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JUDGMENT P.N. Bhagwati, J. 1. This is a reference under section 66(1) of the Income-tax Act at the instance of the assessee. The assessee is one Ratilal Khushaldas Patel, who has been assessed as an individual. The assessment year with which we are concerned is the assessment year 1957-58 for which the corresponding previous year is the financial year ending 31st March, 1957. Prior to the 1st April, 1958, the assessee was a partner in the firm of Messrs. Yogendra (P.) and Co. The partnership consisted of the assessee and one other person with three minors admitted to the benefits of the partnership and it was constituted under a deed of partnership dated 8th April, 1954. The assessee had a five annas share in the partnership. This share was held by him as an individual, and up to and including the assessment year 1956-57, the assessee was assessed as an individual in respect of this five annas share. On 1st April, 1956, the assessee got the partnership to transfer a sum of Rs. 25,000 from the account of the assessee to the account of the Hindu undivided family of the assessee. Entries in connection with the transfer were made in the books of account of the partnership on 1st April, 1956, and corresponding entries were also similarly made in the books of account of the assessee as an individual and in the books of account of the Hindu undivided family of the assessee. The assessee also at the same time threw his five annas share in the partnership into the common hotchpot of the Hindu undivided family and impressed the same with the character of joint family property. On 7th April, 1956, a new deed of partnership was made between the assessee and his other partner in which it was made clear that the assessee held five annas share in the partnership as representing the Hindu undivided family as from 1st April, 1956, and that as from that date he was a partner in the partnership as representing the Hindu undivided family. The assessee also made a declaration on 2nd July, 1956, affirming that as from 1st April, 1956, the Hindu undivided family was the absolute owner of the five annas share held by the assessee in the partnership as also of the amount of Rs. 25,000 transferred from the account of the assessee to the account of the Hindu undivided family in the books of account of the partnership. In the course of the assessment of the assessee for the assessment year 1957-58, the Income-tax Officer sought to include the five annas share standing in the name of the assessee in the partnership in his individual assessment. The assessee contended that the five annas share was held by him as representing the Hindu undivided family as from 1st April, 1956, and that the income from the partnership in respect of the five annas share was, therefore, not liable to be included in his individual assessment but could be included only in the assessment of the Hindu undivided family. The Income-tax Officer took the view that the transfer of the five annas share by the assessee to the Hindu undivided family was hit by section 16(3) (b) and that the income arising from that share was, therefore, liable to be included in the individual assessment of the assessee. The Income-tax Officer was also of the view that, in any event, section 16(1) (c) applied, since the partnership was a partnership at will and the assessee had, therefore, a right to reassume power directly or indirectly over the income of the partnership and that the income arising from the five annas share was, therefore, includible in the individual assessment of the assessment of the assessee under section 16(1) (c). The Income-tax Officer accordingly included the income arising from the five annas share in the partnership in the individual assessment of the assessee. The assessee, being aggrieved by the order of the Income-tax Officer, carried the matter in appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner took an entirely erroneous view of the case and held that the assessee had ceased to be a partner and in his place introduced the Hindu undivided family as a partner in the partnership for the purpose of diverting the legitimate income belonging to him and that the said alleged change of partner was a sham transaction and that the assessee had, therefore, in his view not ceased to be a partner in the partnership. The Appellate Assistant Commissioner thought that there was a change so far as the partner was concerned, namely, that the assessee had ceased to be a partner in the place of the assessee, and this, in the opinion of the Appellate Assistant Commissioner, was a sham transaction which he was entitled to ignore and, in this view of the matter, he treated the income arising from the five annas share in the partnership as income belonging to the assessee as an individual. The Appellate Assistant Commissioner accordingly held that this income was rightly included in the assessable income of the assessee. The assessee thereupon preferred an appeal before the Tribunal. The Tribunal, it appears, completely overlooked the deed of partnership dated 7th April, 1956, and thought that the first declaration of the intention of the assessee to convert his five annas share in the partnership into joint family property was made on 2nd July, 1956, when he made the declaration of that date and that such declaration of intention could not be given a retrospective effect so as to convert the five annas share from his separate and self-acquired property into joint family property with effect from 1st April, 1956, and that consequently he was a partner in his individual capacity on 1st April, 1956. The Tribunal took the view that if the assessee was a partner in the partnership in the individual capacity on 1st April, 1956, which was the commencement of the year of account, the income arising from the five annas share was liable to be regarded as the individual income of the assessee and could not be treated as the income of the Hindu undivided family. The Tribunal accordingly confirmed, though on different grounds, the inclusion of the income arising from the five annas share in the partnership in the individual assessment of the assessee. The assessee thereupon applied to the Tribunal under section 66(1) for referring to this court the question of law arising out of the order of the Tribunal and, on such application, the Tribunal referred to us for our opinion the following question of law : "Whether the assessment of five annas share in the firm of Yogendra (P.) and Co., in the hands of the assessee, individual, for the previous year ended March 31, 1957, is valid ?" 2. We may point out that the Tribunal in the statement of case submitted to this court fairly admitted that there was the deed of partnership dated 7th April, 1956, and that the reference made to the deed of partnership in its order was to that deed of partnership, though it was observed by it in the order that it was "drawn up much later" which was obviously incorrect. 3. The short question which, therefore, arises for consideration in this reference is whether the income arising from the five annas share standing in the name of the assessee in the partnership is the income of the assessee as an individual or the income of the Hindu undivided family of the assessee. Now it is clear that a person can impress his self-acquired or separate property in whole or in part with joint family character. He can throw it into the hotchpot or blend it with joint family property or by a declaration of clear intention convert it into joint family property. By a clear expression of intention he can alter the character of self-acquired or separate property into joint family property. This proposition is well-established and it is not necessary to cite any authority in support of it but if authority were needed, it is to be found in Duggirala Sadasiva Vittal v. Bolla Rattain, a case which was accepted as laying down the correct law on this point by this court in Keshavlal Lallubhai Patel v. Commissioner of Income-tax. This being the position, what we have to consider is whether the five annas share which until 31st March, 1956, the assessee held as his separate property was impressed with the character of joint family property by any unequivocal declaration of intention on the part of the assessee. It is evident from the deed of partnership dated 7th April, 1956, and the declaration dated 2nd July, 1956, that such unequivocal declaration of intention was made by the assessee and the five annas share held by the assessee in the partnership was converted into joint family property from 1st April, 1956. It is no doubt true that even after 1st April, 1956, it was the assessee who continued to be a partner in the partnership so far as his other partner was concerned but the five annas share which he held thereafter was held by him as representing the Hindu undivided family and the income arising from that share was the income of the Hindu undivided family. The Tribunal was clearly in error in taking the view that the declaration dated 2nd July, 1956, was the first declaration of the intention on the part of the assessee to impress his five annas share with the character of joint family property and that it could not have retrospective effect so as to attribute the character of joint family property to the five annas share from 1st April, 1956. The Tribunal, as we have pointed out above, completely overlooked the deed of partnership dated 7th April, 1956, which clearly contained an unequivocal declaration of intention on the part of the assessee to treat the five annas share as joint family property from 1st April, 1956. We are, therefore, of the view that the five annas share in the partnership standing in the name of the assessee acquired the character of joint family property from 1st April, 1956, and that the income arising from the said five annas share was the income of the Hindu undivided family and not the income of the assessee as an individual. We may also point out that even if the even if the five annas share in the partnership standing in the name of the assessee were regarded as impressed with the character of joint family property from 7th April, 1956, or even from 2nd July, 1956, the position would be no different, for the income in respect of the said five annas share for the accounting year 1st April, 1956, to 31st March, 1957, accrued at the close of the year, that is, on 31st March, 1957, and on that date the said five annas share belonged to the Hindu undivided family and the income arising from it was, therefore, the income of the Hindu undivided family and not the personal income of the assessee (vide Bhogilal Laherchand v. Commissioner of Income-tax and Ashokbhai Chimanbhai v. Commissioner of Income-tax). 4. But the learned Advocate-General contended that, even if the five annas share in the partnership was impressed by the assessee with the character of joint family property, it was still hit by section 16(3) (b) and the income arising from the said five annas share was liable to be included in the individual assessment of the assessee. Section 16(3) (b) is in the following terms : "16. (3) In computing the total income of any individual for the purpose of assessment, there shall be included......... (b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both." 5. Founded on this section, the contention of the learned Advocate-General was that when the five annas share in the partnership was impressed by the assessee with the character of joint family property, there was a transfer of the said five annas share by the assessee to the Hindu undivided family otherwise than for adequate consideration and that, since the assessee's wife and minor son were members of Hindu undivided family, such transfer was for the benefit of the assessee's wife and minor child and the income arising from the said five annas share was, therefore, liable to be treated as the income of the assessee as an individual. This argument, as we have set out, rested on two limbs. The first limb was that when the character of the five annas share was altered by the assessee from separate property into joint family property, there was a transfer of the said five annas share from the assessee to the Hindu undivided family and the second limb was that such transfer was for the benefit of the assessee's wife and minor child within the meaning of section 16(3) (b). We shall examine both these limbs of the arguments of the learned Advocate-General. 6. So far as the first limb of the argument is concerned, it is clear that the contention of the learned Advocate-General is correct. It is supported by the decision of this court in Keshavlal Lallubhai Patel v. Commissioner of Income-tax. In that case it was held by a Division Bench of this court consisting of K. T. Desai C.J. (as he then was) and myself that, where an individual voluntarily throws his self-acquired property into the hotchpot of a Hindu undivided family by expressing his clear intention to convert such property into joint family property, there is a transfer of such property by the individual to the Hindu family. In taking that view this court did not agree with the decision of the Madras High Court in Stremann v. Commissioner of Income-tax. We find that the view taken by this court has subsequently been followed by the Bombay High Court in Damodar Krishnaji Nirgude v. Commissioner of Income-tax. Having regard to the aforesaid decision of this court, it is clear that the learned Advocate-General is right in his contention that there was a transfer of the five annas share in the partnership by the assessee to the Hindu undivided family when he impressed it with the character of joint family property. 7. That takes us to the second limb of the argument of the learned Advocate-General. The learned Advocate-General contended that the transfer of the five annas share in the partnership by the assessee to the Hindu undivided family was for the benefit of the assessee's wife and minor son within the meaning of section 16(3) (b) and income arising from the said five annas share was, therefore, liable to be included in the individual assessment of the assessee. We cannot agree with this contention of the learned Advocate-General. It is obvious that section 16(3) (b) is a counter-part of sub-clauses (iii) and (iv) of section 16(3) (a). Where assets are transferred by an assessee directly or indirectly to his wife otherwise than for adequate consideration or in connection with an agreement to live apart, sub-clause (iii) of section 16(3) (a) applies and the income arising from the assets directly or indirectly is taxed in the hands of the assessee notwithstanding that in law such income of the wife. Similarly, where assets are transferred by an assessee directly or indirectly to his minor child, not being a married daughter, otherwise than for adequate consideration, sub-clause (iv) of section 16(3) (a) is attracted and the income arising directly or indirectly from the assets transferred is brought to tax in the hands of the assessee, notwithstanding that in law such income is the income of the minor child. But an assessee may not transfer assets to his wife or minor child directly or indirectly but may transfer them to some other person for the benefit of his wife or minor child and thus achieve the object by remaining outside the provisions of clauses (iii) and (iv) of section 16(3) (a). Section 16(3) (b), however, says that the assessee shall even then be liable to pay tax on the income arising from such assets and so much of the income as arises from such assets shall be includible in the individual assessment. Section 16(3) (b) is intended to hit the transfer of assets by an assessee to another person with a view to benefiting his wife or minor child as distinguished from such other person. Where a transfer is made by an assessee not for the benefit of the person to whom the assets are transferred but for the benefit of his wife or minor child so that the person to whom the assets are transferred merely remains the legal owner of the assets, the benefit of such transfer being really given to the wife or minor child, section 16(3) (b) is called into play and, in such a case, the income arising from the assets transferred is liable to be included in the individual assessment of the assessee. Where, on the other hand, a transfer of assets is made and by the transfer benefit is sought to be conferred on the person to whom the assets are transferred, section 16(3) (b) can have no application. Now under section 2(9) the expression "person", unless there is anything repugunant to the subject or context, includes a Hindu undivided family otherwise than for adequate consideration, the first part of section 16(3) (b) would be satisfied but the question would be whether such transfer can be said to be transfer for the benefit of the wife or minor child of the assessee who happens to be a member of the Hindu undivided family. Having regard to what we have stated above, it is clear that in such a case the transfer of the assets cannot be said to be a transfer made by the assessee for the benefit of his wife or minor child. The transfer would be a transfer for the benefit of the Hindu undivided family which would acquire not only legal ownership over assets transferred but also beneficial ownership over the same. It is no doubt true that when assets are transferred would be created in favour of the wife and minor child of the assessee who happen to be members of the Hindu undivided family but for that reason alone the transfer cannot be said to be a transfer for the benefit of the wife or minor child of the assessee. The wife and minor child of the assessee would incidentally derive a benefit from the transfer of the assets since they happen to be members of the Hindu undivided family but the person for whose benefit the transfer is made would be the Hindu undivided family and not the wife or minor child. It is significant that the word "directly or indirectly", which occur in section 16(3) (a), do not find a place in section 16(3) (b). It is, therefore, apparent that, merely because some incidental benefit may be derived by the wife or minor child of the assessee by reason of her or its being a member of the Hindu undivided family to whom and for whose benefit the assets are transferred, the transfer cannot be said to be a transfer for the benefit of the wife or the minor child. The present contention of the learned Advocate-General must, therefore, fail. 8. In this view of the matter, our answer to the question referred to us will be in the negative. The Commissioner will pay to the assessee the costs of the reference. 9. Question answered in the negative.

Author: P Bhagwati

Ratilal Khushaldas Patel vs Commissioner Of Income-Tax, ... on 23 September, 1963

Gujarat High Court

IN THE HEGH CCIURT {BF £{ARNfifi'AKA AT BANGALQRE Dated the 303: cia}; Gf Nevember 2009 : B E F C) R E : ' 'THE HQN'BLE: MZ€.JUS'I'ICE ; V.JA13AN§%'§é:§'T§i:§§§'"' ' MISCELLANEOUS FIRS"1" APPEAgg~gq. 5775' 2 f%,;f:;Q€T56 %§:mf% ' ' M.F'.A.Nc3. snag 1 2Q{):a;mg§,a;:_g ' ' BBJTWEEN : United india Insurance: C30. Lté; Davanagere D0, '.:}r1r0L1$;11.'_its Regional Offzce at No.2:€; ' _ , Shankaxaflarayaraa Building, i _ M.C},Roacl, Banga.i§};*e~;'3Es0 {i€}':* E,' Rep. by its Dep'uf5;f.'Maf1ag{t:r"V A ' V. Sri . 3' = » ' ' ...Appe1}amt fcolnman) Rae, Advocaie' } A§\IE)_; *' '~ In E7515 ' ';"~'2f306: :~';:~: {};SI1§$ifiidfx3I, f:Zig",z%;g»3d abczut 22 years, R j 'Q__4H6s31{€:zj::ATVi}1age, Jagalur District. M.F';_g;Ne. 5-758 / 2006: "'-fSr§_?s/i';.'KaIisiéciaiaE1, S5fG'2§§:1111gc:1c%raiah, Ageé abeut 323 yaars, " "E/5 M.K.§-latti, Chitradurgaa . 9,§Ee$pe:1d€nts { 8}: Sri V.P.K"a1§{arni§ girzivaeate, } M) Eviisceflaneous First Appeals flied unécir Sjéction 381(1) af W13. Act. against tha judg;1:1em: and 0rc§e'1*-V 30.11.2005 passed in w<:A:{::R;1<3;_a£iéii)§;:é:h'%;---~ WC2A:C:R: 104/2004 raspectivaly, on Labcrur Ofiicer and Coinmistéiofiér' 1 'e:)r-1"§.&f1o»riV;:;§§é::;_'S'« Cempensatiozz, Chitradurga, I a Téompazzsfifiafii' of Rs,=.;2,i}1,6(){}j~ 85 Rs.2;'1_Q';-211/¥'- :espe¢tiV%¢1:,a,.. with" A interest at 12% p.21. after 3L§3'«.,§1a3fs f14t);:1 1;heVf%datae of accident tifl deposit tiV1e:-,_" ;2:.Q;:~e1}a:1t herein to deposit the sama. These Ciémi€ng'x0I.i' f§)1*V.'i1s3«:«:1i:ing this day, the eourt {ie}ivtéfec_i."'.:§ji"e7 'f€>1Idia%j-.f1ig : 'A ' ' = N T' }':3ot:h~L:i1<=:se"'a_§§;jaai$»L.a2'ise out of a coxnmon order passgéfii uh}; Commissiarzcr by which the é§;:v.iiuca§iet}.€:'VA.iEi¢d by the respective respondexgvciaimagxt 3i:::17t:..Vaii§§v&_€:d ':;=f.1tid compensation was awanziefi in a sum V -V ef 1/" in respect of apyiicant Karisiddayya " a1iA}.<:1L-;'F';:$§iV;?2;',if)}.,6OG/~« was awaréed in resms;-1: of aypiimnt Sgiitfisfiidhar. The findizlg on the percentaga of less <31' " éarnir1g capacity; taker: by the Cfemmissiener is gaiied in quesizgian in these appeals an the gonad that the said fmdmg is p€§Y€I'$€:§, 1% *2 3 2. T335 learned counsei far the appeila;1t~i1:1su:%a1:c<: Cfmmpany argued that while the accident havtir1gV--'taken place on 13.1.2034 is 1101: in dispute, yet, sustaineti by the respectiva applicants are V' duster has opined before the CC"10i:1}_::.is*sio:1'1e1}" 'a;i1 d',' ' as such, a careftii exaxnirlatien. of th{:..g:i€;cu111¢:1:fist pI*0c1'?:3.¢<:(i would go to show that thougi1.V:ihe res"pe,¢'t;ivé fippficants suffered certain i:";,_i13j:'j"'€5, not injurias which were refiepted h1_x%%§)1inc£'~-defiiiifiitates issued ta them: and '%.}$v1"i(: 1i'é}S vissfiued the disabifity <:e1*ti3':i\i:_a*I;r::_:.~;;, xx2*as':<1i3§. tioctm' who; had irlitiafly treated £116: 8._§)p§{',;_';l1ZI.v§§. ' §e:{f'<:.<jvt:r, no medical record was prqrigééecfi by who had issueé the disabiiity Ceri:ificat«::s.4f1£3Ij any x-'ray W83 preciuced to canfmn the '.1;fit:;:,1'€V injuries suffered by the respective -V app§i::ait§cs..' " Fer all these reasons, the assessment af ~.,::;-;ss._ eazfning capacity at 5€i% by '£316 Will ' Cpmfliissianer is amntrazjv ':0 the €E?i§€flCf3 911 recerd and " is p€§I"§J'('31"$(3 £1116, tlzerafere, {he matter be remanéeé to thfi Ciommissioner for fresh CG1{1Sid€3I'a'{i0}1. } ?¥ 3, in the Eight of the Stlbstantiai question Qf iaw raised in these two appeals and the <:0nt<;:11ti:§;::§5*§'--«_;'31;: fem-'a1'd as above by the a,ppe1lanI:'s counsefi} ' for c0nsi.d+:51'atio:1 is whether; »~'33»]_('::' " (:55 V CGIIi1I"iiSSiO11<3I' as regards the I0s$.Voi*._<é'=;é.rr1jfi'g3:%'<;a;3.aCi$f ._ 509.'/he can be said to be in a{,--*q6r.dan5e.}x?it1j "§I1Vé. Vii1atk:I*iaI 'V 011 record. 4. In the light " i:na{ie by the appel1a_m:'s recerd of this case and t.11e accident which occurxiéfzl __ fha iI1j1ire~:i (i1"i'S/'61' and the cleaner :--41";'§E1::%44LV."":.:~;";s.«*e3:z1z:c1e:1t Eiospital at Sim fan' ':;'ie"a.:;1:1aar;:;" A. .__ E"Jei?t;1f1er in 1:216 svidence before the '§:'~€}£I1II;iSS3:.{)I7§éf£'~.V zmz' in ifzeir claim applications, the ' ét.ate<:i 1:0 the effect that thfiy had hater: V . g'Vefi"t1€§atfi1$r1: at the Gaverrmaent Hospital at Sim. 1530 V:1e'é<:L1:;1ei1ft, parijcuiarly the wound certificate, is -AT«'.--fc'}:*};'§'1c§fQmir3g from the Government Hosgaitai, Sim. What " ié produced bafora the Ctommissiener is the wound certificate issued by the Gs::ve:'nme:1t Hospitai at Hixéyuz'. Ever: if the Saici Wmmci cartiiicates am taken as izaving } 'vi been issusd by {ha Hospital at Himyur, the :injuries nomad in the Waund certificates do not talk? with the injuries mtzntioned in the F'.I.R. by the: dxiver hiiilfiifiif, paruicuiarly in the case of appiicam: Sh3Shi{T1,§1;'§;i: accarding to the complainant, 'had suI_'f1§;i§m§:* ii;'1ji,1ri%:s? ' over the right eye--brow, whereas tl"§é':§>t;u1:{i* issued in respect of Shashidhéxfi is-'svealsv iiufiffljer ixajuries and even fractures. E3. E§eccmdl3:*, me deégfar, vjéha before the Commissianer and ujhfii ir:s:1e£i . the disability certificgates _A and P4?' respectiveiy, was not the' r::xamiz1ed the respective appljpaflts, tfie {ioctor Wm Heated the appiiwnts 'égvasvwizaf s§;j;;a mine<:i befora tbs Commissioner. 61.} Elefect to ba naticed in the impugned arcier ._af the Csmmissioner is that, though thfi Insurance smight permissian to examine thé itwo K :V".'a;ipiicants by angther docter, ftha said appiication was rejecteé by the Commissioner 02:: 23.11.2805. }/ 1 9' 7" For the aforesaid reasons, I dc: find enmzgh fofce in the Submissians made by '€116 iearned counse1"*fLéi*._jt£1e appellant that the firming 01" the ' regards the loss of eaxniflg ¢a§aacity_" V C()I1C€:I'1"i€d is perverse and confiégsfy "tI1e:"t*é§ijas .v<:{..):'1t%:Ii3.t':'t~:~ ._ cf the F.I.R. and, in " certificates fmm the atv--$ir%;~ having been produced. there fares: in Lhfi submission 'by "f:V§'3.1nsei that the respective ::'§§p§:€ar to have been n1anipL13at€ciT; erder t0 get higlier campezzisatiozx. _ V' V' 8. fifsdgfir '?t11:e' above' circumstances, I am of the View 2 V '*:};a.i:_ L"i;§:<_~*;i" are fit snough 113 be remazaded 1:9 the {E.:;_11;i':;£2isf'siE)r:§:1'.:'"fer fivssh consideration and fresh V _ asse Ssm-321:' iii" the 1053 sf earmlrlg capacity. . :> é«cC0r<iiI}g3y, bath the appeais are aiicwad anti the --. im§;ug1e<_°£ erder of the £f2en1missim3e1' is set aside and ~ 41.315: Inattar is remanded to the {";ommissi.r3ne:r for fresh corzsiderajicm anzi fresh asseasmem of the 10:35 af : s L 'a eamling capacitf,»-2 Both parties are at liberty to agiéuce fuflher evidence in their supper: and thereaft:%£:*;_:t;')e Qammissioner shall dispose of the matter ' months from the date: of receipt of~thisA {)I."f.'Ci.gV(."',"iv'V'," " 4 The amount in deposit?i9§éf1'it:ri€d.»V appeliant.

