A. has accepted notice on behalf of respondent nos. 1 and 2. Issue notice to respondent no. 3. Each one of the respondent is accorded eight weeks time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks. List thereafter. It has been contended on behalf of the petitioners that in the present case there is matrimonial discord in between daughter of petitioner no.1 Ahsan Raza and respondent no.3. Petitioners submit that as a counter blast first information report has been lodged against the petitioners. and criminal forum has been misused by falsely implicating entire family members. Prima facie arguments advanced, requires consideration by this court. Consequently, till the next date of listing or till submission of the report under Section 173 (2) Cr. P.C. whichever is earlier, petitioners shall not be arrested in Case Crime No. 121 of 2010 under Sections 323,504,506 I.P.C. , Police Station Anwarganj, District Kanpur Nagar, subject to condition that petitioners shall extend all possible co-operation with the on going investigation. Order Date :- 22.6.2010 T.S.

[ 1011035, 555306, 180217 ]

null

216,574

Ahsan Raza & Others vs State Of U.P. & Others on 22 June, 2010

Allahabad High Court

3

JUDGMENT Altamas Kabir, CJ. 1. This writ application involves 'the interpretation of a notification dated 22nd June, 2001, issued by the State of Jharkhand in exercise of powers conferred by Clause (b) of Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956, which reads as under : "NOTIFICATION The 22nd June, 2001 S.O. 25, dated the 25th June, 2001.--In exercise of the powers conferred by Clause (b) of Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Act 74 of 1958) the Governor of Jharkhand is pleased to direct that tax payable under Sub-section (1) or (2) of Section 8 of the said Act in respect of sale of all types of glass and glass sheets in the course of inter-State sale or commerce from any place of business in the State of Jharkhand shall be calculated at the rate of three per centum and no statutory form in this regard shall be required. 2. This notification shall come into force with effect from 16th June, 2001. By the order of Governor of Jharkhand A. Tiwari Addl. Secretary to Government Finance Department, Jharkhand, Ranchi" 2. The writ petitioner is a public limited company incorporated under the provisions of the Companies Act, 1956, having its industrial unit situated at Madhupur in the district of Deoghar, Jharkhand. The petitioner is also a registered dealer under the provisions of the Bihar Finance Act, 1981, as well as the Central Sales Tax Act, 1956 under the Deoghar Circle. Deoghar. 3. The writ petitioner is engaged in the manufacture of glass and glassware made of opal glass. As indicated hereinabove, the unit is situated at Madhupur in Deoghar. On 25th June, 2001, the State of Jharkhand issued the aforesaid notification reducing the rate of tax in respect of sale of all types of glasses and glass-sheets from 4% to 3% in course of inter-State trade and further exempted dealers from the requirements of filing declaration in Form "C" on such sales. 4. On publication of the aforesaid notification, the writ petitioner started charging tax @ 3% on sales involving inter-State trade since it was under the impression that it was covered by the aforesaid notification. However, by way of abundant precaution, the writ petitioner company wrote to the Assistant Commissioner of Commercial Taxes, Deoghar Circle, on 27th May, 2002, with a copy to the Deputy Commissioner of Commercial Taxes, at Ranchi, informing them that since the petitioner was covered by the said notification, tax on sales of glass and glass-ware in course of the inter-State trade was being charged @ 3% in terms of the notification. It is the petitioner's case that it did not receive any response to its letter, nor was any objection raised that the petitioner was not covered by the said notification dated 25th June, 2001. For the first time, by letter dated 9th January, 2004, the petitioner was informed by the Assistant Commissioner of Commercial Taxes, Deoghar Circle that it had wrongly deducted and paid taxes @ 3% on its products manufactured out of glass since the correct rate was 4% in case of sale to registered dealers and 12% in case of sale to unregistered dealers. The writ petitioner company was also directed to show cause as to why penalty should not be imposed under Section 16 and Section 16(9) of the Bihar Finance Act, 1981, read with the relevant provisions of the Central Sales Tax Act and to further show cause as to why it should not be directed to correct the returns and to deposit the tax at the correct rate. According to the petitioner, a reply dated 16th January, 2004, was submitted before the Assistant Commissioner of Commercial Taxes, Deoghar Circle, enclosing a copy of the notification and explaining that the petitioner company was liable to charge and deposit tax @ 3% on sale in course of inter-State trade in respect of its products and that returns had, therefore, been correctly filed and taxes has correctly been deposited @ 3% as per the rate prescribed in the notification. The show cause filed on behalf of the petitioner was rejected by an order passed by the Assistant Commissioner of Commercial Taxes, Deoghar Circle, vide Memo No. 246, dated 13th May, 2004, and the petitioner company was directed to deposit tax in relation to its transactions in course of inter-State trade @ 4% in respect of sales to registered dealers and @ 12% in respect of sales to unregistered dealers. Subsequently, the petitioner was informed by a Memo dated 13th July, 2004, written by the Additional Commissioner, Jharkhand, and addressed to the Assistant Commissioner of Commercial Taxes, Deoghar Circle, that the petitioner's product, namely, "glass-ware" was not covered by the Entry in S.O. No. 25, dated 25th June, 2001, and as such, it would be liable to be taxed @ 4% in relation to its transactions in course of the inter-State trade. 5. Aggrieved by the rejection of its reply dated 16th January, 2004, showing cause in response to the letter dated 9th January, 2004, written by the respondent No. 4 and being further aggrieved by the memo dated 13th July, 2004, written by the Additional Commissioner, Jharkhand, to the Assistant Commissioner of Commercial Taxes, Deoghar Circle that the petitioner's products were not covered by the notification dated 25th June, 2001, the writ petitioner company has filed the instant writ application. 6. Appearing on behalf of the writ petitioner company, Mr. Sanjay urged that the concerned respondents has wrongly interpreted the provisions of the notification dated 25th June, 2001, in arriving at a conclusion that the products of the petitioner were not covered by the said notification. According to him, the expression, "all types of glass" as used in the said notification include products made from glass where the primary ingredient is glass. Mr. Sanjay also contended that glass is the final form of different components which are fused together to give glass its final form and such form would be in accordance with the moulds in which they were finally manufactured, such as, different forms of glass-sheets or other glass products, namely, crockery, vases, etc. 7. Mr. Sanjay further submitted that the petitioner company had applied to the Central Glass Ceramic Research Institute, Kolkata, for certification of its products, after describing their nature and characteristics and how they come into existence. Mr. Sanjay referred to the certificate issued by the said Institute, which has been made Annexure-9 to the second supplementary reply to the counter affidavit filed on behalf of the petitioner, wherein, upon reference to the chemical composition of the products of the writ petitioner company as well as their physical and chemical properties, it was opined that the products could very well be regarded as "glass". 8. Mr. Sanjay submitted that the said certificate was sufficient in itself to prove that the products manufactured by the petitioner company were made out glass and consequently came within the expression, "all types of glass" as used in the notification published on 25th June, 2001. 9. In support of his aforesaid submission, Mr. Sanjay firstly referred to the Bench decision of the Patna High Court in the case of Bajrangbali Coke Briquetting Industries v. State of Bihar and Ors., reported in 1987 PLJR 926, wherein the expression, "Coal including coke in all its forms", had fallen for interpretation and it had been indicated that briquettes are manufactured by mixing coal dust with soil and molasses. It was observed by the Hon'ble Supreme Court that briquettes so prepared have direct connection with coal or coke since coal dust is the main ingredient of the product. On the basis of such finding, coke briquettes were also directed to be treated as a form of coke during the assessment proceedings. 10. Reference was also made to the decision of the Hon'ble Supreme Court in the case of Telangana Steel Industries and Ors. v. State of A.P. and Ors., reported in 1994 Supp. (2) SCC 259, wherein it was held that since they have been placed in the Statute under the same sub-item, iron wires could not be treated as a commodity different from wire rods. 11. Mr. Sanjay concluded his submission by referring to the decision of the Hon'ble Supreme Court in the case of Commissioner of Sales Tax v. Industrial Coal Enterprises, , in which the Hon'ble Supreme Court had observed that in Taxing Statutes, provisions granting incentives for promoting economic growth and development should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision. Mr. Sanjay urged that in a Taxing Statute, when a benefit is provided, the same should be interpreted to be in favour of the assessee. Mr. Sanjay submitted that in the instant case, a highly technical stand has been taken on behalf of the Revenue although it had been duly admitted on behalf of the respondents that no expert opinion had been taken before issuance of the impugned notices, which were liable to be quashed. 12. Appearing for the Revenue, Mr. Pradip Modi tried to impress upon us that glass in its primal form could not be equated with the end product of glass where, according to him, a different product was manufactured and even though such product was made of glass, it could not be said to come within the expression "all types of glass" as used in the notification dated 25th June, 2001. According to Mr. Modi, the aforesaid expression was meant to include only glass in its primary form and not as an end product and glass ware, which was the product manufactured by the writ petitioner company, could not be included within the said expression. 13. Mr. Modi submitted that it was the clear intention of the State Government to make the benefits of the notification dated 25th June, 2001, applicable to manufacturers of glass either in the form of glass-sheets or in mass form and glassware could not certainly be made part of such scheme. Mr. Modi urged that interpreting items in Revenue Statutes, the terms and expressions used should be interpreted having regard to their popular meaning and not to their scientific and technical properties. In support of his submissions, Mr. Modi referred to the decision of the Hon'ble Supreme Court in the case of Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, reported in 47 STC 359 (SC), in which various items of hospital equipment and apparatus were held not to be glassware but were referred to with regard to their use and utility. 14. Mr. Modi then referred to another decision of the Hon'ble Supreme Court in the case of Atul Glass Industries (P) Ltd. v. Collector of Central Excise, reported in 63 STC 322 (SC) where the question raised was whether a glass mirror could be included within the expression "glass and glassware" and it was held that it could not, inasmuch as, the original glass-sheet as a result of the process through which it passed, underwent a complete transformation when it emerged as a glass mirror. The evolved product is completely different from the original glass-sheet. The Hon'ble Supreme Court went on to observe that the fundamental function and quality of a glass mirror, its power to reflect, is derived not from the glass-sheet but principally from the silvering and other processes applied to the glass medium. A glass mirror could not, therefore, be regarded as glass. 15. Reference was also made to a Full Bench decision of Madhya Pradesh High Court (Indore Bench) in the case of Commissioner of Sales Tax, Madhya Pradesh v. Triveni Sheet Glass Works Ltd. and Ors., reported in 76 STC 308 (MP), wherein, relying on the decision of the Hon'ble Supreme Court in the case of Atul Glass Industries (P) Ltd. (supra), it was observed that there is undoubtedly a distinction between glass and goods and articles made of glass. 16. Mr. Modi lastly referred to the decision of the Hon'ble Supreme Court in the case of Parle Biscuits (P) Ltd. v. State of Bihar and Ors., reported in 2005 (3) JCR 46 (SC) : 2005 (2) JLJR 3 (SC), wherein paper of all kinds was interpreted only to include the forms of paper mentioned in the relevant notification and not cardboard boxes, which were held to be a product not covered by the Entry in such notification. Mr. Modi contended that it was quite clear that the expression "all types of glass" could not, therefore, include the end products manufactured by the writ petitioner company out of glass. Mr. Modi submitted that the writ petition was wholly misconceived and was liable to be dismissed. 17. We have carefully considered the submissions made on behalf of the respective parties and it appears to us that the interpretation sought to be given by Mr. Modi to the expression "all types of glass" used in the notification published on 25th June, 2001, is neither correct, nor supported by the decisions cited by him. 18. The notification published on 25th June, 2001, brings within its ambit sale of all types of glass and glass-sheets in course of the inter-State trade or commerce from any place of business in the State of Jharkhand. The expression, "all types of glass" appears to us to be an inclusive definition, notwithstanding the attempts made by Mr. Modi to convince us that the products made of glass could not be brought within the ambit of the said expression. For the purpose of the notification of 25th June, 2001, Mr. Modi attempted to make a distinction between glass in its primal form and products made of glass and submitted that products made of glass were not covered by the said notification. 19. In order to emphasize the distinction made by him, Mr. Modi referred to the decision of the Hon'ble Supreme Court in the Atul Glass Industries (P) Ltd. case (supra), which in our view, not only does not support his case but also goes against the submissions made by him. In the said decision, the question, which fell for decision, was as to whether a mirror could be regarded as "glass" or "glassware". On consideration of the manner in which a mirror is manufactured and its uses as a medium of reflection, the Hon'ble Supreme Court observed that the evolved product is completely different from the original glass-sheet. The fundamental function and its quality of a glass mirror, namely, its power to reflect, is derived not from the glass-sheet but principally from the silvering and other processes applied to the glass medium. In that context, the Hon'ble Supreme Court observed that a glass mirror could neither be regarded as glass, nor glassware. The Hon'ble Supreme Court went on to elucidate that a glass bowl, a glass vase, a glass tumbler, a glass table-top and so on are all articles in which the primary component is glass and they are nothing more and nothing less and any treatment of ornamental nature applied to such articles does not derogate from their fundamental character as glass articles. 20. In the instant case also, the products manufactured by the writ petitioner are articles of different form made out of glass. Their character, even after manufacture, remains that of glass, which in our view, would bring such products within the meaning of the expression, "all types of glass". 21. In the other judgment, the Madhya Pradesh High Court dealt with the question as to whether glass-sheets fall within the ambit of the expression, "goods made of glass and glassware". In the said case, the Madhya Pradesh High Court took note of the distinction of products made out of glass and glass-sheets by themselves. The Hon'ble Court observed that there was undoubtedly a distinction between "glass" and "goods or articles made of glass". The Court went on to give examples of goods made out of glass, such as cup, water-Jug etc. and came to the conclusion that once the liquid form of raw material is placed in a mould, it will be a raw material, which may be used for the manufacture of new goods. Therefore, while a glass-sheet was glass simpliciter, it differed from the products manufactured out of glass. In our view, the said decision does not also come to the aid of the respondents in the instant case. 22. Even the decision of the Hon'ble Supreme Court in M/s. Parle Biscuits (P) Ltd., 2005 (3) JCR 46 (SC) (supra) does not support the case made out by Mr. Modi, since the expression, "papers of all kinds" was circumscribed by the articles mentioned in the notification in question which is not so in the instant case, where the expression, "all types of glass", has been used in a generic sense to include glass of all kinds, which would include within its ambit not only glass in its primal form but also objects manufactured out of glass. 23. On the other hand, the decision cited by Mr. Sanjay, in Bajrangbali Coke Briquetting Industries, (supra) appears to have greater application to the facts of the instant case, since in the case also, the Patna High Court was dealing with an inclusive description of coal, including coke in all its forms. Despite the fact that coal briquettes were made by a mixture of coal dust, soil and molasses, the Hon'ble Court observed that the primary ingredient of the product is coal dust and accordingly, coke briquettes must be treated to be a form of coke during assessment proceedings. 24. Apart from the above, we are also in agreement with Mr. Sanjay that when, in a Taxing Statute, certain incentives are granted for promoting economic growth, the same has to be liberally construed so as to advance the objective of the provision. 25. We are convinced that the products of the writ petitioner company, which are made of glass, do fall within the expression, "all types of glass" as used in the notification published on 25th June, 2001, by the State of Jharkhand and that the writ petitioner company had rightly deducted and charged tax @ 3% on sales of its glass products involving inter-State trade and the notices issued by the Assistant Commissioner of Commercial Taxes, Deoghar, Circle, on 9th January, 2004, had been erroneously issued alleging that the petitioner company ought to have charged tax @ 4% in case of sale to registered dealers and 12% in case of sale to unregistered dealers. The order passed by the Assistant Commissioner of Commercial Taxes, Deoghar, Circle, dated 13th May, 2004, rejecting the show cause filed on behalf of the writ petitioner is, in our view, based on the erroneous conception that the petitioner's products made of glass were not covered by the notification published on 25th June, 2001, and is liable to be quashed. 26. The writ application, therefore, succeeds and the order passed by the Assistant Commissioner of Commercial Taxes, Deoghar Circle, on 13th May, 2004, directing the writ petitioner to deposit taxes in relation to inter-State sales @ 4% and to file revised returns for the periods 2002-03 and 2003-04 is quashed. The respondent No. 3 is directed to issue statutory declaration forms and road permits to the writ petitioner company, which had been withheld by the respondent No. 4. The respondents are also directed to levy tax on the glass products of the writ petitioner company @ 3% without requirement of statutory form as per the notification, S.O. 25, dated 25th June, 2001. There will be no order as to costs. R.K. Merathia, J. 27. I agree.

[ 1808776, 1808776, 1808776, 1353758, 1645178, 898387, 1645178, 659535, 124080135, 1985102, 1604162, 1145125, 1064490, 1108170 ]

Author: K . Altamas

216,575

La Opala R.G. Ltd. vs State Of Jharkhand And Ors. on 22 June, 2005

Jharkhand High Court

14

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28254 of 2011 Shri Bhagwan Mahto, son of Bhuneshwar Mahto Versus The State Of Bihar ----------- 2. 30.08.2011 Heard learned counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offence under Sections 323, 379, 504, 420, 467, 468 and 471 of the Indian Penal Code. The petitioner was allowed bail by an order dated 18.3.2011 passed in Cr. Misc. 6188 of 2011, but on one of the conditions that an affidavit would be filed on his behalf that he is not an accused in any other case. Since the petitioner was an accused in Complaint Case, such an affidavit could not be filed and he remained in custody. Considering that on merits, the petitioner was found fit to be released on bail and he has explained his antecedent, 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 Sub Divisional Judicial Magistrate, Sikrahna at Motihari, in connection with Chorasahan (Lakhaura) P.S. Case No. 160 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 2 genealogy as to how he is related with the petitioner. The bailor will undertake to furnish information to the court about any change in the address of the petitioner (ii)That the bailor shall also state on affidavit that he will inform the court concerned if the petitioner is implicated in any other 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 (iii)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. (iv)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. The petitioner is directed to deposit a sum of Rs. 500/- (Five hundred) in the concerned District Legal Aid Committee. ( Anjana Prakash, J.) S.Ali

[ 1011035, 1101188, 555306, 1436241, 1985627, 556166, 1466184 ]

null

216,576

Shri Bhagwan Mahto vs The State Of Bihar on 30 August, 2011

Patna High Court - Orders

7

[]

null

216,577

[Section 34(1)(ii)] [Section 34(1)] [Section 34] [Complete Act]

Central Government Act

0

[]

null

216,578

[Complete Act]

Central Government Act

0

ORDER V. Ratnam, J. 1. The question of the maintainability of an appeal under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) arises for consideration in this matter under the following circumstances. The appellants filed I. A. No. 1239 of 1979 in O. S. No. 119 of 1971, Principal Sub-Court, Salem, under Sections 14(2) and 16 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979), praying for setting aside the ex parte decree dated 14th June, 1971, as null and void and also for an amendment of the decree. The application was dismissed by the learned Principal Subordinate Judge, Salem, by his order dated 24th December, 1980. Against that order, the appellants preferred a Civil Miscellaneous Appeal under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). The office returned the papers raising a question as to how the Civil Miscellaneous Appeal is maintainable and requiring the counsel for the appellants to furnish any authority in support of the maintainability of the appeal. The papers were thereafter re-presented stating that the appeal would lie as per Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). The office nevertheless entertained doubt whether in view of the amendment of Section 2(2), Code of Civil Procedure, by Act CIV of 1976 the adjudication on an application under Section 14(2) and 6 of the Tamil Nadu Debt Relief Act. 1979(XL of 1979) would still be deemed to be a decree within the meaning of Section 47, Code of Civil Procedure and appealable as such under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) so far as it is relevant purpose, reads as follows: An appeal shall lie from any of the following orders passed by a Court under this Act, as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 7 of the Code of Civil Procedure, 1908(Central Act V of 1908). Under Section 25(1)(a) to (g) orders passed under certain provisions of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) have been Made appealable. The order in the present case would fall under Section 25(1)(6). Section 25(2) provides for a second appeal on the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908 and that section reads as under: From any order passed on an appeal presented to it under the provisions of Sub-section (1) by a Court subordinate to the High Court an appeal shall lie to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908(Central Act V of 1908). That under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979), the legislature thought fit to confer a right of appeal in matters falling under Section 25(1)(a) to (g) is very clear. The question is, whether as a result of the amendment of Section 2(2), Code of Civil Procedure, deleting from the scope of the definition of a decree an adjudication under Section 47, Code of Civil Procedure, the right of appeal is in any manner curtailed. The argument raised against the maintainability of the appeal is that only by reference to Section 47, Code of Civil Procedure, the effect of an adjudication under the Act is equated to that of a decree and when an adjudication under Section 47, Code of Civil Procedure cannot itself be a decree within the meaning of Section 2(2), Code of Civil Procedure, as a result of the amendment introduced by Act CIV of 1976 the appeal would be incompetent. Though the provisions of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) were passed and also published after the amendments to the Code of Civil Procedure were effected by Act CIV of 1976, yet the legislature thought fit to confer the right of appeal under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) as if the adjudication under certain provisions of the Act amounted to a decree within the meaning of Section 47, Code of Civil Procedure. It can not be assumed that the legislature was unaware of the amendments made to the Code of Civil Procedure by Act CIV of 1976. But yet, the right of appeal under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) has been conferred against a class of adjudications, as if the adjudication related to the execution, discharge or satisfaction of a decree within the meaning of Section 47, Code of Civil Procedure. 2. Stemming from a statute, a right of appeal is a substantive right and any provision conferring such a right should be interpreted with a liberality which would favour an appeal being entertained rather than a stringency that would defeat it. The words of Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) are clear and in favour of an appeal and there is no ambiguity. The use of the words "as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure clearly indicates that as a result of a fiction the effect of an adjudication under the provisions of the Act is placed on a par with that of & decree which, otherwise it is not. In Corpus Juris, Volume 25, page 1036 fiction is defined as under: A legal assumption that a taking is true which is either not true or which is probably false as true; as assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place, an allegation in legal proceedings that does not accord with the actual facts of the case, and which may be contradicted for every purpose, except to defeat the beneficial and for which the fiction is invented and allowed. 3. It is also pertinent to recall in this connection the oft quoted passage of Lord Asquith in East and Dwellings Co. Ltd. v. Finsbury Borough Council (1952) A. C. 109, which brings out very clearly the legal effect of a legal fiction: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolaries of that state of affairs. The above passage has been referred to with approval by the Supreme Court in several earlier cases and also in Industrial supplies (P) Ltd. v. Union of India A. I. R. 1980 S. C. 1858. At page 1864, it has been pointed out that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created and after ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried out also to its logical conclusion and in order to do so, the court has to assume all the facts and consequences which are incidental or inevitable corrollaries. The use of the words "as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure" in Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) clearly indicates that though the effect of the order passed under the Act is not that of a decree and even if the effect of an adjudication under Section 47, Code of Civil Procedure is taken outside the scope of the definition of a decree under Section 2(2), Code of Civil Procedure such an adjudication shall nevertheless be treated as a decree, though in fact and also in law it is not. It must also be noticed that the application in the present case has been filed in the suit itself and if the order on such an application satisfies the characteristics of a decree, the mere fact that the order is deemed to be one passed under Section 47, Code of Civil Procedure, which, as a result of the amendment is taken out of the category of decrees as defined in Section 2(2), Code of Civil Procedure, would not be of any consequence. In view of the aforesaid considerations, the doubt entertained by the office is, thoroughly unfounded and is unsupportable as well. The office is, therefore, directed to entertain the appeal and number the same, if the papers are otherwise in order.

[ 110162683, 17002337, 17002337, 17002337, 110162683, 17002337, 197743596, 110162683, 110162683, 110162683, 197743596, 110162683, 110162683, 1067949, 110162683, 197743596, 110162683, 197743596 ]