Author: V.Jagannathan

United India Insurance Co Ltd vs Sri G Shashidhar on 30 November, 2009

Karnataka High Court

Gujarat High Court Case Information System Print SCA/10727/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10727 of 2010 ========================================================= LALJIBHAI CHATURBHAI INSTITUTE OF TECHNOLOGY - Petitioner(s) Versus FEE REGULATORY COMMITTEE THROUGH MEMBER SECRETARY - Respondent(s) ========================================================= Appearance : MR DC DAVE for Petitioner None for Respondent ========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE ANANT S. DAVE 7th September 2010 ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Let this matter be listed on 13th September 2010 alongwith SCA No. 9241 of 2010. Notice on the respondent. Direct notice is permitted. {S.J Mukhopadhaya, CJ.} {Anant S. Dave, J.} Prakash*     Top

Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&Nbsp;

Laljibhai vs Fee on 7 September, 2010

Gujarat High Court

CRM No. M-6576 of 2009 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CRM No. M-6576 of 2009 (O&M) Date of decision: 6.3.2009 Kawaldeep Kaur and another ...Petitioners Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. G.S. Verma, Advocate, for the petitioners. Rajan Gupta, J. The petitioners have filed this petition under Section 482 Cr.P.C. for protection of their life and liberty. Learned counsel for the petitioners contends that the petitioners are major and have married against the wishes of their parents. The counsel has placed on record age-proof certificates of the petitioners, Annexure P-1 & P-2 respectively and marriage-certificate, Annexure P-3. He further submits that a representation (Annexure P-3) was made to the Senior Superintendent of Police, Batala bringing to his notice that the petitioners have married and feared threat to their life and liberty from respondents No.4 to 6. Notice of motion to official respondents. On asking of the Court Mr. Shailesh Gupta, DAG, Punjab accepts notice. After hearing counsel for the parties, the Senior CRM No. M-6576 of 2009 2 Superintendent of Police, 4 to 6 is directed to ensure that no harm is caused to the petitioners at the hands of respondents No.4 to 6. He shall also provide adequate security to them if circumstances so warrant. Disposed of in the terms indicated above. (RAJAN GUPTA) JUDGE March 06, 2009 'rajpal'

Kawaldeep Kaur And Another vs State Of Punjab And Others on 6 March, 2009

Punjab-Haryana High Court

JUDGMENT L. Mohapatra, J. 1. Both the above applications have been filed under Section 438 of the Criminal Procedure Code for grant of anticipatory bail. Both the applications also arise out of respective complaint cases where cognizance has been taken. Question that arises for consideration is whether an application for anticipatory bail under Section 438, Cr.P.C. shall be maintainable after cognizance of non-bailable offence is taken and process is issued. 2. This Court in the case of Mohan Behera and two Ors. v. State, reported in 59 (1985) CLT 110 dealt with the question raised and decided as follows : "It would be seen that Section 438 of the Code envisages three stages, Sub-section (1) enables a person for making an application for anticipatory bail when he reasonably apprehends his arrest in respect of accusation of commission of a non-bailable offence. Sub-section (2) enumerates the conditions, which may be imposed by the Court while making an order under Section 438(1). Sub-section (3) pertains to the execution or implementation of the order passed under Sub-section (1). The first part of Sub-section (3) mandates the police officer to release the person on bail pursuant to an order made under Sub-section (1). The second part of this Subsection obligates the Magistrate taking cognizance of an offence to issue bailable warrant only instead of non-bailable warrant against the person in whose favour an order under Sub-section (1) has been passed. Sub-section (3) would come into play only after an order under Sub-section (1) has been passed in favour of a person. If a Magistrate has already taken cognizance of an offence and has issued a non-bailable warrant the stage for invoking the jurisdiction of the High Court or the Court of Session for an order for anticipatory bail is already over. If the submission of the learned counsel for the petitioners in the instant case is accepted, it would also mean that if a person has already been arrested in execution of a warrant of arrest issued by a Magistrate who has taken cognizance of an offence and is later released on bail and then jumps bail and the Magistrate again issues a non-bailable warrant of arrest against him, that person may approach the Court for anticipatory bail. Section 438 of the Code certainly does not envisage such a position. The petitioners had already been arrested in the course of investigation and had been released on bail by the investigating agency. After the submission of charge-sheet, non-bailable warrants of arrest have been issued against the petitioners by the learned Sub-divisional Judicial Magistrate after applying his mind and taking cognizance. In such a case, an application under Section 438 of the Code would not be competent." On perusal of the observation made by this Court it is clear that if a Magistrate has already taken cognizance of an offence and has issued non-bailable warrant, the stage for invoking jurisdiction of the High Court or the Court of Session for an order for anticipatory bail is already over. In the case of Sri Bhramar alias Bhramarbar Mohapatra and Anr. v. State of Orissa, reported in 51 (1981) CLT 391, this Court has again held that Section 438, Cr.P.C. does not bring in its ambit the case of an accused against whom a Court has already issued process by taking cognizance of the offence. The relevant paragraph i.e., paragraph - 7 of the said judgment is quoted below : "Sections 436, 437, 438 and 439 deal with the powers of the Court in the matter of grant or refusal of bail. Section 436 deals with grant or refusal of bail in bailable offences. Section 437 deals with grant or refusal . of bail in non-bailable offences by a Court other than the High Court or the Court of Session. Section 438 deals with grant of anticipatory bail, which means bail in anticipation of arrest. The power under this Section has been conferred on the High Court and the Court of Session. The Section does not take in its ambit the case of an accused against whom a Court has already issued process by taking cognizance of the offence. Section 439 deals with special powers of High Court or Court of Session regarding bail. Under Sub-section (1), Clause (a) of Section 439 the High Court or the Court of Session can direct that a person accused of an offences and in custody be released on bail and may impose conditions if the offence is of the nature specified in Section 437(3). Under Clause (b) it can set aside or modify any condition imposed by the Magistrate while granting bail to a person. Under Sub-section (2), it can cancel bail granted by itself or by the lower Court. Thus the power under Section 439, Criminal Procedure Code is supplementary or subsidiary in that it completes the provisions in Sections 436 and 437 with regard to the grant of bail. So the question whether a person who is not in custody or one who is not required to surrender to any custody can be granted bail under Section 439, Criminal Procedure Code must, therefore, be determined with reference to the provisions of Section 437, Criminal Procedure Code." Similar view has also been expressed by this Court in the case of Ashok Kumar and Ors. v. State of Orissa, reported in 89 (2000) CLT 516. In the aforesaid judgment the Court has also placed reliance on the case of Bhramarbar Mohapatra v. State (supra) and held that if cognizance is taken by a Magistrate for an offence and process is issued an application under Section 438(1), Cr.P.C. is not maintainable. 3. Though law has been settled by this Court as is evident from the aforesaid three decisions, the following decisions were placed for consideration of the Court. In the case of P. V. Narasimha Rao v. State (CBI), reported in 1997 Cri.L.J. 961, Division Bench of the Delhi High Court held that where summons only have been issued against accused persons an application for anticipatory bail shall be maintainable. In the case of Akhlaq Ahmed F. Patel v. State of Maharashtra, reported in 1998 Cri.L.J. 3969, the Bombay High Court held that an application for anticipatory bail can be allowed even after summons or warrant is issued by a Magistrate. In the case of Natturasu and Ors. v. The State, reported in 1998 Cri.L.J. 1762, Single Bench of the Madras High Court held that mere issuance Of warrant on taking cognizance of non-bailable offence will not take away powers of the High Court in granting anticipatory bail. In the case of Nirbhay Singh and another Vrs. The State of Madhya Pradesh, reported 1995 Cri.L.J. 3317, Full Bench of the Madhya Pradesh High Court held that anticipatory bail can also be granted even after Magistrate issued process or at the stage of commitment of the case to the Sessions Court or event at a subsequent stage. 4. On perusal of the judgments referred to above and on perusal of the reasons assigned in the judgments taking a contrary view than that of this Court, I am of the opinion that this question of law needs to be decided by a Larger Bench of this Court. Accordingly the question as to whether a High Court or the Court of Session has power to grant anticipatory bail in a case where cognizance has been taken and summons/warrant of arrest has been issued or not, may be referred to a Larger Bench for decision. Since the matter is referred to a Larger Bench in both the cases, the petitioners in I.C.C. No. 8/2002 pending in the Court of S.D.J.M., Hindol and I.C.C. No. 132/1993 pending in the Court of J.M.F.C. (R), Cuttack respectively may not be arrested in the meanwhile.

Author: L Mohapatra

Narahari Rout And Adikanda Rout ... vs State Of Orissa on 4 July, 2003

Orissa High Court

Gujarat High Court Case Information System Print SCA/15714/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15714 of 2010 ========================================================= MAHIPATSINH BHAVSINH PARMAR - Petitioner(s) Versus JEMALSINH KESARJIBHAI BHATTI & 3 - Respondent(s) ========================================================= Appearance : MR PP MAJMUDAR for Petitioner(s) : 1, None for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 08/12/2010 ORAL ORDER Heard learned advocate Mr.Majmudar for the petitioner. It is submitted by learned advocate Mr.Majmudar that the present petitioner had filed suit for partition against the present respondents No.3 and 4 before the trial court which is numbered as Regular Civil Suit No.6 of 2009 which is pending before the learned Senior Civil Judge, Rajkot. It is further submitted that the order passed by the Executing Court will come in way while deciding the suit. It is an admitted fact that the respondents No.1 and 2 had also filed suit before the trial court for specific performance while the present petitioner had filed suit for partition which clearly shows that both the suits are filed for different relief and for different cause of action. In view of the same the trial court is directed to decide the suit filed by the petitioner in accordance with law and on its own merits taking into consideration the rival contentions raised by the parties. In view of the above the petition is disposed of with no order as to costs. ( M.D. SHAH, J. ) syed/     Top

Author: Md Shah,&Nbsp;

Mahipatsinh vs Jemalsinh on 8 December, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4755 of 2001 DHOTAI MANDAL & ORS Versus STATE OF BIHAR ----------- NKS/- ( Rakesh Kumar, J ) 05 16-08-2010 In course of hearing, it was felt necessary to examine the lower court record. Call for lower court record of Palasi P.S. Case No.33 of 2000 (G.R. No.407 of 2000) from the court of the learned Chief Judicial Magistrate, Araria and put up this case after receipt of the same.

Dhotai Mandal &Amp; Ors vs State Of Bihar on 16 August, 2010

Patna High Court - Orders

JUDGMENT G. Yethirajulu, J. 1. This appeal is preferred by the United India Insurance Company, Kurnool against the order of the Motor Accident Claims Tribunal-cum-II Additional District Judge, Kurnool ('the Tribunal' for brevity) in O.P. No. 160 of 1993. 2. A person by name E. Venkata Ramana died in a tractor accident occurred on 3-9-1992. His wife, father and mother filed an application under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 2,00,000/- under various heads. During the pendency of the petition the father of the deceased died, therefore, the claim made by him stood abated. The Tribunal after taking into consideration the evidence adduced by both parties awarded Rs. 94,400/-under various heads and made the appellant jointly and severally liable along with the owner of the vehicle to pay the compensation amount. 3. The insurance company being aggrieved by the order of the Tribunal making it liable to pay the compensation preferred this appeal challenging its validity and legality contending that the petition ought to have been dismissed on the ground that the negligence of the driver was not proved, that the multiplying factor of 18.42 applied by the Tribunal is contrary to the judgment of the Supreme Court, that no amount could be awarded under the head "loss of love and affection", that the Tribunal erred in granting compensation for loss of dependency to the first petitioner after coming to know that she got remarried during the pendency of the petition and should have held that she is not entitled to any amount under the head "loss of dependency". The appellant further contended that the Tribunal erred in granting compensation under the head "loss of consortium" to the first petitioner despite the fact that she got remarried within short time after the accident. The learned Counsel for the appellant laid stress on the point whether the first petitioner i.e., the widow of the deceased is entitled for any compensation towards loss of dependency after her remarriage. 4. P.W.I was aged about 20 years by the date of accident. She lost her husband in the accident within five (5) months after the marriage. Her second marriage after 3 years of the accident is not disputed. There are no children to her through the deceased. According to the evidence of PW.l, her in-laws neglected her after the death of the deceased and drove her out from their house, therefore, she went to her parents house and had the second marriage. She further deposed that her parents spent Rs. 35,000/- for her marriage with the deceased and they also spent Rs. 25,000/- for the second marriage. 5. The Tribunal observed that there is no bar for the young widow to remarry. She suffered mental agony due to the sudden demise of her husband for a period of three years when he died within five months alter their marriage. There was loss of consortium to the first petitioner during the period of three years. The Tribunal therefore awarded Rs. 3,000/- towards compensation for loss of consortium, Rs. 3,000/- towards compensation for loss of love and affection and Rs. 88,400/-towards loss of dependency to all the petitioners. 6. The learned Counsel for the appellant cited a judgment rendered by a Division Bench of the Orissa High Court in State of Orissa v. Archana Nayak, 1987 ACJ 772 (Orissa) (DB), wherein the Division Bench held that the right to claim compensation must he confined to those who are entitled to be maintained and supported by the victim as his legal representatives. A widow after her remarriage cannot continue as the legal representative of her first husband. There is a cessation of her status as the legal representative of her husband and she suffers a civil death so far as the estate of her first husband is concerned. The Bench further observed that the widow ceases to be a dependant upon her remarriage. If wife could not claim financial contribution from the husband upon her remarriage, on pan materia reasoning, the widow cannot claim compensation on the basis of loss of dependency after her remarriage. Upon tier remarriage, she ceases to be a legal representative for the purpose of Section 110-A. 7. In the above judgment the Division Bench also observed that the widow of the deceased will be entitled to compensation only for the period during which she remained as his widow till the date of her remarriage. 8. In the case covered by the above decision, the deceased died on 12-6-1969. His widow and minor girl filed an application under Section 110-A of the Act for Rs. 2,00,000/- towards compensation. The widow remarried 4 years 5 months after the death of her first husband. The Tribunal assessed the dependency at Rs. 250/-per month and awarded Rs. 10,000/- to the widow for the period up to her remarriage and Rs. 22,000/- to her daughter. In appeal, the Single Judge assessed dependency at Rs. 500/- per month and enhanced the award to Rs. 95,000/-. The Division Bench of the High Court took dependency at Rs. 500/- p.m. and awarded Rs. 20,000/-to the widow for the period she remained as widow and Rs. 44,000/- to her daughter by reducing the total award to Rs. 64,000/-. 9. The effect of remarriage by a widow after the death of her husband had fallen for consideration in several cases from time to time. 10. Under Section 2 of the Hindu Widows' Re-marriage Act, 1856, all rights and interests of a widow in her deceased husband's property shall cease upon her remarriage and shall be determined "as if she had then died." But, by virtue of Section 4(1) of the Hindu Succession Act, 1956, the provisions of Section 2 of the 1856 Act stand abrogated (Jagdish Mahton v. Mohammad Elahi, AIR 1970 Pat. 170). By virtue of Section 14 of the Hindu Succession Act, the property of her husband vested in her cannot be divested, i.e., once a widow succeeds to the property of her husband and acquired an absolute right over the same, she would not be divested of that absolute right on her remarriage. But, she would certainly cease to be a legal representative of the first husband on her remarriage. Under Section 22 of the Hindu Adoptions and Maintenance Act, 1956, she also ceases to be a dependant and thus if a widow remarries after the death of her husband, her dependency ends. 11. In England, the law has been changed under the Law Reform (Miscellaneous Provisions) Act, 1971 and the remarriage of the widow or the chance of her remarriage is not to be taken into account in assessing the damages payable to her. (Thompson v. Price, 1974 ACJ 501 QBD England) 12. In R.B. Moondra and Co. v. Bhanwari, 1971 ACJ 438 (Rajasthan) a learned Judge of the Rajasthan High Court while dealing with a case under the Workmen's Compensation Act held that a widow is entitled for compensation even after remarriage also. The learned Judge declined to follow the provisions of Hindu Adoptions and Maintenance Act on the ground that the definition of "dependant" under the Workmen's Compensation Act has a wider meaning and not a restricted meaning, therefore, remarriage will not disentitle her to claim compensation. But, in a subsequent case, in Makbool Ahmed v. Bhura Lal, 1986 ACJ 219 (Rajasthan), the Rajasthan High Court took the view that if a widow remarries after the death of her husband, her dependency ends and the amount of compensation has to be calculated only up to the date of her remarriage. A Division Bench of the Madhya Pradesh High Court in Manjula Devi Bhuta v. Manjusri Raha, 1968 ACJ 1 (MP), in a well considered judgment held mat if the widow re-marries, loss would be assessed only for the period she remained as a widow. 13. Under Section 19 of the Hindu Adoptions and Maintenance Act a widow daughter-in-law is entitled to be maintained by the father-in-law under certain circumstances, but the application to maintain ceases on the remarriage of the daughter-in-law. Similarly, a direction for payment of permanent maintenance given by the Court for passing any decree for judicial separation or any adverse or any time subsequent thereto may be rescinded by the Court upon remarriage. (Section 25(3) of the Hindu Marriage Act). 14. The right to maintenance ceases upon remarriage. If wife could not claim financial contribution from her husband, upon her remarriage, on pan materia reasoning the widow claim compensation on the basis of loss of dependency after her remarriage, therefore, to maintain the application, the claimant must not only be a legal representative at the time of the death of the husband and also at the time of presentation of the application and only upon her remarriage she ceases to be a legal representative for the purpose of Section 110-A of the Act. 15. In the case on hand, the application under Section 166 of the Act was filed after the death of the first husband of the widow and during the pendency of the petition she got remarried, therefore, there is no scope to question the maintainability of the petition under the Act. 16. The learned Counsel for the respondent-claimant relied on a judgment of the Rajasthan High Court in Vimala Devi v. Chaman, 1992 ACJ 1048 (Rajasthan) wherein a learned Single Judge held that the compensation assessed on the basis of the principles of assessment cannot be reduced on account of remarriage or prospects of remarriage of the widow which will be against the spirit of Constitution and will put a check on the remarriage system provided under various legislations. On the contrary, an incentive should be given for remarriage for preservation of better society. The learned Single Judge went a step further than the Division Bench of the Orissa High Court in Archana Nayak (supra) and did not express any inclination to deduct any amount on account of the remarriage of the widow. But, the cardinal principle that has to be applied in this type of cases is that since the widow ceases to be a legal representative of the deceased and also as his dependant, it would be appropriate if the loss of dependency is confined to the period from the date of accident till the date of remarriage of the widow. 17. In Khairullah v. Anitha, 1994 ACJ 1017, a learned Single Judge of this Court held that the remarriage will not debar the widow from her right to claim compensation and it cannot be taken as a ground to refuse compensation as being a widow no person of equal status of the deceased husband would come forward to remarry her. 18. In Halki Bai v. New India Assurance Co., Ltd., 1999 ACJ 187, a Division Bench of the Madhya Pradesh High Court held that a widow is entitled to receive compensation for the death of her husband even after her remarriage, but not a larger share. 19. In Manthani Kittamma v. Tippareddy Veera Reddy, , a learned Single Judge of this Court held that a widow getting remarried is not a bar to grant compensation to which she is otherwise legally entitled and the widow's entitlement cannot be denied on the ground that there is likelihood of her remarriage. 20. After analyzing the above legal position it is made out that a widow of the deceased who died in the motor accident is entitled for compensation for loss of dependency, loss of consortium and the other items of compensation till she ceases to be the legal representative of her late husband on her remarriage, therefore, she cannot be denied compensation completely and it has to be reduced on the basis of the period during which she remained as the widow of the deceased. 21. In the case on hand, the first claimant remained as a widow for about three (3) years after the death of the deceased. Since the deceased died within five (5) months after the marriage, the compensation has to be awarded keeping in view the age of the first claimant, the period during which they led the marital life, the period during which she remained as the widow, the mental agony she had undergone due to the sudden demise of her husband and the loss of consortium to her. The Tribunal awarded Rs. 94,200/- towards total compensation out of which Rs. 88,400/- was awarded as the amount towards loss of dependency, Rs. 3,000/- towards loss of consortium to the first petitioner and Rs. 3,000/- towards non-pecuniary damages. Out of the total amount, the Tribunal directed payment of Rs. 50,000/- to the first claimant and Rs. 44,400/- towards compensation to the third claimant i.e., the third respondent herein. Since the first claimant-first respondent is a young widow, the Tribunal preferred to allot more amount to her towards loss of dependency and lesser amount to the third claimant, but since the first respondent had a second marriage three years after the accident, she is not entitled for the entire amount and it has to be reduced to a reasonable extent. Since the amount awarded by the Tribunal is not so high, I am of the view that the ends of justice would be met if Rs. 20,000/- is deducted from the compensation of the first respondent on account of loss of her social status as a legal representative for three years after the death of the deceased. After deducting Rs. 20,000/- from the amount allotted to the first respondent, she is entitled to Rs. 30,000/- and the third respondent is entitled to Rs. 44,400/-. The award of the Tribunal is accordingly liable to be modified. 22. In the result, the appeal is allowed in part. There shall be reduction of Rs. 20,000/-in the compensation of Rs. 94,400/- and the total compensation payable to both the claimants is Rs. 74,400/-. Out of the said amount, the first claimant is entitled to Rs. 30,000/- and the third claimant is entitled to Rs. 44,400/-. The rate of interest awarded by the Tribunal and the liability of the appellant and the owner remains undisturbed. The amount is directly payable to both the claimants and not in accordance with the direction given by the Tribunal. Each party to bear its own costs.