Author: V Ratnam

216,579

R. Sundaresan And Two Ors. vs A. Ramachandran And Co. By Partner ... on 30 March, 1981

Madras High Court

18

2. C. O. 39 of 1956, under Section 185 of the Indian Companies Act; 3. C. O. 57 of 1956, under Section 185 of the Indian Companies Act; 4. C. O. 7 of 1957, under Section 185 of the Indian Companies Act; and 5. C. O. 81 of 1957, under Sections 195/196 of the Indian Companies Act. It was stated that if these cases were at this stage referred to the Court of the District Judge, the liquidation of the People's Insurance Company would be delayed besides causing monetary loss to the policy-holders of this Company. ORDER Tek Chand, J. 1. The Official Liquidator of the People's Insurance Company Limited (in liquidation) presented a petition purporting to be under Section 436 read with Section 438 of the Companies Act, 1956, and Section 151 of the Code of Civil Procedure, praying that certain cases may continue to be heard by this Court and not transferred to the Court of the District Judge, Delhi. A reference was made in the petition to the recent Full Bench decision of this Court in National Planners, Ltd. v. Contributories, etc., 1958-60 Pun LR 187 : (AIR 1958 Punj 230), where it was held that winding up proceedings pending before the District Judge must continue in that Court and it was not necessary under the Companies Act of 1956 to transfer such proceedings to the High Court. The petition mentioned that there were the following cases pending in this Court and in some of which evidence has already been recorded while in others processes have been issued for recording of evidence : 1. C. O. 38 of 1956, under section 185 of the Indian Companies Act; 2. The respondents filed written statements opposing the petition. It was stated on their behalf that the petition was not maintainable under Sections 430 and 438 of the Companies Act and in view of the provisions of Section 647 of the Companies Act, 1956, and of the decision of the Full Bench referred to above, Sections 436 and 438 did not apply to the companies which were being wound up when the Companies Act of 1956 came into force. The second objection was that under Section 2(6) and Section 53 of the Insurance Act of 1938 the jurisdiction to wind up an insurance company vested only in the Court of the District Judge of the District, in which the registered office of the Company was situate, and for this reason the proceedings for the winding up of the petitioner Company could be taken only in the Court of the District Judge, Delhi. It was also contended that this Court had no jurisdiction to try the cases of the People's Insurance Company Limited (in liquidation). On merits it was said inter alia that the respondents who were residents of Delhi, were greatly inconvenienced in attending to these cases in the High Court. 3. In his replication the Official Liquidator maintained that even if Sections 436 and 438 were held inapplicable, the petition was maintainable under Clause 9 of the Letters Patent and also under Section 24 of the Code of Civil Procedure, It was also reiterated that the interests of Justice and convenience of the parties required, that further proceedings should continue in this Court, otherwise there was danger of several complications arising in case the proceedings were now to be held in the Court of the District Judge. 4. By my order dated 26th of September, 1957, in Civil Original No. 7 of 1957, I had referred the following question to a larger Bench : "Whether, in a case in which, the winding up of an Insurance Company had commenced in the District Court, before the coming into force of the Companies Act, 1956, the High Court has jurisdiction to continue further winding up proceedings." 5. The Division Bench consisting of my Lord the Chief Justice and Chopra J. answered the question In the negative and held that in a case as that of this Company, in which the District Judge, Delhi had ordered the compulsory winding up of the Company in May 1955, the High Court had no jurisdiction to continue further winding up proceedings. 6. The winding up proceedings in this case after the passing of the winding up order by the District Judge on 20th of May, 1955, were sent to this Court under the following circumstances : The District Judge, Delhi, sent a communication dated 9th of March, 1956, to the High Court stating that in view of the provisions of Section 10 of the Companies Act, 1956, if it was desired that the District Judge, Delhi, should have jurisdiction, the Central Government might be moved to issue the appropriate notification under Sub-section (2) of Section 10. Another communication was sent by the District Judge, Delhi, dated 11th of April, 1956, enclosing a copy of his order in a liquidation case in which he had expressed the view that the District Court, Delhi, had ceased to have jurisdiction for winding up companies under the Companies Act, 1956. He also stated, that besides that case, there were a number of other liquidation cases also the list of which he had enclosed which were covered by his aforesaid order. He solicited the orders of the High Court as to whether the files of such cases were to be forwarded to Chandigarh or were to be sent to the Assistant Registrar, Circuit Bench, at Delhi. The Hon'ble the Chief Justice ordered that "all such files should be sent to Chandigarh." The files of the Company in liquidation before me were received in this Court and the various proceedings in pursuance of the winding up order have been going on in this Court ever since. 7. The winding up order was passed by the District Judge, Delhi, on 20th of May, 1955, and the People's Insurance Company Limited was ordered to be compulsorily wound up and the Provisional Liquidator was appointed as the Official Liquidator of the Company. 8. This petition relates to three cases under Section 185, one under Section 184, and one under Sections 195 and 196 of the Indian Companies Act, 1913. All these matters arise under the provisions of winding up under Part V of the Act. The learned counsel for the Official Liquidator has frankly conceded that in view of the decision of the Full Bench, his petition is not maintainable under Sections 436 and 438 read with Section 647 of the Companies Act of 1956. 9. The main controversy which emerges from the arguments of the learned counsel for the parties centres on the question, whether this Court is rightly seized of the cases, and if not, whether in the exercise of its powers under Clause 9 of the Letters Patent and under Section 24 of the Code of Civil Procedure, these cases should be, or deemed to have been, transferred to this Court and therefore the proceedings should go on here and not in the Court of the District Judge. The stand of the learned counsel for the respondents is, that this Court has no jurisdiction whatever, and the cases in question should neither he transferred, nor be treated to have been transferred under the orders of the Hon'ble the Chief Justice under Section 24 of the Code of Civil Procedure or of Clause 9 of the Letters Patent. Clause 9 of the Letters Patent runs as under : "9. Extraordinary original civil jurisdiction: And We do further ordain that the High Court of Judicature at Lahore shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court subject to its superintendence, when the said High Court may think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court." 10. No doubt the proceedings in this Court under the Indian Companies Act are not in the nature of "suit" as narrowly construed, but the word "suit" in Clause 9 of the Letters Patent has been given a wider significance and includes proceedings of a civil nature whether commencing with plaint or not. In Harkishan Lal v. Peoples Bank of Northern India, Ltd., AIR 1936 Lah 608, it was held by a Division Bench that the word "suit" in Clause 9 should be interpreted widely and it includes proceedings in the insolvency Court, and the High Court under its extraordinary powers has jurisdiction to transfer a proceeding in insolvency from the lower Court to itself for disposal. Young, C. J., observed at page 609 : "In our opinion, Section 3(1) (Provincial Insolvency Act, 1920) merely enacts that the ordinary jurisdiction in insolvency shall be in the District Courts. It does not exclude the extraordinary civil jurisdiction of the High Court." 11. In In the matter of the West Hopetown Tea Co., Ltd., ILR 9 All 180, it was held by a Full Bench of three Judges that there was nothing in the Indian Companies Act (VI of 1882) or the High Courts Act or the Letters Patent, which prevents the High Court from calling for the record of the proceedings in the winding up of a company under the Companies Act, and transferring those proceedings to its own file. The objection that the High Court had no power to call up the record and transfer the winding up proceedings to its own file was rejected. 12. The next case reported is In the matter of, General Assurance Society Ltd., Ajmer, AIR 1956 Raj 61. It was held that the words of the proviso to Section 3 of the Indian Companies Act, 1913, do not exclude the jurisdiction of the High Court in Company matters and hence the High Court does not lose its jurisdiction in Company matters. This was a case of an Assurance Company. It was also held that as the High Court did not suffer from inherent want of jurisdiction, even when a District Court is authorised to exercise jurisdiction under the Act, the High Court could proceed with the application before it by virtue of Section 3(3) of the Act. It was further held, that even if it be assumed that the High Court had no jurisdiction, Section 17 of the Rajasthan High Court Ordinance -- which is equivalent to Clause 9 of our Letters Patent -- authorises transfer of any case to itself falling within the jurisdiction of any subordinate Court. Bapna J. observed : "The word 'suit' in Section 17 has a wide meaning and would include all civil proceedings pending in the subordinate Courts. It would be a mere formality to transfer the cases to a District Court and thereafter to retransfer them to the High Court should the High Court think it proper to try the cases itself." 13. The authorities cited above make Clause 9 of the Letters Patent applicable to this case. It is argued by the learned counsel for the respondents that the order of the Hon'ble the Chief Justice dated the 7th of May, 1956, was an administrative order and further as it did not contain any reasons for transferring the files to the High Court it was not covered by Clause 9. But for purposes of transferring a case from the file of one Court to that of the other, the passing of judicial orders after hearing the parties are not within the contemplation of either Clause 9 of the Letters Patent or of Section 24 of the Code of Civil Procedure. It cannot be stressed that the order is bad because no reasons in support of it have been recorded by the High Court. The reasons have been given by the District Judge, which were accepted by the Hon'ble Chief Justice. 14. Under Section 24, Civil Procedure Code, the High Court may either on the application of any of the parties and after notice to the parties or after hearing such of them as desire to be heard, or of its own motion without such notice, may at any stage withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and try or dispose of the same. 15. In Babubhai Vamalchand v. Hiralal Vamalchand, AIR 1941 Bom 69, a suit had been properly instituted in the Court of First Class Sub-Judge and later on it was transferred to the Second Class Sub-Judge by an administrative order. It was held by the High Court, that it may properly take action of its own motion under Section 24 and in order to save difficulty and delay, transfer the suit to the First Class Sub-Judge for disposal. 16. In a Full Bench decision of the Madras High Court, Annamalai Chettiar v. Ramanathan Chettiar, AIR 1936 Mad 55, it was held, that both under Clause 13 of the Letters Patent of that Court -- which is equivalent to Clause 9 of the Letters Patent of this Court -- and Section 24 of the Code of Civil Procedure, the High Court had power to withdraw a suit from a subordinate Court and try and dispose of the action itself, and this may be done of its own motion, without notice to the parties and, at any stage of the suit. 17. In C. L. Gulati v. G. Reeves Brown, AIR 1939 Lah 463, it was held, that under Section 24, a Judge in Chambers has got jurisdiction to transfer a case under Sections 302 and 303, Succession Act, to his own Court at any stage and he can suo motu examine the accounts filed under Section 317 of the Indian Succession Act (1925) so as to pass an order under clause (4) of that section. Reference may also be made to Kavasji Pestonji v. Rustomji Sorabji, AIR 1949 Bom 42 and Allahabad Bank, Ltd., Lahore v. Raja Ram, AIR 1933 Lah 671, which are to the same effect. 18. The learned counsel for the respondents hag placed reliance upon a Division Bench decision of this Court in Sathir Singh v. Rajbir Singh, AIR 1954 Punj 274. In that case it was held that there was nothing in the Guardians and Wards Act which gave ordinary original jurisdiction to the High Court to deal with the petition filed under the Act. The petition for the appointment of a guardian could only be entertained in the High Court in the exercise of its extraordinary civil jurisdiction. In that case a petition was instituted in the first instance to the High Court under what was alleged to be the "inherent powers of the High Court." It was held that the petition must first be instituted in the District Court where it lay and then if that Court be subordinate to the High Court it could, if that Court so thought fit, be withdrawn from that Court and decided in the High Court. That decision is distinguishable on the facts of this case. The District Judge, as noticed above, had passed the winding up order in 1955 and it was in 1956 that the file was sent to this Court, but in the ruling referred to above, the proceedings were initiated in the High Court which obviously could not be done. 19. It was then argued on behalf of the respondents that five cases, the transfer of which was sought, were never filed in the Court of the District Judge, but were originally filed in this Court and therefore, the respective petitions should be returned to the Official Liquidator for presentation to the Court of the District Judge. All proceedings consequent upon winding up order are the offshoots of that order. Proceedings under Sections 184, 185, 195 and 196 of the Indian Companies Act are begun after the winding up order is passed. As they stem from the winding up order passed under Section 162, they cannot have a separate and an independent existence. These proceedings became necessary during the progress of winding up and in fact they themselves are in the nature of winding up. 20. It was also argued, that although proceedings have been pending in this Court since 1956, in some cases a number of witnesses have been examined and in others, important decisions have been made, no respondent in any one of these cases questioned the jurisdiction of this Court. It is true that where a Court has no inherent jurisdiction to entertain a case, the acquiescence of a party cannot confer jurisdiction upon the Court, vide Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155. But this rule has its limitation and cannot extend to cases where the Court has extraordinary original civil jurisdiction. In Ex parte Pratt, (1884) 12 QBD 334, Bowen, Lord Justice, observed; "There is a good old-fashioned rule that no one has a right so to conduct himself before a tribunal as if he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him, to turn round and say, 'You have no jurisdiction'. You ought not to lead a tribunal to exercise jurisdiction wrongfully." 21. In Ex parte May, (1884) 12 QBD 497, Bowen, L. J., said: "If the point had been taken the Court could have clothed itself with jurisdiction to make the adjudication under Sub-section (12) of Section 125 (of the Bankruptcy Act). I think the true ground of our present decision is this, that the debtor had no right to allow the Court which could have exercised jurisdiction rightly, to exercise jurisdiction on a wrong ground, and then to come to the Court of Appeal and say, The Court below had no jurisdiction to make the adjudication against me. The answer before me is, The Court had jurisdiction to make the adjudication if it had exercised it in the right form". 22. Both the above decisions were considered in a Division Bench decision in Posan Singh v. Inderdeo Singh, AIR 1952 Pat 328, and it was held that where there was no inherent want of jurisdiction the doctrine of waiver applied. In that case the record of a civil suit was sent from the Second Additional Munsif to that of the Third Additional Munsif who had jurisdiction to entertain the suit, but there was no order of the District Judge sanctioning the transfer of the suit. It was held that the failure to obtain the order from the District Judge was a defect of procedure which had been cured by waiver. The principle of the above decision applies to this case. 23. Bank of Chettinad v. S. P. K. V. R. Firm, AIR 1935 Rang 517, cited on behalf of the respondents is not applicable as this is not a case of assumption of jurisdiction by a Court where it had none. 24. On a consideration of the facts of this case and after examining the arguments of the learned counsel, I am of the view that in the exercise of its extraordinary original civil jurisdiction this Court is competent to transfer proceedings pending in the Court of the District Judge, to itself. Neither Section 24 of the Code o[ Civil Procedure nor Clause 9 of the Letters Patent, is any bar to this Court's power to withdraw, of its own motion, and without notice to the parties, any proceedings pending in any Court subordinate to it and to try and dispose of the same. I am also of the view that such proceedings stood validly withdrawn from the Court of the District Judge, when on the representation made by the District Judge to the High Court, the Hon'ble the Chief Justice ordered that all such files should be sent to Chandigarh. This order was competent and within the scope of Section 24, Civil Procedure Code, and Clause 9 of the Letters Patent. In any case even if the winding up proceedings were now pending in the Court of the District Judge, I would have ordered their withdrawal from that Court and would have directed that the liquidation proceedings and other ancillary matters be tried and disposed of by this Court. It will be a futile formality, now that all the files have been in this Court since 1956, to transfer the cases to the District Court, Delhi, and thereafter to retransfer them to this Court. This was also the view expressed by Bapna J. in AIR 1956 Raj 61. 25. In my view, the cases referred to in this petition were validly transferred to this Court, and in the exercise of its extraordinary original civil jurisdiction, this Court is rightly seized of the proceedings and has jurisdiction to itself try and dispose of the same. 26. The only question that remains to be disposed of is the desirability of taking such steps. On behalf of the respondents it has been urged, that hearing of cases at Chandigarh is inconvenient to the parties and burdens them with unnecessary expense. This objection does not seem to have been present to the respondents prior to this petition. Large sums are involved and there are serious allegations made against the ex-Directors and other contributories not only as to gross mis-management but also as to defalcation and misappropriation etc. Various steps under Part V of the Indian Companies Act of 1913 have been taken by this Court and various proceedings are going on. It will not be in the interests of justice and convenience that the proceedings which have been pending in this Court for the last two years should now be transferred to the Court of the District Judge, Delhi. 27. I, therefore, allow the petition and direct that all proceedings connected with the winding up of the People's Insurance Company (in liquidation) shall remain and be continued in this Court in the exercise of its extraordinary original civil jurisdiction. I will leave the parties to bear their own costs.

[ 257409, 257409, 257409, 257409, 257409, 1994238, 1196503, 1353758, 257409, 1954106, 1994238, 1591579, 257409, 257409, 1353758, 1973807, 1058144, 745933, 1994238, 1353758, 1907423, 1907423, 1353758, 179512, 1847726, 257409, 257409, 745933, 1994238, 1591579, 257409, 301673, 257409, 1483303, 1353758, 860740, 1330413, 1513155, 993607, 241179, 993607, 946639, 993607, 129277, 531455, 1450343, 1372849, 822294, 1220, 1608688, 257409, 257409, 257409, 257409, 257409, 1652166, 257409, 1317106, 257409 ]

Author: T Chand

216,581

Peoples' Insurance Co. Ltd. vs Sardul Singh Caveeshar And Ors. on 31 May, 1958

Punjab-Haryana High Court

59

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/4/2007 CORAM : THE HON'BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA and THE HON'BLE Mr.JUSTICE K.VEERARAGHAVAN Rev.Appl.Nos.45,46 of 2006 in W.A.(MD)Nos.81,82 of 2006 The Special Officer, Pudukkottai District Central Co.operative Bank Limited, Pudukkottai. .. Petitioner in both Review Applications Vs 1. R.Devendram .. Respondents in Rev.Appl.No.45 of 2006 2. SP.AM.Sundaram .. Respondents in Rev.Appl.No.46 of 2006 3. The Registrar of Co-operative Societies, Kilpauk, Chennai-10. .. Respondents in both Review applications Prayer in R.A.No.45 of 2006: Review petition filed under Order 47 Rule-1 Code of Civil Procedure against the order dated 15.11.2006 passed in W.A. No.81 of 2006. Prayer in R.A.No.46 of 2006: Review petition filed under Order 47 Rule-1 Code of Civil Procedure against the order dated 15.11.2006 passed in W.A. No.82 of 2006. !For Petitioner : Mr.K.Jayaraman ^For RR 1 in both applications) : Mr.AR.L.Sundaresan, Senior Counsel For RR 2 : Mr.R.Janakiramalu :ORDER Order of the court was made by F.M.IBRAHIM KALIFULLA, J. These review petitions have been preferred by the second respondent in the writ appeals. 2. Mr.K.Jayaraman, the learned counsel for the second respondent submitted that on the date of hearing namely 15.11.2006, the counsel could not be present and therefore, certain vital legal questions involved in the writ appeals could not be placed before the Division Bench but for which the order in the writ appeals would not have been passed. 3. The review petitioner has raised three contentions namely, that in the light of the Full Bench decision of this Court reported in 2006(4) CTC 689 (K.Marappan V. The Deputy Registrar of Co-operative Societies, Namakkal), the writ petition itself was not maintainable and consequently, no relief could have been granted in the writ appeal. Secondly, it was contended that the issue relates to non grant of promotion to the writ appellants on the ground that they suffered the punishment of censure which was in operation during the relevant period namely immediately preceding three years from the date when the selection promotion was made. 4. According to the learned counsel for the review petitioner as per the bye-laws of the society when censure has been listed out as one of the punishments, having regard to the dictum of the Honourable Supreme Court reported in 1998 SCC (L & S) 1121 (State of M.P. V. I.A.Qureshi), the same would operate as a bar for considering the writ appellants for promotion. Lastly, it was contended that irrespective of the clause in the bye-laws listing out the penalties as between the candidates who were considered for promotion, one who suffered a punishment of censure or any other punishment cannot be equated to another employee who served the petitioner society without any blemish and therefore, on this ground as well the claim of the writ appellants was not justified and therefore, no interference was called for to the order of the learned Single Judge. 5. As against the above submissions, Mr.AR.L.Sundarasan, learned senior counsel appearing for the writ appellants at the out set contended that the case of the writ appellants would fall within the criteria laid down in paragraph 21(i) of the Full Bench decision and therefore, the writ petition was maintainable. The learned counsel then contended that the Division Bench having examined the question whether censure would constitute the punishment and has taken a view that the same can only be treated as warning or a minor penalty and not a full fledged punishment, no interference is called for in a review petition. According to the learned senior counsel, the writ appellants having served the society for a quite long time cannot be deprived of their promotion merely because of the censure administered on them. Apart from the respective submissions, it is also stated that both the writ appellants were promoted after the prohibitive period of three years which was an impediment for considering them for further promotion to the post of Assistant Manager. 6. In the above said background, when we considered the respective submissions of the learned counsel, as far as the contention regarding the maintainability of the writ petition is concerned, a perusal of clause (i) of paragraph 21 of the Full Bench decision it comes to light that if a particular Co-operative Society can be characterised as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court), it would also be, 'an authority' within the meaning and for the purpose of Article 226 of the Constitution and that in such a situation, even an order passed by a society in violation of the bye-laws can be corrected by way of Writ Petition. As far as the tests are concerned the same have been set out in paragraph 7 of the decision of the Full Bench. The tests as laid down in the Ajay Hasia Case of the Honourable Supreme Court have been reproduced in the said paragraph. The tests laid down therein broadly set out states that if the entire share capital is held by the Government or where the financial assistance of the State is so much as to meet almost entire expenditure that would afford an indication of the Co-operative Society being impregnated with governmental character. With that tests laid down by the Honourable Supreme Court in mind when we considered the submission of learned counsel for the writ appellants, it was stated that substantial shareholdings of the review petitioners society is that of the State Government. That apart, the said issue was not very much in controversy both in the writ petition as well as in the writ appeals. 7. We are therefore of the view on that ground there is no scope to countenance the contention of the review petitioner to interdict with our order passed in the writ appeal. As far as the contention placed on bye-laws 6, its proviso and the explanation attached to it, the question is whether the expression "any punishment" would take within its fold 'censure' awarded to the writ appellants. Under bye-law 19 of the review petitioner's bye-laws, it is stated as under "The following penalties may, for 'good and sufficient' reasons or for "misconduct" be imposed upon on employee:- (i) Censure" A reading of bye-law 19 is quite explicit and there is no reason for doubt that 'censure' is one of the penalties prescribed under the bye-laws of the society. In this context, the decision of the Supreme Court reported in 1998 SCC (L & S) 1121 (cited supra) relied upon by the learned counsel for the review petitioner assumes significance. In paragraphs 7 & 8 of the said decision, the Honourable Supreme Court has stated the legal position in the following words: "7.The submission of Shri khanduja is that "censure" is only a recorded warning and does not constitute punishment and, therefore, the directions contained in the circular in relation to imposition of minor penalty would not apply and the Tribunal was justified in giving the directions for opening of the sealed cover and for giving effect to the recommendations of the DPC. 8. We are unable to accept the said contention of the Shri.Khanduja. "Censure" cannot be equated with a warning since under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, "censure" is one of the minor penalties that can be imposed on a government servant. It cannot, therefore, be said that the penalty of censure which was imposed on the respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2.5.1990. Once it is held that a minor penalty has been imposed on the respondent in the departmental proceedings, the direction given in the said circular would be applicable and the sealed cover containing recommendations of the DPC could not be opened and the recommendations of the DPC could not be given effect because the respondent has not been fully exonerated and a minor penalty has been imposed. The respondent can only be considered for promotion on prospective basis from a date after the conclusion of the departmental proceedings." (Emphasis added) 8. As per the law laid down by the Honourable Supreme Court, even a censure which has been prescribed as a 'penalty' under the rules would certainly operate as an embargo for considering the case of an employee for promotion. In other words, a reading of bye-law 19 along with the explanation to clause 6 of the bye-laws leads us to hold that even the punishment of censure would come within the mischief word "any punishment" described in the explanation to bye- law 6 and consequently, the award of such punishment to an employee would deprive such an employee's promotion for a period of three years from the date of imposition of such punishment. Once such a conclusion is in-escapable by applying the ratio of the Honourable Supreme Court, we have to necessarily review our order dated 15.11.2006 and state that even the punishment of censure should be construed as one covered by clause 6 of the bye-laws of the review petitioners society. 9. Once such a position is ascertained and the same is applied to the case on hand, we find that both the appellants suffered the punishment of censure on 06.03.2003 and 26.09.2003 respectively. Since the panel was drawn on 6.12.2004, the punishment of censure did act as an impediment for being considered for further promotion to the post of Assistant Manager. 10. In view of the said conclusion, no fault can be found on the action of the review petitioners in not considering the case of both the writ appellants while effecting promotions in December 2004. Having regard to our conclusion in these review petitions, our order dated 15.11.2006 in setting aside the order of the learned Single Judge stands reviewed and the order of the learned Single Judge is confirmed. For the reasons set out in this order, the review petitions are allowed and the writ appeals stand dismissed. 11. The cost awarded by the learned Single Judge alone is set aside in view of the fact that both the writ appellants are employees and there were substantial questions of law involved in the writ petition as well as in the writ appeals. 12. It is reported that both the writ appellants were subsequently promoted in the normal course in the year 2006. The Review Petitioner in their order dated 8.3.2007 have stated that the promotions of the writ petitioner would be subject to the result of the review petitions. Since we have allowed both the review petitions, the promotions accorded to the writ appellants shall not in any way be affected by these proceedings. No costs. sgl To The Registrar of Co-operative Societies, Kilpauk, Chennai-10.

[ 186075, 609139, 1712542 ]

null

216,582

The Special Officer vs R.Devendram on 4 April, 2007

Madras High Court

3

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15528 of 2009 SANJIT KUMAR SINHA Versus STATE OF BIHAR 2 04.11.2010 As prayed for, put up on 15th November, 2010 under the same heading. (Akhilesh Chandra, J.) AAhmad

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null

216,583

Sanjit Kumar Sinha vs State Of Bihar on 4 November, 2010

Patna High Court - Orders

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM LA.App..No. 385 of 2008() 1. STATE OF KERALA . ... Petitioner Vs 1. K.APPUKUTTAN, S/O.KESAVAN, ... Respondent 2. THE MANAGING DIRECTOR, For Petitioner :GOVERNMENT PLEADER For Respondent : No Appearance The Hon'ble MR. Justice M.N.KRISHNAN Dated :30/11/2009 O R D E R M.N. KRISHNAN, J. = = = = = = = = = = = = = = = L.A.A. NO. 385 OF 2008 = = = = = = = = = = = = = = = Dated this the 30th day of November, 2009. J U D G M E N T This is an appeal preferred against the award of the Land Acquisition Court, Thiruvananthapuram in LAR 415/03. An area of 0.07 Ares of land comprised in R.S.No.527/05 of Pettah village was acquired for the purpose of expansion of International Airport, Thiruvananthapuram. The Land Acquisition officer fixed the land value at Rs.7,655.55 and value of structures at Rs.22,339/-. In a reference the Land Acquisition Court in paragraph 10 of its award fixed the value of structures at Rs.35,000/- and the land value to Rs.2,00,000/- per Are thereby enhanced the land value by Rs.6,344.45 and value of structures by Rs.12,661/-. 2. I had carefully perused the award. I do not find any basis given by the Land Acquisition court for enhancing the value of structures. He criticized the land acquisition officer holding that on what basis he has calculated the value L.A.A. 385 OF 2008 -2- of structures. In the next sentence he jumps to the conclusion that it can be enhanced by Rs.35,000/-. I do not find any materials discussed or supplied to arrive at that decision. 3. Similarly regarding the land value also the claimant makes a claim of Rs.3 lakhs and the land acquisition court makes it at Rs.2,00,000 lakhs without any basis. So these are all materials which requires detailed consideration at the hands of the court below. Therefore the award under challenge is set aside and the matter is remitted back to the Land Acquisition Court for fresh consideration of the land value as well as the value of the structures. Parties are directed to appear before the Land Acquisition Court on 7.1.2010. M.N. KRISHNAN, JUDGE. ul/-

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216,585

State Of Kerala vs K.Appukuttan on 30 November, 2009

Kerala High Court

0

, '_ Anni, V IN THE HIGH ooum' OF KARNATAKA, ' DATED THIS THE 23'"! DAY:-OF' BEFORE THE HON'BLE MR. A's.Bo.1§3$miA%'V '.1!..,l'I' PE-T. . IQN ,1 vulva. -3? * 9.34 «,r=m ,.--,g.g;;;; BETWEEN: _ V _ UNITED INDIAINSURANC-E " Divimor-5A1. o?§:g_§y- _ .v .& _ ._ P.B. NO. 88.;1'13'_;.134-7; IIND-..FLOO'R ' PUB Bb'iLBIi€GSi,'__A,;A. '_ B.H.RQAD.,_ -- ' _' sHiM0r3A--57?.T,-301 _ _ BY ITS AssIsTAN1>.MANA(sEVRvv----._ -- - PETITIONER (BY SR£ OWLHAESHV, z»;.:M A _ s.,N:RANJAN SI-IASTRY ~ T as/-0, LATEEJAGABHUSHANA SI-[_AS'I'RY % NEAR,R&JA"SHEKAR TALKIES A? ' surxaxiamuns, SHIMOGA DIST - 577 201 2 SARITHA W/O MR SANJAY A ' 21 YEARS, N05 856, RUKMINI COLONY r _ NEAR AJANTHA THEATRE " BANGALORE - 560042 RESPONDENTS' [ ~ 13:? SR! v s PRASAD, ADV FOR R13 L ]L "9 THIS WRIT PETITION IS FILED UNDER ARTlC_LE$'226 AND' ' 227 OF THE CONS'!'I'!'UT!QN QF !N£*!.'*. PRAYEHGV --a»Q'QU&';$ ~«.TE%E " V. V JUDGEMENT VIDE ANNEXA. AND .CER'P!F'IE'D COW' AWARD VLDE AMNIEJKLB. BOTH PASEBED 01'! 11.53993'-5'a.' THE' PRL. MOTOR ACCIDENT owns Trexaubm; Af3!'D"TI-{EV calpiwf JUDGE OF SMALL CAUSES AT EAN'C-£9-LC«'RE {H'w'b,.?-'~;'\3'i".! "953, 'G? 1996 AND Em. V _ . THIS PETITION comma <j'r{FoR Htsaléileue THIS DAY. THE CQUEP MAQE THE -11.: mtéii;1Lezi;},:.2-!:2.e'¢.-re-;f.:¢ 'ﬁﬁfi':"i"1:': thia Cain-t as-amuu"""§ -:i_ paaaeti in 3-io}*5:'i96."e % _H.Mfhe mar and the char' Judge 5:. has awmtled the sum of R§..5,570f-- costs and interest at 6% p.a. to the dais: of payment. The said the respondent Noa.1-andeﬂ-therein jeiqfijr among whom the ie t_h_e ' V _ ﬁrst A The gtievanee put ibrth by the petiﬁocnerv-lnaunnee C ..._(3§:mpany is that the mar was not juatiﬁed in ﬁxing the on the insurance Company also, -tﬁhe veh_1't_2k @- " J5-""" question was a pnvate' ear, but the name had uBed_ V' taxi and therefore, the name was teru 1» T. Insurance Policy. The judgment along with the judglnent 52,11-:a<e:o6= In ;g_,.n-gm: es the at:-.a.-- mm ﬁos.2i9oj_r;4, and 2195104. 3133- 131- appenh' __ . A oo- oxtlinate disposing ofthe said- appeale on upheld the contention of the such, has uet aside the judgtnent ogatnst the Insurance Gmnpany and :.---J_ - ---o---' . the eholl nmr the et..ﬁ.:I.p-..-z-.a*.is.-.2-. to A t....'-- -2......-"-' vie'.'.-' uu""'5 -'-can-:1 takeii o"" i % .L'I__'._ I1_ __ __4. or' "we of mm uourt, in preaent idea, the piztfoxtia by the insurance Company would have to be inmn-mu"'"'"' arnd iniofar as the oaunpenenﬁon mvatlieci 'by the mar, the owner shall alone be liable to pay the claimants and the judgment and the Insurance Company liable in With the above stands allowed. No older as