Author: G Yethirajulu

United India Insurance Company ... vs Eda Anjanamma And Ors. on 22 August, 2003

Andhra High Court

Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5072 of 2010 Petitioner :- Pappu And Another Respondent :- State Of U.P. Petitioner Counsel :- Ashish Srivastava,S.P. Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the appellants and the learned A.G.A. Connect with criminal appeal no.5099 of 2010. Admit. Issue notice. Summon the lower court record at an early date. Dated 6.8.2010 NA (Order on the bail application no. 222243 of 2010) Hon'ble Ravindra Singh,J. Heard learned counsel for the appellants and the learned A.G.A. It is contended by learned counsel for the appellants that there was a cross version of the alleged incident, from both the side F.I.R. has been registered, both side have sustained injuries, both side have been convicted. The appellants were on bail during the pendency of the trial, they have not misused the liberty of bail. Let the appellants Pappu, Pradeep convicted in S.T. No. 420 of 2008 under Sections 307/34I.P.C. P.S. Fatehganj Ewst District Bareilly be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned. The realization of fine shall remain stayed during the pendency of the appeal. Order Date :- 6.8.2010 N.A.

Pappu And Another vs State Of U.P. on 6 August, 2010

Allahabad High Court

> Title: Need to construct dams for providing irrigation and drinking water facilities in Hingoli Parliamentary Constituency, Maharashtra-laid. श्री सुभाष बापूराव वानखेडे(हिंगोली): मेरे संसदीय क्षेत्र हिंगौली में तीन जिलों के अन्तर्गत आने वाले ग्यारह तहसील क्षेत्रों में सिंचाई जमीन बहुत कम है । यदि मेरे संसदीय क्षेत्र पैनगंगा नदी पर विभिन्न जगहों पर बांध बनवाया गया तो उमरखेड, महागांव, हदगांव, हिमायतनगर, माहूर, किनवट, हिंगोली कलमनुरी तहसील क्षेत्रों की पेयजल की समस्या भी हल हो सकती है । इस नदी पर पैनगंगा प्रकल्प बनाया गया है लेकिन प्रतिवर्ष इस प्रकल्प से जलस्तर पूर्ण होने के कारण लाखों क्यूसेक पानी नदी में बहा दिया जाता है। उस पानी को अगर रोका गया तो सिंचाई क्षेत्रों में बढ़ोतरी हो सकती है ।           नीचे प्रस्तावित किए गए जगहों पर कोल्हापुरी बांध बनवाए जाए । (1) हदगांव तहसील अंतर्गत उचेगांव, तलणी, मनुला, माटाला, बेलगव्हाण एवं कोथला (2) माहूर तहसील अंतर्गत मदनापुर, टाकली, उनकेश्वर(3) उमरखेड एवं महागांव तहसील अंतर्गत बेलखेड, तीवरंग, तिवड़ी, देवसरी, करंजी, पानथरा, टेंभी, हिवरा ।           पेयजल की समस्या के समाधान हेतु जनहित में हिंगौली तहसील अंतर्गत तपोवन, कन्हेरगांव नाका । सेनगांव तहसील अंतर्गत सेनगांव, जांभरून, रोडगी, नर्सी नामदव ।कमलमनुरी तहसील अंतर्गत कयाधू नदी पर संमगा, सालेगांव, शेवाला । औढ़ा तहसील अंतर्गत कयाधू नदी पर नालेगांव, माथा में बांध बनवाएं जाए उक्त बांधों के बनने से करीब सात हजार हेक्टयर जमीन पर सिंचाइ की जा सकेगी तथा बहुत बड़ी संख्या में इन तहसील क्षेत्रों के विभिन्न ग्रामों के लोगों की पेयजल की व्यवस्था हो सकती है ।

Need To Construct Dams For Providing Irrigation And Drinking Water ... on 19 August, 2010

Lok Sabha Debates

IN THE HIGH COURT OF KERALA AT ERNAKULAM Ins.APP.No. 11 of 2004() 1. THE REGIONAL DIRECTOR, ... Petitioner 2. THE RECOVERY OFFICER, Vs 1. THE MANAGING DIRECTOR, ... Respondent For Petitioner :SRI.T.V.AJAYAKUMAR For Respondent :SRI.PIRAPPANCODE V.SREEDHARAN NAIR The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice P.N.RAVINDRAN Dated :22/05/2008 O R D E R K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = INS. APPEAL NO.11 OF 2004 = = = = = = = = = = = = = = = = = = = Dated this the 12th day of March, 2008 R E F E R E N C E O R D E R -------------------------------------- Appeal is filed by the Employees' State Insurance Corporation, Thrissur challenging the order passed by the Employees' Insurance Court, Kollam, in I.C. No.16 of 2001 by which the respondent, a Co-operative Society, fully owned by the Government, was exonerated from payment of damages. Respondent-Society was constituted to provide employment opportunities to unemployed Engineers and Technicians. Appellants demanded contribution to the extent of Rs.1,14,396/-. Subsequently, appellants demanded Rs.1,84,994/- as damages on account of delayed payment. Challenging that order, respondent filed I.C. No.16 of 2001 before the EI Court, Kollam. 2. The main contention raised was that though the Society is fully owned by the State Government and State Government have promised to make available necessary working capital, the same was not done and on account of  INS. APPEAL NO.11 OF 2004 -: 2 :- that fact delay in remitting the contribution occurred. The period for which contribution was claimed was from 4/1992 to 7/1994. The EI Court took a view that the respondent was in financial crisis and it was allowed to pay the contribution in instalments and as such it was not liable to pay damages. In Chandrasenan v. Regional Director, E.S.I. Corporation (1996 (1) KLT 243) a Division Bench of this Court held that the fact that employer was allowed to pay the contribution in instalments is not a ground to exempt it from paying the damages. 3. Learned counsel appearing for the respondent has placed reliance on a decision reported in E.S.I. Corporation v. Premanandan (2007 (2) KLT 666) in which it was held that if imposition of damages is by way of penalty, then such damages can be imposed only in accordance with the principles applicable for imposing penalty for failure to carry out a statutory obligation. It was further held that damages cannot be imposed unless the party acted either deliberately or in defiance of law or was guilty of  INS. APPEAL NO.11 OF 2004 -: 3 :- contumacious or dishonest conduct. The Division Bench also considered Regulation 31C of Employees State Insurance (General) Regulations, 1950 and held that Regulation 31C would only be guidelines in the matter of imposition of damages and percentage fixed is not absolute. Shri T.V.Ajayakumar, learned counsel appearing for the appellants, argued that in M/s. Prestolite of India Ltd. v. Regional Director (AIR 1994 SC 521) the Apex Court held that while adjudicating damages, the adjudicating authority can take mitigating circumstance into consideration, but should not act mechanically in applying upper most limit of damages. It is argued that in Sovin Knit Works v. E.S.I. Corpn. (AIR 1997 SC 1771) the Apex Court had taken a view that in the case of non-compliance of the provisions of the Act by the employer, the demand is valid. In M/s. Hindustan Times Ltd. v. Union of India (AIR 1998 SC 688) it was held that financial difficulties of the employer is not a ground to exempt it from payment of damages. Learned counsel also relied on an unreported decision of this Court in  INS. APPEAL NO.11 OF 2004 -: 4 :- R.P. No.732 of 2007 in Ins. Appeal No.25 of 2003 decided on 14.9.2003. In Ins.Appeal No.25 of 2003 a Division Bench of this Court took a view that unless the employer is guilty of contumacious or dishonest conduct or acted in conscious disregard of its obligation, damage is not leviable. Appellant in that appeal filed R.P. No.732 of 2003 and in the R.P. the Division Bench has clarified that the legal principles laid down by this Court in the present case shall not be treated as having general application and it shall not be a precedent. 4. In Emp. State Insurance Corporation v. H.M.T. Ltd. & Anr. (2008 (1) SCALE 341) the Apex Court has held that the ESI Act was enacted to provide certain benefits to the employees of an establishment in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto. 5. It was also held that existence of mens rea or actus reus to contravene a statutory provision must also be held to be a necessary ingredient for levy of damages and/or the quantum thereof. 6. Regulation 31C was initially introduced in the  INS. APPEAL NO.11 OF 2004 -: 5 :- Regulations with effect from 1.1.1992. It reads as follows: 31-C. Damages or contribution or any other amount due, but not paid in time. - An employer who fails to pay contributions within the periods specified under Regulation 31 or any other amount payable under the Act, shall be liable to pay damages as under. It is argued that Regulation 31C was amended with effect from 27.3.2003. It was contended that before amendment in 2003 once the court finds that employer is liable to pay damage it has no discretion at all, but damage is to be imposed as provided in Regulation 31C of the Regulations because of the mandatory provisions contained in that Regulation. It is pointed out that Premanandan's case (supra) arose in the year 1999. So the provision contained in amended Regulation 31C has no application to the facts of that case and in this case. It is also pointed out that challenging the decision in Premanandan's case (supra) appellant had filed SLP No.9899 of 2007 before the Apex Court and the same is pending. Considering all aspects of the matter, I am of the view that the principles laid down in  INS. APPEAL NO.11 OF 2004 -: 6 :- Premanandan's case (supra) require reconsideration. For that purpose the case is to be heard by a Division Bench. In the result, the appeal is adjourned to be heard and determined by a Bench of two Judges. The Registry is directed to place the file before the Honourable the Chief Justice for appropriate orders. K. PADMANABHAN NAIR, JUDGE. vsv  K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T -------------------------------------------

The Regional Director vs The Managing Director on 22 May, 2008

Kerala High Court

ORDER S.J. Mukhopadhaya, A.C.J. 1. This revision application has been preferred by the petitioners against the order dated 26th April, 2003, passed by Kumari R. Asthana, learned Judicial Magistrate, 1st Class, Ranchi, in Complaint Case No. 54 of 2002, whereby and whereunder, the application filed on behalf of the petitioners for their discharge under Section 245 of the Code of Criminal Procedure has been rejected and the learned Court below has fixed the date for framing the charges. 2. The main plea taken by the petitioners is that the dispute being civil in nature, relating to transfer of land, the criminal proceeding was not maintainable against the accused/petitioners. Further, as petitioner No. 2 has no concern with the land in question, the question of framing charges against him does not arise. 3. From the petition, filed by the petitioners, it appears that opposite party No. 2 filed a complaint petition, registered as Complaint Case No. 54 of 2002, wherein, he has stated that accused No. 1 (petitioner No. 1 herein) owns a piece of land bearing Plot No. 29, Khata No. 1, Thana No. 192 at Morhabadi within Bariyatu Police Station, within the town and district of Ranchi, measuring an area about 6 Katthas. Both the accused persons (petitioners herein) used to visit the house of the. complainant and in course of their visits, they disclosed that they want to develop an industry at Kokar in the town and district of Ranchi, which is closed since long and for that they need some money and, as such, they want to sell the land at Morhabadi. They proposed opposite party No. 2 to sell their land and opposite party No. 2 accepted their proposal to purchase the land at the rate of Rs. 25,000/- per Kattha and, accordingly, an agreement was entered into between them on 2nd April, 1998. In token of advance consideration amount, the complainant/opposite party No. 2 paid a sum of Rs. 7,000/- to the accused, which they accepted and granted a money receipt in lieu thereof. Again on 13th April, 1998 they approached the complainant/opposite party No. 2, showing necessity of money and they took Rs. 2,000/- from the complainant and granted money receipt. Subsequently, the complainant sent Advocate's notice on 19th August, 1998 to accused No. 1 (petitioner No. 1 herein) under registered cover, requesting her to obtain permission from appropriate authority for selling the land, so that the complainant/opposite party No. 2 by paying rest of the amount may get the land transferred in his name. However, no reply was received from her. It is alleged that the complainant/opposite party No. 2, thereafter, met the accused personally and along with others at their residence at Kokar and requested them to transfer the land but they gave excuse that they were busy in standing their industry and sought for 3/4 months time. The complainant, on their request, agreed to it but thereafter also no action was taken in spite of repeated reminders. In the last week of March, 1999 the accused persons approached the complainant/opposite party No. 2 and asked for Rs. 20,000/- more, showing that in order to meet their personal necessity and to meet out the expenses for taking permission, they need the amount. However, the complainant having no money at that time, asked them to come later on. On 25th April, 1999 accused No. 1 (petitioner No. 1 herein) approached the complainant and received a sum of Rs. 16,000/- and granted money receipt in lieu thereof and also took the forms, duly signed by the complainant, for obtaining permission and assured that the sale deed will be executed within two months and the land will be registered in the name of the complainant/opposite party No. 2. It is alleged that thereafter, in spite of repeated reminders, the accused persons did not sell the land and started avoiding them, showing that they are busy with the development of the industry. It is alleged that in September, 1999, the complainant/opposite party No. 2 came to know from one Mr. Puskar Munsi (a deed writer at Civil Courts, Ranchi) that the accused persons have already taken a sum of Rs. 60,000/- by executing an agreement in the name of his son for selling the same land for which the accused have taken advance money from the complainant and have given receipts. It is alleged that both the accused persons are habitual cheaters and frauds. Though they in the age and look appear to be like mother and son but actually they are wife and husband. Apart from her own original husband, accused No. 1 (petitioner No. 1 herein) alleged to have married with accused No. 2 (petitioner No. 2 herein), at a far distant place at Madhupur vide an affidavit bearing No. 1164 dated 22nd February, 1997, sworn before the Notary Public Sri Harish Chandra Jha. It has also been learnt by the complainant/opposite party No. 2 that the accused persons (petitioners herein) have also taken a sum of Rs. 10,000/- from a retired Professor Sri B.P. Verma in January, 1998 regarding the .same very land. Similarly the accused have entered into an agreement for selling the same land with one Pramod Kumar Singh son of Shiv Nandan Singh and Rajesh Verma son of late Jagdish Verma of Karamtoli, Ranchi and have taken a sum of Rs. 10,000/- on 10th August, 1998. With regard to the same land, the accused persons have also taken Rs. 20,000/- on 17th August, 1998 from one Satya Narayan Gupta and entered into an agreement to sell the same very land. 4. From the allegations, made in the complaint petition by the complainant/opposite party No. 2 it appears that he has tried to highlight the fact that the accused have cheated and played fraud in the name of selling the land. Though the petitioner have tried to highlight that the dispute is preliminary of a civil nature and the complainant was not justified in resorting to the criminal proceeding, such submission cannot be accepted. In the case of M. Krishnan v. Vijay Singh, reported in (2001) 8 SCC 645 it was noticed by the Supreme Court that the High Court having been impressed by the fact of the said case that the nature of dispute was preliminary of a civil nature, held that the appellant was not justified in resorting to the criminal proceeding. The Supreme Court observed that accepting such a general proposition would be against the provisions of law inasmuch as in all cases cheating and fraud, in the whole transaction, there is generally some element of civil nature. In a criminal Court the allegations made in the complaint have to be established independently, notwithstanding the adjudication of a civil dispute by a civil Court. 5. In the facts and circumstances of the case and taking into consideration the nature of allegation, made by the complainant/opposite party No. 2, this Court is not inclined to interfere with the impugned order dated 26th April, 2003, passed by the learned Judicial Magistrate, 1st Class, Ranchi, in Complaint Case No. 54 of 2002. There being no merit, this revision application is hereby dismissed.

Author: S Mukhopadhaya

Smt. Saroj Jaiswal And Anr. vs The State Of Bihar And Anr. on 23 December, 2004

Jharkhand High Court

Gujarat High Court Case Information System Print CRA/368/2004 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 368 of 2004 ========================================================= RAVJIBHAI NARANBHAI DHOBI - Applicant(s) Versus JAGDISHBHAI SHAMJIBHAI - Opponent(s) ========================================================= Appearance : MR SURESH M SHAH for Applicant(s) : 1, MR PV HATHI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 17/06/2011 ORAL ORDER Mr. Shah, learned advocate appearing for the appellant, under instructions received by him that the parties have settled the dispute, does not press this application. Revision Application stands disposed of as having not pressed. Rule is discharged. Interim relief, if any, stands vacated. (K.S. JHAVERI, J.) Divya//     Top

Author: Ks Jhaveri,

Ravjibhai vs Unknown on 17 June, 2011

Gujarat High Court

Court No. - 3 Case :- WRIT - C No. - 15502 of 2001 Petitioner :- Qureshi Welfare Society Respondent :- State Of U.P. & Others Petitioner Counsel :- P.K.Kashyap Respondent Counsel :- C.S.C.,K.S. Chaudhary Hon'ble Amitava Lala,J. Hon'ble S.N.H. Zaidi,J. None appeared to press the petition in spite of repeated calls. It seems that the writ petition has become infructuous by the passage of time as such the petitioner has lost interest. Therefore, the writ petition is dismissed as infructuous without imposing any cost. Interim order, if any, stands vacated. Order Date :- 1.2.2010 MAA/-

Qureshi Welfare Society vs State Of U.P. & Others on 1 February, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.4.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.11517 of 2005 and Writ Petition No.36716 of 2006 W.P.No.11517 of 2005: S. FRANCIS [ PETITIONER ] Vs 1 THE JOINT DIRECTOR OF SCHOOL EDUCATION, DPI COMPOUND, COLLEGE ROAD NUNGAMBAKKAM CHENNAI. 2 THE CHIEF EDUCATIONAL OFFICER PANAGAL MAALIGAI, ANNA SALAI, SAIDAPET CHENNAI-15. 3 THE PROVINCIAL DONBOSCO INSTITUTE CITADEL NO.18 LANDANS ROAD KILPAUK CHENNAI-10. 4 ST. GABRIEL'S HIGHER SECONDARY SCHOOL REPRESENTED BY ITS CORRESPONDENT 5 FATHER DOMINIC SAVIO PG ASSISTANT (HISTORY) ST. GABRIEL'S HIGH SECONDARY SCHOOL NO.28 PRAKASAM SALAI CHENNAI-108. 6 FATHER SAGAYARAJ PG ASSISTANT (HISTORY) ST. GABRIEL'S HIGH SECONDARY SCHOOL NO.28 PRAKASAM SALAI CHENNAI-108. [ RESPONDENTS ] 1 K.S. AROKIASAMY [ PETITIONER ] Vs 1 THE JOINT DIRECTOR OF SCHOOL EDUCATION (SECONDARY) CHENNAI-6. 2 THE CORRESPONDENT DON BOSCO HIGHER SECONDARY SCHOOL PEERAMBUR, CHENNAI-11. 3 R. SELVAPARI [ RESPONDENTS ] For petitioners : Mr.C.Selvaraju in both W.Ps. Senior Advocate for Mr.S.Mani W.P.No.11517 of 2005: For respondents : Mr.S.Naganathan Government Advocate (Edn) for R1 and R2 Mr.M.Joseph Thatheus Jerome for R3 to R5 Mr.M.Ahmed Zubar for R6 W.P.No.36716 of 2005: For respondents : Mr.S.Naganathan Government Advocate (Edn) for R1 Mr.S.Mahimairaj for R2 Ms.S.Thenmozhi for R3 C O M M O N O R D E R 1. ETHIRAJ Vs. STATE OF TAMIL NADU (1990) 1 M.L.J.284 2. LONDON MISSION PUTHALAM CHURCH H.S. SCHOOL Vs. STATE OF T.N. (1998 WRIT L.R.519) 3. N.AMMAD Vs. MANAGER, EMJAY HIGH SCHOOL (1998) 6 SCC 674 4. SECY., MALANKARA SYRIAN CATHOLIC COLLEGE Vs. T.JOSE (2007) 1 SCC 386 5. EKA RATCHAGAR SABAI HIGHER SEC. SCHOOL Vs. K.SUMATHI (2008) 1 MLJ 322 27.4.2011 Index : Yes/No Internet : Yes/No lan To: 1 THE JOINT DIRECTOR OF SCHOOL EDUCATION, DPI COMPOUND, COLLEGE ROAD NUNGAMBAKKAM CHENNAI. 2 THE CHIEF EDUCATIONAL OFFICER PANAGAL MAALIGAI, ANNA SALAI, SAIDAPET CHENNAI-15. 3 THE PROVINCIAL DONOSCO INSTITUTE CITADEL NO.18 LANDANS ROAD KILPAUK CHENNAI-10. 4 THE JOINT DIRECTOR OF SCHOOL EDUCATION (SECONDARY) CHENNAI-6. M.JAICHANDREN J., lan Writ Petition No.11517 of 2005 and Writ Petition No.36716 of 2006 27.4.2011 NO.28, PRAKASAM SALAI CHENNAI-108. This writ petition has been filed praying for a writ of declaration declaring that the appointment of the 5th respondent in the vacant post of regular PG Assistant (History) in the 4th respondent school is ultra vires of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 and consequently direct the 3rd and 4th respondents to appoint the petitioner in the post of regular PG Assistant (History) in the 4th respondent school from the date on which the regular vacancy of PG Assistant (History) arose in the 4th respondent school and pay to the petitioner all other consequent benefits including arrears of salary from the said date. W.P.No.36716 of 2006: Since, the issues involved in both the writ petitions are similar in nature, these writ petitions are taken up together and a common order is being passed. 2. Heard the learned counsels appearing on behalf of the parties concerned. 3. In respect of the writ petition, in W.P.No.11517 of 2005, it has been stated that the petitioner has been working as a B.T. Assistant in the fourth respondent school. The third respondent is an Educational Agency, under whose control the fourth respondent school is functioning. Since, the petitioner was qualified to teach higher secondary classes, from the year, 1988, he had submitted an application for being appointed as a P.G. Assistant, on 26.3.1990, to the Headmaster of the fourth respondent school. However, the fifth respondent had been appointed, as P.G. Assistant (History), overlooking the claims of the petitioner and contrary to the procedures established by law. In such circumstances, the petitioner had preferred the present writ petition, under Article 226 of the Constitution of India. 4. The learned senior counsel appearing on behalf of the petitioner had submitted that the action of the fourth respondent in appointing the fifth respondent, as a P.G. Assistant (History), is arbitrary and illegal. He had further submitted that in the decision of the Supreme Court, in T.M.A. PAI FOUNDATION Vs. STATE OF KARNATAKA (2002) (5) CTC 201( SC) wherein, it has been held that the state Government can prescribe the qualifications, the procedures for recruitment and for promotion of the teachers, even in respect of the minority run educational institutions, if they are receiving aid from the State. Since, the fourth respondent school is receiving 100% aid from the State, it is bound by Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The petitioner, who is having all the requisite qualifications, ought to have been appointed, as the P.G. Assistant (History), in the vacancy that had arisen due to the retirement of one V.A. John, in the year, 1992. 5. The learned senior counsel appearing for the petitioner had also submitted that this Court had also held, in CHELLADURAI Vs. JOHN DIRECTOR OF SCHOOL EDUCATION AND OTHERS (2003 WLR 304), that a minority institution is bound by Rule 15 (4) (ii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, and therefore, the fourth respondent school ought to have filled up the vacancy only by way of promotion, if there is a qualified teacher available in the said School. Appointment of an outside candidate can be made only when no qualified and suitable person is available in the said institution. 6. He had also pointed out that Rule 15(3) of the said Rules mandates that, in a regular vacancy, a fully qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy, any person could be appointed, for a specific period. 7. The learned senior counsel had also submitted that the fourth respondent school had obtained the permission of the concerned authority for appointing the fifth respondent in the vacant post of P.G. Assistant (History), by misleading the authorities concerned. 8. In the counter affidavits filed on behalf of the respondents 3, 4 and 6, the averments made on behalf of the petitioner had been denied. 9. It has been stated that the educational agency of the fourth respondent school has been declared to be a Roman Catholic Religious Minority Institution, protected and preserved by the provisions of Article 30 and the other relevant provisions of the Constitution of India. 10. It had also been stated that the petitioner had challenged the appointment of the fifth respondent, as a P.G. Assistant (History) in the fourth respondent School, without any basis. It had also been stated that the appointment of the fifth respondent, as a P.G. Assistant, had been approved and his salary had been paid from the month of August, 2004. The petitioner has filed the present writ petition, belatedly, and after having accepted his promotion, on 6.9.2003, as a B.T. Assistant. 11. It had also been stated that the claim made by the petitioner is contrary to a number of decisions of the Courts of law, including the recent decision of the Division Bench of this Court, made in THE FORUM OF MINORITY INSTITUTIONS AND ASSOCIATIONS Vs. THE STATE OF TAMIL NADU (2011 (1) CTC 162), wherein, it has been held that the right of minority institutions, under Article 30 of the Constitution of India is an absolute right, being a part of the basic structure of the Constitution and therefore, any regulation interfering with the right of the administration would not be applicable to the Minority Institutions, being violative of Article 30(1) of the Constitution of India. 12. In respect of the writ petition, in W.P.No.36176 of 2006, it has been stated that the petitioner had joined in service, as a Secondary Grade Assistant, in Don Bosco Higher Secondary School, Gandhi Nagar, Vellore, on 1.6.1977. While he was working in the said school, he has been transferred and posted in the second respondent school, on 6.2.1985. He was promoted as a B.T. Assistant, on 20.6.1988. 13. The petitioner has further stated that he had obtained the necessary educational qualifications to be promoted as P.G. Assistant (History). While so, a post of P.G. Assistant (Economics) had fallen vacant, due to the retirement of one Ambrose, on 1.6.2006. Even though the petitioner had been called to attend the interview, on 5.10.2005, based on his application made on 21.9.2005, he had not been considered for being appointed in the said post. Instead of selecting the petitioner, the third respondent had been selected and appointed as a P.G. Assistant (Economics), on 1.6.2006, even though the petitioner is more qualified. Further, as per the prevailing service Rules, the said post ought to have been filled up only by way of promotion, from amongst in-service candidates. In such circumstances, the petitioner had preferred the present writ petition, under Article 226 of the Constitution of India. 14. As regards the writ petition, in W.P.No.36716 of 2006, the learned senior counsel appearing on behalf of the petitioner had submitted that the third respondent had not been working in any one of the sanctioned posts in the second respondent school, which is an aided school. As per the service Rules applicable to such appointment, the petitioner ought to have been considered for being appointed in the post of P.G. Assistant (Economics), as he had already been working in the second respondent school, with all the necessary qualifications. Instead of promoting the petitioner, the second respondent school had appointed the third respondent, contrary to the relevant provisions of law, including Rule 15 (4)(ii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. 15. The learned counsel appearing on behalf of the second respondent had relied on the following decisions in support of his contentions: 16. In view of the averments made in the affidavits filed in support of the writ petitions and in the counter affidavits filed on behalf of the respondents and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on considering the decisions cited supra, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to grant the reliefs, as prayed for by them, in the present writ petitions. 17. The petitioners have not been in a position to show that they should have been promoted as P.G. Assistants, in the respondents schools, in the place of the fifth respondent in W.P.No.11517 of 2005 and the third respondent, in W.P.No.36716 of 2006, in accordance with the merits of the matters. 18. Further, the petitioners have not been pursuing the remedies available to them, promptly. The petitioners have not been in a position to substantiate their claims that the respondent schools ought to have followed the procedures established under Rule 15 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974, and that the appointments of the fifth respondent, in W.P.No.11517 of 2005 and the third respondent, in W.P.No.36716 of 2006, are contrary to such provisions. Hence, these writ petitions stand dismissed. No costs. Connected M.P.No.1 of 2006 is closed.

S. Francis vs 4 St. Gabriel'S Higher Secondary on 27 April, 2011

Madras High Court

ORDER P.G. Chacko, Member (J) 1. Ld. Commissioner of Customs, in the impugned order, imposed a penalty of Rs. 5 lakhs on the appellants under Section 112(a) of the Customs Act. This penalty is based on the following finding :- I observe that Shri T.P. Rajmohan has successfully evaded contact with and apprehension by the Customs officers and has not responded to the Summons issued by the Customs. His conduct since the detection of the case not only confirms his wilful acts of masterminding the fabrication of the documents and abetting the mis-declarations which rendered the impugned goods liable to confiscation but also projects that he is a seasoned operator in illegal smuggling activities. He is thus liable for penalty under Section 112(a) of the Customs Act, 1962 for fraudulently aiding and abetting the illegal import of the goods which rendered the goods liable for confiscation under Section 111(m) of the Customs Act, 1962. He deserves to be substantially penalised. The charge leveled against the appellant in the show-cause notice was that he had aided and abetted the acts of fabrication of documents and misdeclaration of Shri K. Jayaram. The SCN had proposed a penalty on Shri K. Jayaram also under Section 112(a) ibid. This proposal, however, was dropped by the Commissioner. Nevertheless, Id. Commissioner proceeded to impose penalty on the appellant under Section 112(a). 2. After examining the records and hearing both sides, I find that M/s. Maluram Enterprises Pvt. Ltd. (MEPL, for short) had imported a consignment of 'hair care and dental care products' from Korea and filed Bill of Entry dated 25-9-2003 for clearing the goods. Shri K. Jayaram was the Managing Director, of the above company. The invoice filed with the Bill of Entry had shown the value of the goods as US $ 67,627.60. In keeping with this value, M/s. MEPL had declared M.R.P of the various items of the consignment, in the Bill of Entry. Later on, from a letter received by the Customs authorities from HSBC bank, Chennai (bankers of the importer), it appeared to the department that the correct invoice price of the goods was US $ 1,70,047 and not US $ 67,627.60. The department received a copy of the supplier's invoice mentioning this amount of US$ 1,70,047, also from the bank. Statements of Shri K. Jayaram and the CHA were recorded by the officers of Customs. On the basis of the results of the investigations, the department issued the aforesaid show-cause notice, wherein Shri K. Jayaram was alleged to have fabricated the invoice showing US$ 67,627.60 as the value of the imported goods and misdeclared the value in the Bill of Entry. In the SCN, the appellant was alleged to have abetted Shri K. Jayaram's offence. In the impugned order, Id. Commissioner dropped the charge against Shri K. Jayaram but sustained the charge against the appellant. Ld. counsel for the appellant has prayed for vacating the penalty imposed on the appellant, by submitting that, where the charge against the main offender was dropped, there was no question of sustaining the charge of abetment of that offence. Ld. SDR has reiterated the findings recorded in the impugned order. 3. After giving careful consideration to the submissions, I have to accept the counsel's plea. The adjudicating authority cannot impose a penalty on any person on a ground different from the one raised against that person in the SCN. In the present case, the Commissioner imposed penalty on the appellant after upholding the allegation (raised in the SCN) that the appellant had abetted Shri K. Jayaram's act of fabrication of documents and of misdeclaring the value of the goods in Bill of Entry. He, however, exonerated Shri K. Jayaram from penal liability under Section 112(a). It is, thus, obvious that Id. Commissioner went into a misconception. Paragraphs 17 & 18 of his order would expose his error of judgment, which are reproduced here under :- 17, It appeared from the statement of Shri K, Jayaram, Managing Director of the importing company given before the Customs Officer that he had instructed Shri T.P. Rajmohan to change M.R.P of the items and that the invoice and other documents were fabricated and Bill of Entry No. 535834 dated 25-9-2003 was filed using these documents. Shri K. Jayaram, who has attempted to clear the above said consignment by under valuing the goods with the help of fabricated invoice and reduced M.R.P., thus rendering the goods liable to confiscation as aforesaid appeared to be liable for penalty under Section 112(a) of Customs Act, 1962. 18. Shri T.P. Rajmohan.. who has aided and abetted in the aforesaid acts of fabrication of documents and mis-declaration of Shri K, Jayaram appeared to be liable for penalty under Section 112(a) of Customs Act, 1962. 4. It is clear from the above part of the impugned order that, when the appellant was considered to be abettor, Shri K. Jayaram was the main offender in the Commissioner's mind. The offence, if any, of Shri K. Jayaram was overlooked and he was exonerated from penal liability. In the circumstances, there was no question of the appellant being held to have abetted the main offence. In other words, any penalty under Section 112(a) on the ground of abetment was not warranted against the appellant. The impugned order is set aside insofar as it relates to penalty on the appellant, and the appeal is allowed with consequential relief. (Dictated and pronounced in open court)

T.P. Rajmohan vs Commissioner Of Customs on 15 July, 2005

Customs, Excise and Gold Tribunal - Tamil Nadu

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Dinesh Singh vs State Of U.P. on 20 August, 2010

Allahabad High Court

Complainant : Mr. Pradeep Verma 110-B, Tagore Town CENTRAL INFORMATION COMMISSION Room no.415, 4th Floor, Block IV, Old JNU Campus, New Delhi 110066. Tel: + 91 11 26161796 Decision No. CIC /OK/C/2008/00662/SG/0513 Complaint No. CIC/OK/C/2008/00662/SG COMPLAINT REMANDED TO : The First Appellate Authority The Registrar Allahabad University Allahabad U.P. (Adjacent to Colonelganj Inter College) Allahabad, U.P.-211002 Public Information Officer : Public Information Officer, Allahabad University Allahabad U.P. Decision: The complainant had filed an application with the PIO on 08/09/2007 asking for certain information. He received a reply from the PIO, which he found unsatisfactory. The complainant has therefore filed a complaint with the Commission under Section 18 of the RTI Act. The complainant has not used the alternate and efficacious remedy of the First Appeal available under Section 19 (1) of the RTI Act. Consequently, the First Appellate Authority has not had the chance to review the PIO's decision as envisaged under the RTI Act. Therefore the matter is remanded to the First Appellate Authority with a direction to decide the matter in accordance with the provisions of the RTI Act, 2005, after giving both sides an opportunity of a hearing. The Complaint is disposed. Notice of this decision be given free of cost to the parties. Shailesh Gandhi Information Commissioner December 12, 2008