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Author: A.S.Bopanna

216,587

United India Insurance Co Ltd vs S Niranjan Shastry on 28 March, 2008

Karnataka High Court

0

62, For money payable Three years When the money by the defendant to is received, the plaintiff for money received by the defendant for the plaintiff's use. ORDER Kapur, J. 1. This is a rule obtained by the defendant, Municipal Committee, Amritsar, against a judgment and decree of Mr. Monahar Singh, Small Cause Court Judge, Amritsar, dated 18-10-1951, decreeing the plaintiff's suit for the recovery of Rs. 252/8/-. 2. In the year 1945 the Municipal Committee of Amritsar levied house-tax, but by a notification this house-tax was not recoverable from religious institutions. The Committee recovered a sum of Rs. 344/5/- as house-tax from the plaintiff who is the Mahant of Akhara New Panchayati, Amritsar, for the years 1946-47, 1947-48 and 1943-49. On 10-8-1949 a suit for perpetual injunction was brought by the present plaintiff restraining the Committee from realising any house-tax on Akhara property which was granted on 1-2-1951. The Committee refunded the tax for the year 1948-49 which was Rs. 91/13/-, but they refused to return the balance. The plaintiff thereupon brought a suit for the recovery of this money alleging that this tax was 'ultra vires' and the tax had been illegally recovered from the plaintiff. The suit was defended on the ground of limitation. The learned Judge has held that the suit is within limitation and has applied Article 96, Limitation ACT me municipal committee has come up in revision to this Court. 3. Mr. Grover has submitted that this Court should not interfere as substantial justice has been done and the mere fact that the Court may have taken an erroneous view on me question of limitation would not be any ground for interference by this Court on its revisional side. He has relied upon three judgments of the Lahore High Court. In the first one, -- 'Ghasita v. Sultan', 93 PR 1911, Rattigan J. held that the Chief Court would not interfere, in the exercise of its discretional powers of revision, with an erroneous decision on the question of limitation where substantial justice had been done. The same view was taken by Addfson J. in -- 'Karam Chand-Sant Ram "v. Daya Nand-Damodar Das', AIR 1928 Lah 51 (2), and by Din Mohammad J. in -- 'Charan Dass v. Ram Rattan', AIR 1935 Lah 137. 4. The question in the present case is not merely of substantial justice but a question of principle is involved as this decision affects the rights of the Municipal Committee in regard to taxes which have already been recovered. I am therefore not inclined to dismiss the petition of the Municipal Committee on the mere ground of substantial justice. 5. The present suit brought on 28-8-1951 and the taxes were collected -- Rs. 166/11/-for the year 1946-47 on 3-2-1947 and Rs. 91/13/- for the year 1947-48 on 16-2-1948. The petitioner Committee relies on Article 62, Limitation Act which is as follows; The question to be decided is whether the money which was paid to the defendant-Committee by the plaintiff can come within the phrase "money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use". The petitioner relies upon several decided cases in all of which Article 62 was applied to taxes recovered by or paid to Municipal Committees when they were not so due. In -- 'The Rajputana Malwa Rly. Co-Operative Stores, Ltd. v. Ajmer Municipal Board', 32 All 491, a Municipal Board in disregard of certain lawful orders levied upon a Company certain sums by way of octroi duty over and above what they were legally entitled to levy. This was held to be a suit for money had and used for the use of the defendant within the meaning of Article 62, Limitation Act. At page 496 the Court observed; "The language of Article 62 is borrowed from the form of count in vogue in England under the Common Law Procedure Act of 1852 xxx The most comprehensive of the old common law counts was that for money received by the defendant for the use of the plaintiff. This count was applicable where a defendant received money which in justice and equity belonged to the plaintiff under circumstances which rendered the receipt by the defendant to the use of the plaintiff. It was a form of suit which was adopted when a plaintiff's money had been wrongfully obtained by the defendant as for example, when money was exacted by extortion, or oppression, or by abuse of legal process, or when overcharges were paid to a carrier to induce him to carry goods or when money was paid by the plaintiff in discharge, of a demand illegally made under colour of an office. It was a form of claim which was applicable when the plaintiff's money had been wrongfully obtained by the defendant, the plaintiff in adopting it waiving the wrong and claiming the money as money received to his use". See -- 'Morgan v. Palmer', (1824) 2 B & C 729: 26 RR 537 and -- 'Neate v. Harding', (1851) 6 Ex 349." 6. Reliance was next placed on a judgment of Kania J-, as he then was, in -- 'City Municipality, Bhusawal v. Nussorwanji Hormusji', AIR 1940 Bom 252, where it was held that Article 96 applies when the cause of action is applicable to all citizens is not and cannot itself form the basis of a cause of action. Hence, a suit to recover certain amount of Municipal tax on the ground that it was illegally levied is governed by Article 62 and not by Article 96. It will be noticed that the learned Judge took into consideration the allegations made in the plaint. In the present case no question of mistake was ever raised in the pleadings of the parties. Counsel then relied on a judgment of the Madras High Court in -- 'India Sugars and Refineries Ltd. v. Municipal Council, Hospet', ILR (1943) Mad 521, where it was held by a Division Bench of that Court that Article 62, Limitation Act is intended to apply to all actions for money had and received to the use of a plaintiff whether they be actions which may be deemed strictly to be based on implied contracts or whether they be merely to enforce an equitable claim to the return of the money had and received. It applies therefore to a suit for the recovery of Municipal tax alleged to have been wrongfully levied by a municipality. 7. Another case dealing with the same subject is a Division Bench judgment of the Madras High Court in -- 'The Municipal Council, Dindigul v. Bombay Co. Ltd., Madras', 52 Mad 207, where it was held that a suit by a company for the recovery of a sum wrongfully collected by a municipality under section 92 is essentially an equitable action for "money had and received" and not a suit for "damages and compensation". At p. 213 reference was made to a judgment of the House of Lords in -- 'Sinclair v. Brougham', (1914) AC 398, and to a judgment of Lord Mansfield in --'Moses v. Macferlan', (1760) 2 Burr 1005, and also a judgment of the Privy Council in -- 'John v. Dodwell & Co.', (1918) AC 563, which was a case from Ceylon. I may here quote from the observations of Mookerjee J. in -- 'Mahomed Wahib v. Mahomed Ameer', 32 Cal 527. "It seems to me to be clear, as pointed out by Mark by J. in -- 'Raghumoni Audhikary v. Nilmoni Singh Deo', 2 Cal 393, that the Article, when it speaks of a suit for money received by the defendant for the plaintiff's use, points to the well known English action in that form; consequently the Article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff. As pointed out by Lord Mansfield C. J., in -- 'Moses v. Macferlan', (1760) 2 Burr 1005, this form of action lies for money paid by mistake, or upon a consideration, which happens to fail, or for money got through imposition (express or implied) or extortion of oppression or an undue advantage taken of the plaintiff's situation contrary to laws made for the protection of persons under those circumstances, in other words, this form of action would be maintainable in cases in which the defendant at the time of receipt, in fact or by presumption or fiction of law receives the money to the use of the plaintiffs; see also Keener on Quasi-Contracts, page 180." And again at page 534 the learned Judge observed : "It is clear therefore that under the English law, a sum received by the defendant is treated as having been received for the plaintiff's use, even though it might have been taken wrongfully, and I am of opinion that the same principle ought to be applied in construing Article 62. This view is in accordance with a series of cases decided by the Courts in this country, to which I shall now refer." With these observations I am in respectful agreement. 8. Mr. Grover relied on certain cases which, according to him, take a different view of Article 62. He relies in the first instance on a judgment of this Court in -- 'Amolak Chand v. Mohammad Shall', AIR 1948 EP I. It was held in that case that Article 62 has never been extended to cases in which the original receipt of the money by the defendant could not be deemed to be either in fact or by operation of law as a receipt on behalf of or for the use of the plaintiff, and it had not been applied to cases in which by reason of subsequent events the money which was paid to the defendant for his own use was to be regarded as in law money received by him for the plaintiff's use. I do not see how that principle can apply to the facts of the present case. Here the principle which is applicable is the one laid down by Mookerjee J. in the case referred to above rather the present one. 9. Reference was then made to 'Tofa Lal Das v. Moinuddin Mirza', 4 Pat 448, where it was said that in cases where the relief is based on mistake the period of limitation is to run from the time when the mistake is first discovered. But it was also held that where a Patnidar sues the landlord for return of the money paid in excess of the amount of cesses, the relief being based on mistake, Article 62 was applicable and not Article 96. This case, in my opinion, does not help the plaintiff in any way. 10. Reference was next made to -- 'Gorakhpur Electric Supply Co. Ltd. v. Nariman and Co.', AIR 1948 All 75, where in a different set of circumstances Article 120 was applied. 11. After considering all these cases and the arguments of counsel, I am of the opinion that the learned Small Cause Court Judge had erroneously applied Article 96 to the "facts of the present case. The Article applicable is 62. 12. I would therefore allow this petition, set aside the decree of the trial Court and dismiss the plaintiff's suit, but in the circumstances of this case I direct the parties to bear their own costs throughout.

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Author: Kapur

216,588

The Municipal Committee, ... vs Amar Dass on 30 October, 1952

Punjab-Haryana High Court

27

Gujarat High Court Case Information System Print SCA/6995/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6995 of 2011 ===================================================== KOLCHA NARVATBHAI RAMSINGBHAI - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s) ===================================================== Appearance : MR KB PUJARA for Petitioner(s) : 1, Ms.Asmita Patel, learned ASST.GOVERNMENT PLEADER for Respondent(s) : 1 - 4. NOTICE SERVED for Respondent(s) : 3 - 4. ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/11/2011 ORAL ORDER Ms.Asmita Patel,learned Assistant Government Pleader, states that further time be granted, in order to file the affidavit-in-reply. It is noticed by this Court that though notice has been issued on 7-7-2011, no affidavit-in-reply has been filed in spite of time being given on two occasions. Let the needful be done on, or before, the next date of hearing, failing which no further time will be granted. Mr.K.B.Pujara, learned advocate for the petitioner, submits that the petitioner had preferred Special Civil Application No.15415 of 2011 against the Superintendent of Post Offices against the action of the respondents in that petition of holding a departmental inquiry against the petitioner with regard to the cancellation of Caste Certificate which is the subject matter of this petition and the Division Bench has permitted the respondents to proceed with the Departmental Inquiry but, has restrained them from passing a final order. A copy of the order dated 14-10-2011 passed in Special Civil Application No.15415 of 2011 is tendered by Mr.Pujara and is taken on record. List on 12-12-2011. (Smt.Abhilasha Kumari,J) arg Top

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Author: Abhilasha Kumari,

216,589

Kolcha vs State on 16 November, 2011

Gujarat High Court

0

JUDGMENT John Beaumont, Kt., C.J. 1. J. This is a second appeal from a decision of the District Judge of Thana, in which the learned Judge held that where this Court dismissed an appeal with costs, it only meant that the appellant was not to get his costs. " Appeal dismissed with costs " is the ordinary expression which the Judge uses, when he means that the appellant has to pay costs having failed in the appeal. When the order comes to be drawn up, it is usually framed in such a way as to direct the appellant to pay the respondent's costs when taxed, but if in drawing up the order, the same expression is used as the Judge normally uses, " Appeal dismissed with costs," it can only have one meaning, and that is, that the appellant has to pay the costs of the respondent of the appeal. It is somewhat astonishing to find that the learned District Judge could take any other view of the matter. 2. April 13. A further point as to costs is also raised. The order I propose to make is to allow the appeal with costs throughout. But Mr. Joshi says that, inasmuch as his opponents' first appeal to the District Judge was dismissed summarily, the respondents ought not to be ordered to pay the costs of that appeal, because Mr. Joshi says that as they had not been given notice of the appeal, the lower appellate Court could not have directed them to pay costs. That, no doubt, is true. But the lower appellate Court having dismissed the appeal summarily, and that decision having now been reversed by this Court, it seems to me that it is open to this Court, on hearing the respondents, to make a proper order as to the costs in the lower appellate Court. In my opinion, in cases of this sort, where an appeal against a summary dismissal of an appeal succeeds, it is the general practice to allow costs throughout, and those costs include the costs of the appeal in the lower Court which was summarily dismissed. It is very undesirable to interfere with general practice, and in any case I think that the practice is fair, because there is no real hardship upon the respondent ; if he does not intend to contest the appeal in the lower Court, he can give notice of that fact to his opponent and avoid any costs being incurred. If he does not adopt that course, and in the result an appeal has to be brought to this Court against a summary dismissal of the appeal by the lower Court, I think that the ordinary rule, that "Costs follow the event" should apply. 3. The appeal must be allowed with costs throughout.

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Author: K John Beaumont

216,591

Yadav Vishvanath Gandre vs Bachoo Abraham David Awaskar on 13 April, 1939

Bombay High Court

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 7672 of 2008() 1. VARKEY @ ROY, S/O. VARKEY, ERATTHU HOUSE ... Petitioner 2. JOSEPH @ SAJU, S/O. VARKEY, Vs 1. STATE OF KERALA, REP. BY THE PUBLIC ... Respondent For Petitioner :SRI.B.RAMAN PILLAI For Respondent :PUBLIC PROSECUTOR The Hon'ble MRS. Justice K.HEMA Dated :06/02/2009 O R D E R K.HEMA, J. ----------------------------------------- B.A.No. 7672 of 2008 ----------------------------------------- Dated this the 6th February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 55(g) of the Abkari Act. According to prosecution, petitioners, who are accused 1 to 3 were found in possession of 1200 litres of wash and utensils for distillation of arrack and they were about to distill arrack. The crime was detected on 25.9.2008. Petitioners ran away and on the way, electoral identity card of the second accused and his lunki were dropped while chasing. Those also were seized. 3. Learned counsel for petitioners submitted that petitioners are innocent of the allegations made. They were implicated only because there was an incident on 30.6.2008 in front of the Excise office in Thankamony, on the allegation that first accused herein along with other UDF workers attacked the Excise range office and also assaulted an official. A crime was registered as Crime No.622/2008. Because of this enmity, the present crime is registered against petitioners and they BA.7672/08 2 are not actually involved. The allegation that the electoral card was in the possession of second accused, when he was allegedly engaged in distillation, is highly improbable and hence, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that the details of petitioners are recorded in the occurrence report and also in the mahazar. Those persons were identified by the persons in the locality and their statements are also there in the case diary. It is not correct to say that petitioners are falsely implicated. It is also submitted that the crime was detected not by any officials in Thankamony Excise Range, but it was detected by the Excise Enforcement and Anti Narcotic Special Squad, Idukki. The allegations of motive against the officials are denied. 5. On hearing both sides, considering the serious nature of the allegations made and in the absence of any special circumstance to grant anticipatory bail, I am not inclined to invoke the provision under Section 438 Cr.P.C. I am satisfied that it is not a fit case to grant anticipatory bail to petitioners. However, petitioners may raise the same contentions before BA.7672/08 3 the appropriate court at the time of filing of application under Section 437 Cr.P.C., in which event, bail application will be disposed of untrammelled by any of the observations made by this Court in this order. It is made clear that the observations made in this order are only for the purpose of considering whether anticipatory bail can be granted or not. Consideration for anticipatory bail and bail under Section 437 Cr.P.C are different as well settled. In the above circumstances, the following order is passed: K.HEMA, JUDGE vgs.

[ 1783708, 848468, 848468 ]

null

216,592

Varkey @ Roy vs State Of Kerala on 6 February, 2009

Kerala High Court

3

Court No. - 38 Case :- WRIT - C No. - 36261 of 2010 Petitioner :- Nityananda Sharma Respondent :- Smt. Sabra Begum Petitioner Counsel :- Anup Upadhyay,Shashi Kant Shukla Respondent Counsel :- Madhav Jain Hon'ble Pankaj Mithal,J. Small Cause Suit no. 109 of 2000 Smt Sabira Begum Vs. Sri Bhagwan Garg was decreed on 30.10.2009. In revision preferred by the petitioner against the said decree, the operation of the decree was stayed provided the petitioner deposits the entire amount as decreed in respect to the shop in his possession within 15 days. According to the petitioner he has deposited the amount as decreed within the time stipulated. However, the executing court vide order dated 5.6.2010 ordered for the issuance of Dakhlparvana with the finding that the entire amount decreed has not been deposited. The petitioner's revision against the said order has also been dismissed. The submission of Sri S.K. Shukla, learned counsel for the petitioner is that the petitioner has deposited the entire amount as decreed in respect to the shop in his possession and the executing court without apportioning the decretal amount amongst the various tenants simply for the reason that the entire amount has not been deposited and ordered for the issuance of Dakhalparvana. On the other hand Sri Madhav jain appearing for the respondents states that though the petitioner has deposited the rental part of the decree but has not deposited the damages which has been awarded. In view of the above respective submission of the parties the matter require some consideration. As agreed list on 7.7.2010. Learned counsel for the petitioner under takes to deposit even the damages part of the decree so far as it relates to the shop in his possession or proportionate to the damages of his share by the next date and furnish prove of the same before this court. Till the next date of listing the petitioner shall not be dis-possessed from the shop in dispute. It is made clear that this order come in way if the revisional court in deciding revision no. 3 of 2010. Order Date :- 23.6.2010 R.C.

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null

216,593

Nityananda Sharma vs Smt. Sabra Begum on 23 June, 2010

Allahabad High Court

0

Court No. - 28 Case :- MISC. BENCH No. - 717 of 2010 Petitioner :- Aditya Kumar Srivastava S/O Late H.K. Srivastava Respondent :- State Of U.P. Thru Secy. Home & Ors. Petitioner Counsel :- Syed Mohd. Nasir Respondent Counsel :- G.A. Hon'ble Alok K. Singh,J. Hon'ble Yogendra Kumar Sangal,J. List on 01.02.2010 as fresh to enable the learned counsel for the petitioner to file supplementary affidavit as requested. Order Date :- 29.1.2010 PAL/

[]

null

216,594

Aditya Kumar Srivastava S/O Late ... vs State Of U.P. Thru Secy. Home & Ors. on 29 January, 2010

Allahabad High Court

0

> Title: Regarding decision on methodology of caste-based census . श्री शरद यादव : अध्यक्ष जी, मैं निवेदन करना चाहता हूं कि यह बहुत गंभीर मामला है जो कास्ट इनोमरेशन का मामला था, ...( व्यवधान) अध्यक्ष महोदया : आप उसे शून्य प्रहर में उठाइए। …( व्यवधान) श्री शरद यादव : उसे बायोमीट्रिक में डाल दिया। ...( व्यवधान) अध्यक्ष महोदया : आप उसको शून्य प्रहर में उठाइए। अभी प्रश्न काल चलने दीजिए। …( व्यवधान) श्री मुलायम सिंह यादव (मैनपुरी): ...( व्यवधान) जातीय आधार की जनगणना क्यों बायोमीट्रिक में डाल रहे हैं? ...( व्यवधान) अध्यक्ष महोदया : मुलायम सिंह जी, आप उसे शून्य प्रहर में उठाइए। …( व्यवधान) श्री मुलायम सिंह यादव : आपसे निवेदन है कि इसे उलझाया क्यों है? क्या हम सब लोगों को नासमझ समझ रखा है?यह समझ रखा है कि ये नासमझ हैं और इनको यह समझ में नहीं आएगा। ...( व्यवधान) यह सरकार की गहरी साजिश है। अध्यक्ष महोदया : अभी प्रश्न काल चल रहा है। शून्य प्रहर में आप इसको उठाइए। …( व्यवधान) श्री गोपीनाथ मुंडे (बीड): ...( व्यवधान) वादा किया था कि पार्लियामेंट को बतायेंगे। ...( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चलने दीजिए। …( व्यवधान) श्री शरद यादव : यह जो हेड-काउन्ट हो रहा है, हेड-काउंट में नहीं रखा है, इसको बायोमीट्रिक में डाल दिया। ...( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चलने दीजिए। …( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चल जाने दीजिए। …( व्यवधान) श्री शरद यादव : इसको बायोमीट्रिक में डाल दिया है। ...( व्यवधान) बायोमीट्रिक में 15 वर्ष के ऊपर के लोगों का हुआ है। ...( व्यवधान) अध्यक्ष महोदया : सुदीप जी, आप क्या कह रहे हैं? …( व्यवधान) SHRI SUDIP BANDYOPADHYAY (KOLKATA UTTAR): Madam, I am on a point of information.… (Interruptions) Please give me a chance to speak. … (Interruptions) We have given a notice to speak during the ‘Zero Hour’.… (Interruptions) MADAM SPEAKER: All right. … (Interruptions) श्री शैलेन्द्र कुमार (कौशाम्बी): हमने इस पर एडजर्नमेंट मोशन भी दिया है। ...( व्यवधान) इस पर चर्चा की जाए।...( व्यवधान) जो आज उठाया गया है ...( व्यवधान) अध्यक्ष महोदया : अभी प्रश्न काल चलने दीजिए। …( व्यवधान) अध्यक्ष महोदया : इसे शून्य प्रहर में उठाइए। …( व्यवधान) अध्यक्ष महोदया : अब हम प्रश्न काल चला लें। …( व्यवधान) अध्यक्ष महोदया : ठीक है, आप बैठ जाइए। …( व्यवधान) श्री लालू प्रसाद (सारण): उसे सब्सक्राइब क्यों किया गया? ...( व्यवधान) अध्यक्ष महोदया : उसको शून्य प्रहर में उठा लीजिएगा। …( व्यवधान) श्री दारा सिंह चौहान (घोसी): ...( व्यवधान) काउंटिंग नहीं करेंगे, इसका क्या मतलब है?..( व्यवधान) श्री शरद यादव : ...( व्यवधान) हेड काउंट करना चाहिए था, बायोमीट्रिक का तो सौ साल में भी नहीं होगा। ...( व्यवधान) श्री लालू प्रसाद : अध्यक्ष महोदया, आप पहले हमारी बात सुनिये।...( व्यवधान अध्यक्ष महोदया :आप इतनी जोर से मत बोलिये, धीरे बोलिये। हम कह रहे हैं कि आप इस विषय को शून्य प्रहर में उठाइये। …( व्यवधान) अध्यक्ष महोदया : हमारा आग्रह है कि आप अभी प्रश्न काल चलने दीजिए और इस विषय को शून्य प्रहर में उठाइये। …( व्यवधान) अध्यक्ष महोदया : दारा सिंह जी, आप क्या कहना चाहते हैं? …( व्यवधान) श्री दारा सिंह चौहान : महोदया, मैं भी इसी विषय के बारे में कहना चाहता हूं। ...( व्यवधान) अध्यक्ष महोदया : आप इस विषय को शून्य प्रहर में उठाइये। …( व्यवधान) श्री दारा सिंह चौहान : अध्यक्ष महोदया, इस विषय पर सारे हाउस का एक मत है। ...( व्यवधान) श्री लालू प्रसाद : अध्यक्ष महोदया, सारे हाउस का एक मत है। ...( व्यवधान) प्रधान मंत्री जी को, सोनिया जी को ...( व्यवधान) यह कहा गया कि कर रहे हैं, लेकिन फिर चतुराई दिखा दी। ...( व्यवधान) श्री शरद यादव : अध्यक्ष महोदया, 15 साल में इलैक्शन कमीशन का फोटो आइडेंटिटी कार्डनहीं बन पाया है। ये सौ साल में भी नहीं होगा। बायोमीट्रिक क्या चीज है? ...( व्यवधान) श्री लालू प्रसाद : मैडम, इन्होंने गलत काम किया है। ...( व्यवधान) अध्यक्ष महोदया : आप क्वश्चेन ऑवर चलने दीजिए। इस विषय को आप शून्य प्रहर में उठाइये। …( व्यवधान) श्री लालू प्रसाद : पहले इस पर फैसला होना चाहिए। उसके बाद हाउस चलेगा। ...( व्यवधान) पहले इस विषय का निराकरण होना चाहिए, उसके बाद आप हाउस चलाइये।...( व्यवधान) MADAM SPEAKER: Nothing will go on record. (Interruptions) … * 11.08 hrs. At this stage, Shri Shailendra Kumar and some other hon. Members came and stood on the floor near the Table MADAM SPEAKER: The House stands adjourned to meet again at 1200 hours. 11.08 hrs. The Lok Sabha then adjourned till Twelve of the Clock. . Decision on methodology of caste-based census – Contd. MR. DEPUTY-SPEAKER: The hon. Minister Shri Pranab Mukherjee. THE MINISTER OF FINANCE (SHRI PRANAB MUKHERJEE): Mr. Deputy-Speaker, Sir, in the morning, some hon. Members expressed their views about the methodology of the caste census. As the hon. Members are aware, this issue was raised during the last Session. Thereafter, the hon. Prime Minister appointed a Group of Ministers, in a meeting of the Cabinet, to look into this aspect. The Group of Ministers wrote to all the political parties and we have received the response from the political parties. The Group of Ministers met yesterday and they considered the written response of all the political parties. The decision taken by the Group of Minister is that caste will be convassed in the census without affecting the integrity of the headcount. How and when this should be done is under consideration. Some suggestions have been made by the leaders today. All these will be kept in view and an appropriate decision on the mechanism will be taken shortly. As the decision will have to be taken by the Cabinet, only after the Cabinet takes the decision, I will be able to inform the House. … (Interruptions) MR. DEPUTY-SPEAKER: The House will now take up Calling Attention. Shri Jagdambika Pal. … (Interruptions) SHRI SUDIP BANDYOPADHYAY (KOLKATA UTTAR): Sir, we were told by the hon. Speaker that I would be allowed to speak for a minute for giving some information.… (Interruptions) MR. DEPUTY-SPEAKER: No. We have not received any notice. … (Interruptions) MR. DEPUTY-SPEAKER: There is no notice. … (Interruptions)