Mr. Pradeep Verma vs Allahabad University on 12 December, 2008

Central Information Commission

Sr. ACR for the year Assessment Remarks No. 1. 1998-81 Very Good - 2. 1981-82 Very Good - 3. 1982-83 Very Good - 4. 1983-84 Good - 5. 1984-85 Below 1. Integrity doubtful Average 2. Placed under suspension on 30.11.84. Reinstated on 31.12.84. The suspension period not treated as duty period. 3. Awarded punishment of stoppage of one increment without cumulative effect. 6. 1985-86 Average 1. Integrity doubtful 2. Placed under suspension on 30.8.85. Reinstated on 24.9.85. Suspension period not treated as duty period. 7. 1986-87 Good - 8. 1987-88 Average 1. Adverse remarks conveyed on 5.9.89 and representation rejected. 9. 1988-89 Average ACR conveyed on 26.4.91. 10. 1989-90 - ACR treated as cancelled did not work for three months under any authority. 11. 1990-91 Average ACR conveyed on 11.3.92. 12. 1991-92 Not recorded due 13. 1992-93 to having remained under suspension from 13.6.91 to 28.4.93. 14. 1993-94 Good Recorded warning Awarded on 27.5.93 15. 1994-95 Not recorded due to having remained under suspension from 10.6.94 to 27.6.95. 16. 1995-96 Good - 17. 1996-97 Very Good - 18. 1997-98 Outstanding - 19. 1998-99 Good - 20. 1.4.99 to Outstanding - 14.12.99 15.12.99 to - No initiating/reviewing/ 31.3.99. accepting authority has seen his work for at least 3 months during this period. 21. 2000-2001 - Various acts of omission and commission as pointed out in the ACR but final assessment will be given on receipt of vigilance report." JUDGMENT S.S. Nijjar, J. 1. With the consent of counsel for the parties, the matter is taken up for final disposal at the motion stage. 2. At the outset, it deserves to be noticed in fairness to Mr. Girish Agnihotri that on the last date we had directed the counsel for the respondents to seek instructions as to whether the respondents are prepared to withdraw the order of premature retirement passed against the petitioner. We had adopted this course as it had been submitted by the learned counsel for the petitioner that a Vigilance enquiry had been ordered against the petitioner on the same allegations which pertain to the writing of the ACRs for the years 2000-2001 and 2001-2002. It was stated that the petitioner had been completely exonerated in the vigilance enquiry. Today Mr. Agnihotri has submitted that the petitioner has been exonerated as claimed. He has also submitted that the respondents are prepared to re-consider the case of the petitioner with regard to premature retirement. They would, however,not withdraw the order of premature retirement. In view of the stand taken by the respondents, we have examined the writ petition on merits. 3. The petitioner has invoked the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, with a prayer for issuance of a writ in the nature of certiorari quashing the order dated 10.1.2003 (Annexure P10) passed by respondent No. 3- the Executive Committee, Haryana Warehousing Corporation, Panchkula (hereinafter referred to as "the Corporation). By this order, it has been observed that keeping in view the record of the petitioner, it has been found that it is not a fit case for completion of probation period. The Executive Committee has also ordered the premature retirement of the petitioner in public interest on his attaining the age of 55 years, in terms of the provisions contained in the note below Rule 5.32(A)(c) of the Punjab Civil Services Rules Volume-II read with Rule 3.26(d) of the Punjab Civil Services Rules, Volume-I Part-I as applicable to the employees of the Haryana Warehousing Corporation. The petitioner has been ordered to be retired from service with effect from the date of the communication of the order, on payment of three months salary and allowances in lieu of notice as required by Rule 5.32(A)(c) of the Punjab Civil Services Rules Volume-II.Demand Draft No. 020658 dated 10.1.2003 amounting to Rs. 54492/- (Fifty four thousand four hundred and ninety two rupees only), drawn in favour of the petitioner on the Union Bank of India, Manimajra, towards payment of three months salary was enclosed, with the aforesaid order. 4. We may first notice the relevant facts as culled out from the pleadings of the parties. 5. The petitioner was appointed as Sub Divisional Engineer in the Corporation on 8.2.1980. By letter dated 28.1.1987, the petitioner was conveyed adverse remarks for the year 1984-85. The petitioner submitted a representation against the same on 27.4.1987 (Annexure P1). According to the respondents, the same was not entertained by the Corporation as time barred. By letter dated 19.2.1988, the petitioner was again conveyed remarks for the year 1985-86. Against the adverse remarks, the petitioner submitted representation dated 19.8.1988. According to the respondents, the representation was considered and rejected. The decision was conveyed to the petitioner by letter dated 4.5.1989. While perusing the file pertaining to his service, the petitioner came across two adverse remarks entered in the ACRs of the petitioner for the years 1988-89 and 1990-91. According to the petitioner, these remarks were never conveyed to him. However, on coming to know of the remarks, the petitioner made a representation with regard to the remarks contained in the ACRs for the year 1990-91. The Corporation, however, denies the claim of the petitioner. In the written statement, it is clearly averred that the ACRs for the years 1988-89 and 1990-91 were communicated to him by D.O. dated 26.4.1991 and 11.3.1992 respectively. The petitioner made no representation against the adverse remarks for the year 1988-89. He represented against the remarks for the year 1990-91 on 15.6.2000, which was filed again being badly time barred. In the meantime, the petitioner was promoted on the post of Executive Engineer by order dated 22.10.1999. Although the petitioner was not put on probation in the aforesaid order, but a maximum period of probation of three years is provided under Rule 10 of the Haryana Warehousing Corporation (Officer and Staff) Regulations, 1994 (hereinafter referred to as "the Staff Regulations"), the promotion case of the petitioner was considered by the Executive Committee of the Corporation in its meeting held on 23.4.2001, at Agenda Item No. 3. After considering the adverse remarks of the petitioner pertaining to the years 1984-85 and 1985-86, the Executive Committee approved the promotion of the petitioner. The petitioner claims that the aforesaid adverse remarks with regard to the years 1984-85 and 1985-86 cannot be taken into consideration by the Corporation for denying the benefit of confirmation. This claim of the petitioner is refuted by the respondents. The Corporation had the power not to confirm the petitioner. The respondents further claim that the criteria to adjudge one's suitability and continuity on the promoted post beyond the expiry of probation period is the ACR of the employees concerned which he had earned during the period of probation. For the period 1.4.1999 to 14.12.1999 the petitioner was graded as "outstanding". The reporting officer had seen the work of the petitioner as Sub Divisional Engineer from 1.4.1999 to 24.10.1999 and Executive Engineer from 25.10.1999 to 14.12.1999. Therefore, the report of the petitioner as Executive Engineer cannot be considered being less than three months. His work as Executive Engineer was thereafter seen by another Reporting Officer from 15.12.1999 to 7.1.2000 and thereafter by another Reporting Officer from 13.1.2000 to 31.3.2000. His reports for the years 2000-2001 and 2001-2002 could not be finalised due to pendency of vigilance enquiry against him, The petitioner completed the age of 55 years on 29.6.2002. The petitioner came to know that on the review of the service record of the petitioner at the age of 55 years, he is likely to be prematurely retired. He, therefore, served a legal notice (Annexure P6) on 22.9.2002. The Corporation received the notice, but it is said to have been rejected by the competent authority. The petitioner then claims that the case of the petitioner was reviewed by the Executive Committee on 24.9.2002 and the decision was deferred. The petitioner claims that the respondents have misconstrued the instructions dated 6.12.2001 and treated the ACRs for the years 2000-2001 and 2001-2002 as adverse. On this basis, the respondents have wrongly calculated the ACRs of the petitioner for the last 10 years as 60% instead of 70%. Missing ACRs are to be treated as blank. If the ACRs of the previous two years were to be taken into consideration, the petitioner is entitled to be retained in service after the age of 55 years. The case of the petitioner was re-considered by the Executive Committee of the Corporation on 8.1.2003 and the impugned order (Annexure P10) was passed. 6. The Corporation claims the right to consider the entire record of the petitioner for taking a decision as to whether the petitioner can be permitted to continue in service upto the age of 58 years. The assessment of the record of an employee at the stage of promotion is said to be substantially different from the assessment made for his retention in service after attaining a particular age. In the former case, record of a limited period is considered, but in the latter case overall record of service is required to be taken into account with general emphasis on record of previous ten years. Different factors are taken into consideration by the competent authority while granting officiating promotion and while deciding the issue relating to premature retirement. According to government instructions when integrity of an officer/official is found doubtful during his entire service period, then ACR of doubtful integrity for his entire service should be considered at the time of considering the case for extension in service beyond 50/55 years. For this reason, the Executive Committee only approved the promotion of the petitioner as Executive Engineer on 23.4.2001, but did not confirm him on the post. In order to review the case of the petitioner for retention in service of the Corporation beyond the age of 55 years i.e. on 29.6.2000, his last 10 years ACRs were required to be reviewed. Only final assessment of the work of the petitioner for the years 2000-2001 and 2001-2002 could not be given due to the pendency of the vigilance enquiry. The other remarks with regard to these years speak volumes against the petitioner. It is the case of the respondents that the sole criteria to adjudge the suitability of the employee concerned for retention in service beyond the age of 55 years is 70% good reports during the last 10 years. There should also be no adverse remarks against the honesty and integrity during the period of the reports in question. In the case of non-availability of ACR for any particular year, the ACRs for the previous years are to be included for completing the period of 10 years. The relevant ACRs of the petitioner would be from 1992-93 to 2001-2002. However, the petitioner's ACR for the year 1989-90 was treated as cancelled. ACRs for the years 1991-92, 1992-93 and 1994-95 were not recorded as the petitioner remained under suspension from 13.6.1991 to 28.4.1993 and 10.6.1994 to 27.6.1995. Therefore, counting the ACRs for the year 1988-89 onwards, the petitioner had earned two "Average", six "Good/Above Good" reports. Remaining two reports, though written with various adverse remarks have not been formally conveyed to the petitioner for want of report of Vigilance Department. Thus, the petitioner earned only 60% "Good" reports. 7. Relying on the aforesaid factual as well as legal pleadings, learned counsel for the parties have made their submissions which we have duly considered. 8. Learned Sr. Counsel appearing on behalf of the petitioner submits that even if one has to accept the ACRs of the petitioner as depicted by the respondents, on a correct interpretation of the instructions dated 19.11.1991 (Annexure P-11), the petitioner would have 70% "Good" or "Above Good" reports during the last ten years. The impugned order would, therefore, have to be quashed on this ground alone. Referring to Chart (Annexure P11A), learned Sr. Counsel submits that ACRs for the years 1991-92, 1992-93 and 1994-95, not being available, ACRs of the corresponding previous years should have been included for appraisal. Even the ACRs for the years 2000-2001 and 2001- 2002 were never finalised. Therefore, the reports cannot be said to be adverse. According to the learned Sr. Counsel, the respondents could not have taken into account the entry of "Integrity Doubtful" with regard to the year 1984-85. The petitioner was permitted to continue in service at the age of 50 years when his record was reviewed. Thereafter, the petitioner was promoted to the post of Executive Engineer on 25.10.1999. The promotion of the petitioner was approved by the Executive Committee on 23.4.2001. Any adverse report prior to 23.4.2001, therefore, cannot be taken into account either for confirming the petitioner on the post of Executive Engineer or for not granting extension to the petitioner to continue in service till the age of superannuation. In support of these submissions, the learned Sr. Counsel has relied on a number of judgments of this Court and the Supreme Court which are as under:- 1. Harbhagwan, Assistant of Deputy Commissioner's Office v. State of Haryana, 1997(3) S.L.R. (Pb.&Hry.) 410; 2. Narasingh Patnaik v. State of Orissa, A.I.R. 1996 Supreme Court page 3223 (paras 5 & 6); 3. Sh. Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., 1992(2) S.L.R. (S.C.) page 2 (Para 32); 4. State of Gujarat v. Umedbhai M. Patel, (2001)3 Supreme Court Cases 314 (Para 11); 5. Badrinath v. Government of Tamil Nadu,5 (2000)8 Supreme Court Cases 395 Paras 47 & 58): 6. Daya Nandv. State of Haryana, 1995(2) Recent Services Judgments (F.B.) 55 (Paras 21 & 24); 7. Jugai Chandra Saikia v. State of Assam and Anr., 2003(2) S.C.T. 351 (Para 6) and; 8. Dr. Dharamvir Sharma v. State of Haryana, 2003(2) S.C.T. (P&H) 114 (Para 7); 9. Learned Senior counsel appearing for the petitioner has submitted that the petitioner having been promoted as Executive Engineer on 22.10.1999 stood automatically confirmed on 21.10.2002. The order dated 8.1.2003 is, therefore, liable to be quashed on the short ground that the respondents had no jurisdiction to pass the same. In support of this submissions, learned Senior Counsel has relied on the judgment of the Supreme Court in the case of Dharam Singh v. State of Punjab, A.I.R. 1968 S.C. 1210. 10. On the other hand, Mr. Agnihotri, learned counsel appearing for the respondents has submitted that the respondents have rightly considered the entire service record of the petitioner while taking the decision to prematurely retire the petitioner. The petitioner had earned the remarks of "Integrity Doubtful" for the years 1984-85 and 1985- 86. These entries are relevant for assessing the performance of the petitioner. The promotion of the petitioner to the post of Executive Engineer is of no consequence as the respondents has found him "Not Fit" for promotion. According to the learned counsel, there can be no automatic confirmation. Even though the petitioner had completed the maximum period of probation no conscious decision had been taken by the respondents to permit the petitioner to continue on the promoted post of Executive Engineer. Mr. Agnihotri has further submitted that the case of the petitioner was considered on the basis of the instructions issued by the State of Haryana on 6.12.2001. In support of his submissions, learned counsel has relied on the judgment rendered by the Supreme Court in the case of State of U.P. and Ors. v. Vijay Kumar Jain, 2002(3) S.L.R. 363 and the judgment rendered by this Court in the case of State of Haryana and Ors. v. Thakar Das, 11 1998(1) R.S.J. 73. 11. It is not necessary for us to notice all the judgments which have been cited by the learned Senior Counsel appearing for the petitioner as the principles have now been laid down by the Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel, (2001)3 Supreme Court Cases 314 which are as under:- (i) Whenever the services of a public servant are no longer useful to the general administration, he can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood but the order of compulsory retirement can be passed after having due regard to the entire record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weight in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the Officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." In the case of Thakar Das (supra), it has been held as follows:- "These adverse reports could legitimately be taken into consideration for forming an opinion that the petitioner was not fit to be retained in service poor that his retention was not in public interest/interest of service. His officiating promotion on 11.2.1980 as Sub Inspector cannot have the effect of washing out the adverse reports because the assessment of the record of an employee at the stage of promotion is substantially different from the assessment made for his retention in service after attaining age of specified length of service. In the former case record of a limited period is considered but in the latter case over all record of service is required to be taken into account with greater emphasis on the record of previous 10 years. Moreover, factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement. In this case sufficient material was available with the competent authority to form an opinion that the retention of the respondent No. 1 in service was not in public interest and in view of the principles of law laid down in Sh. Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., 1992(2) S.L.R. 2, we do not find any legal justification to hold that the premature retirement of the petitioner is arbitrary or otherwise unjustified." 12. A perusal of the above shows that the observations of the Division Bench are based on the judgment of the Supreme Court rendered in the case Sh. Baikuntha Nath Das (supra). Undoubtedly, the case of the petitioner has to be considered, keeping in view the ratio of law laid down by this Court in the case of Thakar Das (supra). In the case of Baikuntha Nath Das (supra) the Supreme Court had laid down certain principles which are as under: - "(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This dose not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The government (or the review committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of performance during the letter years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it, uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." 13. The aforesaid observations in Baikuntha Nath Das case (supra) were considered and approved by the Supreme Court in the case of Vijay Kumar Jain (supra). Proposition (iv) reproduced above, clearly shows that if a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. 14. Since the petitioner has been exonerated by Vigilance Department, the ACRs for the years 2000-2001 and 2001-2002 would have to be recorded afresh. The entire basis of these ACRs were the allegations which were under investigation by the Vigilance Department. It is accepted by the counsel for the respondents that the petitioner has been exonerated in the investigation. Considering a similar set of facts, the Supreme Court in the case of Dr. Ramaswami v. State of Tamil Nadu, 1982(1) S.L.R. (S.C.) 690, observed in the words of O. Chinnappa Reddy, J., as unden- "O. Chinnappa Reddy, J.- An order of premature retirement following close upon the heels of promotion and appointment to a coveted selection post is bound to perplex any right thinking man and make him wonder whether the right hand knows what the left hand has done. If in the month of May, a Government servant is found to possess such high merit and ability, which naturally includes integrity, as to entitle him not merely to be promoted to a selection post but to be appointed to a very responsible and much desired post in that cadre, what could have happened between May and September, to merit his being weeded out altogether from service in September, under the rule which enables the Government to retire a Government servant in the public interest after he has attained the age of 50 years or after he has completed 25 years of qualifying service? One would expect that some grave and grim situation had developed in the interregnum to warrant the pursuit of such a drastic course. But, surprisingly, we found nothing whatsoever had happened in this case during the period. Let us look at the totality of the facts...". 4. So, what do we have? There was an adverse entry in the confidential file of the appellant in 1969. The basis of the entry was knocked out by the order dated 20th November, 1974 of the Government and the effect of the entry was blotted out by the promotion of the appellant as Deputy Commissioner.." 5. One curious feature of the case is that while the 1969 entry noted that an enquiry was pending the Vigilance and Anti-Corruption Department in regard to the allegations against the appellant, the ultimate result of the enquiry which was that the charges should be dropped was nowhere noted in the personal file of the appellant. One wonders whether the failure to note the result of the enquiry in the personal file led to the impugned order. 6. In the face of the promotion of the appellant just a few months earlier and nothing even mildy suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to this promotion. We do not say that the previous history of a government servant should be completely ignored, once he is promoted. Sometimes past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past." 15. We are of the opinion that the observations of the Supreme Court apply with full vigour to the case of the petitioner. 16. The adverse entries in the record of the petitioner pertain to the ACRS for the year 1984-85 and 1985-86. Since then the petitioner had been promoted to the post of Executive Engineer on 25.10.99. The promotion was approved by the Executive Committee on 23.04.201. After looking into the record, the petitioner was permitted to continue in service at the age of 50years. The petitioner completed the maximum period of probation on 21.10.2002. By a composite order dated 10.1.2002, it has been decided that "it is not a fit case for completion of probation period and is also not a fit case for retention in service beyond the age of 55 years." In our opinion the action taken by the respondents is rather incongruous. The respondents need to re-examine the whole issue keeping in view the principles laid down by the Supreme Court. 17. However, in our opinion, the ratio of law laid down in Dharam Singh's case, would not be applicable in the facts and circumstances of this case. As noticed earlier, the petitioner was promoted on 25.10.1999. The promotion was approved on 23.4.2001. The case of the petitioner was reviewed on 24.9.2002. The Executive Committee introduced a supplementary Agenda Item No. 1 as follows:- i) Completion or otherwise of the probation period of Shri B.R. Aggarwal, Executive Engineer. ii) Review for retention of Shri B.R. Aggarwal, Executive Engineer at the age of 55 years." 18. The Managing Director apprised the Committee about the pendency of the Vigilance Enquiry against the petitioner. It was stated that the petitioner had indulged in serious financial irregularities while getting released payment worth Rs. 3,55,53,733/- in violation of prescribed procedure. The Committee was also informed that no senior supervisor officer has observed the working of the petitioner from 25.10.1999 to 31.3.2000 for more than three months. It has been reported in the ACR for the year 2000-2001 and 2001-2002 that the Vigilance Department is conducting enquiry against the petitioner for indulging into serious financial irregularities. Therefore, his probation period cannot be completed in view of the pending Vigilance Enquiry. From the above, it becomes apparent that no final decision was taken with regard to the probation period of the petitioner, in view of the pending vigilance enquiry. Therefore, we are unable to hold that the respondents had been in any manner remiss in not considering the claim of the petitioner for confirmation within the maximum period stipulated under the rules. The decision with regard to the probation period should have been taken by the respondents on completion of the vigilance enquiry. As noticed at the outset, it was agreed between the counsel for the parties during arguments that the Vigilance enquiry has been concluded and the charges against the petitioner have been held to be not proved. The respondents, therefore, would have to take a fresh decision with regard to the probation period of the petitioner. The record produced before us makes it abundantly clear that the matter with regard to the grant of extension to the petitioner beyond 55 years was directly linked with the outcome of the vigilance enquiry. Two of the Annual Confidential Reports were to be finalised on the completion of the enquiry report. Therefore, in our opinion, the petitioner could not have been prematurely retired on the ground that seven out of ten entries were not "Good" as required under the instructions dated 6.12.2001. The summary of the ACRS of the petitioner has been given as follows:- 19. A perusal of the above shows that ACRs for the year 2000-2001 and 2001-2002 are to be finalised on the outcome of the vigilance report. The ACRS for the years 1991-92, 1992-93 and 1994-95 were not recorded as the petitioner remained under suspension. However, the petitioner has placed on record an order dated 22.9.1993 in which it has been ordered that the suspension period from 13.6.91 to 250.5.1993 should be treated as duty period for all intents and purposes. Similarly, by order dated 24.12.1996, it has been ordered that period of suspension of the petitioner from 10.6.94 to 3.7.1995 shall be treated as duty period for all intents and purposes. Having treated the period of suspension as duty period, it would be incumbent on the respondents to record afresh ACRS for the years 1991-92, 1992-93 and 1994-95. It is only after the ACRS are recorded that the case of the petitioner can be considered under the instructions dated 19.11.1991. Under these instructions, the procedure to be followed is as follows:- "It is with a view to assessing whether such expectations are being fulfilled or not that a procedure for reviewing the performance of Govt. servants, who have attained the age of 50/55 years or have rendered 30 years qualifying service, has been laid down for the retirement of these Govt servants who do not fulfill these expeditions, it is essential that employee must have earned at least 50%, 70% good or above reports during last 10 years, as the case may be and there is no entry regrading doubtful integrity during this period." 20. With the exoneration of the petitioner in the vigilance enquiry, it would be necessary for the respondents to re-consider the entire matter after finalising the ACRs as noticed above. 21. In view of the above, the writ petition is allowed and the impugned order dated 10.1.2002 (Annexure P10) is quashed. The petitioner is ordered to be reinstated on the post of Executive Engineer with all consequential benefits. The respondents are at liberty to re-consider the entire matter, after finalising the ACRs as noticed above. 22. Let the necessary exercise be concluded within a period of two months of the receipt of a certified copy of this order.

Author: S Nijjar

B.R. Aggarwal vs The Chairman, Haryana ... on 27 July, 2004

Punjab-Haryana High Court

JUDGMENT Sunil Ambwani, J. 1. Both these company petitions have been filed under Sections 433, 434, 439 of the Companies Act, 1956, with a prayer to wind up Khaitan Overseas and Finance Ltd. (hereinafter called as the company) under the directions of the court and to appoint any fit or proper person as liquidator of the company with authority to take charge over the assets of the company in accordance with law, with all powers under the Companies Act, 1956, and for other reliefs. 2. The company petitions were presented on 27.8.1999. On 23.9.1999, notice was directed to be issued to the company to show cause as to why the petition be not admitted and advertised, fixing the matter on 3.11.1999 by which date the company was required to give its reply. A supplementary affidavit of Sri Sushil Kumar Dhandhania, Chairman-cum-director, Dhandhania Brothers (P) Ltd., 4, Middleton Street, Calcutta, was filed, deposing that statutory notice under Section 434 of the Companies Act was sent by registered post to the company at its registered office. It was received by the company ; but no reply was received nor has the debt been paid by the company. In response to the notice, an application was filed on 10.4.2000 by Sri R.P. Agarwal, Advocate, on 11.9.2002, on behalf of Narendra Kumar Jha, Chief Manager (Legal) of the company (sic). The applicant company filed an amendment application dated 2.5.2001 to amend the company petition. These amendments were allowed on 30.7.2001. Preliminary objections were raised in the counter affidavit of Sri Narendra Kumar Jha to the effect that the company petition was not supported by a proper affidavit and has not been filed by a competent person. A third objection was taken to the effect that the loan in respect of which petition is filed is time barred. The first and second preliminary objections were directed and overruled by order dated 13.12.2001. In respect of the third objection, the order dated 13.12.2001 recorded a statement of Sri R.P. Agarwal that after the amendment of the company petition, and the documents filed along with amendment application when the company petition was filed, the loan cannot be said to be time barred, and as such, he does not press the objection in this regard. In the concluding portion of the order dated 13.12.2001, it was observed that the liability has not been denied, and that the objection that the debt is time barred has not been pressed. 3. After the disposal of preliminary objections, company petitions were admitted and were directed to be advertised in accordance with Rule 24 of the Companies (Court) Rules, 1959. The advertisement was carried out, both in Official Gazette of Uttar Pradesh, dated 12.10.2002, and in the newspapers, namely,--Times of India published in English from Lucknow, dated 2 January, 2002, and the daily newspaper Anj published from Allahabad of the same date. An affidavit of Sri Amar Bahadur Singh, Pairokar of Dhandhania Brothers Ltd., was filed, deposing that the advertisement as directed by this court has been carried out. Counter and supplementary rejoinder affidavits have been filed. No other person has filed any objection or reply. 4. The facts of the case are that in Company Petition No. 77 of 1999, the applicant company, advanced a loan of Rs. 25 lakhs to the company. The loan was taken on 28.10.1993 against pledge of shares. The debt was still due with interest and TDS and a total amount of Rs. 43,15,818 is due to be paid by the company to the applicant company. A notice of demand dated 10.3.1999 was sent to the registered office of the company at Somdutt Plaza (22 floor), the Mall Kanpur, but in spite of service of the statutory notice, the debt was not paid. The loan was given to Khaitan Hostombe Spinels Ltd., 234/3-A, AJC, Bose Road, Calcutta, which merged in Khaitan Overseas and Finance Ltd. In the order dated 27.5.1997 of this court in Company Petition No. 44 of 1996 connected with Company Application No. 1996, by which the companies merged, a statement was made by the company that the interest of creditors would remain in tact and was fully safeguarded by the assets of the transferee company. The loan was confirmed in writing on 7.2.1995 vide confirmation letter enclosed as Annexure SA-1 to the petition. Cheques dated 20.4.1996 and 30.4.1996 were issued towards the payment of interest and capital amount and the entries was recorded in 31.3.1997 annexed as Annexure SA 2 to the affidavit. On 2.10.1997 by Challan No. 2 drawn on Punjab National Bank, the company deposited Rs. 91,096 towards TDS in the Income-tax Department. The debt was acknowledged vide letter dated 14.5.1997, 28.9.1997, 13.12.1997 and 14.10.1998. 5. In the supplementary counter affidavit, it is stated in para 4 that the claim of the petitioner has become time barred when the petition was filed. Issuance of cheques dated 14.12.1994 and 15.3.1995 is admitted ; however, the letter dated 4.2.1994 is denied as false and fabricated. The company has also denied the letters dated 22.3.1995 and 18.4.1995 and the confirmation of balance of loan on 31.3.1997. It is stated on behalf of the company that the confirmation of balance has not been signed by any authorised person of company and that these documents were forged and manipulated with a view to get over the limitation. Sri Ajay Khaitan during his tenure as managing director, Sri S.N. Mukherjee, Executive Director (Finance), and Sri S.R. Ramesh, AVP (Finance) were authorised signatories. It is admitted by the respondents that the cheque dated 15.3.1995 for Rs. 1,44,375 was signed by Sri S.N. Mukherjee and S.R. Ramesh, cheque dated 15.3.1995 for Rs. 25 lakh was signed by Sri Ajay Khaitan and the TDS certificate dated 4.10.1997 was signed by Sri D.K. Gupta. No other documents have been signed by any other authorised signatories. Issuance of the cheques dated 30.4.1996, 31.3.1997, however, has not been admitted and has been alleged as forged and manipulated. In para 5.3 in reply to para 11(c) -- it is admitted that the respondent company has deposited TDS on 4.10.1997. It was deducted from the interest payments of the petitioner during the period 1.4.1995 to 31.3.1996 which was statutory liability under the Income-tax Act and not on behalf of the petitioner. The letters dated 14.5.1997 and 13.12.1997 with regard to the liability have been replied to as personal letters written by Sri Ajay Khaitan, and not on behalf of the respondent company. It is contended that these letters cannot be treated as acknowledgement letters by the respondents. Sri Ajay Khaitan ceased to be managing director with effect from 2.9.1997, and resigned on 31.7.1998, and thereafter, did not hold any position in the company. In the supplementary rejoinder affidavit, it has been reiterated that the documents are valid. The loan acknowledgment and the cheques were signed by the duly authorised signatory of the respondent company and the acknowledgement letter dated 13.12.1997 and 14.5.1997 were not personal letters. They were letters written by director of the company acknowledging the loan. 6. In Company Petition No. 78 of 1999, it is stated that a loan of Rs. .25 lakhs was advanced to Khaitan Hostombe Spinels Ltd. on 28.10.1993. The company has paid interest and TDS on 4.2.1994, and confirmed payment of Rs. 25 lakhs on 7.2.1995. The confirmation has been annexed as Annexure SA-1. The cheques dated 20.4.1996 and 30.4.1996 were issued towards the payment of interest due on principal amount and that is entered in the confirmation letter dated 31.3.1997. The document is annexed as Annexure SA-2 to the affidavit. On 2.10.1997, by Challan No. 2 drawn on Punjab National Bank, the company deposited Rs. 91,096 towards TDS in the Income-tax Department. The Challan Form. No. 16 dated 2.10.1997 has been filed on record. The debtor company acknowledged debts by letters dated 14.5.1997, 29.9.1997, 13.12.1997, and 14.10.1998. A notice of demand was sent by the applicant company by registered post which was received by the company, but the amount has not been paid. 7. In the counter affidavit of Sri N.K. Jha, it is stated that there is no legally enforceable debt due against petitioner and that the alleged debt is time barred. The notice was received at the registered office. In the supplementary counter affidavit filed to be amended writ petition, the receipt of loan of Rs. 25 lakhs on 28.10.1993 is admitted. The interest payment made on 7.2.1994 and 14.12.1994, issuance of cheque of Rs. 25 lakhs and Rs. 1,44,375 and dishonour of cheque has not been disputed. The letter, dated 18.4.1995, is also admitted. However, the letter, dated 22.3.1995, is incorrect as the signature of Sri S.R. Ramesh has been forged. The company has denied confirmation balance of loan dated 7.2.1995, 31.3.1996 and 31.3.1997. The rest of averments are the same as in the supplementary counter affidavit of Company Petition No. 77 of 1999. The TDS deposit on 4.10.1997 in Punjab National Bank has been admitted. It is, however, stated that it was deposited in the Punjab National Bank and not in Income-tax Department. The TDS was deducted from interest payments made to petitioner during the period 1.4.1995 to 31.3.1996, and was paid as statutory liability under the Income-tax Act. It is denied that the letter, dated 14.10.1998, has been sent on behalf of the company. 8. It is stated in para 4 of the company petition that as on 30.4.1996 as authorised capital of the company was Rs. 100 crores of which Rs. 1 crore is subscribed and paid up, by subscription of 10 lakh equity shares of 10 each fully paid up. The company is engaged in the production, sale and export of magnesia, dairy and merchant business. The company has not cared to file its audited balance sheets and has not given any reply with regard to its financial position. There is no averment either in the counter affidavit or in the supplementary counter affidavit with regard to just and equitable clause under Section 433 of the Companies Act. 9. Sri R.P. Agarwal, learned counsel appearing for the company, has raised preliminary objection with regard to the limitation and the fact that the loan is time barred, as a preliminary objection to the maintainability of the company petition. As stated above, Sri R.P. Agarwal made a statement on 21.10.2001, that after the amendment of the company petition, the documents filed along with the amendment application, the loan could not be said to be time barred, when the company petition was filed, and as such, he is not pressing the objection in this regard. The objection with regard to the fact that the debt is time barred, therefore, was clearly given up by the petitioner and this fact is so recorded in the order, dated 13.12.2001. The company has neither tried to dispute this statement, nor to clarify, nor explain the same. 10. Sri B.D. Madhyan, learned counsel for applicant company has relied upon the decision of Karnataka High Court, in State Bank of India v. Hegde and Golay Ltd. (1987) 62 Comp Cas 239 (Karn), and a decision of Delhi High Court in Rishi Pal Gupta v S.J. Knitting and Finishing Mills (P) Ltd. (1998) 4 Comp LJ 519 (Del). In both these decisions, it was held that if the debt is acknowledged in the balance sheet the company petition cannot be treated as time barred. In the present case, the company petition [was] filed on 27.8.1999. The confirmation of loan, dated 31.3.1997, has been filed on record and the company has admitted the deposit of TDS on 2.10.1997 by challan drawn in the Punjab National Bank. These challans in prescribed forms signed by authorised signatory of the company, are certificates of deduction of tax on interest at source under Section 306 of the Income-tax Act, 1966, for the period 1.4.1995 to 31.3.1996. The deposit of this interest is a proof of the fact that the loan is acknowledged in the records of the company and is admitted to the company. With the admission of these documents, which is within the period of three years of filing the company petition, the recovery of loan can be said to be barred by law of limitation. 11. The remedy of recovery of money through civil suit is distinct from winding up of company for non-payment of debt under Section 434 of the Companies Act. Winding up order is not only beneficial to applicant company, but to all shareholders. The purpose of filing suit for recovery and winding up petition are distinct, and thus even where a civil suit is filed, there is no bar for the creditors to file a petition for winding up of the defaulting company. 12. In Madhusudan Goverdhandas and Co. v. Madhu Woollen Industries (P) Ltd. (1972) 42 Comp Cas 125 (SC), the Supreme Court held that where the debt is undisputed, the court will not enter upon a defence that the company has the ability to pay the debt; but the company has chosen not to pay the debt on that particular dale. Where the amount of debt is either disputed or there is a bona fide defence, the court may refuse to wind up the company. The defence, therefore, should be in good faith and one of substance, and, secondly, such defence should succeed in law by prima facie facts on which such defence depends. 13. The court may refuse to wind up the company if it is just and equitable to do so. For this purposes, the company must disclose its financial position and take the said defence which may disentitle the petitioner company to seek relief to winding up the company. In the present case, no such plea has been taken nor any such defence has been set up. There are absolutely no pleadings and no arguments have been advanced in defence to winding up. The company admittedly, took loan and has not paid the amount. According to pleadings, which have been established on record, the company is liable to pay over Rs. 1 crore taking into account the principal debt and interest in both the petitions. 14. On the aforesaid reasons, I find that the company has admitted the debt and has failed to pay the same to petitioner. The debt was not barred by limitation, when the petitions were filed. No objection or defence has been set up as to why the company has preferred not to pay the debt. The company has also not raised any objection on which the court may find that it is not just and equitable to wind up company. 15. In the result, both company petitions are allowed. The company, namely, Khaitan Overseas and Finance Ltd., having its office at Somdutt Plaza, 11 floor, The Mall, Kanpur, is ordered to be wound up. The Official Liquidator is appointed as Liquidator of the company. He shall proceed to liquidate the company in accordance with law and submit periodical reports to court.

Author: S Ambwani

In Re: Khaitan Overseas And ... vs Unknown on 15 October, 2003

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1403 of 2008 DR. LALITA KUMARI MISHRA daughter of Hare Kant Mishra, resident of Opposite MRM College, Professor's Colony, Police Station Town Thana, District Darbhanga, presently posted as Lecturer in Chemistry in MLSM College, Darbhanga ............ Petitioner Versus 1. THE STATE OF BIHAR 2. Mr. Anjani Kumar Singh, IAS, presently posted as Secretary, Department of Higher Education, Govt. of Bihar, Patna 3. Lalit Narayan Mithila University, through its Registrar, Kameshwar Nagar, Darbhanga 4. Dr. Mishri Lal Thakur, presently holding the post of Vice Chancellor, Lalit Narayan Mithila University, Darbhanga 5. Dr. Naresh Kumar Jha, presently holding the post of Registrar, Lalit Narayan Mithila University, Darbhanga ......... Opposite Parties ----------- 05- 15/9/2010 Heard learned counsel for the parties. This MJC application under sections 11 and 12 of the Contempt of Court Act has been preferred for the alleged non-implementation of the order dated 6.8.2007 (Annexure 1), passed in CWJC No. 12287 of 2007. Learned counsel for the petitioner submits that the order in question has been complied with to her full satisfaction, and nothing survives for consideration. 2. This application is accordingly disposed of as not pressed. ( S K Katriar ) mrl

Dr. Lalita Kumari Mishra vs The State Of Bihar &Amp; Ors on 15 September, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30468 of 2010 1. MD.FARUQUE MIAN @ MD.FARUQUE ANSARI 2. Naim Ahmad Ansari @ Naim Ansari 3. Mumtaz Ansari @ Mumtaz Mian Versus THE STATE OF BIHAR ------ shail (Mandhata Singh, J.) 2/ 06.10.2010 Heard learned counsel for the petitioners and learned counsel for the State. Firing, if any, shot, none sustained injury. A case is lodged at petitioners' hand against informant's community and now, matter is resolved. Considering the facts and circumstances of the case, the prayer of the petitioners is allowed. In the event of arrest or surrender within one month from the date of receipt/production of a copy of this order in connection with Khudwan P.S. Case No. 23 of 2010 above named petitioners shall be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of S.D.J.M., Daudnagar, Aurangabad subject to the conditions as laid down under Section 438(2) of Cr. P.C.

Md.Faruque Mian @ Md.Faruque ... vs The State Of Bihar on 6 October, 2010

Patna High Court - Orders

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M/S M.S.Sarees And Its ... vs Union Of India And Others on 31 August, 2010

Allahabad High Court

'J IN THE HIGH COURT OF KARNATAKA AT BANGALORE 1 Eu: 1.I'n'Iu-an 'I?'-rnvnur «Hug... V 4: nu.» .|.1r,au-nun l\-HI_n|l'.£'-'l- V. » . Sufi:-11. 32 yam' % sro T 2. Enmflmjmxm. a%, ycaf I-- A Win % Bo&1ar§'R1a:_'Iid_¢'Iita:6.f No.«45,9, 12" ._ '\ir';n.a.i:%ofiC?norfi'Rea:;i_%& . 036 {:3 £4 E. 3' 3, F2- Ian'! I. Ii I .15». 5' 9% 3 I' V 3. D 5 1 tan in 3 '"fi_.1. __.. n-_:.:|:_..... .n.r.. mnn-am 1::-um. am: as in nu. u.u:.uu; 71"w cmn,1 Fla-or _.I Q hi 5"' Block. Raiajinaaar ...'!...._.. Biiffiaiolv-W Fun. 1J.IG1Vn.n3~--___ (B)? Shri. C. V. Naseuh, Advocate) AND: 1. B3 Hana LUIS No.1, Slui. and Shri. L. Sudhanhan, Advocamfpr Raqp§:md?axt"Nd.2) 4'1'1f'fifi"",1Gmup this day, the Court made the: following: . __ or- 7- 11:911.!-entaahvim Iv"roII-r-Iv w' Sqcge'm.ry,Lap_svDeparunezu I . ~_ ' Major.No.131%*;_ i' 5§{:um_ ckfififififiaEaf' Va' : " Bw1ga1ore«99§ 1; * A REBPONDENTS .._J-.. .E_.... -L-L-L.LuL V uuvww in filedunclar Arlicle: 226 and 227 of India p.raying to qualh' the noiificafim Z rl-aim! 3 'F"m_fl'}'ia111nrlkuH1nm¢nnndnnfnn1 i a A 'I$*U'I| E!!! I I3?! 'I31 I'4IUWXY'T' NF} XIV' CVIIIPHGITTIIIV JIIRFII LI?!' O 11 %V _ as. and unjust. AA Iii':-it 'Damian «amino mu Far D1-slim-innnr I-'I' -"O" . mm "W? H" m 1 .mm' mw R"f:""'t mn11~nA KIT? 5 Q "N0 in LIB QB.D.E.B The petition coming on fin' .. ,.____.h. group} iii? éispolai. "2. the fbrthe 7 Government Advocate. 3. The mt: alleged dtévaocusod ommm 493-A, 323, 506 read with 34 of me 3 mi 4 of um. um % man Act. 1951. The pouumm $52,? an mg vimj... at f' 11.a_ms.n'eI.!..I1.t by me L» and at the bdmt and instance of their aamanfi», m... mm are mm against am. That the " 'fiu"@'a-3 3a..u.I.-U1. :.vl_.u.'IiIIlIIuu.w -:III1:.nII nnuuu-aniud in 1-1:' naflaufluun' an Inn: Du-u 1:11 who was attnohodto um omoomud Court. In this of afifain, the second respondent was qnciallyappom" ' 'Wand as 3 Speciai 'F-ifiiic to omdiictfno case ('3? @ on behalf of the proaeeufleu. It tmmpixes that such appaintrmnt is made at the behest of the wife of 4Iu..|rIuivhH'|$" an a annual; in Ha; T an: ' u 1I\|l~l.|~l.hI.L J» 'WEI. ll «ILWHU I-K3 HIV :__ LVI-IuI"a"J». Gcwemtnent of Karnataka and suc7h~appomnu_ ' 1' mechaninallgr without assigning any F1 'backg1tr1n1ae"ee"m.aI'e e etpe "'n'dn{ii.med hefc':me'.mm~" -. 4. The Counsel for the in an in 2005 """ T' ' opined as follows: "A ' could be pggpamnd 1}vhe'z'¢ giublic iunrur dmmda. {pasta} circunmmcu agpommmz The mere fact in a _naa-Iicular can are a fmding criminal lawyer afam » be Q gm:-.:.n.d 1;: ebgzg .Sp«!t.'!i'!! Pg-blig ammo: in qnpaimbd' will a vicw to soar: aamrtc' tian ataii cam' . Tin mid' qfiic.-«I shaman!' ' ' not In pan-mirmi in Be ricgum-albtf bub a Iegaiimi mam fbr wrcaiamg vengvmce. " 5- IM. -II-I Ill-LE \"U:I.Iul E "' If» II-|¥IW-. Iltfllélllu , Public Pr-mentor. an the assigning valid magma, gag _>»Cofi':AA:I;1 would ruhmit that W cane, ainca nq of a smoial ranges: was rnndn mrv- _ 'VI -unnu---rw by the fif Counael would also place mfimgu in Mukul Dam and others vs. III? Iflllu cmofthiscom-t. A. %(3jn%%t;'m&$ othot hmd, mo Gwerrumm Advooata would them an valid and cagcnt ransom for t ofaspeoiai Pumicfroucmnor' mm' hunt reflacted in flu: notification. The allegation that this 5 cu' :II\ um': 1:14!' I!jdIlIr\adI§vI|I|naIII- V 'V c ' uywtrsnm. ' ~. been made mochmicdiiy at the imtanoe of the; wifia offhe fintputiiianuriainomrect t..r.=h ID ...i ..fe.fi.y ....t'r.:-.m..a...fl $9 fl QTTTIZI T5 _i_1_;|_l nnmnmnrl hand, it would be possible for the sauna * reasons for such appoimmem and-V :1---- as :% *"- * the """'wrB.I""i cm is m I.-'9 relied upon by the would submit that 111cm is as warm ._ * In any event, uov-unmm- *' "t it is aiwaya possible mmesm me ' and to make I ,5; Ln.i1.t.V'a.1i=fiV~ IQ.-...,, the ..e Hi-flu M 1.111.: of the sound respondent woruld this Court to fin-llow the earlier da-cm' 'on .* ' in '~ A' A I! at Ann -nuanaun vEL1"AuI-n3.u..n. A """"""' at iii 31':i"v'i'i R fly': ufi aupm, wuuwuly fin 4 crfthe Supreme Cmut in Mukul Dalal and other: Z d A 1' .:'..Vfi;v ljnion of India. (A .. ._ ._ _Q...|...._ -,AL 5' l._._.._..l!.....'I..... A1..- .-...:.!A..!.._.. 0... ...!C_.._...._....I I'lfl-- r. nwmmzrgly. mu puuuon ls auowua. um amummunt ofreapcundent no.2 is quashed. However, it is made Glfi:I:' fiB3t flummébaflMmfixflL flmeammmmmu m:m$gg¢?; -yr vow finther cmppointrnom of any Special " " so inclined, after assigning valid -11.:-I1'! nfinrfinhnnni 5 nwiclnn 31- nrniil'. Ir uwlua II yuuuutullu. LI.» 1! -> Sims to nuke such ample reasons and cu.-c~1m'.u' V appom" ' tment -,.._. _4..f R.___.,...._2_ ., lmmnwnmmsmwéawam¢tmamjngu¢ mwpmfihn ; " % Sdfl{_ Judge

Author: Anand Byrareddy

Sri Mohan Kumar Alias Satish vs State Of Karnataka Rep By Its ... on 25 March, 2008

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43837 of 2010 RAJU MIAN @ MD.JAVED S/O ALIJAN MIAN Versus THE STATE OF BIHAR ----------- 3. 15.03.2011 Heard learned counsel for the petitioner and the state. The petitioner seeks bail in a case instituted for the offence under Section 395 of the Indian Penal Code. The petitioner is not named in the First Information Report but subsequently his name transpired due to the fact that a huge amount of money was deposited in the account of the petitioner's sister-in-law and this circumstance connected him to this dacoity. Considering the same, I am not inclined to grant bail to the petitioner. Prayer for bail is rejected. The Trial Court is directed to expedite the trial. Fahad. ( Anjana Prakash, J.)

Raju Mian @ Md.Javed vs The State Of Bihar on 15 March, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36556 of 2010 MD. MUBARAK Versus 1. The STATE OF BIHAR 2. Bibi Isgat Parveen ------ shail (Mandhata Singh, J.) 2/ 27.01.2011 Learned counsel for the O.P. No.2, name appearing in the cause list, is not willing to appear in the case, as having no instruction. Issue notice to the Opposite Party No.2 by ordinary process as well as registered cover with A/D for which requisites etc. must be filed within two weeks, failing which the application shall stand rejected without further reference to a Bench. In the meantime, no coercive action be taken against the petitioner in connection with Complaint Case No. C.A. 121 of 2010 pending in the Court of S.D.J.M., Katihar. Let the order be communicated through Fax at the cost of the petitioner.

Md.Mubarak vs State Of Bihar &Amp; Anr on 27 January, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CR.MA/2588/2010 1/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2588 of 2010 ================================================= MAHESH HEMUBHAI GOGDIYA TA KOLI & 3 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ================================================= Appearance : MR SIKANDER SAIYED for Applicant(s) : 1 - 4. MR DC SEJPAL ADDL.PUBLIC PROSECUTOR for Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 29/03/2010 ORAL ORDERThis is an application preferred under section 439 of the Code of Criminal Procedure, 1973 by the applicants who came to be arrested in connection with I-C.R.No.70 of 2009 registered at Bavlu Police Station for the offences punishable under sections 394, 397, 364 and 114 of Indian Penal Code. The learned advocate Mr.Saiyed for the applicants submitted that the applicants are innocent persons and they are falsely implicated in the commission of offence punishable under sections 394, 397, 364 and 114 of Indian Penal Code. Considering the role attributed to the applicants which can be seen from the First Information Report at Annexure-A, they deserve to be enlarged on bail. Learned APP Mr.D.C.Sejpal representing State while opposing the bail application submitted that applicants are involved in the serious offences punishable under sections 394, 397, 364 and 114 of Indian Penal Code. Considering the role attributed to the applicants involved in the offence and the manner in which they committed offence, no discretionary relief be granted to the applicants and application requires to be rejected out of hand. Heard learned advocate Mr.Saiyed for the applicants and Mr.Sejpal, learned APP for the respondent State at length and in great detail. I have considered the role attributed to the applicants as reflected in First Information Report and police papers. Considering the same, as well as provisions of sections 394, 397, 364 and 114 of Indian Penal Code, quantum of punishment, etc., I am of the view that applicants deserve to be enlarged on bail. For the foregoing reasons, the application is allowed and the applicants are ordered to be enlarged on regular bail in connection with I-C.R.No.70 of 2009 registered at Bavlu Police Station on executing bond of Rs.10,000/- (Rupees Ten Thousand Only) each with each one surety of the like amount to the satisfaction of the Trial Court and subject to the conditions that they shall, [a] not take undue advantage of their liberty or abuse their liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender their passport, if any, to the lower Court within a week; [d] not leave the State of Gujarat without the prior permission of the Sessions Court concerned; [e] mark their presence twice at the concerned Police Station on every 1st and 15th day of English calender month between 9.00 AM and 2.00 PM till the trial is over; [f] furnish the present address of their residence to the I.O. and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of this Court; [g] maintain law and order. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or to take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the petitioner on bail. Rule is made absolute to the aforesaid extent. Direct Service is permitted. (H.B.ANTANI, J.) Amit/-

Author: H.B.Antani,&Nbsp;

Mahesh vs State on 29 March, 2010

Gujarat High Court

[Section 22(1)] [Section 22] [Complete Act]

Central Government Act

[Section 10] [Complete Act]

Central Government Act

JUDGMENT S.P. Srivastava, J. 1. Heard the learned counsel for the appellants. The appellants have filed the present appeal feeling aggrieved by the award of the Motor Accidents Claims Tribunal determining an amount of Rs. 1,91,250 as just compensation to which the injured-claimant was found entitled to on account of the grievous injuries suffered by her in an accident involving the offending motor vehicle, a motor cycle which had caused the accident resulting in the grievous injuries at the time it was being run rashly and negligently by the present appellant. 2. The Tribunal, after careful consideration of the evidence and the materials brought on record, had come to the conclusion that the injured, the minor daughter of Ram Narain Gupta, was aged about 6 years at the time of the accident and the injuries caused to her in the accident had resulted in 25 per cent permanent disability. Her right leg had been fractured and after treatment for about an year, she was able to walk but not in a normal way. She limped while walking. She was not in a position to play games. The medical certificate produced by the claimants indicated that her right leg had become angular and deformed. The disability was indicated to be 25 per cent. The Tribunal while calculating the amount of compensation had taken into account the loss of enjoyment of life and amenities, which the injured minor was to suffer throughout her life. 3. It cannot be lost sight of that no award of money can possibly compensate a man and renew a shattered human frame. Effort, therefore, should be made to put the injured party, so far as practicable, in the same position in which he/she would have been if he/she had not sustained the injuries. The bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to the gravity of the injury. The deprivation caused by the injuries may bring with it the consequences of loss of earnings or earning capacity, burden of expenses to pay others for what otherwise the injured would do for himself/herself and loss or diminution of full pleasures of living. While considering the effect of deprivation, the court should have regard to the gravity and degree of the deprivation and degree of the awareness of the deprivation also. The compensation in the case of personal injuries should be substantial in nature and not merely token damages. Though it is impossible to equate money with the human suffering on account of personal deprivations but the court has to make an attempt to award money so far as it can compensate the loss. 4. The Claims Tribunal taking into consideration the age factor and taking into account the notional income provided in the Schedule at a figure of Rs. 15,000 per annum had calculated the compensation of Rs. 2,25,000 utilizing the multiplier of 15. So far as the amount of compensation is concerned, the quantum determined by the Tribunal does not appear to be unjust and in fact the learned counsel for the appellant has challenged the quantum of compensation only half-heartedly. 5. The main contention of the learned counsel for the appellants is that on the date of the incident they did not own and possess the offending motor vehicle which was purchased in the year 1999. The accident had occurred on 3.12.1998. So far as this aspect of the matter is concerned, the Tribunal had come to the conclusion that an amount of Rs. 32,945 towards the price of the motor cycle had been deposited on 6.4.1998. The eyewitness account of the accident, which was believed by the Tribunal, pointed out in unmistakable term that at the time of the accident the offending brand new motor vehicle which did not have any registration number was being used and the accident occurred on account of its rash and negligent driving. The Tribunal after taking into consideration the various facts and circumstances established on record had come to the conclusion that there was clinching evidence on the record to show that the motor cycle which was involved in the accident was not having a registration number, was a brand new motor cycle and in fact did belong to the opposite party No. 2 and the same was being driven by the opposite party No. 1 at the time of accident. The defence version was rejected holding that it was based on manufactured papers and concocted story. 6. We have carefully perused the evidence and material brought on record. The findings returned by the Motor Accidents Claims Tribunal on the aforesaid aspect of the matter could not be demonstrated to be suffering from any such legal infirmity which may justify an interference therein. These findings are amply supported and warranted by the evidence and material brought on record. 7. No other submission has either been urged and present in support of this appeal. 8. This appeal is totally devoid pf merits, which deserves to be and is hereby dismissed in limine. 9. As prayed, the amount of Rs. 25,000 deposited in this court by the insurer appellant under Section 173 of Motor Vehicles Act be remitted back to the Motor Accidents Claims Tribunal concerned within one month from the date an application is filed by the appellant for the purpose so that it may be disbursed to the claimant.