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216,595

Regarding Decision On Methodology Of Caste-Based Census . on 12 August, 2010

Lok Sabha Debates

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Author: H.G.Ramesh

216,596

Smt Rabiyabi vs Smt B M Susheela on 31 March, 2008

Karnataka High Court

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PETITIONER: SUMITOMO HEAVY INDUSTRIES LTD. Vs. RESPONDENT: ONGC LTD. & ORS. DATE OF JUDGMENT: 04/12/1997 BENCH: S.P. BHARUCHA, S.C. SEN ACT: HEADNOTE: JUDGMENT: THE 4TH DAY OF DECEMBER, 1997 Present: BHARUCHA, J. This appeal by special leave assails the correctness of the judgment and order of a learned single Judge of the High Court at Bombay. By the Judgment and order the petition of the first respondent for the issuance of a direction to the second respondent to file the award that he had made as the umpire in arbitration proceeding between the appellant and the first respondent in that court was allowed. Briefly stated, these are the facts relevant to the issue in the appeal: The appellant and the first respondent entered into a contraction on 7th September, 1983, whereunder the appellant agreed to install and commission on trunkey basis an oil platform at Bombay High, about 100 miles north-west of Bombay. The contract stipulated the following. Disputes having arisen subsequent to the completion of the work under the contract, the appellant served notice of arbitration on the first respondent and appointed Mr. Robert A. MacCrindle its arbitrator. The first respondent appointed Mr. Justice Chandrasekhar (Retired) its arbitrator. The arbitrators nominated the second respondent as the umpire. Preliminary hearings commenced. The appellant then applied to the queens Bench Division, Commercial Court in London for leave to issue and serve on the first respondent an Originating Summons seeking an order under Section 5 of the English Arbitration Act, 1979, to confirm that the arbitrators had the power toe proceed with the arbitration in default of a defence having been served by the first respondent. A learned Judge of the Commercial Court granted to the first respondent leave to issue and serve the said summons. It was heard and decided in favour of the appellant. Thereafter the first respondent's defence was served, and a summons was issued on the first respondent's behalf in the Commercial Court to set aside its earlier orders. The application made by the first respondent was decided on 23rd July, 1993 by Potter, J. (The Judgment and order is reported in (1994) 1 LIoyd's Law Reports 45). The arbitrators having differed, the second respondent entered upon the reference and, on 27th June, 1995, made his award. The award was served on the first respondent on 10th July, 1995. On 26th July, 1995, the first respondent filed in the High Court at Bombay a petition praying that the second respondent be directed, under Section 14 of the Indian Arbitration Act, 1940, to file the award in that court. The first respondent submitted that the award was invalid, unenforceable and liable to be set aside under the provisions of the said Act. The learned Judge, as aforestated, allowed the petition. The decision rendered by Potter, J. in the Commercial Court is of some importance because the jurisdiction of the English Courts was discussed. The learned Judge said: Neither of the parties having filed an appeal from the judgment of Potter, J., its finding bind them. Based upon these findings, it was contended by Mr. S.J.Sorabjee, learned counsel for the appellant, that the petition filed by the first respondent in the High Court at Bombay fell outside the jurisdiction of that Court for a direction to the second respondent to file his award in court could be given only by the courts administering the curial law, that is to say the courts in England. The answer of Mr. Banerjee, learned counsel for the first respondent, is that the award having been made, the procedural or curial law had ceased to have effect, and accordingly, the courts administering the curial law and no jurisdiction to issue to the second respondent a direction to file his award therein. This, then, is the central issue in the appeal: what is the area of operation of the curial law. In Bank Mellat v. Helliniki Techniki S.A., 1984 (1) QB 291, the Court of Appeal said that the fundamental principle was that in the absence of any contractual provision to the country, "the procedural (or curial) law governing arbitrations' was that of the forum of the arbitration, since this was the system of law with which the agreement to arbitrate in the particular forum would have its closest connection. Parties to international arbitrations might well choose London as a convenient neutral forum and "English law will, as the curial law, apply to the conduct of the arbitration; and the parties will, by holding their arbitration here, subject themselves for that purpose to English law......." (Emphasis supplied.) In Naviera Amazonica Peruana S.A. vs. Compania International De Seguros Peru, 1988 (1) Lloyds Law Report 116, Lord Justice Kerr summarised the state of the relevant jurisprudence thus: He said, "Prima facie, i.e. in the absence of some express and clear provision to the contrary it must follow that an agreement that the curial or procedural law of an arbitration is to be law of X has the consequence that X is also to be the "seat" of the arbitration. The lex fori is then the law of X, and accordingly X is the agreed forum of the arbitration. A further consequence is then that the Courts which are competent to control or assistant the arbitration are the Courts exercising jurisdiction at X". The learned Judge observed that there was no reason in theory which precluded "parties to agree that an arbitration shall be held at a place or in country X but subject to the procedural laws of Y". (Emphasis supplied.) In the Law and Practice of Commercial Arbitration in England, Second Edition by Mustill and Boyd, there is a chapter on "The applicable law and the jurisdiction of the Court". Under the subtitle, "Law Governing The Arbitration", it is said, "An agreed reference to arbitration involves two groups of obligations. The first concerns the mutual obligations of the parties to submit future disputes, or an existing dispute to arbitration, and to abide by the award of a tribunal constituted in accordance with the agreement. It is now firmly established that the arbitration agreement which creates these obligations is a separate contract, distinct from the substantive agreement in which it si usually embedded, capable of surviving the termination of the substantive agreement and susceptible of premature termination by express or implied consent, or by repudiation or frustration, in much the same manner as in more ordinary forms of contract. Since this agreement has a distinct life of its own, it may in principle be governed by a proper law of its own, which need not be the same as the law governing the substantive contact. The second group of obligations, consisting of what is generally referred to as the `curial law' of the arbitration, concerns the manner in which the parties and the arbitrator are required to conduct the reference of a particular dispute. According to the English theory of arbitration, these rules are to be ascertained by reference to the express or implied terms of the agreement to arbitrate. The being so, it will be found in the great majority of cases that the curial law, i.e. the law governing the conduct of the reference, is the same as the law governing the obligation to arbitrate. It is, however, open to the parties to submit, expressly or by implication, the conduct of the reference to different law from the one governing the underlying arbitration agreement. In such a case, the court looks first at the arbitration agreement to see whether the dispute is one which should be arbitrated, and which has validly been made the subject of the reference; it then looks to the curial law to see how that reference should be conducted; and then returns to the first law in order to give effect to the resulting award. XXX XXX XXX It may therefore be seen that problems arising out of an arbitration may, at least in theory, call for the application of any one or more of the following laws- 1. The proper law of the contract, i.e. the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen. 2. The proper law of the arbitration agreement, i.e. the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award. 3. The curial law, i.e. the law governing the conduct of the individual reference. XXX XXX XXX 1. The proper law of the arbitration agreement governs the validity of the arbitration agreement, the question whether a dispute lies within the scope of the arbitration agreement; the validity of the notice of arbitration; the constitution of the tribunal; the question whether an award lies within the jurisdiction of the arbitrator; the formal validity of the award; the question whether the parties have been discharged from any obligation to arbitrate future disputes. 2. The curial law governs' the manner in which the reference is to be conducted; the procedural powers and duties of the arbitrator; questions of evidence; the determination of the proper law of the contract. 3. The proper law of the reference governs; the question whether the parties have been discharged from their obligation to continue with the reference of the individual dispute. XXX XXX XXX The conclusion that we reach is that the curial law operates during the continuance of the proceeding before the arbitrator to govern procedure and conduct thereof. The courts administering the curial law have the authority to entertain applications by parties to arbitrations being conducted within their jurisdiction for the purpose of ensuring that the procedure that is adopted in the proceedings before the arbitrator conforms to the requirements of the curial law and for reliefs incidental thereto. Such authority of the courts administering the curial law ceases when the proceedings before the arbitrator are concluded. The proceedings before the arbitrator commence when he enters upon the reference and conclude with the making of the award. As the work by Mustill and Boyd aforementioned puts, it with the making of a valid award the arbitrator's authority, powers and duties in the reference come to an end and he is "functus officio" (page 404). The arbitrator is not obliged by law to file his award in court but he may be asked by the party seeking to enforce the award to do so. The need to file an award in court arises only if it is required to be enforced, and the need to challenge it arises if it being enforced. The enforcement process is subsequent to and independent of the proceedings before the arbitrator. It is not governed by the curial or procedural law that governed the procedure that the arbitrator followed in the conduct of the arbitrator. Mr. Sorabjee relied upon observations in Dicey and Morris on "The Conflict of Law, 12th Edition". The first Rule under the heading "Arbitration" in the Chapter on "Arbitration and Foreign Awards" reads thus: In discussing clause (2) of the Rule aforementioned, this is stated: (Emphasis supplied.) Mr. Sorabjee submitted, relying upon the proposition that the procedural law would determine what judicial remedies were available to a party "who wishes to challenge the award once it has been rendered and before it is sought to enforce it abroad", that the court that administered the curial law of the arbitration had the jurisdiction to entertain a challenge to the award and, therefore, the jurisdiction to receive it. The footnote relative to the above proposition (at pave 583) reads thus: "Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd. [1970] A.C. 583 (English remedies not available in Scots arbitration)." Mr. Banerjee submitted, and it seems to us, correctly, that the case of James Miller & Partners Vs. Whitworth Street Estates, 1970 A.C. 583, does not bear out the proposition. The facts of the case, shortly put, were these: A contract was entered into between an English company, Whitworth, and a Scottish company, James Miller. The Scottish company was to carry out work at the English company's premises in Scotland. The contract did not provide for the place of arbitration or its procedure. Disputes arose between the parties and were referred to arbitration. The arbitration was held in Scotland, in accordance with Scottish law. The English company asked the arbitrator to state his award in the form of a special case for the decision of the English courts. The arbitrator refused to do so on the ground that the arbitration was a Scottish arbitration, and he issued his final award. The issue was whether the arbitrator should be required to state his award in the form of a special case. The case was, therefore, concerned with the question of which law governed the proceedings before the arbitrator and not with the question of which law governed proceedings to set an award. We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, "and then returns to the first law in order to give effect to the resulting award". The law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. Having regard to the clear terms of Clause 17 of the contract between the appellant and the first respondent, we are in no doubt that the law governing the contract and the law governing the rights and obligations of the parties arising from their agreement to arbitrate, and, in particular, their obligations to submit disputes to arbitration and to honour the award, are governed by the law of India; nor is there any dispute in this behalf. Section 47 of the Indian Arbitration Act, 1940, reads thus: "47. Act to apply to all arbitrations. - Subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder" Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." The only other statute which is required to be considered in the context of the provisions of Section 47 of the 1940 Act is the Foreign Awards (Recognition and Enforcement) Act, 1961. For the purposes of determining whether the provision of the 1940 Act are subject to the provisions of the 1961 Act, Section 9 is relevant. It reads thus: By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. In the result, the appeal must fail, and it is dismissed with costs.

[ 665266, 1197844, 1886363, 714093, 1886363, 631834, 1120409, 371235, 76709 ]

Author: Bharucha

216,597

Sumitomo Heavy Industries Ltd vs Ongc Ltd. & Ors on 4 December, 1997

Supreme Court of India

9

[]

null

216,598

[Section 80D(2)] [Section 80D] [Complete Act]

Central Government Act

0

JUDGMENT K. C. Das Gupta, J. 1. This is an appeal under Clause 15 of the Letters Patent from the judgment and decree of Guha-Ray, J., by which he remanded a suit for ejectment which had been instituted by the present respondent, to the trial Court, for disposal with certain directions. It may be mentioned at once that it is no longer disputed that the appellant in this Letters Patent Appeal is a thika tenant within the meaning of the words defined in the Calcutta Thika Tenancy, 1953, and it was on that basis that Guha Ray, J., gave the directions. 2. The suit for ejectment was brought by the respondent landlord on 8-8-1946, on averment that The defendant was a monthly tenant and that tenancy had been determined by a 15 days notice to quit. One of the defences taken was that the notice was insufficient. The learned trial Court took the view that notice was sufficient and decreed the suit. The judgment was delivered by him on 4-9-1948. Against that decision the tenant took an appeal to the District Judge's Court. The appeal was presented on 4-11-1948. The Court of appeal took the view that notice was insufficient and by its order dated 17-4-1950, allowed the appeal, reversed the decree of the learned Munsif and dismissed the suit. It may be mentioned that a decree for Rs. 72/- that was passed by the trial Court was not challenged in appeal and we are no longer concerned with that question. Against the decree of the First Appellate Court the landlord preferred a second appeal to this Court on 29-6-1950. This second appeal was pending in this Court on 21-10-1952, when the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, came into force. It became therefore necessary to consider how far the provisions in sub-section (2) of Section 1 of the Amending Act was of assistance to the tenant. On behalf of the tenant it was contended that as the Amending Act by its proviso to Sub-section (2) of Section 1 thereof made the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by the Amending Act applicable, subject to the provisions of Section 9 and it was further provided that these provisions shall be deemed to have always applied to all suits, appeals and proceedings on the date of the commencement of the Ordinance of 1952, the High Court hearing the second appeal was bound in law to apply the provisions of the Calcutta Thika Tenancy Act including the provisions of Sections 3 and 4 thereof, and on such application should have dismissed the suit. 3. Guha Ray, J., was, however, of opinion that it would not be right to read the proviso of Sub-section (2) of Section 1 literally and that what the Legislature must be taken to have meant by the proviso was that only such provisions of the Act which had not the result of destroying a cause of action that had already accrued to a landlord should be given effect to. I have no hesitation in agreeing respectfully with Guha Ray, J. that after the notice to quit was served the landlord had a vested right and a statute must not be interpreted to have affected the vested right unless it clearly appears to have done so. In deciding however, whether the statute has taken away a vested right it is not proper for the Court to try to gauge the intention, of the Legislature by anything except the words used in the statute. When the words are clear the Court is not justified in considering the fairness or otherwise of the provisions. The Legislature is the best judge of what is fair or not when it em-barks on a policy of taking away rights and it will be dangerous for the Court to try to estimate the. Legislature's intention by a consideration of the hardships that might be caused to parties. This principle has been laid down in a large number of cases which it is unnecessary to mention. 4. The question, therefore, is whether the Legislature has, in the present case, clearly intend ed that the vested right would be taken away. In my judgment this is the necessary and inescapable conclusion if the natural meaning is given to the words used. Indeed I can see no sense in saying, that the provisions of the Act shall apply to all pending appeals unless thereby the Legislature wanted to say that rights which are inconsistent with these provisions disappear. It is only fair to take Legislature to have meant what it says. And when it does say that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by Calcutta Thika Tenancy (Amendment) Act, 1953,. shall, subject to the provisions of Section 9 also apply and be deemed to have always applied to all suitss appeals and proceedings pending before any Court on a certain date, it must have meant that the Court before whom the suit or appeal or proceed ings are pending will give effect to such provisions. If it was the intention of the Legislature that cer- 'tain provisions, namely, provisions which affect a right that had already accrued could not apply, it was to be expected that the Legislature should say so. As the Courts have no right to take away from any party the benefit of a provision of law which the Legislature has extended to him, I con-, sicier myself bound to hold that even though at provision of the Act may have the result of des- troyirig a vested right in any party, the provisions must be enforced. l 5. If the provisions are enforced it is obvious that in the present suit the plaintiff cannot possibly succeed. For even if he may establish grounds of ejectment enumerated in Section 3 it is not I possible for him to satisfy the requirements of Section 4 of the Act. 6. I have, therefore, come to the conclusion that this appeal must be allowed, the judgment and decree of Guha Ray J. set aside and the judgment and decree of the learned Subordinate Judge restored. In the peculiar circumstances of this case parties will bear their own costs throughout. In view of the above order, the cross-objection is dismissed. Guha, J. 7. I agree.

[ 226821, 1596533, 226821, 1596533, 1596533, 230008, 101389, 226821, 1596533, 230008, 101389 ]

Author: K C Dasgupta

216,599

Ajit Kumar Pal vs Sadhan Chandra Pal on 15 March, 1956

Calcutta High Court

11

Gujarat High Court Case Information System Print CR.MA/3797/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3797 of 2008 In CRIMINAL APPEAL No. 177 of 2005 ===================================================== HAJARATSHA IDRUSHA - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ===================================================== Appearance : THROUGH JAIL for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/03/2008 ORAL ORDER1. Applicant-convict seeks temporary bail on the ground that he wish to admit his son in school. It may, however, be noted that the applicant was granted temporary bail for a period of 20 days in December, 2006 and for 21 days as recently as in December, 2007. No ground for fresh temporary bail is made out. Application is, therefore, dismissed. Applicant be informed accordingly. (AKIL KURESHI, J.) ashish// Top

[]

Author: Akil Kureshi,&Nbsp;

216,600

Hajaratsha vs State on 22 March, 2011

Gujarat High Court

0

ORDER S.V. Maruthi, J. 1. This Writ Petition is filed for a direction to the respondents to fix the land value in Survey No. 455/B/A of Guntakal Village consisting of Ac. 4.91 cents as Agricultural land and to register the General Power of Attorney accordingly. The land covered by Survey No. 455/B/A was purchased by Sri. Atla Venkata Subba Reddy and Smt. C. Vijaya Meri by virtue of Registered Sale Deeds dated 13-11-1981 and 16-11-1981 for a consideration of Rs. 40,000/- and Rs. 30,000/- respectively. The lands are agricultural lands. The owners proposed to execute the General Power of Attorney in favour of the petitioner for the purpose of managing the same. Therefore they have filed an application before the Sub Registrar, Guntakal, requesting him to furnish the valuation certificate relating to tine said Survey No. The Sub-Registrar stated that as per the market value, guide-lines regarding the rate of Rs. 117/- shall be adopted per square yard in respect of Survey No. 455/B/A of Guntakal Village. Aggrieved by the same, the present writ petition is filed. 2. The learned counsel for the petitioner mainly; contends that as it is Agricultural land, it cannot be valued as non-agricultural land on square yard basis. He also submits that the Municipality itself has certified that the final lay- out for the land in Survey No. 455/B/A. of Guntakal Village is not approved by the Mundpal Council. In view of the non-approval of the lay-out, the land is used as an agricultural land by cultivating the same and therefore it could not have been valued on square yard basis, and it should be valued as agricultural land. 3. In the Counter Affidavit submitted by the respondents, it is stated that the petitioner has not shown the land in Survey No. 455/B/A to the Sub Registrar whether it is an agricultural land or non-agricultural land. It is also stated that for the fixation of agricultural rate for Survey No. 455/B/A, the Committee of Registration Department will decide after spot inspection of the land in Survey No. 455/B /A. 4. Since the respondents say that without inspecting the land the land cannot be valued as agricultural land, the petitioner is directed to make an application to the Sub Registrar for the Inspection of the land and on such inspection, the respondents are directed to value the land for the purpose of managing the same by the General Power of Attorney. The petitioner is further directed to file the application requesting the Sub Registrar to inspect the land within two weeks from to-day and on such application being filed, the Sub Registrar is directed to inspect the land within four weeks thereafter. 5. With the above directions, the writ petition is disposed of. No costs.

[]

Author: S Maruthi

216,601

K.K. Jose vs The District Registrar And Anr. on 4 December, 1996

Andhra High Court

0

Gujarat High Court Case Information System Print CA/9663/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 9663 of 2010 In FIRST APPEAL No. 2414 of 2010 ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION & 1 - Petitioner(s) Versus VANRAJSINH JORUBHA JHALA & 3 - Respondent(s) ========================================================= Appearance : MRS VASAVDATTA BHATT for Petitioner(s) : 1 - 2. MR MEHUL S SHAH for Respondent(s) : 1, MR SURESH M SHAH for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE V. M. SAHAI Date : 31/01/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.L.DAVE) At the request of learned advocate Mrs Bhatt, by way of last opportunity, time to deposit the awarded amount is extended till 15th February 2011. S.O. to 17th February 2011. (A.L. DAVE, J.) (V.M. SAHAI, J.) zgs/-

[]

Author: A.L.Dave,&Nbsp;

216,602

Gujarat vs Vanrajsinh on 31 January, 2011

Gujarat High Court

0

In the High Court of Judicature for Rajasthan Jaipur Bench O R D E R Civil Writ Petition No.5626/2010 (Sarfraz Sami Versus State & Ors.) (& Cognate cases as per Schedule annexed) Date of Order ::: 23/04/10 Hon'ble Mr. Justice Mohammad Rafiq For petitioners - Sarva Shri Rajkumar Kasana, Mahendra Sharma, RP Saini, Dr.Rajkumar Sharma, Vijay Pathai, Sudarshan Laddha, JK Gupta, AS Shekhawat, Mrs.Suman Sharma, RA Verma, SK Gupta, YK Sharma, Suresh Kr.Pareek, Dharmendra Barala, Amardeep Atwal and RD Meena. Mr. SN Kumawat, AAG and for respondent PSC **** In some of these matters notices have not been issued, and therefore, notices were issued which were accepted by Shri SN Kumawat, AAG and with consent of learned counsel for the parties, the matters are finally disposed of. All these petitions as per Schedule A attached herewith since involve common question, hence at joint request, are being disposed of by present order. Counsel for petitioners jointly submit that petitioners were engaged/appointed as Vidhyarthi Mitra on contract basis till the persons regularly selected by Rajasthan Public Service Commission (RPSC) and Departmental Promotion committee are made available. However, services of persons who were similarly situated while working as Vidhyarthi Mitra were terminated by respondents. A bunch of 633 writ petitions (CWP-4652/2009 & cognate cases) were decided by this Court vide judgment dt.08/05/2009 with operative part ad infra: (36) Accordingly, the writ petitions are disposed of as under: I. During continuation of the work, as detailed out herein above the invocation of the last extension is arbitrary and illegal; and the consequential automatic termination orders of the petitioners are set aside. II. The RPSC/DPC selected candidates/ employees are still not available and next academic session is about to start; even urgent temporary appointments under Rule 28 of the Rules of 1971 are not possible due to short span of one month and a half left to start with the process of admission and academic session, therefore, as per the aims and objects of the Scheme, respondents are directed to consider the cases of the petitioners for continuation in service till regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available in the light of the above observations; III. Even in case of appropriate order of continuation in service till regularly selected candidates from RPSC/DPC selected persons are available, the petitioners are not entitled for wages of the vacations, in other words, when the schools are closed. IV. In case the regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available, then the respondents can terminate services of the petitioners after preparation of the seniority list on the State level as per their date of appointment and merit assigned to them, by following the principle of 'last come first go' to the extent of availability of the selected candidates and while doing so, the respondents will keep the interest of the present students and prospective students in view. Counsel submits that since issue raised in instant bunch of petitions stands decided by co-ordinate Bench of this Court vide judgment (supra), these petitions may also be decided in the light thereof. Counsel for petitioners further submit that in the light of judgment (supra), the directions have been issued by the Department of Elementary Education, Govt. of Rajasthan vide letter dt.11/08/09 to the Director of Elementary Education Bikaner to permit all such persons working as Vidhyarthi Mitra in present academic session but their continuance will be subject to final outcome of special appeals having been preferred by respondents State against judgment dt.08/05/2009. Subsequently, the Joint Director (Training), Secondary Education, Rajasthan, Bikaner has also issued another circular on 17.9.09 to the same effect. Some of the petitioners have raised their grievance that despite judgment dt. 08/05/09 of the Court and directions issued by State Government, they have not been permitted to work/discharge duties as Vidhyarthu Mitra. However, it has not been disputed by Government Counsel about controversy involved herein being decided by this Court vide judgment dt.08/05/2009 alongwith directions (supra) - against which, their only defence is that special appeals (SA(W)-1237/2009 & 525/2009 besides other cognate appeals) have been preferred by respondents State and wherein vide order dt.16/12/09, the Division Bench ordered ad infra: Since in the impugned judgment, a direction exists at para 36(IV) with regard to termination of Vidhyarthi Mitra on the basis of State level seniority list, though appointments were not made on State level list, therefore, operation of aforesaid para 36(IV) may be stayed because in absencde of termination, selected candidates cannot be appointed. Looking to the submission made, operation of the direction in para 36(IV) of the impugned judgment shall remain stayed.. However, as regards contention of petitioners Government Counsel submits that directions have been issued by the department concerned, and District Education Officer/concerned officer will ensure that in the light of judgment dt.08/05/09 (supra), the petitioners may be permitted to join and discharge their duties as Vidhyarthi Mitra; but their continuance will be subject to final outcome of special appeals preferred by respondents State, which has not been objected by petitioners' Counsel, as well. In the light of what has been observed in CWP-4652/2009 vide judgment dt.08/05/2009 alongwith directions quoted (supra), all these writ petitions as per Schedule A attached herewith stand disposed of; and the District Education Officer/concerned officer will also ensure that in the light of judgment (supra), the petitioners shall be permitted to join and discharge their duties as Vidhyarthi Mitra; however, it would be subject to afore quoted stay order and final outcome of special appeals (SA(W)-1237/09 & 525/2009 besides cognate appeals) would be binding upon all the petitioners, as well. No costs. (Mohammad Rafiq), J. anil Schedule- Judgment dated 23/04/2010. in Civil Writ Petition No.5626/2010 (Sarfraz Sami Versus State & Ors.) & Cognate cases *** S.No. CWP Nos. / Name of Petitioners Versus State & Ors 1.5626/2010 : Sarfraz Sami 2.5753/2010 : Smt.Rinku 3.5752/2010 : Minu Kumari 4.5742/2010 : Deepmala Saini 5.5739/2010 : Vishnu Chand Sharma 6.5638/2010 : Bhanwar Singh 7.5767/2010 : Bahadur Mal Khatik 8.5705/2010 : Nitin Bhardwaj 9.5708/2010 : Saroj Dhaka 10.5688/2010 : Dharmendar Kumar 11.5668/2010 : Ravindra Kumar Biwal & Anr. 12.5655/2010 : Rajendra Kr.Bheel 13.5728/2010 : Gyan Prakash Haritwal 14.5722/2010 : Rajesh Kr.Bairwa & Ors. 15.5710/2010 : Smt.Ranjana Sharma 16.5709/2010 : Mool Shankar 17.5759/2010 : Dinesh Tiwari 18.5787/2010 : Pramod Kr.Jain 19.5788/2010 : Jai Ram Jat 20.5640/2010 : Narendra Singh 21.5644/2010 : Yadunath Chaturvedi 22.5653/2010 : Archana Bonlia & Ors. Versus State & Ors (Mohammad Rafiq),J. anil

[]

null

216,603

Deepmala Saini vs State Of Raj And Ors on 23 April, 2010

Rajasthan High Court

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 31674 of 2007(U) 1. BASHEER, S/O DAVOOD, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, ... Respondent For Petitioner :SRI.R.SUDHISH For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :20/11/2007 O R D E R ANTONY DOMINIC, J. =============== W.P.(C) NO. 31674 OF 2007 U ===================== Dated this the 20th day of November, 2007 J U D G M E N T Ext.P1 order of the respondent is under challenge. 2. The proceedings were initiated against the petitioner following the seizure of his vehicle on the allegation that it was engaged in unauthorised transportation of river sand. By the impugned order, petitioner is ordered to remit Rs.2,50,000/- as being the value of the vehicle and a fine of Rs.25,000/- towards the River Management Fund for release of the vehicle. 3. The finding in Ext.P1 on the basis of which the petitioner has been penalised is as follows: In view of the contentions raised, I had called for the files and the seizure mahazar dated 26/5/07 has been perused. What WPC No.31674/07 : 2 : is stated in the seizure mahazar is as follows: A comparison of what is stated in the impugned order and what is stated in the seizure mahazar shows that they are materially different. If that be so, Ext.P1 discloses non application of mind by the respondent. 4. That apart, it is the petitioner's specific contention that copy of the seizure mahazar was not given to him although it is mandatory in terms of the provisions of the Act. This also is a matter for the respondent to consider. In view of the contradiction in what is stated in the impugned order and what is stated in the seizure mahazar, I quash Ext.P1 order and remit the matter back to the respondent to reconsider the same with notice to the petitioner. If seizure mahazar has not been served on the petitioner, that shall also be arranged to be served. WPC No.31674/07 : 3 : Thereafter petitioner shall be given notice and an opportunity of hearing before final orders are passed. 5. In the meantime, it will be open to the petitioner to make an application to the respondent for interim custody, in which case, the respondent shall consider the same, subject to imposition of appropriate conditions. 6. Final orders shall be passed, as expeditiously as possible, at any rate, within two weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp

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null

216,604

Basheer vs The District Collector on 20 November, 2007

Kerala High Court

0

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) NO.990 OF 2011 NAVLESH KUMAR VERSUS THE STATE OF BIHAR ----------- B.Kr. ( Dharnidhar Jha,J.) 02. 06.09.2011. This appeal shall be heard. Call for the Lower Court Records. It is true that the appellant is alleged to have fired a shot hitting the injured on his hand, thigh and back but by drawing the attention of the court to paragraph-12 of the judgment, it has been contended that the informant had admitted making three statements one in the form of a written complaint in all of which, the name of the present appellant had never appeared even as a member of the mob. In the light of the submissions, during the pendency of the appeal, let the above named appellant be released on bail on furnishing bond of Rs.10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of Additional District & Sessions Judge, Fast Track Court No.II, Sheikhpura in Sessions Case No.243 of 2004/243(B) of 2004 arising out of Ariari P.S.Case No.131 of 2002. As regards the sentence of fine, the realization thereof shall remain stayed till further orders.