Author: S Srivastava

Ajay Kumar Shakya And Anr. vs Kanti Devi And Anr. on 10 April, 2003

Allahabad High Court

{1} 927-RA-204-2019 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION (CIVIL) NO.204 OF 2019 IN FIRST APPEAL NO. 2638 OF 2018 WITH RA/203/2019 IN FA/2637/2018 WITH RA/202/2019 IN FA/2636/2018 KISAN JIJABHAU KAVHALE (DIED) THR LRS SARUBAI AND OTHERS VERSUS THE STATE OF MAHARASHTRA AND OTHERS ... Advocate for Applicants : Mr. K.B. Jadhav AGP for Respondent Nos.1 and 2 : Mr. P.M. Kulkarni Advocate for Respondent No.3 : Mr. S.D. Shelke .... CORAM : S.G. DIGE, J. DATE : 2nd August, 2022 ORDER : {2} 927-RA-204-2019 Reference Court. . These review applications are preferred in respect of judgment and order passed by this Court (Coram : P.R. Bora, J.) in First Appeal Nos. 2636 of 2018, 2663 of 2018 and 2638 of 2018. 2. Learned Counsel for review petitioners submits that, this Court by order dated 25th September, 2018 decided the First Appeals and connected matters for enhancement of compensation and modifed the order passed by Pooja K. ::: Uploaded on - 26/08/2022 ::: Downloaded on - 07/01/2023 02:18:48 ::: 3. The learned Counsel further submits that, in the said judgment this Court has mentioned that, it is not irrigated land whereas the Reference Court has observed that, it is seasonal irrigated land but inadvertently in judgment petitioner's land has been mentioned as dry land. Therefore, it is necessary to make correction in that regard as seasonal irrigated land. 4. Learned Counsel for applicants submits that, in appeal No. 2637 of 2018, the review petitioner's land is considered as dry land and Rs.1500/- is granted per R. The Reference Court has considered the said land as permanent irrigated land and granted Rs.1800 per R whereas as per the covered judgment of this Court appellant is entitle to receive the amount @ Rs.2250/- per R. In First Appeal No. 2638 of 2018 the Reference Court has considered the Review petitioners' land as seasonal irrigated land and has granted Rs.1600/- per R, whereas as per covered judgment, appellant is entitle to receive Pooja K. ::: Uploaded on - 26/08/2022 ::: Downloaded on - 07/01/2023 02:18:48 ::: {3} 927-RA-204-2019 @Rs. 250/- per R. Hence, requested to consider these facts and requested to make corrections accordingly in the judgment passed by this Court. 5. Learned A.G.P. and learned Counsel for acquiring body submitted that, they have not disputed the fact as argued by the learned Counsel for applicants and requested to pass appropriate orders. 6. Considering the submissions of all learned Counsel as well as the learned Counsel for acquiring body has not disputed the fact that the petitioners lands are seasonal irrigated and permanent irrigated, as pointed out by learned Counsel for review petitioners and mentioned in the reference, I pass following order :- [S.G. DIGE, J.] Pooja K. ::: Uploaded on - 26/08/2022 ::: Downloaded on - 07/01/2023 02:18:48 :::

Sunder Limbaji Shinde vs The State Of Maharashtra And Ors on 2 August, 2022

Bombay High Court

Gujarat High Court Case Information System Print CR.MA/9208/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9208 of 2008 In CRIMINAL APPEAL No. 1715 of 2006 ========================================================= ARJUN GOKULBHAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= THROUGH JAIL for Applicant(s) : 1, MR RC KODEKAR, APP for Respondent(s) : 1-2 ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL Date : 15/07/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) Rule. Mr.R.C.Kodekar, learned APP for opponents waives service of rule. The convict prisoner has sent this application through jail authority to release him on temporary bail for the reason stated in the application. Since we are not convinced with the reason shown for releasing on temporary bail, this application is required to be rejected and is accordingly rejected. Rule is discharged. [R.P.DHOLAKIA,J] [D.N.PATEL,J.] radhan/     Top

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

Arjun vs State on 15 July, 2008

Gujarat High Court

[Complete Act]

Central Government Act

JUDGMENT Sethuraman, J. 1. This reference under Section 256(1) of the I.T. Act, 1961, raises the following question : " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in allowing the payment of gratuity as an admissible expenditure ? " 2. The assessee was carrying on business in banking. In accordance with the instructions of the Reserve Bank of India, during 1964, it took over the assets and liabilities of three other banks, namely, the Coimbatore Aryan Bank Ltd., the Coimbatore Varthaka Vridhi Bank Ltd., and the Krupakara Bank Ltd., Coimbatore. As a result of the merger of these banks, the board of directors passed two resolutions, one on 31st January, 1964, and the other, on 21st November, 1964, in the matter of gratuity payments. Under these resolutions, gratuity of one month's pay per year was payable on the retirement of the particular member of the staff. No gratuity was payable if the employee resigned on his own accord or was dismissed from service for misconduct, insubordination, indiscipline or gross neglect of duty. 3. On 31st December, 1966, as directed by the Reserve Bank of India, the assessee-bank was merged with the Indian Overseas Bank. The assessee had fifty-four employees on its staff, out of whom forty-two employees joined the Indian Overseas Bank and the remaining twelve employees were not taken over by that bank. There was an agreement at the time of the merger of the assessee-bank with the Indian Overseas Bank. Clause 13 of the agreement provided that the entire staff must resign from the services of the assessee-bank before any of them was taken over, and that all their dues referable to their service with the assessee must be settled by the assessee-bank. The same clause also provided for weightage being given to the employees taken over by the Indian Overseas Bank in the matter of fixation of their pay, having regard to their qualification and merit. The employees were assured that the total emolument would not be less than what they were getting while they were working with the assessee-bank. 4. The assessee-bank paid the gratuity to the employees as follows: Payments to employees including managing director (length of service ranging between about 11/2 years and 31 years)--Rs. 65,306. Payment to staff taken over from other banks whose period of service with the assessee did not exceed 21/2 years--Rs. 4,819. 4. The aggregate amount of Rs. 70,125 was claimed as deduction in the assessment for the assessment year 1967-68, for which the previous year ended on December 31, 1966. The ITO disallowed the claim on the ground that there was no practice in the matter of payment of gratuity and that the payment of gratuity was made on the eve of the winding up of the business. He held that the gratuity could not be described as a payment which would facilitate carrying on the assessee's business, since the business itself was not carried on by it, but taken over by the Indian Overseas Bank with effect from December 31, 1966. In his view, the gratuity payments could not be said to be dictated by commercial expediency, as there was no employee left out for being spurred to activity with an eye on reward in the shape of gratuity, and as the expenditure was incurred at the time of or for the purpose of closing down the business of the assessee, it was not an expenditure coming within the scope of Section 37(1) of the I.T. Act, 1961. 5. The assessee appealed to the AAC, who held that forty-two employees having been taken over by the Indian Overseas Bank, the gratuity paid to them was not an admissible deduction, and with reference to the remaining twelve employees who were not taken over, he was of the view that the gratuity paid to them amounting to Rs. 9,910 should be allowed as a deduction. Accordingly, he reduced the disallowance of Rs. 70,125 by Rs. 9,910. 6. The assessee, thereafter, appealed to the Appellate Tribunal as regards the balance of gratuity remaining disallowed in the assessment. The Tribunal held that the gratuity payment was made on grounds of commercial expediency and in order to carry on its business till liquidation and in that view of the Tribunal, there was a nexus between the gratuity payments made and the conduct of the business of the assessee. The amount was thus allowed as a deduction either under s, 36(1) or under Section 37(1) of the Act. 7. Section 36(1) of the I.T. Act, 1961, provides for deduction of certain amounts specified therein. The Tribunal has not stated the sub-clause under which the present payment is sought to be brought in. There is a provision for the allowance of payment of bonus or commission for services rendered under sub-cl. (ii) of Section 36(1). There is a provision for the allowance of payment of contribution towards a recognised provident fund or an approved superannuation fund under Sub-clause (iv) of Section 36(1). Sub-clause (v) of Section 36(1) provides for the allowance of payment made by the assessee by way of contribution towards an approved gratuity fund created by him for the exclusive benefit of his employees under an irrevocable trust. The present case cannot be brought within the scope of any of these sub-clauses. This is not a payment of bonus or commission, nor is it any contribution towards a recognised provident fund, superannuation fund or gratuity. There is, therefore, nothing in Section 36 which applies here, and the present claim for deduction cannot be brought within the scope of any of the sub-clauses of Section 36. The Tribunal's conclusion based on Section 36 is clearly erroneous. 8. Section 37(1) of the Act provides for any expenditure, which does not fall within Sections 30 to 36 and which is not in the nature of capital expenditure or the personal expenses of the assessee, being allowed as a deduction, provided it is laid out or expended wholly and exclusively for the purpose of the business or profession. The point to be considered is whether the payment in the present case can be brought within the scope of Section 37(1) of the Act. 9. As it is clear from the question itself, the payment is referred to as gratuity. In the narration of facts given above, it would be found that under Clause 13 of the agreement entered into between the assessee and the Indian Overseas Bank, their staff had to resign from the services of the assessee-bank before they were taken over and that all their dues had to be settled by the assessee-bank. Therefore, it is not a case of any voluntary resignation on the part of the staff, so as to disentile it from claiming the benefit which accrued to it under the resolution of the board of directors referred to already. The resignation was actually forced on the members of the staff as a result of the terms of the merger with the Indian Overseas Bank. The liability to pay gratuity thus arose as a result of the obligation undertaken by the assessee in its resolutions dated 31st January, 1964, and 21st day of November, 1964. Thus, it was a pre-existing obligation at the time when the merger took place. 10. The learned standing counsel for the Commissioner contended that the payment actually arose as a result of, or subsequent to, the winding-up of the assessee-company's business. There is one aspect to be noticed in this context. Even in the assessment order, the ITO has stated that the " steps for liquidation of the assessee-bank are also being taken ". Therefore, it is clear that till the end of 1969, the assessee-company had not gone into liquidation and was continuing in existence. 11. The question of gratuity being allowable as deduction came up for consideration before the Supreme Court in Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551. In that case, an employee from 1935, who was also a director from 1940, was paid a gratuity of Rs. 40,000 in appreciation of his long and valuable services to it. The company had no scheme for the payment of gratuities nor did it pay such gratuities in practice. There was also nothing to show that the employee had accepted a low salary in the expectation of a gratuity on retirement. On these facts, the Supreme Court held that the amount of gatuity paid in that case was not an expenditure laid out or expended for the purpose of the assessee's business within the meaning of Section 10(2Xxv) of the Indian I.T. Act, 1922, which corresponded to Section 37(1) of the present Act. The amount was, therefore, held to be not deductible in computing the profits and gains of the company. The proper test to be applied in a case like this was described at p. 555 as follows : " In our opinion the proper test to apply in this case is, was the payment made as a matter of practice which affected the quantum of salary or was there an expectation by the employee of getting a gratuity or was the sum of money expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. But this has not been shown and, therefore, the amount claimed is not a deductible item under Section 10(2)(xv). " 12. The learned standing counsel for the Commissioner submitted that there was no practice in the present case and that there was also nothing to show that any employee joined in the expectation of getting the gratuity. As pointed out by the Supreme Court in the recent decision, Sassoon J. David and Co. P. Ltd. v. CIT [1979] 118 ITR 261, it is too late in the day now, whatever may have been the position about two decades ago, to treat the expenditure incurred by a management in paying reasonable sums by way of gratuity, bonus, retrenchment compensation or compensation for termination of service as anything other than business expenditure. It was also held that such expenditure would ordinarily fall within the scope of Section 10(2)(xv) of the Act. In the case referred to above, there was a change in the holdings, A group of persons referred to as the Davids had large shareholdings in the company. They transferred their shares to another group called the Tatas. The directors of the company proposed that the services of 22 employees, the managing director and the director be terminated and they be paid a compensation. Subsequently, the shareholders accepted the directors' proposal, and thereafter under an agreement between the Davids and the Tatas, the shares got transferred subject to the amount of compensation payable to the employees being deductible from the consideration payable by the Tatas for the purchase of the shares. After the change in the shareholdings, the company re-employed nine out of the 22 employees, and the services of thirteen persons were terminated. On the payments that were claimed as deductions including the payments to the managing director in lieu of six months' notice and another payment towards compensation for termination of pension allowance and also payment of gratuity, the Supreme Court held that whatever may be the motive behind the payment of compensation, so long as the amount was laid out wholly and exclusively for the purpose of the business, there was no reason for denying the benefit of Section 10(2)(xv). It was pointed out that the company continued to function even after its control passed on to the Tatas. The expenditure in question was, therefore, held to be deductible. The result of this decision is to show that the gratuity paid by the employer is liable to be deducted from the taxable profit, and that is the position here. 13. The learned standing counsel placed great reliance on the decision of the Supreme Court in CIT v. Gemini Cashew Sales Corporation [1967] 65 ITR 643. In that case, a firm of two partners was dissolved and the business was taken over by one of the partners. There was no interruption in the services of the employees or alteration in the terms of their employment. In settling the accounts of the firm, a particular sum was taken into account as retrenchment compensation payable to the employees under Section 25FF of the Industrial Disputes Act, 1947, which would apply on a transfer of ownership. The question was whether the sum constituted an allowable expenditure in computing the income of the firm. The Supreme Court held that during the entire period, the business was continued, there was no liability to pay retrenchment compensation ; that the liability arose only on transfer of the business and, that it was not of a revenue nature so as to be deductible under Section 10(1). Similarly, the liability under Section 25FF was also considered to be wholly contingent and did not arise as an obligation during the period of the business of the assessee-company. In the said case, the principle to be applied as pointed out by the Supreme Court at pages 649 and 650 is as follows: " As already observed, the liability to pay retrenchment compensation arose for the first time after the closure of the business and not before. It arose not in the carrying on of the business but on account of the transfer of the business. During the entire period that the business was continuing, there was no liability to pay retrenchment compensation. The liability which arose on transfer of the business was not of a revenue nature. Profits of a business involve comparison between the state of the business at two specific dates. Normally, the liability which occurs after the last date, unless its source is in a pre-existing definite obligation, cannot be regarded as a part of the outgoing of the business debitable in the profit and loss account. A deduction which is proper and necessary for ascertaining the balance of profits and gains of the business is undoubtedly properly allowable, but where a liability to make a payment arises not in the course of the business, not for the purpose of carrying on the business, but springs from the transfer of the business, it is not, in our judgment a properly debitable item in its profit and loss account as a revenue outgoing." (Underlined* by us). 14. The claim in that particular case was held to be rightly disallowed under the provisions of Section 10 of the Act. 15. The above passage clearly lays down that the case of a pre-existing definite obligation would stand out and form a separate category. With reference to such a category the enquiry as to whether it arose on closure (c)f the business or transfer of the business is not relevant. We may imagine a case, for example, where a dispute against the liability to pay a particular employee is pending, and this dispute is settled either at the time of or subsequent to the closure of the business. In either event, the obligation arose during the continuance of the business and, therefore, in that sense, the expenditure is liable to be deducted. The present case is one where the assessee undertook to pay gratuity under the agreement entered into with the bank in which its business was merged, and so the contingency to pay gratuity as undertaken in its resolutions arose in the present case and, therefore, it comes within the exception to the rule that any payment which is made at the time or after the closure of the business cannot be allowed as deduction. Only where the amount is paid to the employee, it can be called gratuity. Where the amount calculated to be the liability for gratuity is transferred, it is only a transfer of a fund to meet a contingent liability and it cannot be allowed as deduction. The learned counsel drew our attention to the decision in Stanes Motors (South India) Ltd. v. CIT [1915] 100 ITR 341 (Mad). A new subsidiary company was formed to take over the retreading division of the assessee-company. The subsidiary company took over all the employees who were working in the assessee-company. The gratuity payable to the transferred employees was calculated on the basis of the rules applicable to them, and this amount was transferred to the new company from the pension and gratuity reserve in the hands of the assessee-company. The assessee claimed that the amount so transferred was liable to be allowed as deduction, but this court negatived the claim. The point to be noted with reference to this case is that no payment was made as and by way of gratuity or retrenchment compensation to the employee. Similar is the position in CIT v. Pathinen Grama Arya Vysya Bank Ltd. another decision of a Bench of this court. In that case also, there was a merger of one bank with another. The agreement provided for the transferee-bank employing all the employees of the transferor-bank who had not completed the age of 60. In the transferor-bank, there was a provision for payment of gratuity to the employees on retirement, and with reference to this provision, a particular sum was transferred to the transferee-bank and this amount was claimed as deduction. This court, applying the principle of the decision of the Supreme Court in CIT v. Gemini Cashew Sales Corporation [1967J 65 ITR 643 held that the said amount cannot be allowed as deduction. In that case also, the amount was not paid as gratuity. The liability alone was transferred to the transferee-bank. The decision in Stanes Motors' case was directly applicable to this case also. In both the cases, there was only a transfer of a liability which was to arise in future, as the employees continued in service without interruption. 16. Another unreported decision dated March 6, 1979, in the case of CIT v. Salem Bank Ltd. in T.C. No. 284 of 1975 [since reported in [1979] 120 ITR 224 (Mad)] was brought to our notice. That was also a case where the amount was transferred to the new company and there was also continuity of service of the employees whose services were transferred to the new company. This case will stand in line with the decision in Stanes Motors' case and CIT v. Pathinen Grama Arya Vysya Bank Ltd. . 17. We had also occasion to deal with a similar claim in T.C. No. 183 of 1975 in CIT v. Sri Venkateswara Bank Ltd. in the judgment dated 24th day of January, 1979--[1979] 120 ITR 207 (Mad). That was also a case of payment made to the employees as gratuity. In that case, we observed : " A payment made in the course of carrying on its business as gratuity cannot be equated to a terminal payment on the closure of the business so as to be disallowed ". 18. This principle would apply to the present case. 19. In the three cases, Stanes Motors' case , Pathinen Grama Arya Vysya Bank's case and the unreported decision in T.C. No. 284 of 1975--[1979] 120 ITR 224 (Mad), the question to be considered was not whether the amount when paid to any workman was liable to be deducted. It is that situation which has. arisen in the present case. In the present case, there has been payment directly to the employees' as and by way of gratuity and the principle applicable to this case is different from the one applicable to mere cases of transfer of liability considered in the other three cases mentioned above. The result is that the question referred to us is answered in the affirmative and in favour of the assessee. The assessee is entitled to its costs. Counsel's fee Rs. 500.

Author: Sethuraman

Commissioner Of Income-Tax vs Srinivasa Perumal Bank Ltd. on 28 June, 1979

Madras High Court

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Khagendra Pratap And Another vs State Of U.P. And Others on 28 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4917 of 2010 MUNNI LAL BHAGAT, SON OF GORAKH BHAGAT, RESIDENT OF KAITHWALIA, P.S- KALYANPUR, DISTRICT- EAST CHAMPARAN PRESENTLY POSTED AS PRAKHAND TEACHER OF GOVERNMENT MIDDLE SCHOOL, KAITHWALIA, P.S- KALYANPUR, DISTRICT- EAST CHAMPARAN .......... PETITIONER Versus STATE OF BIHAR ----------- 2 24.9.2010 The petitioner has sought quashing of the First Information Report numbered as Kalyanpur P.S. case No. 71 of 2008 registered under Sections 467, 468, 420 and 409 I.P.C. Since the case is still under investigation, I decline to interfere in the matter. However, a direction is given to the Investigating Officer through the Superintendent of Police, East Champaran to ensure that the investigation is concluded within a period of six months. With these observations, this application is disposed of. Narendra/Shahzad ( Anjana Prakash, J.)

Munni Lal Bhagat vs State Of Bihar on 24 September, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/9248/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 9248 of 2010 In SECOND APPEAL (STAMP NUMBER) No. 78 of 2010 ========================================================= STATE OF GUJARAT & 2 - Petitioner(s) Versus AZAD XEROX CENTRE & 2 - Respondent(s) ========================================================= Appearance : Ms VS Pathak, Asstt.GOVERNMENT PLEADER for Petitioner(s) : 1 - 3. None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 13/08/2010 ORAL ORDER RULE returnable on 09th September, 2010. [H.B. ANTANI, J.] msp     Top

Author: H.B.Antani,&Nbsp;

State vs Azad on 13 August, 2010

Gujarat High Court

JUDGMENT Manmohan Sarin, J. 1. Petitioner Mrs.Inderjit Singh Pathak seeks writ of certiorari for quashing order dated 26.9.2001. By the said order petitioner was notified of the provisional decision cancelling the SSS pension granted to the petitioner. Further the amount drawn by her as SSS Pension was to be recovered and she was asked to deposit the same, failing which the Government of India would initiate steps for recovery of the same. 2. Petitioner seeks a writ of mandamus directing respondents to grant pension to her as envisaged under the Swatantra Sainik Samman (SSS) Pension Scheme, 1980 and as provisionally paid with arrears of pension, with interest at the rate of 18% p.a. 3. The impugned order dated 26.9.2001, was the culmination of the claims put up by the petitioner Smt.Inderjit Singh Pathak claiming to be the lawfully wedded wife of late Shri Shailendra Kumar Pathak (hereinafter referred to as the `pensioner'), and the rival claim of Smt.Sushila Pathak, as the lawfully wedded wife of the pensioner, being married to him on 19.6.1956 and having two daughters namely Nilima Pathak and Subra Pathak from the wedlock. 4. Before dealing with rival contentions and the legal questions arising, the facts in brief leading to the filing of the present petition may be noted. (i) Late Shri Shailendra Kumar Pathak, pensioner, applied for grant of SSS Pension in December,1980 claiming jail suffering during the period 1941 to 1943. SSS Pension was sanctioned at the rate of Rs.300/- per month w.e.f. 1.8.1980. He expired on 17.7.1991. He had indicated the name of the petitioner as his wife, while applying for pension. Petitioner upon the death of pensioner represented for transfer of the family pension in her favor. Upon completion of formalities and furnishing of relevant documents, family pension at the rate of 750/- per month was sanctioned w.e.f. 18.7.1991 to the petitioner. The amount of pension was increased in August,1992 to Rs.1000/- and thereafter in October,1994 to Rs.1,500/- per month. (ii) In March,1992, Smt.Sushila Pathak claiming to be the widow of the pensioner represented for grant of pension. Her claim of being duly wedded wife and legal heir of late Shri Shailendra Kumar Pathak was confirmed on the basis of report of District Magistrate of Aligarh. Smt.Sushila Pathak was informed on 27.1.1993, that pension had already been transferred in favor of the petitioner. She represented in March,1996 against the same and requested for cancellation of the pension in favor of the petitioner who was not the legally wedded wife of the pensioner. In October,1996, family pension in favor of the petitioner was suspended and a show cause notice was issued. In November,1996 sanction order of family pension in favor of Smt.Sushila Pathak was issued. 5. As noted, the pension granted to the petitioner was suspended in 1996. The petitioner as well as Smt.Sushila Pathak have led evidence with regard to their marriage with the pensioner. Reports from the respective District Magistrates have been furnished in support of their claims. The pensioner himself had indicated the name of the petitioner as his wife entitled to pension disregarding Smt.Sushila Pathak and the off-spring. Smt.Sushila Pathak claims to be married to the petitioner in 1956 i.e. much before the marriage of the pensioner with the petitioner. The respondents in these circumstances passed the impugned order dated 26.9.2001, whereby they confirmed the suspension and cancellation of the pension in favor of the petitioner. 6. In passing the impugned order the respondents have proceeded on the basis that the petitioner being an employee of the SBI was not dependent upon the pensioner and as such under the provisions of the SSS Pension Scheme was not eligible for grant of dependent family pension as dependency of the wife on her husband is the basic criteria for grant of family pension to her after the death of her husband. 7. In the show cause notice dated 4.10.1996, the ground taken was that the pensioner had not divorced Smt.Sushila Pathak to whom he had married and from whom he had two daughters before entering into the second marriage with the petitioner which was illegal and thus the petitioner was not entitled to pension. The impugned order as noted above has proceeded not on the above ground of petitioner's marriage being illegal, but on the ground that petitioner being a former employee of SBI, having independent income, was not eligible for pension under the provisions of the Scheme. 8. Learned counsel for the petitioner has assailed the impugned order on the ground that while the show cause notice was issued on one ground i.e. the marriage of the petitioner not being legal, while the ground taken in the impugned order is that the petitioner being retiree from the SBI had independent income and was not eligible. Reliance is placed on Motilal Lalchand Shah V. L.M.Kaul and Anr. Reported at 1984 (17) E.L.T. 294 (Guj.) to urge that where the show cause notice was issued on one ground and the order is passed on another ground. It causes prejudice to a party in defending itself against the new ground. Petitioner claims denial of opportunity of showing cause against the impugned ground on which order is based. 9. Counsel for respondents while relying on the provisions of the Freedom Fighters Pension Scheme, 1972 and the SSS Pension Scheme,1980 urged that the criteria stood changed from financial assistance to honouring the freedom fighters and as such denial of pension to the petitioner on the ground that she had independent income was not sustainable. Reliance on Annexure R-1/18 of the SSS Pension Scheme,1980 for denial of pension was also urged as being misconceived. 10. It is not necessary for the purpose of disposal of this writ petition to decide the above pleas on merits. For the purpose of this petition, it is sufficient to notice that the impugned order is liable to be set aside on the short ground that the show cause notice issued to the petitioner questioned the validity of her marriage while the impugned order is based on the ground that the petitioner is ineligible for grant of pension on account of not satisfying the eligibility condition, having independent income and not being dependent upon the pensioner. Petitioner was not afforded any opportunity of showing cause against this ground. Following the dictum in Motilal Lal Chand Shah (Supra) the impugned order is not sustainable and is hereby set aside. The quashing of the above order would not come in the way of respondents issuing a fresh show cause notice on the grounds on which they seek to deny pension to the petitioner and after giving an opportunity to the petitioner to urge its claim in support of its entitlement to pension and passing an order in accordance with law. The writ petition stands allowed in the above terms.