[]

null

216,605

Navlesh Kumar vs The State Of Bihar on 6 September, 2011

Patna High Court - Orders

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 53 of 2009() 1. THE ORIENTAL INSURANCE CO.LTD,THODUPUZHA ... Petitioner Vs 1. SANDHYA.G, D/O LATE GOPAKUMAR, ... Respondent 2. SWAPNA.G, D/O LATE GOPAKUMAR,RESIDING 3. THE HON'BLE MOTOR ACCIDENTS CLAIMS, For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA) For Respondent : No Appearance The Hon'ble the Acting Chief Justice MR.J.B.KOSHY The Hon'ble MR. Justice V.GIRI Dated :12/01/2009 O R D E R J.B.KOSHY, Ag.C.J. & V.GIRI, J. -------------------------------------- W.A.No.53 of 2009 ------------------------------------- Dated 12th January, 2009 JUDGMENT Koshy, Ag.C.J. Father of respondents 1 and 2 sustained fatal injuries in a motor accident and succumbed to the injuries. Their mother has already passed away. In the application for compensation the Motor Accidents Claims Tribunal awarded a compensation of Rs.9,70,000/= with 6% interest from the date of application. A further direction was issued stating that if the amount is not paid within a period of six months from the date of award, the amount of compensation will carry interest at the rate of 12% per annum from the date of filing the petition. An appeal was filed by the insurance company. Ext.P2 in the writ petition is the copy of the appeal filed by the insurance company. Findings regarding negligence and quantum of compensation were challenged in Ext.P2 appeal. The direction of the Tribunal that if the compensation amount is not paid within six months from the date of the award, 12% interest will be payable was not challenged. The appeal was dismissed at the time of admission itself finding that the finding of negligence was correct and that no interference is required in the quantum of compensation. W.A.53/2009 2 Thereafter, in execution proceedings, interest at 12% was ordered as that part of the award was not challenged in appeal and that has become final. Insurance company challenged that in a writ petition. Learned single Judge found that award of the Tribunal is appealable, that appeal was filed, but, this point was not questioned and it has become binding on the insurance company which filed the appeal and that the appeal was dismissed. Contention of the insurance company is that award of interest on default of payment within a fixed time is illegal. If that is illegal, insurance company ought to have challenged that in the appeal. The award cannot be stated to be a nullity. The insurance company filed the appeal with open eyes. Without challenging that and since the award has become final, it cannot be challenged while execution proceedings are going on. Learned Judge correctly dismissed the writ petition. We see no ground to interfere with the impugned judgment. The appeal is dismissed. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE tks

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null

216,606

The Oriental Insurance Co.Ltd vs Sandhya.G on 12 January, 2009

Kerala High Court

0

[]

null

216,607

[Complete Act]

Central Government Act

0

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2010/001217/8349 Appeal No. CIC/SG/A/2010/001217 Relevant FactsRespondent : Mr. R. Prasad Public Information Officer & S.E. CLZ Municipal Corporation of Delhi, 16, Rajpur Road, Civil Lines Zone, Delhi- 54. RTI application filed on : 25/01/2010 PIO replied : 17/02/2010 First appeal filed on : 24/02/2010 First Appellate Authority Ordered on : 24/03/2010 Second Appeal received on : 07/05/2010 S.No. Information Sought Reply of the PIO 1. Whether construction in Municipal premises No. 1, Gali No. 18, 41, NO emerging from the Appeal Appellant : Mr. Rajinder Pal Singh, S/o Capt. (Dr.) Jaswant Singh, B-55, Defence Colony, New Delhi- 110024. Foota Road, Holi Chowk, A-42, Block, West Sant Nagat, Burari is in accordance with the DMC Act and the Building Bye Laws and the rules framed there under. 2. Whether it is in knowledge of JE, EE and SEof the Building No plan has been Department of the above Zone that such construction is being carried sanctioned by M.C.D. out in the premises stated herein above. 3. Whether any site plan has been granted to the occupiers/builders who Same as above. are carrying out such construction using sub-standard quality materials and encroaching upon public/Govt. land by such construction. 4. Whether it is not the statutory obligation of MCD to see that illegal Same as above. and unauthorized construction be prevented. 5. Action taken till date by authorities to prevent such illegal As per record booking construction whereby construction is going on and information is also of property is not sought by applicant to see the nature of construction and to comply standard. with information of action taken. Grounds for the First Appeal: Unsatisfactory and misleading information furnished by the PIO. Order of the First Appellate Authority (FAA): The grievance of the appellant being against the department for not taking action against the property in question; PIO, Building Department had been given notice of the same and was directed to get the property inspected and take action as per DMC Act. Grounds for the Second Appeal: The PIO willfully disobeyed the order of the FAA by neither inspecting the property in question nor taking any action as per the DMC Act.. Relevant Facts emerging during Hearing: The following were present Appellant : Mr. Rajinder Pal Singh; Respondent : Mr. A. K. Mittal, AE(B) on behalf of Mr. R. Prasad, Public Information Officer & S.E. CLZ; The FAA had directed the PIO to get the property inspected and take action. The Appellate Authority had passed an order on 24/03/2010. It is evident from the application filed by the appellant that he was drawing attention to an illegal building being constructed. It is apparent that the MCD officers did not want to stop this and hence did not take any action after the order of the FAA. Only after the notice of hearing was issued by the Commission the MCD officers have booked the said property on 26/05/2010 and informed the appellant about this on 04/06/2010. The appellant alleges that this is rest to show something on paper that the MCD officers are colluding with those who make illegal buildings and encroachments. Having observed a number of such instances the Commission understand the agony being felt by a law abiding citizens who is faced by MCD officers who thwart all attempts to make the rule of law prevail. The Respondent states that the officer responsible for not following the order of the First Appellate Authority are Mr. Jitender Panchal, JE and Mr. A. K. Mittal, AE(B); Decision: The Appeal is allowed. The information appears to have been provided. The issue before the Commission is of not supplying the complete, required information by the deemed PIO Mr. Jitender Panchal, JE and Mr. A. K. Mittal, AE(B)within 30 days as required by the law. From the facts before the Commission it is apparent that the deemed PIOs are guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the deemed PIOs actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to them, and they are directed give their reasons to the Commission to show cause why penalty should not be levied on them. They will present themselves before the Commission at the above address on 28 July 2010 at 12.00pm alongwith their written submissions showing cause why penalty should not be imposed on them as mandated under Section 20 (1). They will also submit proof of having given the information to the appellant. If there are other persons responsible for the delay in providing the information to the Appellant the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 30 June 2010 (In any correspondence on this decision, mention the complete decision number.)(SC)

[ 671631, 1369783, 1369783, 383252 ]

null

216,608

Mr.Ranjinder Pal Singh vs Mcd, Gnct Delhi on 30 June, 2010

Central Information Commission

4

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37511 of 2008(N) 1. DR.ABDUL KARIM, KHANS COTTAGE, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.S.S.RAJESH For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :18/12/2008 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 37511 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th December, 2008. J U D G M E N T The petitioner seeks the following relief: "Issue a writ of mandamus or any other appropriate order to the respondent enabling the petitioner to practice in Inbo Allopathy, Ayurvedic & Unani and Homeopathy without any interference." 2. The only respondent in the writ petition is the State of Kerala. From the very nature of the relief prayed for, there cannot be any doubt that such a prayer cannot be granted , that too, without the appropriate authorities in the party array. Therefore, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.

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null

216,609

Dr.Abdul Karim vs State Of Kerala on 18 December, 2008

Kerala High Court

0

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.4312 of 2010 ====================================================== Bashisth Narayan Singh .... .... Petitioner/s Versus The State Of Bihar & Ors. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ratan Kumar For the Respondent/s : Mr. (Gp3) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 02/ 27-09-2011 Four weeks' time is allowed for filing show cause on behalf of O.P. Nos. 4 and 5. Counsel appearing for Accountant General submits that show cause has already been filed on behalf of O.P. No.7, that is not on the record. On the next date the show cause filed on behalf of O.P. No. 7 must be placed on the record of the case. Put up this matter on 25th October, 2011, retaining its position. (Mridula Mishra, J) DKS/

[]

null

216,610

Bashisth Narayan Singh vs The State Of Bihar & Ors. on 27 September, 2011

Patna High Court - Orders

0

JUDGMENT B.C. Varma, J. 1. The petitioner then applied for its renewal, vide Annexures-B, D and F for the years 1987, 1988 and 1989 respectively. These applications were not disposed of. However, the petitioner went on depositing in the treasury the necessary licence fee. Although no formal orders, renewing the licence for the years 1987, 1988 and 1989, were passed, yet, from time to time, the District Magistrate, Bilaspur, issued no objection certificates for import of fire arms and ammunition, as and when required. Annexures-I-1 to I-10, annexed to the petition, are a few of such no objection certificates, which range from 3-1-1987 to 12-9-1988. The petitioner was allowed to continue the business of dealing in arms and ammunition, as before. However, on 21-1-1988, the arms and ammunition held by the petitioner in his premises were seized by the Kotwali Police and were removed to the Police Station. The seizure memo is Annexure-A. The petitioner alleges that the arms so seized also include fire arms, which had come to the petitioner's establishment for repairs and did not belong to him. The petitioner immediately approached the District Magistrate vide application dated 28-1-1989 (Annexure-K) and requested for a copy of the order, directing the aforesaid seizure. This was replied to by the District Magistrate vide his memorandum dated 6-2-1989 (Annexure R--III filed with the return). This indicates that action to effect seizure of arms and ammunition, as aforesaid, was taken in obedience of certain orders passed by the State Government in its Home Department. The petitioner was directed to contact the Home Department of the State to obtain copy of such orders. It is significant to mention here that this communication (Annexure R-III) is conspicuously silent about any order passed prior to that date, i.e., prior to 6-2-1989, rejecting the petitioner's prayer for renewal of the licence. The petitioner then immediately approached this Court through this petition on 9-2-1989. Notice of this petition was issued, in response to which return with documents, has been filed. It is in this return that the respondents, for the first time, disclosed that the petitioner's application/applications for renewal of the licence have been rejected vide order dated 19-1-89. A copy of that order has been annexed to the return as Annexure R-I. The petition was consequently amended to challenge this order as well. 2. After hearing learned counsel for the petitioner as also the Government Advocate, we are of opinion that this petition must be allowed and the seizure and the order rejecting the petitioner's application for renewal of the licence deserve to be quashed. Section 3, which falls under Chapter II of the Arms Act, 1959, forebears any person to acquire or have possession of or carry any fire arms of ammunition, without a valid licence issued in accordance with the provisions of the Act and the rules made thereunder. Any person, desiring to obtain such a licence is required to make an application under Section 13 of the Arms Act to the licensing authority, in such form, containing such particulars and accompanying such fee, as may be prescribed. On receipt of such an application, the licensing authority is required to call for a report of the officer-in-charge of the nearest police Station on that application. The licensing authority then shall consider this report and after such enquiry as it may consider necessary and subject to other provisions of Chapter III of the Act, may, by order in writing, either grant a licence or refuse to grant the same. The proviso to Sub-section (2-A) of Section 13 permits the licensing authority to proceed to make order Under Sub-section (2-A) of Section 13, either granting or refusing to grant licence, even if no report is received from the officer-in-charge of the nearest police station within the prescribed time. Section 14 of the Act provides that the licensing authority shall refuse to grant licence notwithstanding anything contained in Section 13, under certain circumstances mentioned in Clauses (a) and (b) of Sub-section (1) of Section 14. Section 15 provides for duration and renewal of licence and says that a licence Under Section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted, provided that such a licence may be granted for a shorter period, if the person by whom the licence is required, so desires or if the licensing authority, for reasons to be recorded in writing, considers in any case that the licence should be granted for a short period. Sub-section (3) of Section 15 makes provision for renewal of the licence and for that purpose makes the provisions of Sections 13 and 14 applicable, as they apply to grant of licence. 3. The position that emerges from the aforesaid provisions of the Arms Act is that a person cannot hold any arms or ammunition without a licence. This licence is granted for certain duration and under certain conditions. It shall be refused under any of the circumstances mentioned in Section 14. One of such circumstances mentioned Under Section 14(1)-(b)(ii) is where the licensing authority deems it necessary for the security of the public peace or for the public safety to refuse to grant such licence. Ordinarily, a licence shall be renewable. If, however, the, licensing authority decides not to renew the licence, it has to record its reasons in writing for so doing. As the provisions of Sections 13 and 14 have been made applicable to an application for renewal of a licence in the same manner as they apply for grant of a licence, the licensing authority is required to obtain a report of the officer-in-charge of the nearest Police Station and is also required to make such enquiry as may be considered necessary before refusing to renew the licence. One has, therefore, to see in the present case, if, while refusing renewal of licence vide Annexure R-I, the licensing authority has adhered to these provisions. 4. The order (Annexure R-I) dated 19-1-1989, by which the petitioner's application for renewal of the licence has been rejected, is passed by the Joint Secretary, Home Department (Police) of the State of Madhya Pradesh. The only reason recorded in that order for refusing renewal of the licence is the pendency of two criminal cases against the petitioner. Out of these two cases, one is Under Sections 25 and 27 of the Arms Act and was initiated in the year 1985. It is worth mentioning that although the case was instituted in the year 1985, it was not thought fit by the licensing authority to suspend the licence granted to the petitioner and which licence, as we have shown above, was valid up to 31-12-1986. This only shows that the pendency of that case was never taken as an impediment or circumstance adverse to the petitioner for holding a licence. This apart, the documents, Annexures I-1 to I-10, filed with the petition, whereby the District Magistrate, Bilaspur, issued no objection certificates to the petitioner to import certain firearms and ammunition, are again strong indications that the pendency of the case against the petitioner was never taken seriously and despite the pendency of the two criminal cases against the petitioner, he was permitted to continue to hold the arms and ammunitions and deal with them for long three years. We have also perused the challan papers of those cases annexed with the petition. All that they allege against the petitioners is his involvement in obtaining certain arms licences for dealers from one of his relatives in Hyderabad. These licences are said to be fraudulently obtained. The petitioner thus is alleged to be only remotely connected with issuance of the arms licences. Learned Government Advocate, appearing for the respondents, however, submitted at the Bar that renewal of the licence has been refused in terms of Section 14(1)(b)(ii). The order (Annexure R-1), however, does not support this contention. It no-where indicates that renewal has been refused because it was thought necessary for sesurity of the public peace or for public safety. There is not the slightest whisper of such a reason in that order. That order, therefore, cannot be supported on this count. However, if the power to refuse to grant a licence and consequently its renewal Under Section 14 read with Section 15(3) is held in addition to the general power to refuse or grant licence, contained in Sub-section (2-A) of Section 13, then too, we are not satisfied that the renewal of the licence has been refused for any good reason. Instead, as we have indicated above, even the initiation and pendency of two criminal cases against the petitioner is not of much significance and even the respondents never took those cases as a circumstance adverse to the petitioner for holding arms and ammunition. We have shown above and even at the cost of repetition, may say again that even during this period, the District Magistrate had little objection in permitting the petitioner to import arms and ammunition and to continue to hold and deal with them. We would, therefore, hold the action of the respondents in passing the order (Annexure R-1), refusing renewal of the arms licence in favour of the petitioner, as arbitrary and contrary to the provisions of Section 13(2-A), read with Sections 14 and 15(3) of the Act. 5. This now takes us to the question of seizure of the arms. The relevant provision as to search and seizure of arms and ammunition is contained in Section 22 of the Act, which is as follows:-- "22. Search and seizure by Magistrate.--(1) Whenever any Magistrate has reason to believe -- (a) that any person, residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose; or (b) that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety, the Magistrate may, after having recorded the reason for the belief, cause a search to be made of the house or premises occupied by such person or in which the Magistrate has reason to believe that such arms and ammunition are or is to be found and may have such arms and ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession. (2) Every search under this section shall be conducted by or in the presence of a Magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government." The provisions of Rule 46 of the Arms Rules, 1962, must also be noticed. Clause (a) of Sub-rule (1) of Rule 46, which is relevant for our purposes is as follows:-- "46. Deposit of arms and ammunition Under Section 21.-- (1) When a licensing authority decides to suspend or revoke a licence or to refuse to renew it, he shall while communicating his decision in writing to the licensee, inform him that -- (a) Under Section 21(1) he is required to deposit within such time as may be specified in the order suspending, revoking or refusing to renew the licence, the arms or ammunition covered by the licence, either with the officer-in-charge of the nearest police-station or with a dealer holding a licence in Form XIV, or in case he is a member of the armed forces of the Union, in the unit armoury." According to this rule, the licensing authority, after taking a decision to refuse to renew the licence must communicate the decision in writing to the licencee. Along with this communication of refusal to renew the licence, the licensing authority is further obliged to inform the licensee that in terms of Section 21(1) of the Act, he (licensee) is required to deposit the arms and ammunition covered by the licence, either with the officer-in-charge of the nearest Police Station or with a dealer holding licence in Form XIV, or, in case he is a member of armed forces of the Union, in the unit armoury. Further, the licensing authority has to specify the time during which the arms and ammunition covered by the licence, have to be so deposited. Obviously, nothing of this kind was done in the present case. There appears to be substance in the petitioner's contention that the order refusing to renew the licence was never communicated to the petitioner. We have shown above that the order was passed by the State Government at Bhopal on 19-1-1989. There is nothing in the order to indicate that the same was ever communicated to the petitioner. The letter (Annexure R-1) is addressed to the District Magistrate and a copy of it has been sent to the Commissioner, Bilaspur. It bears no endorsement of communication of that letter/order to the petitioner. There is further no document showing that the petitioner was served with a copy of that letter by the District Magistrate, Bilaspur or by any other authority. It is also clear that as required by Rule 46, the petitioner was never communicated any direction to deposit the arms or ammunition, either with the officer-in-charge of the nearest Police Station or with a dealer holding a licence in Form XIV. That being so, it cannot be said that on 20-1-1989, when the seizure was effected at 10 a.m. the petitioner held arms or ammunition illegally or for any unlawful purpose. There is also nothing to suggest that any Magistrate has recorded reasons for his belief that the petitioner could not be left in possession of the arms and ammunition without danger to public peace or safety. We have not been shown any order of the Magistrate, directing the Police Officers to make a search of the petitioner's house or to effect seizure. Even if we were to assume the existence of any such order by the Magistrate, the record does not show that any of the conditions mentioned in Clause (a) or (b) of Sub-section (1) of Section 22 existed, permitting the Magistrate to effect seizure of arms and ammunition possessed by the petitioner. For the aforesaid reasons, we hold the seizure of the arms, vide Annexure-A as illegal. 6. We allow this petition and quash the seizure of arms and ammunition vide Annexure-A as also the order, Annexure R-1, dated 19-1-1989, whereby the application of the petitioner for renewal of the licence has been rejected. The authorities shall now proceed to consider the application of the petitioner for renewal of licence in accordance with law, expeditiously. There shall be no order as to costs. The security amount, if any, be refunded to the petitioner.

[ 1785562, 1785562, 1785562, 662031, 1785562, 662031, 1972990, 1092263, 1972990, 1785562, 662031, 1934415, 662031, 1602068, 1785562, 662031, 73862, 244673, 229834, 662031, 925052, 1785562, 1785562, 662031, 925052, 418869, 161536, 381918, 381918, 418869 ]

Author: B Varma

216,611

Amrik Chand Saluja vs State Of M.P. And Ors. on 7 November, 1989

Madhya Pradesh High Court

30

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null

216,612

[Section 620A] [Complete Act]

Central Government Act

0

JUDGMENT 1. The State has preferred this appeal against the order of acquittal passed by the learned Judicial Magistrate, First Class of Malegaon on 9th of April 1979 in Criminal Case No. 618 of 1973. By the said order the learned trial Magistrate acquitted the respondent, hereinafter referred to as "the accused", of the offence punishable under Section 16(i)(a) read with Section 7(i) and Section 2(i)(c) of the Prevention of Food Adulteration Act. According to the prosecution the accused made a statutory sale of 450 grammes of what has been called Shahajira to the Food Inspector of Malegaon. The sample which was sent to the Public Analyser was found to contain nearly 75 per cent of extraneous matter. That at least is the report of the Public Analyst. On this basis the prosecution was launched against the accused. In support of its case the prosecution examined the Food Inspector and one of the panchas who was, according to the prosecution, a witness to the purchase of the sample and the subsequent steps to be taken before sending the sample to the Public Analyst. 2. The learned trial Magistrate found that the panch examined as P.W. 2 did not support the Food Inspector in any of the particulars of the prosecution case. I have myself gone through the deposition of the panch (P.W. 2) and find that in the examination-in-chief itself he has not said anything which would corroborate the testimony of the Food Inspector. The learned trial Magistrate thought that such corroboration was necessary and since it was not forthcoming he acquitted the accused, as mentioned above. 3. Mr. Suryawanshi, the learned Public Prosecutor, appearing in support of this appeal, has criticised the approach of the learned trial Magistrate by contending that in law it is not necessary that there should be corroboration to the deposition of the Food Inspector if the case given out by the Food Inspector is found to be acceptable by he Court. In the instant case the learned trial Magistrate has, says Mr. Suryawanshi, put the cart before the horse and without examining whether the Food Inspector's evidence is acceptable or not proceeded to reject it on the ground that thee is no corroboration from the panch. If this were the only ground on which the order of acquittal could be passed I would have examined the contentions of Mr. Suryawanshi in greater details. However, Mr. Ganatra, the learned Advocate appearing for the accused has brought to may notice certain facts which make it impossible for me to interfere with the order of acquittal. 4. The statutory sale took place on 25th of February 1973. Sometime thereafter the sample must have been sent to the Public Analyst. The date of the report of the Public Analyst is 1st April 1973. Thereafter on 28th of June 1973 the complaint was filed in the Court of the learned trial Magistrate. For more than a year nothing happened and on 5th of December 1974 the report of the Public Analyst was given to the accused. Thereafter for nearly three years again nothing happened and on 18th of July 1977 summons was issued by the Court to the accused to appear before the Court on 5th of August 1977. Mr. Ganatra has pointed out that from the bald recitation of the facts above it is crystal clear that Rule 9(j) of the Prevention of Food Adulteration Rules has been contravened in he instant case and the prosecution could never hope to succeed on this ground alone. This contention of Mr. Ganatra had to be upheld. Rule 9 of the Prevention of Food Adulteration Rules prescribed the duties of a Food Inspector. On the date on which the sample in the instant case was taken, Rule 9(j) was in the following terms :- "To send by hand or registered post a copy of the report received in Form III form the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder as soon as the case is filed in the Court." It may be mentioned that this Rule had come into effect on 24th of August 1968 and remained in the same form till 23rd of May 1974 when it was amended as follows :- "To send by registered post a copy of the report received in Form II from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. however, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and the report need not be sent." The report of the Public Analyst has been given to the accused in the instant case nearly 1 1/2 years after the complaint was filed. There is no difficulty in saying that thee was a gross violation of Rule 9(j) as it stood on the date on which the complaint was filed. 5. Clause (j) of Rule 9 was totally repealed with effect from 4th of January 1977 and one rule, namely R. 9-A, has now come into force to deal with the same subject-matter with which originally Rule 9(j) deal ad that is in the following terms :- "The Local (Health) Authority shall immediately after the institution of prosection forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to be person, if any, whose name address and other particulars have been disclosed under Section 14A of the Act : Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action in intended under sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst." 6. It will be seen that the present Rule 9-A requires the Local (Health) Authority to forward of the analysis to the person from whom the sample of the article is taken by the Food Inspector immediately after the institution of prosecution. This part of the rule is somewhat analogous to Rule 9(j) that will be applicable to the facts of the present case. Interpreting this Rule 9-A, this Court has, in State of Maharashtra v. Tukaram, 1982 Cri LJ 1462, held that the word "immediately" means "forthwith" and the accused in entitled to acquittal if a copy of the report of the analysis is not sent to him forthwith. The facts of Tukaram's case disclose that there was a delay of six days, after the institution of the prosecution, in the sending of the report to the accused. Even then this Court held that the accused was entitled to an acquittal on the ground of the contravention of Rule 9-A which, I have already pointed out above, is somewhat analogous to Rule 9(j) as it originally stood and as it should apply to the facts of this case. The order of acquittal passed by the learned trial Magistrate, therefore, deserves to be confirmed on this ground which has been pressed by Mr. Ganatra. 7. In he result, the appeal is dismissed. The order of acquittal is passed by the learned Judicial Magistrate, First Class, Malegaon in Criminal Case No. 618 of 1973 is confirmed. 8. Appeal dismissed.

[ 29573653, 134223461, 128134290, 134223461, 129080 ]

null

216,613

The State Of Maharashtra vs B.B. Kothavade on 17 September, 1982

Bombay High Court

5

THE HIGH COURT OF MADHYA PRADESH CRR-2974-2017 sh (SUBHASH TIWARI Vs THE STATE OF MADHYA PRADESH) e 1 ad Jabalpur, Dated : 01-11-2017 The case is taken up on mention. Pr Shri P.K. Saxena, counsel for the petitioner. a Shri Deependra Mishra, Government Advocate for the hy respondent/State. ad Heard on admission. Admit. M Learned Government Advocate for the of respondent/State accepts notice on behalf of the respondent/State; as such, no further notice is required. rt Let record of the Courts below be requisitioned. ou Heard on I.A.No.20424/2017 for suspension of C sentence and grant of bail filed on behalf of petitioner h Subhash Tiwari. ig A perusal of the record reveals that petitioner has H been convicted under Section 332 of the Indian Penal Code and has been sentenced to undergo effective rigorous imprisonment for a period of six months and fine in the sum of Rs.2,000/-, with default stipulation. It has been submitted on behalf of the petitioner that petitioner has been in custody since 25.10.2017 that is the date of the judgment of the appellate Court; therefore, it has been prayed that the application be allowed and petitioner be released on bail. Learned Government Advocate for the respondent/State has opposed the application. sh However, keeping in view the quantum of sentence imposed upon the petitioner and the period already e undergone by him, he deserves to be enlarged on bail. ad Consequently, this first application for suspension Pr of sentence and grant of bail filed on behalf of petitioner Subhash Tiwari, is allowed. a hy It is directed that on depositing the fine amount and furnishing a personal bond in the sum of Rs.40,000/- ad with one solvent surety in the same amount to the M satisfaction of the trial Court for his appearance before the Registry of this Court on 18.06.2018 and on such of other dates as may be fixed in this behalf, the rt substantive jail sentence imposed upon the petitioner ou shall stand suspended and he shall be released on bail. Certified copy as per rules. C h ig (C V SIRPURKAR) H JUDGE vai VAISHALI AGRAWAL 2017.11.01 22:27:26 -07'00'

[ 1440821 ]

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216,614

Subhash Tiwari vs The State Of Madhya Pradesh on 1 November, 2017

Madhya Pradesh High Court

1

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216,615

Dev Karan And Another vs D.M. Jaunpur And Others on 23 August, 2010

Allahabad High Court

0

JUDGMENT G. Ramanujulu Naidu, J. 1. The above tax revision case is preferred by the petitioner questioning the order dated 19th April, 1896, passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad (hereinafter referred to as "the Tribunal"), dismissing its appeal preferred against the order of the Deputy Commissioner (Commercial Taxes), Warrangal. 2. The relevant facts giving rise to the above tax revision case, which are not in dispute, lie in a narrow compass : The petitioner is a registered dealer under the Andhra Pradesh General Sales Tax and Central Sales Tax Acts, trading in paddy and rice at Warrangal. For the assessment year 1978-79, the assessing authority subjected a turnover of Rs. 30,623.97 representing the inter-State sales of rice effected by the petitioner and not covered by declarations in form C, to tax of Rs. 673.88 under section 8(2)(a) of the Central Sales Tax Act. The Deputy Commissioner (Commercial Taxes), Warrangal, however, reopened the assessment in exercise of powers conferred upon him under section 20(2) of the Act, and subjected the said turnover to tax in a sum of Rs. 2,450. The assessing authority first determined tax on the turnover of Rs. 30,623.97 at the rate of 4 per cent. From out of the said amount, he deducted the amount of tax levied on the corresponding purchase turnover of paddy, and after arriving at the difference, the same was doubled. The Deputy Commissioner (Commercial Taxes), Warrangal, who revised the order of the assessing authority, subjected the entire turnover to tax at 8 per cent. which is double the rate of 4 per cent. applicable to sale of rice under the Andhra Pradesh General Sales Tax Act and from out of the total amount so arrived at, whatever tax the corresponding value of paddy suffered was deducted. The petitioner having unsuccessfully challenged the order of the Deputy Commissioner before the Tribunal preferred the above tax revision case. 3. The question which arises for our consideration is, what is the method of computation of liability to tax under section 8(2)(a) of the Central Sales Tax Act in respect of inter-State sales of rice effected by the assessee and not covered by the declarations in form C ? 4. To answer the question, it is necessary to notice the relevant provisions of both the Acts : Under section 6 of the Central Sales Tax Act, every dealer is liable to pay tax, subject to the other provisions of the Act, on all sales of goods effected by him in the course of inter-State trade or commerce. Under section 8(1) of the Central Sales Tax Act, rate of tax in respect of inter-State sales effected in favour of a registered dealer is 4 per cent. Sub-section (4) of section 8, however, makes it clear that the concessional rate of tax at 4 per cent. can be claimed only on production of a declaration in form C covering the goods taxed. Where such a declaration is not furnished, sub-section (2) of section 8 enacts a penal rate of tax which, in respect of declared goods, shall be calculated at twice the rate applicable to the sale or purchase of goods inside the appropriate State and, in the case of goods other than declared goods, shall be calculated at the rate of 10 per cent. or at the rate applicable to sale or purchase of such goods inside the appropriate State, whichever is higher. 5. Paddy and rice are declared goods with effect from 7th September, 1976. Section 14 of the Central Sales Tax Act lists out "declared goods". Paddy and rice are included in the list. Section 15 of the Act incorporates restrictions and conditions to which every State law pertaining to sales tax must conform. Clause (c) of section 15 enacts that, where tax has been levied under a State law in respect of the sale or purchase inside the State of any paddy, tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy. In other words, under the State law, if the paddy from out of which rice was produced had suffered tax, the same should be deducted by quantifying liability to tax on rice. 6. Section 6 of the Andhra Pradesh General Sales Tax Act provides for levy of tax in respect of "declared goods" and it enacts that, irrespective of quantum of turnover, a dealer is liable to pay tax only at the point of sale or purchase specified against each of the items mentioned in Schedule III of the Act. The proviso to section 6 makes it clear that, where any declared goods on which tax has been levied are sold in the course of the inter-State trade or commerce and tax has been paid under the Central Sales Tax Act in respect of the sale of such goods, the tax levied under the Andhra Pradesh General Sales Tax Act shall be reimbursed to the dealer who effected sale in the course of inter-State trade or commerce. Paddy and rice are listed as items 21 and 22 of the Third Schedule to the Act. Paddy is liable to tax at the point of first purchase in the State, and rice is exigible to tax at the point of first sale in the State. Explanation III to entries 21 and 22 provides that, where tax has been levied under the Andhra Pradesh General Sales Tax Act in respect of sale or purchase inside the State of any paddy, the tax leviable on rice procured from out of that paddy shall be reduced by the amount of tax on such paddy. It is, therefore, clear that the proviso to section 6 of the Andhra Pradesh General Sales Tax Act read with Explanation III to entries 21 and 22 of the Third Schedule to the Act, conforms to the mandate contained in section 15(c) of the Central Sales Tax Act. 7. Admittedly, the turnover which is the subject-matter of this tax revision case represents sales of declared goods outside the State of Andhra Pradesh effected by the assessee and unsupported by any declarations in form C. The said goods are, therefore, liable to tax under section 8(2)(a) of the Act. Specific language employed in section 8(2)(a) of the Central Sales Tax Act is that the tax payable "shall be calculated at twice the rate applicable to the sale or purchase of goods inside the appropriate State". The rate of tax applicable to the sale of rice inside the State of Andhra Pradesh is 4 per cent. as specified against item 22 of the Third Schedule to the Act. Liability to tax under section 8(2)(a) has to be quantified with reference to that rate and at double that rate. Emphasis is on the expression "calculated at twice the rate". Sri Dasaratharama Reddi, learned counsel appearing' for the assessee, would like us to interpret the expression "rate" as meaning the amount of tax ultimately levied. There is no warrant for such an interpretation. It is well-settled that the words of a statute must be given their ordinary meaning. Given the said meaning, the expression "calculated at twice the rate" applicable to the sale of goods inside the appropriate State would only mean that the goods, vix., the rice, sold by the petitioner outside the State of Andhra Pradesh and not supported by declarations in form C is liable to tax at the rate of 8 per cent., i.e., double the rate of 4 per cent. applicable to sale of rice inside the State of Andhra Pradesh. Explanation III to entries 21 and 22 of the Third Schedule to the Act does not alter or revise the rate; it only provides for a concession to the extent indicated therein. The Deputy Commissioner (Commercial Taxes), Warrangal, rightly quantified the liability to tax on the turnover representing the sale of rice effected by the petitioner outside the State of Andhra Pradesh and not supported by any declarations in form C. The Tribunal, in its well reasoned order, upheld the action of the Deputy Commissioner. 8. Sri Dasaratharama Reddi, the learned counsel appearing for the petitioner, however, relies upon the decision of a Division Bench of this Court in Aitita Narasaiah Co. v. State of Andhra Pradesh [1979] 43 STC 183, in respect of his submission that the word "rate" occurring in section 8(2)(a) of the Act, could only mean the amount of tax which becomes actually payable after giving rebate as provided under Explanation III to entries 21 and 22 of the Third Schedule to the Act. We have carefully perused the said decision. There is nothing in the decision which supports the submission of the learned counsel for the petitioner. 9. In the result, the T.R.C. is dismissed. No costs. Advocate's fee Rs. 200. 10. Petition dismissed.

[ 1645178, 890594, 74935028, 890594, 331124, 1149316, 1808776, 1808776, 450196, 1116546, 1116546, 331124, 1645178, 1116546, 890594, 890594, 890594, 1799024, 890594 ]

Author: G R Naidu

216,616

Sri Ganesh Trading Company vs The State Of Andhra Pradesh on 29 March, 1988

Andhra High Court

19

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.2931 of 2015 In Civil Writ Jurisdiction Case No. 4715 of 2015 ====================================================== Jamaluddin Khan .... .... Petitioner/s Versus The State of Bihar Represented Through Sri Ravi Mittal The Principal Secretary Department of Industry Govt. of Bihar Patna & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Krishna Chandra For the Respondent/s : Mr. Jawahar Pd. Karn ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER2 02-12-2015 Mr. Chandra for the petitioner is present. Let a copy of the contempt application be served on the counsel representing the Union of India and receipt thereof be filed within 05 days. List after 07 days. (Kishore Kumar Mandal, J) HR/-

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216,617

Jamaluddin Khan vs The State Of Bihar Represented ... on 2 December, 2015

Patna High Court - Orders

0

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20436 of 2011 Ravindra Rai Versus The State Of Bihar ----------- Praveen/- ( Akhilesh Chandra, J.) 02 14/07/2011 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. Petitioner is one of the two named accused in this three years old case, wherein co-accused who is none else than the father of the petitioner is in custody and facing trial, but due to abstention, investigation against the petitioner, as submitted, is still pending. No doubt, during trial statement of the informant is something otherwise than what he has stated in the First Information Report. In view of the conduct of the petitioner, he is not entitled for the privilege sought. Hence, prayer for anticipatory bail of the petitioner, namely, Ravindra Rai, in connection with Bachhwara P.S. Case No. 135 of 2008, pending in the court of learned Chief Judicial Magistrate, Begusarai, is hereby rejected.

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216,618

Ravindra Rai vs The State Of Bihar on 14 July, 2011

Patna High Court - Orders

0

Court No. - 30 Case :- WRIT - C No. - 674 of 2009 Petitioner :- Sunil Kumar Respondent :- State Of U.P. & Others Petitioner Counsel :- Sunil Kumar,In Person Respondent Counsel :- C.S.C. Hon'ble Abhinava Upadhya,J. Sri Sunil Kumar has filed rejoinder affidavit today, which is taken on record. He prays that the matter be taken up in the next cause list. As prayed, list in the next cause list. Order Date :- 6.1.2010 VS.

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216,619

Sunil Kumar vs State Of U.P. & Others on 6 January, 2010

Allahabad High Court

0

IN THE HIGH COURT OF JUDICATURE AT PATNA F.A. No.389 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Yadunandan Yadav, S/o Gulabchand Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent. With F.A. No.250 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Briksh Singh S/o Chholot Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A . No.252 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1.Sarjug Yadav, S/o Khedan Yadav, 2. Kishun Yadav 3. Mistri Yadav Both sons of Khedan Yadav. All residents of Village Nasibuchak, P.S.Fatwah, District- Patna. --Respondent With F.A. No.253 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Most. Sundari Devi W/o Late Ram Vijay Singh 2. Ran Vinay Singh 3. Baijnath Singh 4. Sudhir Singh sons of Fauira Singh All residents of Village Sorakothi, P.S.Fatwah, District- Patna. --Respondent With F.A. No.254 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Priya Ranjan Singh, S/o Ram Tahal Singh, resident of Village Bhudhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.255 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ballabh Singh S/o Chandeshwar Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.256 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Chandradeo Singh son of Moti Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.259 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ishwar Bhagat, S/o Sidhu Bhagat, resident of Village Kalyanpur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.262 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Ram Chandra Singh S/o Dasrath Singh 2. Ram Babu Singh S/o Dasarath Singh, -3- Both residents of Village Budhuuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.264 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Ram Prakash Rai 2. Mohan Rai 3. Dinesh Rai 4. Dinanath Rai 5. Ramji Rai All sons of Bhola Rai, residents of Village Raypur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.266 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Badamo Devi W/o Late Ramchandra Rai, resident of Village Raipur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.269 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bishnu Yadav, S/o Behari Yadav, resident of Village Nohta, P.S. Fatwah, District-Patna. --Respondent With F.A. No.270 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tika Rai son of Late Ganga Rai, resident of Village Raipur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.273 of 1995 -4- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rama Singh, S/o Siri Singh, resident of Village Nasibuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.275 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Chanchala Devi W/o Rama Singh, resident of Village Nehta, P.S. Fatwah, District-Patna. --Respondent With F.A. No.276 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Parmanand Nagbanshi S/o Late Hajari Prasad, resident of Village Raypur, P.S. Fatwah, District-Patna. --Respondent With F.A. No.278 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ganauri Yadav, S/o Lakhan Yadav, resident of Village Nasibuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.279 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sanjay Kumar, S/o Sachidanand Singh, resident of Village Budhuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.280 of 1995 1. The State of Bihar -5- 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Smt. Maya Devi wife of Ramjee Singh 2. Ramji Singh S/o Mohan Singh, Both residents of Village Budhuchak, P.S. Fatwah,, District- Patna. --Respondents With F.A. No.281 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rajesh Kumar Singh , S/o Sachidanand Singh, resident of Village Budhuchak, P.S. Fatwah,, District-Patna. --Respondent With F.A. No.282 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bijay Singh, S/o Khyali Singh, resident of Village Nasibuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.283 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sudhir Kumar, S/o Braj Ballabh Singh, resident of Village Budhuchak, P.S. Fatwah, District-Patna. --Respondent With F.A. No.284 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tika Rai S/o Late Ganga Bhagat, resident of Village Raipura, P.S. Fatwah,, District-Patna. --Respondent With F.A. No.286 of 1995 -6- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Hari Narayan Yadav 2. Balmki Yadav Both sons of Jiwan Yadav, residents of Village Kalayanpur, P.S. Fatwah, District-Patna. --Respondents With F.A. No.294 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bhola Nath son of Ishwar Rai, resident of Village- Raipura, P.S. Fatwah, District-Patna. --Respondent With F.A. No.299 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Dukhan Singh S/o Sita Ram Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.301 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mostt. Sudamiya Devi W/o Jawahar Rai, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.304 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baldeo Prasad Singh S/o Dhanu Singh, resident of Village Nahta, P.S.Fatwah, District-Patna. --Respondent With -7- F.A. No.306 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Raj Ballabh Singh S/o Chandni Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.309 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Tiliya Devi W/o Sukhia, resident of Village- Raypur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.312 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tulsi Yadav S/o Bihari Yadav, resident of Village -Johai, P.S.Fatwah, District-Patna. --Respondent With F.A. No.313 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Tika Rai son of Ganga Bhagat, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.314 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Lakhan Yadav S/o Laxman Yadav, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.316 of 1995 -8- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Dwarika Prasad S/o Ishwar Prasad, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.317 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Madan Kumar S/o Ramdeo Singh, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.320 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Arbind Kumar S/o Bilat Sah, resident of Village Sorakothi, P.S.Fatwah, District-Patna. --Respondent With F.A. No.327 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baldeo Singh S/o Kamesbar Singh, resident of Village- Kalyanpur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.328 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheoji Singh S/o Chalitar Yadav, resident of Village- Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.329 of 1995 -9- 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Ishwar Bhagat S/o Dhurkeli Yadav, resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.331 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Hari Kishun Singh S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.333 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Most. Badamo Devi, W/o Late Ramchandra, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.334 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahanth Ram Ishwar Das Chela Ram Krishna, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.336 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramdas Prasad S/o Late Janak Rai, resident of Village- Kalyanpur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.337 of 1995 1. The State of Bihar - 10 - 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1. Janak Rai S/o Karun Rai 2. Raundra Rai S/o Janak Rai 3. Smt. Sunita Devi w/o Janak Rai, All resident of Village- Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.338 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sukhdeo Yadav, S/o Barhu Yadav, resident of Village -Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.358 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Hari Narain Yadav, S/o Bhag Rai Yadav, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.359 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Bhograj Yadav, son of Dhanu Yadav, resident of Village- Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.366 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Dalpati Devi W/o Ganga Sagar, resident of Village- Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.367 of 1995 - 11 - 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus 1(i) Rajiv Ranjan (ii) Satya Prakash Ranjan (iii) Narendra Kumar Ranjan (iv) Om Prakash Ranjan (v) Jai Prakash Ranjan (vi) Arbind Kumar Ranjan All sons of Late Sukhari Singh, resident of Village- Bhudachak, P.S.Fatwah, District-Patna. --Respondents With F.A. No.368 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Narsingh Prasad, S/o Keshwar Singh, resident of Village- Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.371 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baijnath Singh S/o Hajari Singh, resident of Village - Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.373 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Chandrika Singh Son of Dukhan Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.376 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 12 - Jetu Yadav son of Sri Prasad Yadav, resident of Village - Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.377 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bhagat Yadav, S/o Sidhu Yadav, resident of Village Kalyanpur, P.S.Fatwah, District-Patna. --Respondent With F.A. No.378 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Ranjit Kumar son of Sachidanand Singh, resident of Village Bhudhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.382 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Mukesh Kumar S/o Brij Ballab Singh, resident of Village- Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.384 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Parmila Kumari D/o Brij Ballabh Singh, resident of Village - Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.386 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 13 - Sidheshwar Yadav S/o Guljari Yadav, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A.No.388 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Prit Yadav, S/o Doma Yadav, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.390 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ambika Prasad Singh, S/o Ram Sohawan Singh, resident of Village -Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.395 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Gautam Kumar Singh S/o Ramjee Singh, resident of Village - Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.396 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Nandan Singh S/o Gulabchand Singh, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.401 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 14 - Amir Singh, S/o Ram Sohawan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.402 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Anup Lal Singh, S/o Ram Sohawan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.404 of 1995 1. The State of Bihar 2. Union of India through, Deputy General Manager, Eastern Railway, Calcutta. 3. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ball Kishun Yadav S/o Sri Prasad Yadav, resident of Village- Nasibuchak, P.S.Fatwah, District-Patna. -- Respondent With F.A. No.405 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus America Singh, S/o Kailash Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.406 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Jagat Prasad Singh, S/o Kailash Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.407 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. - 15 - Versus Rameshwar Prasad, S/o Bhatlu Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.409 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramanand Yadav, S/o Dularchand Yadav, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.411 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Arjun Singh, S/o Shivnandan Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.413 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Brijnandan Singh, S/o Gulabchand Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.417 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sri Hari Kishun Singh, S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.418 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 16 - Smt. Kaushalya Devi, W/o Jagat Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.419 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Balusahi Singh, S/o Kailash Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.421 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Balram Yadav, S/o Deo Nandan Sah, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.423 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mithu Yadav, S/o Deo Nandan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.424 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramesh Sah, S/o Ramdeo Sah, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.425 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 17 - Brijesh Singh, S/o Ramdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.426 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Jitendra Kumar Nagbanshi, S/o Parmanand Nagbanshi, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.427 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Upendra Kumar Nagbanshi, S/o Parmanand Nagbanshi, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.428 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Bindra Devi, W/o Vermanand Rajbanshi, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.429 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Raju Singh, S/o Ramdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.435 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 18 - GangaYadav, S/o Banshi Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.436 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ashok Singh, S/o Ramdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.437 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Nasib Lall Yadav, S/o Bhajan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.271 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rambarat Yadav, S/o Bhandu Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.414 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Rama Ashish Yadav, S/o Bhajoo Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.422 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 19 - Sajiwan Yadav, S/o Deonandan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.303 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Devendra Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.249 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bishun Rai, S/o Bhawan Rai, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.251 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Birajia Devi, W/o Khedan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.274 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Lagan Yadav, S/o Gusari Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.288 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 20 - Surendra Singh, S/o Madho Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.290 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Jagdeo Singh, S/o Khayali Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.298 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Baliram Singh, S/o Ramprit Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.300 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ran Nandan Singh, S/o Sheo Nandan Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.305 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramashray Yadav, S/o Barhu Yadav, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.310 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 21 - Janak Yadav, S/o Guljori Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.319 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Khedan Singh, S/o Kali Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.324 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Dulari Singh, S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.325 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahendra Prasad, S/o Jaggu Rai, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.330 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Yogeshwar Yadav, S/o Guljari Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.340 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 22 - Smt. Sumitra Devi, W/o Late Sheo Nandan Yadav, resident of Village Sonakothi, P.S.Fatwah, District-Patna. --Respondent With F.A. No.344 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Priyawarta Prakash, S/o Baldeo Prasad, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.345 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Bijendra Singh, S/o Sheo Nandan Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.348 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Umesh Singh, S/o Rameshwar Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.352 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Binay Kumar, S/o Ram Bhajan, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.355 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 23 - Surendra Prasad, S/o Basudeo Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.363 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Nagendra Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.365 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Parmanand Singh, S/o Ramcharan Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.369 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheonandan Singh, S/o Ramchandra Singh, resident of Village Budhuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.370 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Birendra Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.372 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 24 - Smt. Alakhi Devi, W/o Jittu Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.375 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahanth Ram Sunder Sharan, Chela Late Mahanth Ram Lakhan Das, resident of Village Raipura, P.S.Fatwah, District- Patna. --Respondent With F.A. No.385 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheoji Yadav, S/o Bhadu Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.387 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Rup Yadav, S/o Guljari Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.397 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Naresh Prasad, S/o Rameshwar Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.399 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 25 - Satendra Kumar, S/o Rameshwar Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.403 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Munaka Kuer, W/o Kailash Gope, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.408 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Chandra Singh, S/o Siri Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.410 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Kailash Yadav, S/o Kali Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.412 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ram Dulari Singh, S/o Bhikhari Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.415 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 26 - Smt. Kiran Devi, W/o Anil Kumar Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.416 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Manju Devi, W/o Ashok Kumar, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.430 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ravindra Prasad, S/o Nawal Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.431 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Mahendra Singh, S/o Nasal Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.433 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sidheshwar Yadav, S/o Sahdeo Yadav, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.434 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus - 27 - Sidheshwar Prasad, S/o Late Sahdeo Singh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.438 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Smt. Anandi Devi, W/o Ram Briksh, resident of Village Nasibuchak, P.S.Fatwah, District-Patna. --Respondent With F.A. No.247 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Ramashish Prasad, S/o Munshi Singh, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent With F.A. No.335 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Sheoji Yadav, S/o Barhu Yadav, resident of Village Nohta, P.S.Fatwah, District-Patna. --Respondent With F.A. No.353 of 1995 1. The State of Bihar 2. General Manager, East Central Railway, Hajipur (Vaishali). --Appellants. Versus Binod Kumar, S/o Mahendra Prasad, resident of Village Raipura, P.S.Fatwah, District-Patna. --Respondent ----------- For the appellant -State : Mr. Narmdeshwar Jha, A.A.G.-VII Mr. Anil Kumar Jha, G.A.-II Mr. Harendra Prasad Singh, G.A.-VI Mr.Sanjay Kumar, G.P. XIV. - 28 - For the Railways : Mr.Sabbir Ahmad, Advocate. Mr. Mahesh Prasad, Advocate. For respondent : Mr. R.C.Sinha, Advocate. Mr. S.K.Yadav, Advocate. Mr. P.C.Yadav, Advocate. Mrs. Sheela Sharma, Advocate. Mr. Rakesh Ranjan, Advocate. ------- P R E S E N T: THE HON'BLE THE CHIEF JUSTICE JUDGMENT ( 09.04.2010) Dipak Misra, C.J. In this batch of appeals, the challenge is to the award dated 26.11.1994 passed by the learned Special Land Acquisition Judge, III, Patna in L.A.Case No.1 of 1993 and other connected cases. 2. A notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') for acquisition of 74.515 acres of land situate in village Raipura, P.S. Fatwah, District-Patna for construction of Railway Godown. The Land Acquisition Officer determined the price at Rs.2403/- per katha. The awardees not being satisfied with the same filed an application for reference to the Civil Court and the Land Acquisition Officer referred the matter to the Civil Court. 3. Before the Civil Court, it was contended that the claimants were entitled to Rs.50,000/- per katha as that was the price at the time of acquisition. It was also contended that the Land - 29 - Acquisition Officer had not taken into consideration the documents on record and had arbitrarily determined the price. 4. Before the Reference Judge, number of witnesses were examined on behalf of the claimants and documents were exhibited to highlight how the transactions were made which would show the land was sold at much higher rate. 5. The learned Reference Judge referred to the sale deeds vide Ext.-1 series produced on behalf of the awardees. Ext.-1 is the certified copy of the sale deed dated 05.04.1989 in respect of Survey Plot No.1029 of Village Raipura, whereby one katha of land was sold for Rs.10,000/-. Vide Ext.-1/A, 1/3rd katha was sold at Rs.8,000/-. Ext.-1/B is the sale deed by which an area of 5 kathas was sold for Rs.45,000/-. Ext.-C is a sale deed by which one katha of land was sold at Rs.11,000/-. He has also referred to Exts. A, B and C, the valuation report, valuation khatiyan and the sale statements on which the Land Acquisition Judge has relied. 6. It is worth noting the Land Acquisition Officer had awarded Rs.2403/- per katha relying on the three documents, namely, Ext.A, B and C. The Reference court relying on the contemporaneous sale deeds determined the price at Rs.11,000/- per katha. 7. While determining the compensation, the court is required to keep in mind the law that has been crystalised by the - 30 - Apex Court in the decisions rendered in Ahmedabad Municipal Corporation and Others Vs. Shardaben and others (1996) 8 SCC 93, Hookiyar Singh and others Vs. Special Land Acquisition Officer, Moradabad and another, (1996) 3 SCC 766, State of U.P. and others Vs. Ram Kumari Devi (Smt) and others, (1996) 8 SCC 577 and Gujarat Industrial Development Corporation Vs. Narrottambhai Morarbhai and another, (1996) 11 SCC 159. 8. In the case at hand, there are number of sale deeds which were exhibited, and the same would show the price per katha varied from Rs.9,000/- to Rs.11,000/-. As the Land Acquisition Officer had fixed the price per katha, the learned reference Judge could not be said to be gone by determining the price per acre. When the said principle is accepted, the only thing remains for consideration is the determination of quantum. The acquired area of the transaction covered in the sale deeds is almost adjacent to the land. The said fact is not disputed by learned counsel for the parties. 9. Regarding being had to the proximity of the area and the contemporaneous sale deeds and the oral evidence brought on record and the principle that has been fixed by the Lordships of the Apex Court and the component of guess work which can be taken aid of, I am of the considered opinion the valuation should be determined at Rs.8,000/- per katha and accordingly, the award - 31 - passed by the Reference Judge is modified and the claimants would be entitled to compensation at the rate of Rs.8,000/- per katha. Needless to say they shall be entitled all statutory benefits including the interest on solatium as per the decision rendered in Sunder Vs. Union of India, AIR 2001 SC 3516. 10. In the result, the appeals are allowed in part. The award shall be modified accordingly. The modified award shall be satisfied within four months. The parties shall bear their respective costs throughout. ( Dipak Misra, C.J.) Sunil/

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216,620

The State Of Bihar vs Upendra Kumar Nagbanshi on 9 April, 2010

Patna High Court

1

JUDGMENT Parihar, J. 1. A trial for an offence under Section 302 and 302/34 ITC has been pending against the petitioner before the Sessions Judge, Kota. The Sessions Judge, Kota transferred the above case to the Additional Sessions Judge (Fast Track) No. 2, Kota, vide order dated 2.6.2001. After transfer of the sessions case to the Additional Sessions Judge (Fast Track) No. 2, Kota, the petitioner filed an application on 9.7.2001 before the above court for transferring the matter back to the Sessions Court, Kota, where the trial was earlier pending. The application of the petitioner was rejected by the trial court vide order dated 31.7.2001. The present petition for transfer of the case, under Section 407 Cr.P.C. has been filed by the petitioner for transferring the trial back to the Sessions Court, Kota mainly on the ground that the trial had almost been completed before the Sessions Court, Kota and, at this stage, the transfer of the trial court not be made to the other court. 2. Mr. K.K. Sharma, learned counsel for the petitioner, has relied on the judgment of this court in the case of "Nasruddin v. State of Rajasthan" (1), decided on 11.9.2000. 3. After hearing learned counsel for the petitioner, 1 have carefully gone through the material on record as also the order impugned in the present petition. 4. The State Government, vide Notification dated 31.3.2001, created/established 40 courts of Additional District & Sessions Judge (Fast Track Courts) at various places in the State of Rajasthan, for disposal of the pending sessions cases. The High Court, vide order dated 30.5.2001, directed and authorised all the District & Sessions Judges concerned, in whose jurisdiction such Fast Track Courts have been created/ established, to transfer preferably those Sessions Cases which are pending for more than two years and in which accused persons are in judicial custody from their courts or the courts of Additional District & Sessions Judges to the newly created/established courts of Additional District & Sessions Judges (Fast Track). 5. Under the order and directions of this Court, the sessions case, in the present matter, was also transferred to the Court of Additional Sessions Judge (Fast Track) No. 2, Kota by the Sessions Judge, Kota. They very purpose of creating/establishing Fast Track Courts was to give relief to the accused whose trials were pending for long. Powers under Section 407 and 408 Cr.P.C. have not been disputed so far, however, in the present matter, since the transfer has been made under the directions and authorisation of this Court, in my opinion, no interference is called for by this court in the present petition. If such petitions are entertained by this Court, the very purpose of establishing Fast Track Courts shall be frustrated. The judgment cited at the Bar by learned counsel for the petitioner is not applicable in the facts of the present case. 6. Accordingly, the petition is dismissed. 7. This Court, while granting time to learned counsel for the petitioner to submit some documents, also passed an interim order on 19.9.2001, directing the trial court not to decide the case finally till the next date. Since the petition for transfer itself has been dismissed, the trial court is now directed to conclude the trial expeditiously. 8. A copy of this order be sent to the learned trial Court immediately.

[ 834094, 834094, 1327851 ]

Author: Parihar

216,623

Kamlesh Paharia vs State Of Rajasthan on 4 October, 2001

Rajasthan High Court

3

JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. S. Shyam, learned Counsel for the petitioners and Mr. I. Choudhury, learned Standing Counsel, P.W.D. Also heard Mr. H.K. Mahanta, learned Government Advocate, Assam. 2. The petitioners, who are 9 in number, are retired employees of the Public Works Department of the State of Assam. They had retired on different dates in the year 2000, 2001 and 2002 while holding either the post of Senior Grade junior Engineer or Assistant Engineer. The non-finalization of the entitlement of the petitioners to pension and the consequential non-payment of the pensionary dues is what has led to the initiation of the present writ application. 3. The facts are long and an attempt must be made to recite only what is essential. Pursuant to the recommendations of the Pay Commission, the Government of Assam, way back in the year 1989, took the decision to introduce a senior grade pay scale to eligible Junior Engineers of different departments with effect from 1.1.1989. The aforesaid decision was taken to remove stagnation in service. The petitioners being qualified and eligible in terms of the eligibility prescribed were given the benefit of senior grade pay scale in the post of Junior Engineer. When the question of fixation of their pay arose, a dispute/difference arose as to whether such pay should be regulated under F.R.22(1)(a)(1) or F.R.22(1)(a)(2). The Government took the decision that Junior Engineers who were granted the senior grade pay scale not having been promoted to a higher post, the fixation of pay is to be made by adhering to the provisions of F.R.22(1)(a)(2). However, any excess drawal by an incumbent is not to be recovered. The aforesaid decision was reflected in two Office Memorandums dated 25.9.1995 and 2.5.1998. The two decisions of the Government as reflected in the Office Memorandums in question were called into question by the Association representing the Diploma Holder Junior Engineers of the State before this Court. The point at issue before the Court need not be recited in the present order inasmuch as by a subsequent Notification dated 27.10.2003, the Government appears to have revised its earlier decision by holding that the fixation of pay of Junior Engineers is required to be made by following the provisions F.R.22(1)(a)(1). On the basis of the aforesaid Notification dated 27.10.2003 the writ petition filed by the diploma holder Junior Engineers Association was closed by this Court by order 13.2.2004 which, however, has been sought to be reopened by the filing of a Writ Appeal, i.e., W.A. No. 261 of 2004 before this Court at the instance of the Chief Secretary to the Government of Assam, and the Commissioner and Secretary to the Government of Assam, P.W.D. The aforesaid Writ Appeal No. 261/2004 is presently pending before this Court. As the fixation of pay by following either of the provisions of F.R. 22(1) would result in two different situation which in turn could effect the pensionary entitlement of the incumbents, such entitlement of the petitioners have been withheld to await the verdict of this Court in Writ Appeal No. 261/2004. It may also be noticed at this stage that provisional pension paid to the petitioners by fixing their pay scale as per F.R.22(1)(a)(1) has also been discontinued. 4. The petitioners are retired Government employees in whose favour provisional pension orders have been passed by fixing their pay by application of the provisions of F.R.22(1)(a)(1). The Government Notification, i.e., the Notification dated 27.10.2003 is presently holding the field in terms of which the pay of the petitioners is required to be fixed by following the provision of F.R.22(1)(a)(1). Though the question has been agitated in Writ Appeal No. 261/2004 there is no interim order from this Court. In such a situation there can be little doubt that the withholding of the finalisation of the entitlement of the petitioners to pension merely on the ground of pendency of Writ Appeal No. 261/2004 will not be justified. The petitioners are entitled to receive pension which must be paid to them by the State. The only question is on what basis such pensionary entitlement of the petitioners is to be fixed in a situation where the question of applicability of either of the two parts of F.R.22 is presently pending before this Court. 5. Pension being a benefit earned by an incumbent in Government service after years of dedicated service rendered, the inclination of the Courts would be to ensure that such benefits are allowed to the concerned incumbents without any curtailment. The petitioners have been paid provisional pension by application of F.R.22(1)(a)(1). The Government Notification in force entitles them to have the benefit of pay fixation by application of the provisions of F.R.22(1)(a)(1). Though Writ Appeal No. 261/2004 is pending, there is no interim direction or restraint from this Court. In such circumstances, this Court is of the considered view that the pensionay entitlement of the petitioners must be finalized by the State by fixing their pay in the senior grade pay scale of Junior Engineers by adhering/following the provisions of F.R.22(1)(a)(1), subject to such adjustment as may be required to be made following such decision as may be rendered by this Court in Writ Appeal 261/2004, a course of action to which learned Counsel for the petitioners has agreed to abide by. The concerned authority in the State Government including the competent authority in the Finance Department shall do all that is needful to ensure that the direction of this Court as above is carried out to enable the petitioners to receive their pensionary entitlement including arrears in terms of the present direction within a period of three months from the date of receipt of a certified copy of this order. 6. Writ application is allowed as indicated above.

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Author: R Gogoi

216,624

Prasanna Mahanta And Ors. vs State Of Assam And Ors. on 18 August, 2005

Gauhati High Court

0

Gujarat High Court Case Information System Print FA/571/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 571 of 2010 ========================================================= DHRUPATBA NARENDRASINH ZALA - Appellant(s) Versus PREMJIBHAI RAMJIBHAI DALVADI & 2 - Defendant(s) ========================================================= Appearance : MR MEHUL S SHAH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 MR SURESH M SHAH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 None for Defendant(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 19/04/2010 ORAL ORDER Notice returnable on 18th June 2010. The registry shall call for the records and proceedings pertaining to the Motor Accident Claim Petition No. 161 of 2003 from the Motor Accident Claims Tribunal (Auxiliary), Dhrangadhra so as to reach this Court on or before 17th June 2010. (K.M.THAKER,J.) Suresh* Top

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Author: K.M.Thaker,&Nbsp;

216,625

Dhrupatba vs Premjibhai on 19 April, 2010

Gujarat High Court

0

.:shziTs1a;e;1:h& A.Mam1ekar, % A =. R!<._>i Zatpat NagarAnao1. Belgaum. __'The Diviaiona}. Manager MFA.No.2I243/2008 1N THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAI) DATED THIS THE 21%'? DAY OF JANUARY BEFORE % 'V u THE 1-i0N'BLE MR.JUsTIc:§f. B.s.Pa.'m'.'j;j u.1r.A.1Io.a1ﬁ2.' :2o(S_$B_ ,z f: M u BETWEEN: The Divisional Manager, National Insurance Co. Ltd.., _ Ramdcv Galli, Be@um. v '_ _ V .__ _ ..APPELLANT (By Sri Laxman B.Mannoddar',AV_A§iv.:')'V 3 AND: 1. Shri Jameclahemaﬁ, S/0 Liya1rat~Hu'a'sci:n; .. Age: _ 40, 'Bt,1Vsi11cs-_s,' ' " R/9: Zatpat Celgny, Angel, {cg-::"h!aj0;V', Business, 'R/'G2 H.NC*§39:/16, Upasngar, - nshri Shékh Nabisab Shaikh Maheboob, 2 Age; Major, Ooc: Budmess, ' United India Inst:-ranoe'Co. Ltd., Mazuti Gem, Belgaum. ..RESPONDENTSMFA.No.21243/2008 2 This appml is filed under Section l'?'3(1) of M.vV-..._Act against the judgment and award dated 0'?'.06.2()(}8 MVC No.2'540/ 2005 on the ﬁk: of the Presiding Track Court-I as Member, Addl. MACIX, Belgaum,__ :_a" compensation of Rs.14,'750/-- with interest @ 6% -pja. date of petition till deposit. This apml is coming on for delivered the: fo11owi:ug:- _ ()1. There is a delay of 23 daysv'Vii12.:ﬁIi;).g Before issuing notice on the £21' delay, I have heard the learned the.' regarding 02. - Insurance Company is directed the negligence against S V the "anus Hggnda Scooter. _ ti ~--~ respondent no.1 hcrcin mat with an a££§<:fncié;;{ when he was riding his Hero Honda _m0toit--ycI::;j" ' registration No.GA--02/Z 9408. The " " 'T '0<;c11rred when a Kine' tic Honda scooter bcarmg' {ggggsmlaon No.GA-02/L 4335 comm' g from the opposite dashw sigma' st the Han; Honda motomycic driven by Lvfhe claimant. The ciajat fell dawn and sustained head injury and injuries ta other parts of the body. H: was shﬁed Bf. MP'A.No.21243/2008 3 to Goa Medical College and Hospital for treatment. On the report submitted by the Head Constable, a case was registcmd. 04. The injured claimant movw the Ciaims compensation alicging that the acckient thé' acﬁmnablc negligence on the pan offhc u Honda Scooter. Before the Ciaimg hi examined himself as P.W.1 amipne He pmduccd and marked Tiipugh the respondent ~-- insurance the it did not lead any evidence gxcept 'bf the insurance Poiicy. 05. The the evidence on mcord V. the due to the nzgligcncc on the it akso found that the claimant had to the accident by his negligcnm. Based V on evidence, the 'Fr.ihunal quammﬁcd' thc payable at Rs.29,50€)/--~. As it held that the was Iiabk: to an extent of 50%, the appellant T ' inémanoc Company who is: the insurer of the Kﬁactic Honda " Scooter was saddhd with the Iiabﬂity to pay a sum sf Rs.14,750]--- along with the interest at 9% p.a. from the date of W( MFA. No.2 E243/2008 4 petitian tiil its deposit. In this appeal, the ap}*sc}_Eaj;1t.x - Insurance Company is aggrieved by the negligcnce on the part of the x'is:1::j1j"9_f scooter. O6. Learned counsel for mg a§'}mHaﬁ{-Ins1:- _"_ submits that the FIR am; theﬁ-.pa°;¢ "c£_the "H::%_.@onstahLc disclose that the the negligence on the part of ' motorcycle and therefore ¢z'.s.i:<;A¥§.'v'i't'1vV_vf§s¥':§;}r:ning 50% Iiabiiity on the 07. ®unscl for the appellant and on cageful gr mc*:§ateria1s on record including the - ﬁnd,-:,,'f}%jg§%As untied nihzanai, I ﬁnd that the 'l'rib1maI has :§vig1cncc of the claimant who has stated that 1112' :3; mcident he became unconscious and he . Vwas ﬁat position to bdge any compiam t and in that Vibe complaint came to be lodged by the Peiioe Head He has further explaincd as to 13,0175' the accident " In the absence of any other rebuttal cvidanoe led by u A. the Insuxance Company particularly in View of its omission to lead the evidence of the rider of the Kinetic Honda scooter, the M MFA. No.21243,12O08 Tribunal has persuazicd itself to mean: a accident occurmd due to the fault of both the rider of the Kineﬁc Home scooter. In such » cannot be said that the ﬁndings perverse or ilicgal. TI:1c:reforc, .E do nbiﬁnd any L. appeal. Hence, the same deservfﬁér 08. Since the appeal :.o"1i"V:1 x.*;Ax:it.s, the application ﬁled sac.-king Coniifkilaﬁogg. bf Sd/-» Judge FKS

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Author: B.S.Patil

216,626

The Divisional Manager vs Shri Jameelhemad S/O Liyakat ... on 21 January, 2009

Karnataka High Court

0

JUDGMENT Page, J. 1. This case raises an important question as to the rights of a mortgagee of premises which at the time when the mortgage was executed were in the occupation of a tenant of the mortgagor. The material facts are as follows: In 1907 two persons by name Hyam and Jones, who at that time were the owners of the premises in suit, No. 3-1 Mangoe Lane, let a portion thereof to the defendants as monthly tenants at the rent of Rs. 150 a month. On the 13th July 1914 Hyam and Jones mortgaged certain premises, including the premiss in suit to M.A. Sassoon and others. On the 13th January 1917 the mortgagees filed a mortgage suit against Hyam and Jones for an order for the sale of the mortgaged premises. On the 16th March 1917 M.A. Sassoon, one of the mortgagees, was appointed receiver of the said premises by order of the Court. On the 17th July 1917 a preliminary decree for sale was passed. 2. Now, Hyam was accustomed to make out the defendant's rent bills, and to obtain the rent up till the time when the appointment of the Receiver was made, and thereafter until the date of the agreement to which I am about to refer, the course adopted for the purpose of collecting the rent was that Hyam made out the rent bills and endorsed them to Sassoon and the money was collected by Sassoon's peon. In 1920 the premises in suit were in need of repair, and on the 7th June 1920 an agreement was entered into between Hyam and Jones on the one hand and the defendants on the other whereby the defendants advanced to Hyam and Jones Rs. 7,800 on that date, Rs. 1,500 on the 20th October 1920, and Rs. 2,500 on the 29fch December 1920 in order to provide funds for the repair and improvement of the premises while Hyam and Jones on their part undertook to expend the money advanced on repairs, and to treat the sums so paid as rent paid in advance. It was further agreed that after the work of repair and improvement had been carried out the rent payable should be increased to Rs. 200. After the 7th June 1920 no further rent bills were made out or rent collected. I find that this agreement was made, and that the above statement of facts correctly represents the arrangement which was made, and what took place in respect there of. 3. Further, although the defendants were not aware that the mortgage to Sassoon and others had been executed, I am satisfied on the evidence that the mortgagees were fully apprised of the nature of the agreement of the 7th of June 1920, and from the evidence adduced before me I draw the inference that the mortgagees gave their sanction to it. I am invited by the plaintiffs to come to a conclusion from the evidence that the mortgagees neither knew nor approved of this agreement, but, in my opinion, the natural and reasonable inference to be drawn is to the contrary effect. Sassoon was not only a mortgagee, but the receiver of the rents and profits derived from the mortgaged promises. I am at a loss to understand when Sassoon after the 7th June 1920 found that the rent was no longer being paid monthly as heretofore or at all why he did not protest and demand payment of the rent unless he was aware and approved of the agreement between Hyam and Jones and the defendants. In my opinion, the true view is that the Sassoon mortgagees fully understood, and were privy to, this agreement. In July 1921 Hyam and Jones were minded to pay off the Sassoon mortgage and on the 12th July 1921 they granted a mortgage of the said premises to the plaintiffs for six lakhs, and interest thereon at 12 per cent. On the same day with, the proceeds which resulted from the execution of the plaintiffs' mortgage Hyam and Jones (as appears from the petition of the Sassoon mortgagees dated 22nd February 1922) paid to the Solicitors for the said mortgagees a sum of Rupees 6,92,093 which admittedly was accepted by Messrs. Morgan & Co,, their attorneys, in full satisfaction of the Sassoon mortgagee's claim for principal and interest due under the decree passed in the mortgage suit. Thereupon Morgan & Co., gave to Hyam and Jones a receipt in the following terms: Suit No. 270-16 M.A. Sassoon v. J.I.J. Hyam. Received from Messrs. Hyam and Jones a cheque for Rs. 7,02,000 only, viz., Rs. 6,92,093-3 in full satisfaction of the plaintiff's claim for principal and interest; due under the decree herein and Rs. 9,906-13-2-0 on account of the costs of the suit. We undertake to refund excess, if any, on adjustment of the costs of his suit. (Stamped with a one-anna stamp and dated 12th July 1921). 4. On completion of the transaction the title-deeds were handed to Hyam and Jones Solicitors. Subsequently it transpired, according to the computation made by Morgan & Co., that the claim of the Sassoon mortgagees by mistake had been underestimated to the extent of Rs. 25,779-8-3 and on the 2nd March 1922 the said mortgagees applied by petition to the Court for an order for the sale of the mortgaged premises for recovery of the amount alleged still to be outstanding in respect of the sum due under the said mortgage-decree. An order for sale was made, and pursuant thereto, on the 24th March 1923, at an auction sale held by the Registrar of the High Court, the plaintiff purchased the mortgaged premises including the premises in suit for Rs. 1,00,000 subject to the mortgage dated 12th July 1921 in favour of the plaintiffs (see condition of sale XV, the order of 26th April 1228, and the order of 17th May 1923). It appears that the mortgage to the plaintiffs was executed on the 12th July 1921, and not on the 12th July 1922. But, in my opinion, for the purpose of this suit, it is immaterial upon which of those dates it was granted. On the 28th March 1923 B. N. Basu & Co., Solicitors for the plaintiffs, wrote to the defendants the following letter: Dear Sirs, Re. 3 and 3-1 Mangoe Lane. We are instructed by our clients Messrs, Tilokechand of No. 8-3 Rupchand Roy Street, Calcutta, that at a sale held by the Registrar of the High Court on the 24th instant, the above property was sold and our clients Messrs. Tilokechand were declared the highest bidders and purchasers at the sale. We are instructed to call upon you not to pay any rent to any person other than our client. Should you do so, such payment will be entirely at your own risk and penalty and will not be recognized by our client. Yours faithfully (Sd.) B.N. Basu & Co. 5. On the 31st May, the current rent not having been paid to the plaintiffs, the plaintiffs' Solicitors again wrote to the defendants: Dear Sir, Re. 3-1 Mangoe Lane. We are instructed by our clients Messrs. Tilokechand the owners of the above premises, to call upon you, which we hereby do, to quit and vacate the portion of the said premises occupied by you on expiry of the month of June 1923. Should you fail to vacate in pursuance of the above notice, legal proceedings will be taken to eject you without further reference. You have not paid rent for the above permises for a long time. 6. Now, the defendants did not vacate the premises as requested in accordance with the said notice to quit, or at all. If the agreement between the mortgagors and the defendants of 7th June 1920 is valid and binding upon the plaintiffs, the plaintiffs by reason of the Calcutta Rent Act are not entitled to eject the defendants. The question therefore, which I have to determine is whether or not the agreement of 7th June 1920 is valid and binding upon the plaintiffs. The plaintiffs contend that if the payments made by the defendants in June, October and December 1920 are to be treated as payments of rent in advance the payment of rent to a mortgagor, before it has accrued due, does not bar the claim of a mortgagees of the premises, after notice of his interest therein has been given to the tenant to recover the rent accruing there from as and when it falls due. On the other hand, if these payments are not to be treated as payments of rent, but as advances to Hyam and Jones as landlords from the defendants as tenants, upon the terms that on the dates when the rent becomes due, such advances were to be treated as the fulfillment of the tenant's obligation to pay rent, the plaintiffs contend that such a transaction amounted to a collateral agreement which will not affect or control the mortgagees' rights and interest in the premises and is one which the plaintiffs as mortgagees or as auction purchasers are not under any obligation to respect. 7. As regards the first contention, if the premises upon which it is based are sound, I am not disposed to disagree with, the conclusion which is drawn therefrom. But, in my opinion, these sums were not, and are not to be regarded as having been paid as rent for this reason : that on the dates when the rent becomes payable, the landlords, having assigned the reversion, had rendered themselves incapable of giving a valid release of the same, or a valid discharge for the sums so paid as rent. Payment of rent to them was not payment of rent to persons entitled to receive it, and such payments would afford no defence to a claim for payment of the rent by the person to whom the reversion had been transferred. As Mr. Justice Wilier pointed in De-Nicols v. Saunders [1870] 5 P.C. 58. It is clear that the Common Law authorities which say that payment before notice is good against a mortgagee, and which are represented by Watts v. Ognoll [1791] Cro. Jac. 192, have no application to the present case, they apply only to a person fulfilling his obligation to one who, at the time it is fulfilled, is the apparent reversioner, which is similar to payment to a creditor who has assigned the debt without notice to the debtor. These oases depend upon a rule of general jurisprudence not confined to cases in action, though It seams to have been lost sight of in some recent cases, viz., that if a parson enters into a contract, and without notice of any assignment, fulfils it to the person with whom he made the contract, ha is discharged from his obligation J that is a rule which is declared rather than enacted by Anne, Order 16, Section 10. That Statute did away with the necessity for attornment, but protected the tenant in cases where he had paid the rent due from him before notice of the assignment; this provision of the Statute, however, clearly applies to the fulfilment of an obligation to pay rent imposed by the lease. There has bean no such payment here for payment of rent before it is due is not a fulfilment of the obligation imposed by the covenant to pay rent, but is, in fact, an advance to the landlord, with in agreement that on the day when the rent becomes due such advance shall be treated as a fulfilment of the obligation to pay the. rent. 8. Although the correctness of this decision appears to have been doubted by Farwell, L.J., in Green v. Rheinberg [1911] 104 L.T. 149, in my opinion the ratio decidendi of Mr. Justice Willes' judgment which was repeated by the Court of Common Pleas to which decision he was a party in Cook v. Guerra [1872] 7 C.P. 132, is unimpeachable and is an accurate statement of the law. Sea Ashburton v. Nocton [1915] 1 Ch. 274. 9. As regards the second contention which counsel for the plaintiffs has urged before me, I find as a fast that the agreement of the 7th June 1920 was prior in date to the mortgage of the 12th July 1921 and, in my opinion, the plaintiffs must be deemed to have received constructive notice of this agreement before they became parties to the mortgage, and are under an obligation to the defendants to respect the terms thereof. The equitable principle to be applied in the circumstances of this case may be gathered from a perusal of the following cases : Daniels v. Davison [1809] 16 Ves. Jun. 249; Allen v. Anthony [1816] 1 Mer. 282; Barnhart v. Greenskeilds [1853] 9 Moo. P.C. 18; Holmes v. Powell [1856] 8 Deg. M. & G. 572; Morrogh v. Aileyne [1869] 7 Eq. 487; Hunt v. Luck [1901] 1 Ch. 45; Hunt v. Luck [1902] 1 Ch. 428; Green v. Rheinberg [1911] 104 L.T. 1419 and Ashburton. v. Nocton [1914] 2 Ch. 211; Ashburton v. Nocton [1915] 1 Ch. 274. In cases where the proprietary title to premises in the occupation of a tenant is assigned, it is incumbent upon the assignee to make enquiries of the tenant as to the extent of his rights and interest in the premises. If the tenant, in answer to such an enquiry, represents his rights in the premises, to be other than those which he possesses no doubt in a case where the assignee has accepted the assignment in reliance upon such a representation he will thereafter be precluded as against the assignee from asserting his rights to be other than those which he has stated. But assuming that a correct answer is received, or that; no enquiry is made by the assignee, in either case, in my opinion, the assignment will be subject to the tenant's rights and interests in the premises. And the principle is to be applied alike in cases where the assignee is a mortgagee as in cases where he is a purchaser of the premises. See Green v. Rheinberg [1911] 104 L.T. 149. It would offend the conscience were it to be held that the rights of the tenants in such circumstances were subject to defeasance or curtailment and, in my opinion, the mortgagor by transferring his interest in the reversion is not entitled thereby to resile from his agreement or to derogate from his grant and the assignee takes the reversionary interest subject to the rights and interest of the tenant in the premises. In Daniels v. Davison [1809] 16 Ves. Jun. 249, Lord Eldon (Lord Chancellor) observes that there is considerable authority for the opinion I hold, that, where there is a tenant in possession under a lease, or an agreement, a person, purchasing part of the estate, must be bound to enquire, on what terms that person is in possession. 10. Again in Allen v. Anthony [1816] 1 Mer. 282, Lord Eldon re-stated the principle, which was an interesting case in which a bill was filed in Chancery by the owner of the fee simple of an estate for an account of timber felled by the defendant on the estates of the plaintiff and for incidental relief. It appeared that the predecessor of the plaintiff in 1799 had agreed to demise to one Izard for 21 years, at a certain rent, the premises in question, with reservation to herself and her heirs of all the timber and limber-like tress and liberty to cut and carry away the same. Nine years later the defendant obtained possession of the promises under an execution in an action brought by him against Izard, and in the following year 1809 the then owner of the estate, Sarah Kier, agreed to sell to the defendant all the timber except fruit trees for £200. Subsequently Sarah Kier conveyed the reversion to Archer from whom the plaintiff's father purchased it, and the question in the case was whether the proprietary interest of the plaintiff in the estate was subject to the agreement which had been made by Sarah Kier with the defendant. 11. In the course of his judgment Lord Eldon observed: It is so far settled as not to be disputed, that a person purchasing, where there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have; Douglas v. Wliitterwrong [1802] 7 Ves. Jun. 436 N. And there is no doubt that, if the defendant had been untitled to the trees on the estate, under the agreement by which he held the estate itself, the plaintiff would be bound by the authority of the several cases in which it has been so decided. But the question here is, whether there is any difference in the case when the right of the tenant to the timber arises by a contract made independent of, and posterior to, the contract under which he holds possession of the estate, and on the best consideration that I am able to give to the subject, I think it would be going on a distinction much too thin to determine that he may be restrained from the exercise of that right in the latter case, although he could not have been so restrained if his title to the timber had been coincident with his title to the possession of the estate. There is no more reason in the one case than in the other to say that the purchaser was not bound to make enquiry as to the nature and extent of the tenant's interest. He must, therefore, suffer the consequence of his neglect to take that obvious precaution. 12. In Barnhart v. Greensheilds [1853] 9 Moo. P.C. 18, Mr. Pemberton Leigh (afterwards Lord Kingsdown), stated the principle thus: With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of the land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taylor v. Stibbert [1794] 2 Ves. Jun. 437, but also to interests under collateral agreements as in Daniels v. Davison [1809] 16 Ves. Jun. 249 and Allen v. Anthony [1816] 1 Mer. 282 the principle being the same in both classes of cases; namely, that the possession of the tenant is notice that he has some interest in the land, and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to enquire what that interest is, or to give effect to it, whatever it may be. 13. The language of Lord Eldon in Daniels v. Davison [1809] 16 Ves. Jun. 249 is to the same effect, and when some years after he had again to consider the circumstances, he states the rule in these words: It is so far settled as not to be disputed that a parson purchasing, where there is a tenant in possession if he neglects to enquire into the title, must take subject to such right as the tenant may have. 14. In Holmes v. Powell [1856] 8 Deg. M. & G. 572 Lord Justice Knight Bruce states the principle in somewhat different language. In the course of his judgment he observer: I apprehend that by the law of England when a mm is of right and de facto in the possession of a corporeal hereditament, he is entitled to impute knowledge of that possession to all who deal for any interest in the property conflicting or inconsistent with the title or alleged title under which he is in possession or which he has a right to connect with his possession of the property. It is equally a part of the law of the country, as I understand it, that a man who knows or cannot be heard to deny that he knows another to be in the possession of a certain property, cannot for any civil purpose, as against him at least, be heard to deny having thereby notice of the title or alleged title under which or in respect of which the former is and claims to to be in that possession. 15. Lord Justice Swinfen Eady in Ashburton v. Nocton [1915] 1 Ch. 274 laid down that: A pre-payment will be good, as to the amount of the rent which becomes actually due before notice has been given to the tenant by the mortgagee, although not as to the residue; Cook v. Guerra [1872] 7 C.P. 132. Green v. Rheinberg [1911] 104 L.T. 149 was a clear case, as there the landlord had, prior to the mortgage, released the rent to the lessee and tenant in possession, and under the doctrine of Daniels v. Davison [1809] 16 Ves. Jun. 249 the subsequent mortgagee was affected with notice of the interest which the tenant had in the land. If the arrangement between mortgagor and tenant for pre-payment of rent, or for setting off future rent against money due from the mortgagor to the tenant, be made subsequent to the date of the mortgage, such arrangement will be treated as a collateral bargain between those parties and not binding upon the mortgagee. 16. The decision in Municipal Permanent Building Society v. Smith [1889] 22 Q.B.D. 70, to which I was referred, turned upon the true contraction to be given to certain sections of the Conveyancing Act of 1881, and. is not an authority adverse to the principle of law to which I have referred. The plaintiffs admitted in the plaint which they filed in this suit that at the date when they became auction purchasers of the premises they were first mortgagees of the same and purchased the same subject to their mortgage. 17. Did the plaintiff's obtain any higher rights against the defendants than they possessed as first mortgagees by becoming purchasers at the auction sale? What was it that they purchased? The property subject to their own mortgage, and the rights and interest of the defendants in the premises. In other words, they purchased for one lakh the equity of redemption of the premises being or including the interest of the mortgagors therein. Bat if the interest which they possessed as first mortgagees was subject to the rights of the defendants under the agreement of 7th June 1920, did they become exempted from their obligations under the agreement of 7th June 1920 by acquiring subsequently the equity of redemption? In my opinion, clearly not. I go further and say that as at the date when they purchased the equity of redemption the mortgagor's interest in the premises was subject to the agreement, the interest of the mortgagors which in effect the purchasers acquired at the auction sale, was saddled with the mortgagor's obligation under the agreement. It was further contended that by acquiring the property at the auction-sale the plaintiffs became entitled to the interest of the Sassoon mortgagees and that as the Sassoon mortgage was not subject to the agreement of the 7th June 1920 (having been executed on a date prior to that on which the agreement was entered into) their interest as assignees of the Sassoon mortgage was not affected thereby. For the reasons which I have given, in my opinion that is not the true effect of the transaction, but assuming this contention to be so far in accordance with the fact that it might reasonably be urged that after the purchase the plaintiffs stood in the place of the Sassoon mortgagees, in my opinion, the plaintiffs remained equally bound by the agreement of the 7th June. 18. As I have already stated the Sassoon mortgagees were aware and approved of the agreement of the 7th June 1920 and if a mortgagee is privy to, and has sanctioned a collateral agreement between the mortgagor and the tenant see the observations of Denman, C.J., in Evans v. Elliot [1838] 9 Ad. & E. 342, in my opinion, a subsequent assignee of the mortgagee's interest is not to be permitted to assert that his interest in the premises is not affected by the agreement, because the agreement was entered into at a date subsequent to that on which the mortgage was executed. Upon what basis of reason or fairness is a contention to the contrary to be supported? I can see none and I know of no authority in favour of so inequitable a proposition. On the contrary, in my opinion, the principles and authorities to which I have referred are opposed to any such contention. For these, reasons, in my opinion, the plaintiff's claim cannot be sustained and the suit must be dismissed.

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Author: Page

216,627

Tilokechand Surana And Anr. vs J.B. Beattie And Co. on 19 May, 1924

Calcutta High Court

0

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null

216,628

[Section 9(3)] [Section 9] [Complete Act]

Central Government Act

0

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 31108 of 2008(C) 1. ANANDAN, SIMLA KIZHAKKATHIL, ... Petitioner 2. SARASWATHY, SARASWATHI SADANAM, 3. RAJAMMA, GEETHA MANDIRAM, 4. OMANA, ANANDA VILASOM, PERAYAM, ESTATE 5. POWLY, KALANGUVILA 6. SARASWATHY AMMA, 7. THANKAMMA, SANTHOSH MANDIRAM, 8. SAVITHRI, CHARUVILA VEEDU, 9. SARASAMMA, CHIRAKKARA PUTHENVEEDU, 10. NALINI, KUTHIKKATTUVILAVEEDU, 11. INDIRA, MELATHILVEEDU, 12. SARASAMMA, KOCHUKUNUMPURATHU VEEDU, 13. RAJAMMA, CHAMAVILA, 14. NANI, NELLIKKAVILA VADAKKATHIL, 15. SUMATHI, CHARUVILA VEEDU, 16. GOMATHI, CHARUVILA VEEDU, 17. SHERIFA BEEVI, THADAVILA PUTHENVEEDU, 18. RAJAMMA, ASARIVILA, THAZHAMTHEKKU. 19. BABY, CHIRAKKARA PUTHENVEEDU, 20. AMBUJAKSHYA AMMA, NADAYIL 21. SUMATHI, THUMPARA MELETHIL 22. RAJAMMA, THUMPARA MELATHILVEEDU, 23. VASANTHAKUMARY, MUNDAKKALTHODI, 24. AYSHA BEEVI, MAVILAZHIKOM, 25. BHANUMATHI, KIZHAKKEATTATHU, 26. S.RAMAKRISHNAN, KUNNUMPURATHU VEEDU, 27. VILASINI, KUNNUMPURATHU VEEDU, 28. RUKHIYA UMMA, 29. RATNAMMA, KUMARAVILASOM, 30. MEENAKSHI, SHEEBA BHAVAN, 31. DEVASANAN, CHALUVILA PADINNJATTATHIL, 32. DEVAKI AMMA, MURALCE MANDIRAM, Vs 1. THE KERALA STATE CASHEW DEVELOPMENT ... Respondent 2. THE MANAGING DIRECTOR, THE KERALA STATE For Petitioner :SRI.C.K.PRASAD For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :05/10/2009 O R D E R S.SIRI JAGAN, J. ================== W.P(C).No.31108 of 2008 ================== Dated this the 5th day of October, 2009 J U D G M E N T sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge The petitioners are retired employees of the 1st respondent Kerala State Cashew Development Corporation Ltd. Their grievance in this writ petition is that gratuity due to them has not been paid by the 1st respondent, although the petitioners retired years ago. The petitioners, therefore, seek the following reliefs: 2. A statement has been filed by the Corporation, in which the only contention raised is that because of paucity of funds, they are not able to pay gratuity due to their retired employees. Although in O.P.No.6586/2002 a learned Single Judge of this Court had permitted the 1st respondent to pay gratuity in accordance with the priority of the date of retirement, that was set aside by the Division Bench in W.A. No.1079/2002. The counsel for the 1st respondent would submit that that matter has been taken in appeal before the Supreme Court and in those cases, the judgments of this Court have been stayed. Despite the contentions raised by the 1st respondent, in so far as the liability is 2 not disputed, I do not think that the petitioners should be denied their statutory right. In fact in Ext.P1 judgment in respect of similar employees I had directed payment of gratuity within a period of four months. 3. In the above circumstances, this writ petition is also disposed of with a direction to the 1st respondent to pay gratuity due to the petitioners within a period of four months from today along with interest. However, I note the submission made by the counsel for the 1st respondent that out of the 32 petitioners, gratuity due to nine of them has already been disbursed, which is not disputed by the counsel for the petitioners. Sd/-

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216,629

Anandan vs The Kerala State Cashew ... on 5 October, 2009

Kerala High Court

0

Gujarat High Court Case Information System Print SCA/9209/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9209 of 2010 ========================================================= HINDALCO INDUSTRIES LIMITED - Petitioner(s) Versus RAJYA GENERAL KAMDAR MANDAL & 1 - Respondent(s) ========================================================= Appearance : MR KM PATEL, LD.SENIOR COUNSEL WITH MR VARUN K.PATEL for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 06/08/2010 ORAL ORDERHeard Mr.K.M. Patel, learned Senior Counsel appearing for the petitioner. Notice, returnable on 30th August 2010. In the meantime, there will be ad interim relief in terms of paragraph 10(B). Direct Service is permitted. (K.S. Jhaveri, J) Aakar Top

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Author: Ks Jhaveri,&Nbsp;

216,631

Hindalco vs Rajya on 6 August, 2010

Gujarat High Court

0

[]

null

216,632

[Section 16] [Complete Act]

Central Government Act

0

Gujarat High Court Case Information System Print FA/4558/2008 8/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4558 of 2008 To FIRST APPEAL No. 4560 of 2008 ========================================================= NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus ZALABHAI HAJURBHAI DAMOR & 12 - Defendant(s) ========================================================= Appearance : MS MEGHA JANI for Appellant(s) : 1, None for Defendant(s) : 1, 7,9 - 10, 10.2.1, 12, MS SNEHA A JOSHI for Defendant(s) : 2 - 6, 8, MR HASMUKH THAKKER for Defendant(s) : 11, MR SAVAN N PANDYA for Defendant(s) : 12.2.1, 12.2.2,12.2.3 - for Defendant(s) : 0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 18/09/2008 ORAL ORDERHeard learned advocate Ms. Megha Jani on behalf of New India Assurance Co. Ltd. The appellant insurance company has challenged common award passed by Motor Accident Claims Tribunal, Sabarkantha District at Sabalpur ? Modasa in MACP no. 73/90, 72/90 and 59/90 dated 8/3/2006. The claims Tribunal has awarded Rs. 2,31,000/-, Rs. 1,85,500/- and Rs. 1,82,200/- in MACP no. 73/90, 72/90 and 59/90 respectively with 7.5% interest. These three cases are fatal and claimants have filed claim petitions for compensation of deceased who died in the said accident. Learned advocate Ms. Jani appearing for appellant raised contention before this Court that Tribunal has committed gross error in holding liability upon appellant insurance company for paying compensation. She submitted that Tribunal has failed to appreciate contention of appellant to the effect that Jeep was plied for carriage of more than passengers then permissible. As per policy, seating capacity is stated to be 5 + 1. As against this, as is mentioned in the FIR, 16 persons were traveling in the Jeep. These 16 persons are named in the FIR. Not only that she submitted that depositions also support the fact that on the day of accident 15 to 17 persons were traveling. She submitted that Tribunal has not accepted contention of appellant insurance company to the effect that since Jeep was overloaded and was used for carriage of 17 passengers as against 6, there is a breach of terms and conditions of policy and appellant insurance company is not liable to indemnify the insured. She submitted that even without prejudice to first contention liability of company because of additional premium was paid by owner comes to Rs. 15,000/- only per person as per policy, where Rs. 50/- per person was paid by owner. Therefore, it is beyond to policy as per premium paid by owner per person. Except that no other contention raised by learned advocate Ms. Jani before this Court. The accident occurred on 5/1/1990 about 6.30 a.m. where persons were coming from Modasa in Taxi being a No. GRW 9838 where owner is respondent no. 5 and driver is respondent no. 4. Meanwhile, at about 7.30 a.m. when they reached to Modasa near Sabalpur Patia in turning, Taxi driver has slow the Jeep. At that occasion, opponent no. 1 who was having ownership of Truck of opponent no. 2 No. CIO 9321 came from Modasa in rash and negligent manner carelessly without giving horn dashed to Taxi. Because of dashed or impact given by truck to Taxi, Taxi was dashed with tree and stand near tree. In the said accident, person those who are traveling in Taxi were injured and three persons were died on the spot, for that, claim petition was filed by claimants. The reply was filed by insurance company and denying averments made in claim petition. The insurance company of Truck made allegation against Jeep and Insurance company of Jeep made allegation against Truck in their written statement. The contention raised by present appellant before claims Tribunal that Jeep was overloaded then permit under the Rules. So, as per terms and conditions of insurance policy, insurance company is not liable. Before claims Tribunal vide exh 113 panchnama, vide exh 114 inquest panchnama of deceased Ambaben, vide exh 115 P.M. report of deceased Ambaben, vide exh 116 inquest panchnama of Bhurabhai Damorbhai, vide exh 133 inquest panchnama of deceased Nathiben, vide exh 134 P. M. report of Nathiben, vide exh 130 xerox of complain filed by complainant, vide exh 126 P.M. report of Sukhabhai, vide exh 112 oral evidence of Dolabhai Manabhai Damor, vide exh 117 oral evidence of Zalabhai Hajurbhai Damor and vide exh 109 oral evidence of Galiben Bhurabhai Damor was produced. Vide exh 123 Kantibhai Samanbhai Patel was examined and vide exh 124 affidavit of Kantibhai Samanbhai Patel were produced. Vide exh 127 Laxmanbhai Masurbhai Damor was examined and vide exh 122 he was produced an affidavit. Except that none was examined before claims Tribunal. All three persons were traveling in Jeep. After considering submissions made by three learned advocates and documentary evidence in para 16, the Tribunal has examined the question of negligence and also examined liability of insurance company. The insurance company has raised contention for breach of terms and conditions which was proved by appellant, therefore, no liability is passed on upon insurance company. In respect to contention that Jeep was overloaded and premium for only six persons were paid, but at the time of accident more than 15 to 17 persons were traveling, it amounts to breach of terms and condition of insurance policy, Tribunal has considered that Owner has committed error in allowing 15 to 17 passengers in Jeep who was having insurance of only five persons by paying additional amount of Rs. 50/- per person, but liability of insurance company is remained to satisfy award, though there may be breached of terms and conditions of insurance policy committed by insured. The persons those who were traveling are considered to be an occupants of Vehicle. The Jeep is considered to be passenger vehicle not goods vehicle. In passenger vehicle, liability of insurance company is to indemnify the owner in case if any amount is to be paid as compensation to claimants. This Jeep is not private vehicle. The Jeep was plied as Taxi, where passengers were traveling. Therefore, claims Tribunal has examined issue that in case if owner has committed any breach, remedy is available with insurance company to recover from owner after paying amount to claimants. Therefore, claims Tribunal has decided entire liability upon insurance company to satisfy award because an additional premium of Rs. 50/- was paid by insured for one passenger and it covers five passengers and Rs. 250/- paid being an additional amount. Whether risk of paid passenger is covered only Rs. 50/- or more or not, for that, insurance company has not led any evidence before claims Tribunal. The terms and conditions of insurance policy not proved by insurance company before claims Tribunal. None was examined by insurance company before claims Tribunal. Therefore, a moment, additional amount has been paid being premium for five passengers Rs. 250/- then it is a duty of insurance company to satisfy award because insurance company has not led any evidence to justify their stands about limited liability. Therefore, in absence of evidence from insurance company, conclusion of claims Tribunal is right that additional premium was paid by insured for five passengers plus driver then insurance company is liable to satisfy award passed by claims Tribunal. Therefore, according to my opinion, claims Tribunal has rightly examined issue about liability, which has been raised before this Court and looking to the fact that in accident five passengers received injuries and three died, liability is upon insurance company to satisfy award. According to my opinion, tribunal has not committed any error in deciding issue of liability on the basis of insurance policy, which was on record. Therefore, finding given by claims Tribunal is just and proper and can not considered to be contrary on record or baseless and perverse. The contentions, raised by learned advocate Ms. Jani can not be accepted and same are rejected in absence of evidence from insurance company. Hence, there is no substance in the present appeal. Accordingly, present appeal is dismissed. The amount which are deposited by insurance company before Registry of this Court are directed to be transmitted immediately to the concern claims Tribunal. The amount of compensation as directed by claims Tribunal together with costs and interest are deposited by insurance company before claims Tribunal and out of that 40% amount is disbursed in favour of respondent claimants as per order passed by this Court and remaining amount is already invested in any Nationalized bank for a period of five years. In case, if, claimants are required any amount then they may approach to claims Tribunal and claims Tribunal will consider such application and pass appropriate disbursement order in their favour, as and when such occasion arise. Accordingly, today, all three appeals are dismissed by this Court. Therefore, no order is required to be passed in civil applications. Accordingly, civil application are also disposed of. (H.K.RATHOD, J) asma Top

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Author: H.K.Rathod,&Nbsp;

216,633

New vs Zalabhai on 18 September, 2008

Gujarat High Court

0

ORDER B. L. CHHIBBER, A. M. : The common dispute raised in these two appeals by the assessee is that the learned CIT(A) is not justified in confirming an addition of Rs. 99,000 for the asst. yr. 1982-83 and of Rs. 12,72,980 for asst. yr. 1981-82 belonging to the estate of her late husband to her income. 2. The relevant facts are that late Shri Anandrao Paur, the Ex-ruler of the erstwhile State of Dhar, died intestate on 25th April, 1980, leaving behind certain immovable and movable properties as his estate and his widow, the assessee, as his only legal heir. In the case of the assessee for the asst. yr. 1982-83, the ITO made an addition of Rs. 99,000 and Rs. 12,72,980 for asst. yr. 1981-82 on account of income from the estate of her deceased husband. By his order dt. 24th Feb., 1986 relating to asst. yr. 1982-83 passed under S. 250 of the IT Act, the CIT(A) deleted the aforesaid addition of Rs. 99,000. 3. Subsequently, the ITO filed an application under S. 154 of the Act before the CIT(A), requesting him to rectify the mistake apparent form record. In that behalf the ITO pointed out that the deceased had died intestate leaving no will behind him whereas in disposing of assessees appeal against the assessment order, the CIT(A) had proceeded to delete the addition on the assumption that a will had been left by the deceased. Thus, according to the learned ITO, the CIT(A) made a mistake apparent from record rectifiable under S. 154 of the IT Act. The learned CIT(A) accepted the contention of the ITO by confirming the addition of Rs. 99,000 made by the ITO in the assessment of the assessee. 4. Being aggrieved by the subsequent order of the CIT(A), the assessee came in appeal before the Tribunal with the following grounds : "1. The learned CIT(A) has erred in law as well as in fact in making an addition of Rs. 99,000 belonging to the estate of late Anandrao Paur the ex-ruler of Dhar on the ground that the appellant is the sole survivor of her deceased husband. 2. Your appellant prays that unless the administration of the estate is complete, the income from property left by late Anandrao Paur does not devolve on the legal heir, and should not be included in the income of the appellant. 3. Your appellant further submits that the property left by late Shri Anandrao Paur remains the property of the estate till all the statutory liabilities are paid off. 4. Your appellant therefore prays that income of the estate of late Anandrao Paur included in the total income of the legal heir Shrimati Mrunalinidevi Paur of Dhar be deleted. 5. Your appellant relies on the judgment reported in the case of CIT vs. Bakshi Sampuran Singh (1982) 13 ITR 650 (P&H). 6. Your appellant craves leave to add, alter, amend and/or withdraw any of the grounds of appeal at the time of hearing of the appeal." It would be noticed that the assessee has not challenged the applicability of the provision of S. 154 of the Act. However, when the appeal came up for hearing before the Division Bench, the assessee sought to raise the following additional ground : "That order under S. 154 passed by learned CIT(A) is beyond jurisdiction as it raises highly debated points of law and hence it be cancelled as such." In his order, the learned Judicial Member, after discussing the circumstances under which action under S. 154 of the Act could be taken, admitted the aforesaid additional ground and set aside the order of the CIT(A) dt. 17th March, 1986 as under : "11. To sum up, we are of the opinion that the effect of amendment made to his appellate order passed by the CIT(A) under S. 250 of the Act by recourse to action under S. 154 was rendering decision on highly debatable points of law whereupon there could have been possibility of two contrary opinions. Such being our opinion, we find it difficult to sustain the order under appeal. 12. In the result, this appeal succeeds and the order of the CIT(A) passed on 17th March, 1986 under S. 154 is set aside and that passed by him on 24th Feb., 1985, under S. 250 is hereby restored." 10. The learned Accountant Member, on the other hand, also admitted the additional ground. However, he sustained the order of the CIT(A) dt. 17th March, 1986 and refused to deal with the merits of the case as under : "6. The CIT(A) after receiving the application of the ITO had two option before his first of these being to recall his earlier order dt. 24th Feb., 1986 and to re-hear the appeal. This would have been the ideal thing for him to do on the facts of the case. The second option was to pass another order in continuation/supersession of the earlier order and it is this course which the learned CIT(A) adopted. In my opinion the order dt. 17th March, 1986 passed by the CIT(A) under S. 154 was perfectly valid in law since it tantamounted to recall/supersession of the earlier order dt. 24th Feb., 1986 and was for all purposes an order under S. 250. I wholly agree with the observations of my learned brother vis-a-vis the provisions of S. 154 and the situations to which these are applicable but would reiterate that these would not apply to the facts of the present case. 7. In the final analysis, I would reject the additional ground raised by the assessee. I may mention at this stage that we heard both the parties on the merits of the case as well but since my learned brother has not adjudicated upon these I am not in a position to express my views. The merits would be required to be decided after the difference of opinion has been resolved by the Third Member." 5. Since there was difference of opinion between the two Members of the Division Bench, the matter was referred to the Third Member (Sr. Vice-President) who after hearing both the parties, by his order dt. 23rd Oct., 1992 directed as under : "After going through carefully, the orders of my learned colleagues, I am inclined to agree with the conclusion arrived at by the learned Accountant Member that the CIT(A) was justified in passing the order dt. 17th March, 1986 under S. 154 of the Act. However, since both the learned Members have not expressed their opinion on the merits of the inclusion of Rs. 99,000 in the total income of the assessee, the mater is restored back to the Division Bench for passing the order according to the majority decision, as well as for the disposal of the appeal on merits, after hearing both the parties." 6. In accordance with the directions (supra), we proceed to decide the appeal relating to the asst. yr. 1982-83 on merits. For the asst. yr. 1981-82, the facts are identical to those relating to the asst. yr. 1982-83 except that the account involved is Rs. 12,72,980 and the learned CIT(A) while dismissing the appeal of the assessee has followed his predecessors order relating to asst. yr. 1982-83, under S. 154 of the Act. Accordingly, our decision in ITA No. 1583/A/86 relating to the asst. yr. 1982-83 will apply mutatis mutandis to the asst. yr. 1981-82. 7. Shri K. C. Patel learned counsel for the assessee, submitted that on merits the case stands squarely covered by the decision of Punjab & Haryana High Court in the case of CIT vs. Bakshi Sampuran Singh (1982) 133 ITR 650 (P&H). The learned counsel further submitted that the assessee was only an administrator of the estate of the late ex-ruler and till the administrator of estate of the late ex-ruler and till the administration of estate was complete, the provisions of S. 168 will apply. The learned counsel further submitted that the estate of the late ex-ruler of the erstwhile State of Dhar has been assessed to tax on substantive basis from the asst. yrs. 1981-82 to 1987-88 both under the income-tax and wealth-tax as per the details on page 9 of the paper book. The estate duty case of the late ex-ruler was completed in the year 1988 and only thereafter the administration of the estate came to an end and the assessee inherited the estate of late Shri Anandrao Paur. The learned counsel submitted that assessing the estate in the hands of the assessee will amount to double taxation which is not permissible under the law and in support of this contention, he relied upon the observations on page 247 of Chaturvedi & Pithisarias Income-tax Law, 4th Edition. 8. Shri M. S. Rai, the learned Senior Departmental Representative, submitted that the facts of the present case are distinguishable from the facts of Bakshi Sampuran Singhs case (supra) where the deceased had left a will in favour of his only son. In the present case the late Shri Anandrai Paur had not left any will and the assessee being a sole surviving heir to the deceased of her late husband was liable to be taxed in respect of the income arising out of the estate. According to the learned Senior. Departmental Representative, the provisions of S. 168 are not applicable in this case, as there was no will and hence there was no executor. He placed reliance on the judgment of Bombay High Court in the case of CWT vs. Keshub Mahindra (1983) 139 ITR 22 (Bom) and the judgment of Kerala High Court in the case of K. Kunhi Mohammad Hajee vs. State of Kerala & Anr. (1974) 93 ITR 193 (Ker). 9. We have considered the rival submissions in the light of decisions cited before us. No doubt, the assessee is a sole surviving heir to the estate of her late husband. This fact alone will not lead to the conclusion that the assessee has inherited the estate right from the date her husband expired. The important aspect which the authorities below have ignored is the administration of the estate. The assessee has been assessed on substantive basis in respect of the estate of her late husband both to income-tax and wealth-tax by the ITO, Indore from the asst. yrs. 1981-82 to 1987-88. It is a fundamental rule of the Law of Taxation that, unless otherwise expressly provided, income cannot be taxed twice - Laxmipat Singhania vs. CIT (1969) 72 ITR 291, 294 (SC). This fact shows that the administration of the estate was not complete during the two assessment years under appeal before us. This fact also stands established that the estate duty case of the late ex-ruler of Dhar was finalised in the year 1988. The case of the assessee stands squarely covered by the decision of the Supreme Court in the case of Navnitlal Sakarlal vs. CIT (1992) 193 ITR 16 (SC). In this case, B died on 31st Dec., 1957, leaving a will executed on 6th Oct., 1956 wherein he had directed that his properties come up after payment of debts, taxes, estate duty, municipal tax and other outstandings as well as medical expenses, expenses for obsequial ceremonies and charity shall, after his death, be taken possession of by his two grandsons (of whom the appellant was one) and they shall use or enjoy them as they desired. No executor was appointed in the will. The ITO sought to assess Navnitlal Sakarlal (a legatee) in respect of a half share in the income from the properties. The Tribunal held that the estate of B was being administered by the two legatees and, hence, a separate assessment was to be made in respect of the estate under S. 168. On a reference, the Gujarat High Court reversed the decision of the Tribunal holding that the residuary estate must be said to have been ascertained, as it was capable or easily capable of being ascertained. On appeal, the Honble Supreme Court reversing the decision of the High Court held that there was nothing to suggest that the payment of the estate duty was delayed deliberately by Navnitlal Sakarlal and to show that the only thing that remained to be done was the payment of estate duty. There was no information on record regarding the various assets and liabilities of the estate shown by the executor. No attempt had been made to find out whether there were any other outstanding liabilities and when these were discharged. The Honble Supreme Court further held that the fact that estate duty was a personal liability of the heirs and was a charge on the immovable properties passing on death did not detract from the duties and responsibilities of the executor, as an accountable person, to make satisfactory arrangements for the payment of the estate duty. The fact that a part of the estate duty liability was outstanding could not be ignored in deciding the issue as to whether the administration was complete. The Honble Supreme Court approved the judgment of Punjab & Haryana High Court in the case of CIT vs. Bakshi Sampuran Singh (supra) and of the Honble Calcutta High Court in the case of CIT vs. A Ghosh (1986) 159 ITR 124 (Cal) holding that "In fact, even in what may be described as much clearer situations and where the executor was also the sole beneficiary, it has been held that the administration is not complete". 10. We accordingly reverse the orders of the authorities below and hold that the assessee is not liable to be assessed in respect of Rs. 99,000 for the asst. yr. 1982-83 and Rs. 12,72,980 for the asst. yr. 1981-82 belonging to the estate of late Shri Anandrao Paur, the ex-ruler of Dhar. 11. In the result, the appeals are allowed.

[ 618603, 1951329, 1951329, 364325, 1951329, 1951329, 1951329, 618603, 1951329, 1951329, 618603, 1951329, 618603, 1951329, 1951329, 1951329, 364325, 1721837, 1721837, 916661, 922215, 1912701, 1721837, 364325, 284559 ]

null

216,634

Mrunalinidevi Paur Of Dhar vs Income Tax Officer. on 29 October, 1993

Income Tax Appellate Tribunal - Ahmedabad

25

IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.38 of 2009 VEENA KUMARI @ VEENA SINHA @ MUNNI Versus HIRA LAL & ORS. **** /6/ 12 August Put up after two 2010 weeks, as prayed for. ( Gopal Prasad, J. ) S.A.

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null

216,635

Veena Kumari @ Veena Sinha @ Munni vs Hira Lal &Amp; Ors on 12 August, 2010

Patna High Court - Orders

0

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null

216,637

[Complete Act]

Central Government Act

0