Author: M Sarin

Inderjit Singh Pathak vs Union Of India (Uoi) And Ors. on 22 November, 2004

Delhi High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9231 of 2009 DATE OF DECISION: JULY 31, 2009 Nirval Singh .....PETITIONER Versus Punjab State Electricity Board, Patiala and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Munish Gupta, Advocate, for the petitioner. .. SATISH KUMAR MITTAL, J. (Oral) July 31, 2009 (SATISH KUMAR MITTAL) vkg JUDGE During the course of arguments, learned counsel for the petitioner submitted that vide letter dated 19.9.2005, the financial assistance to the tune of Rs.3.00 lacs was offered to the mother of the petitioner, but at that time she did not accept the same and made a representation to give employment to her son on compassionate grounds. Counsel submits that now the mother of the petitioner is ready to accept that financial assistance and she will make a representation in this regard to the authorities within two weeks. Counsel further states that this petition be disposed of with the direction that if any such representation is made, the same may be considered and decided expeditiously, preferably within a period of three months, in light of the earlier stand taken by the respondent authorities. Ordered accordingly.

Nirval Singh vs Punjab State Electricity Board on 31 July, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print MCA/373/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR CONTEMPT No. 373 of 2011 In LETTERS PATENT APPEAL No. 1966 of 2010 In SPECIAL CIVIL APPLICATION No. 10290 of 1993 ========================================================= KADIRAHMED ABDULGANI ANSARI - Applicant(s) Versus COMMISSIONER OF POLICE & 1 - Opponent(s) ========================================================= Appearance : MR AD DESAI for Applicant(s) : 1,LOPA M BHATT for Applicant(s) : 1, NOTICE NOT RECD BACK for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MS.JUSTICE B.M.TRIVEDI Date : 16/03/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Pursuant to the notice issued by this Court, Mr. P.M. Parmar, P.I., working with the Commissioner of Police is present, and the learned AGP Ms. Thakkar states that some informations, namely application in the prescribed form, photographs and requisite fees, are not submitted. However, such will be called for within one week and thereafter appropriate decision in accordance with law shall be taken within two weeks therefrom. Hence, SO to 6.4.2011. (JAYANT PATEL, J.) (Ms. B.M. TRIVEDI, J.) mandora/     Top

Author: Jayant Patel,&Nbsp;Ms.Justice B.M.Trivedi,&Nbsp;

Kadirahmed vs Unknown on 16 March, 2011

Gujarat High Court

Name of film Amount Previous year of release Rs. Acharam Ammini Osharam Ornana 25,000 1977 Chhenavala 25,000 1976 Dharmakeshstra Kurushetre 25,000 1975 Kannappannunni 25,000 1977 ** ** ** 2. (ii) 'Producer', means any individual, body of individual association or company, corporate or otherwise, as the case may be, whose name is mentioned as producer in the credit titles of the film duly certified by the Central Board of Film Censors. (iii) The registered office of the Producer should be within the Kerala State. 3. (i) The producer of a feature film requesting for the grant of subsidy should furnish (a) a copy of the script; (b) a list of the star-cast; (c) a list of the technicians; and (d) details of indoor and outdoor shooting schedules of the film to the Director of Public Relations, Kerala. These details should be furnished within ten days before the commencement of the shooting except in the case of films which are already completed, or, are in various stages of making when these rules are published. (ii) When the film is completed, the producer may apply for the grant of subsidy to the Director of Public Relations in the prescribed form bearing Court fee stamp of the value of Rs. 2 and accompanies by the following documents: (a) Certificate issued by the Central Board of Film Censors. (b) Certificate by the Producer to the effect that the film has been produced in its entirety within the State of Kerala [subject to modifications as referred to in Rule 1(iv) and (v)]. (c) Certificate from a regular film studio(s), unit(s), situated and functioning within the State of Kerala to the effect that the film has been shot therein or with their unit in locations inside Kerala accompanied by the copies of the daily shooting reports from the cameraman and sound recordist indicating the name of the production, title of the film, nature of shooting work, location, time and date and total footage shot; etc. 4. There shall be a Committee with the Minister-in-charge of Information and Publicity as the Chairman, two eminent individuals of known aesthetic and cinematic scholarship and the Director of Public Relations and Cultural Development Officer as official members to preview each film and recommend to Government regarding the grant of subsidy. The Cultural Development Officer will be the Convenor of this Advisory Committee. ** ** ** 6. On the basis of the recommendations of the Committee, the Government of Kerala may grant subsidy of Rs. 25,000 to the producer in respect of full length feature film duly produced, processed, recorded and re-recorded in its entirety in the State of Kerala [subject to such relaxations that may be considered by Government and the modifications referred to in Rule 1(iv) and (v)]. 7. The subsidy amount sanctioned by Government shall not be mortgaged or authorised to be paid to any other persons. It shall be paid only to the producer of the film soon after the release of the film. ** ** ** (i) No film produced and certified prior to 1st April 1975, shall be eligible for subsidy. (iv) If a full length feature film is made in more than one language version simultaneously, only one version of the film shall be eligible for consideration of the subsidy. An order of the State Government dated 25-7-1976 specifies the purpose of the subsidy as under: ORDER V. Balasubramanian, Vice President 1. The assessee-firm carries on the business of production and release of movie films. In Part III of the return of income filed for the year, the assessee claimed as exempt a sum of Rs. 1 lakh being subsidy received from the Government of Kerala in respect of four films released in 1977, 1976, 1975 and 1977, respectively: In respect of each of these films, the assessee received a sum of Rs. 25,000 as subsidy under a scheme of the Government of Kerala known as the 'scheme for grant of subsidy to full length feature film entirely produced in the State' ('the Scheme'). The ITO rejected the assessee's claim that the sum of Rs. 1 lakh was not a revenue receipt and alternatively, that it was a casual income. He held the amount to be revenue receipt taxable in the hands of the assessee. On appeal, the Commissioner (Appeals) confirmed the order of the ITO. It is, thus, that the matter is in appeal before the Tribunal. 2. The learned Counsel for the assessee has pointed out that these amounts paid as subsidies were merely incentives for production and granted in the nature of awards or gifts. The amount was not taxable at all in t he first place, being not in the nature of income. It is alternatively contended that it is not taxable in the hands of the present assessee. The subsidy was not given on the basis of the cost of the film or on the basis of expenses. It does not depend on the language of the film nor on the facts of the expenditure thereof. The payment was made merely as an incentive to produce films within the State. The letters produced in this connection, according to the learned Counsel, indicate that the subsidy is granted when a picture is produced in the Kerala State. It is not connected with any expenditure incurred by the assessee nor with any depreciable asset. The sole aim was for promotion of film industry in the State. A lump sum was granted without any specific expenses in view. It was not necessary for the assessee to use the subsidy amount for any particular purposes. Insofar as the subsidy was not granted for the reduction of any expenditure, according to the learned Counsel, on this position a liability does not arise at all. Since the Income-tax Act, 1961 ('the Act') and Rule 9A of the Income-tax Rules, 1962 ('the Rules'), gives the assessee a privilege to write off the cost of the film if the film has done 90 days or more, the cost of the film was already written off (sic). There was no question, therefore, of an asset or reducing its cost. The subsidy was also unconnected with the capital structure of the film business or any revenue expenditure incurred. Certainly, according to the learned Counsel, this was not a grant for supplementing the profit earned by the assessee. Reference is made to the Central Subsidy Scheme, whereunder under identical circumstances subsidy is given to small-scale industries. The decision in Pioneer Match Works v. ITO [1982] 1 SOT 331 (Mad.) (SB) is referred to in this connection. While the decision in Sahney Steel & Press Works Ltd. v. ITO [1983] 4 ITD 6 (Hyd.) (SB) in a sense supports the assessee's case, the facts of First ITO v. Smt. Peethambari Devi [1983] 4 ITD 557 decided by the Madras Bench 'B' (Special Bench) of the Tribunal, are clearly distinguishable from the assessee's case. 3. At any rate, it is pointed out that this was not the receipt of the present assessee. The application for the same was filed by an old partnership. The amount received by the present partnership, therefore, would not be assessable even under Section 41(1) of the Act. 4. For the department, stress is laid on the orders of the authorities below. The subsidy amount is received in the accounting year and is a clear receipt arising from the assessee's business of film production. The subsidy is paid for production of films. The assessee is in the line of film production. Only a person who produces a film satisfying the requisite conditions can get the subsidy. The assessee's status is that of a producer of films. The receipt is in that capacity only. A receipt in the course of business can be exempted from tax only if it is a capital receipt or a casual receipt. In the assessee's case, neither of these claims can be made. To support the case that any receipt in the course of business is revenue receipt and income, the learned counsel has relied on the decisions in Dhrangadhra Chemical Works Ltd. v. CIT [1977] 106 ITR 473 (Bom.), CIT v. Wheel & Rim Co. of India Ltd. [1977] 107 ITR 168 (Mad.), Kesoram Industries & Cotton Mills Ltd. v. CIT [1978] 115 ITR 143 (Cal.) and CIT v. Swadeshi Cotton Mills Co. Ltd. [1980] 121 ITR 747 (All.). Since the subsidy is received in the assessee's capacity as a film producer and it has necessarily worked for the same, it cannot be said to be a casual receipt. It is also not a capital receipt. The Central Government subsidy scheme referred to by the assessee, according to the learned Counsel, has nothing to do with the present subsidy. The letter is not related to a capital expenditure or a capital outlay. Films are clearly the stock-in-trade of the assessee and a trading asset. Any receipt in connection with the films should, therefore, be only on revenue account. The decision in Smt. Peethambari Devi's case (supra) clearly supports the department's case. Referring to Rule 4 of the Scheme, it is pointed out that the award of the subsidy clearly depends on the quality of the film. In this respect, it cannot even be said to be similar to the Central Government subsidy scheme for small-scale industries. Reference is made to [1974] 96 ITR (St.) 151 where a circular on the subject is referred to--Circular No. 142 [F. No. 204/25/74 IT(A-II)], dated 1-8-1974. The decision in Smt. Peethambari Devi's case (supra) and Pioneer Match Works' case (supra) drew strength from the circular. The subsidy there was particularly intended to be towards capital outlay. 5. On the question of the assessability of the amount in the hands of the assessee, the learned Counsel for the department has pointed out that there was only one firm all through. Changes in the constitution of the firm did not give rise to another entity with every change of the constitution. There was also a specific provision in the partnership deed that the retirement of a partner did not dissolve the firm. On the question of a single firm, reference is made to the decisions in CIT v. A.W. Figgies & Co. [1953] 24 ITR 405 (SC), Shivram Poddar v. ITO [1964] 51 ITR 823 (SC), CIT v. Kirkend Coal Co. [1969] 74 ITR 67 (SC) and CIT v. Sant Lal Arvind Kumar [1982] 136 ITR 379 (Delhi). The decision of the Andhra Pradesh High Court in the case of CIT v. Chandajee Khubajee & Co. [1983] 143 ITR 365 broadly supports the department's stand. The question to be asked, according to the learned Counsel, was, who became entitled to the subsidy, who applied for the subsidy and who received it. The answer to these questions is 'Excel Productions'. The producer is all along the same assessee--Excel Productions. The question of allocation of shares of partners comes only after the income is earned. With reference to the dissolution of the partnership on the strength of which the assessee claimed that it was not the recipient of the subsidy, it is pointed out that after the dissolution of the firm the assets and liabilities were divided. In this there was no provision dealing with what would go to the erstwhile partners. Referring to Clause 3 of the partnership deed, it is pointed out that these can have relevance only to partners, inter se, and not the firm. It is only an overriding title against the continuing partners and not the firm. 6. We have considered the matter. There was a firm of eight partners constituted under a deed dated 4-8-1965. On 1-10-1977, this partnership was dissolved. A new deed drawn up on 1-10-1977 created a partnership of five partners. During the previous year relevant to the assessment year under appeal, the firm was constituted of five partners. The subsidy amount, the subject-matter of the present appeal, was received on 25-3-1978 during the previous year by the firm constituted of five partners. The assessee's claim is that the amount received is a capital receipt and is not taxable. It is also claimed that at any rate, the present firm only received the amount but it accrued under the rules to the earlier firm. 7. The relevant portions of the rules for the grant of subsidy to full length feature film produced in Kerala State are as under: 1. (ii) These rules shall come into force from 1st April, 1975. (iii) Subject to such relaxations that may be considered by Government, they shall apply to all full length feature films entirely produced, processed, recorded and re-recorded in the State of Kerala and duly certified for public exhibition by the Central Board of Film Censors (Government of India). Even though quite a large number of feature films are produced every year, majority of them including films in Malayalam are produced in places outside the State. Government have been considering the question of adopting measures for encouraging the production of feature films in the State. As the first step in this direction, Government has formulated a scheme under which subsidy amounting to Rs. 25,000 will be granted to full length feature films entirely produced in the State and duly certified for public exhibition by the Central Board of Film Censors (Government of India). Under its G.O. dated 25-2-1976, our orders were passed on 25-3-1978 sanctioning the subsidy of Rs. 25,000, three of them to the managing partner, Excel Productions, P.B. No. 181, Alleppey, and the fourth one to Smt. Annamma Kunchacko, partner Excel Productions, P.B. No. 181, Alleppey. These sanctions refer to applications received from the managing partner in respect of the first three sanctions and Smt. Annamma Kunchacko for the fourth sanction. Apparently, the four abovementioned films were produced earlier to the above date and as clarified in the assessment order in the years between 1975 and 1977 and none of them were produced during the previous year relevant to the assessment year under appeal. The constitution of the firm at the time of the production was the one under the partnership deed of 4-8-1965 with eight partners and not the one under the new deed of 1-10-1977. 8. The conditions laid down in the rules for the grant of the subsidy along with the order of the Government dated 25-7-1976 clearly indicate that the purpose of the subsidy is to give an incentive for production of full length feature films within the State. This scheme aimed at promotion of film industry within the State does not, however, specify anything about the particular technological qualities or merits of the feature films to be produced. Thus, the subsidy would be available to a film produced in any language. There is no limit or restraint on the expenditure to be incurred in the film either within the State or outside the State, other than the length of the film fifed at 3000 mts. in 35 mm. The subsidy is not based on the expenditure incurred by the producer. It is a lump sum amount payable for all films coming within the specified class. No condition relating to the expenses incurred for producing the film either on capital or on revenue account obtains. The subsidy received can be utilised for any purpose the recipient likes. He may use it for working capital or for fixed capital in the business. There is not even any requisite that he should use it in the business. It can be taken away for personal purposes. 9. Other interesting sidelights, the rules of the Scheme reveal are that there is no condition as to the exhibition of the film or the period of exhibition of the film. Rule 2(ii) of the Scheme defines 'producer' as the person "whose name is mentioned as producer in the credit titles of the film duly certified by the Central Board of Film Censors". It is, therefore, not a requisite for the grant of subsidy that the alleged producer should be even a highly technically qualified man. Normally, the producer is a person who produces a thing. It would perhaps include a person who gets together the necessary finance, organisation, etc., and produces the article in this case, a film. He can also, if he has got the necessary finance, hand it over to someone who carries out the production. This point is stressed because we find that the rules do not expect any technical or other expertise from the part of the person who produces the feature film in the State and who is eligible for the grant of the subsidy. In other words, vide as the qualifications of the recipient of the subsidy are, except in the broad sense of producing films within the State, no qualifications are expected. Apart from the criteria the committee of the judges, granting the subsidy, would perhaps decide from time to time, no explicit criteria for the awarding of the subsidy exists. Apart from production of the film itself, neither the exhibition nor box office or other success is also provided for. All these indicate that the Government in awarding the subsidy has fixed its eye mainly on the production of film within the State but not on any other criteria. As it is in the film world, we find one person advances the finance, perhaps another gets together the organisation, a third one directs the film, others do various other activities, all of which together go to make up the final film. From this division of work and introduction of resources, it is not possible to say who is the producer in the case of any particular film. It is in this context, it would appear that the award is stated to be given to the person who is shown as the producer in the title of the film itself as recognised by the Censor authorities. If, therefore, someone advanced the money, someone else brought technical excellence and ability to bear on the project, but the picture is treated as produced by someone, that person gets the subsidy. The property in the film may belong to anyone. The film may be exhibited or given up for exhibition by one to anyone else. The grant of the subsidy is not concerned with this either. We are stressing these facts to highlight the issue that the State in granting the subsidy has not taken into account any other fact than the production of a feature film within the State. The question is, against such a grant will the fact of carrying on business by one or other entity be relevant ? Could the carrying on of the business be regarded as a sine qua non of the grant of the subsidy ? The natural corollary is, could the subsidy be then regarded as an inevitable addition to the receipts of a business carried on ? The main reason for bringing to tax the subsidy amount is that it arises out of the business of the assessee. If the subsidy goes only to a producer listed in the title of the film and the advance of money, expenditure of money, collection on exhibition, etc.,--in fact, the entire operation of the business--belong to someone else, would it be correct as a matter of fact or law to say that the person who receives the subsidy is the person carrying on the business ? 10. In our opinion, the clear answer to the above questions is that the award has nothing to do with the carrying on of the business. If that were so, the rules regarding the subsidy could have laid down that the person who receives the subsidy should carry on the business of producing, distributing or in any other way carrying on a business within the State. Without such a specific requirement specified in the rules, in our view, it would not be proper to connect the receipt of the subsidy with the carrying on of the business. If, for instance, while the assessee may carry on a business, but the films which receive the awards are produced by someone else, could it be said that the assessee would be entitled to receive the awards merely because the award producing films were traded on by the assessee? In our opinion, the answer is certainly 'no'. In the case of certain awards of grants as incentives, there might be the requirement of carrying on a business. In other cases, the awards or incentives could be given only to persons carrying on a business. In such cases, it is the inevitable circumstance of conducting a business which leads to the acquisition of the award or grant. In our opinion, the same cannot be said of the awards in the present case. It is more so because for the reasons detailed in the earlier paragraphs, the rules have not taken note of any business aspect in production or release of movie films at all. In fact, the second aspect of the question raised by the learned Counsel for the assessee lends an answer to this problem. It may be that one person produces a movie and gets the award, but the business of dealing in the film, exhibiting it, getting a profit, etc., pertains to another person. 11. In the present case, the producer of the subsidy winning films submitted applications for the subsidy based on the movies produced in the previous years 1975 to 1977. If either that producer was non-existent during the previous year when the award was given or he was not in business at that time, certainly it cannot be stated that these awards were received by a person satisfying these conditions in the later year. Even though the rules do not mention the time for the grant of the subsidy, apparently, the conditions specified therein would relate to the time when the film was produced. As a natural corollary, the award must go to the person who produced the film. In this light, the subsidy is clearly referable to the person who produced the film and at the time when it was produced. There would certainly not be any grant of subsidy to a person at a later time or to any other person for a matter of that. In the light of the rules, therefore, and on a proper interpretation of them, the grant of the subsidy should clearly relate to the completion of the act of producing the film in the first instance, and to the producer, as defined at that time, in the second. The fact, therefore, that the assessee carries on a business during the previous year under appeal would not, in our view, be relevant to the question of receipt of the subsidy which relates to a film produced very much earlier than in the previous year. 12. The assessee's second point is also, therefore, in our opinion, closely connected with the above discussion. What is pointed out is that the person who should have received the subsidy, is a firm constituted in the particular accounting years 1975 to 1977. It was only that firm which was entitled to the receipt of the subsidy. Merely because it was as a matter of fact, received in the year 1978, it cannot be treated as the income of the assessee--a firm in existence in this last mentioned year. It is not necessary, in our view, to go into the question of the continuity of the firm from 1975 to 1978 at all for resolving this dispute. Even granting for argument's sake that the assessee in 1975 is the same as in 1978, the grant of the subsidy relates only to what the assessee has done in the years 1975 to 1977. It has nothing to do with whatever business he may do in 1978. In other words, even if the assessee has closed its business in 1977, the subsidy relating to the years 1975 to 1977 could have been received by it if granted late on account of the procedure involved in the grant only in a subsequent year. If he has closed the business in 1977, he would be receiving the subsidy after the business is closed. Since the subsidy is granted to each film separately on its own merits and satisfying certain conditions, it could certainly not be regarded as the product of the business in existence in 1978, since it was clearly referable to certain activities performed in 1975 to 1977. Even if, therefore, the same assessee continues the business for all these years and in 1978, the award whenever received would be traceable and relevant to the business conducted by the assessee in the earlier year. If treated as an income, it cannot be regarded as relevant to the year under appeal at all. 13. Apart from the above, we are not sure that the mere fact of treating the assessee as the same for these years would be sufficient to regard the subsidy as a receipt of the same assessee in the current year. There was a change in the constitution of the firm even according to the department. On the date when these films were produced, the assessee was a firm of eight partners. The business leading to the grant of this award (assuming that it is the product of the business) was done by an assessee in the years 1975 to 1977. Any income arising from that business would accrue to that assessee during the year when the business was done. Even if, therefore, the same firm were regarded as continuing in the year 1978, the subsidy regarded as an income would accrue to the old partners who were partners in the years 1975 to 1977. The subsidy cannot constitute the income of the firm constituted in 1978. Section 186 of the Act, while holding that the income would be assessable in the hands of a subsequent firm, does not say that the charge of tax on a business conducted in an earlier year would actually be on the firm continuing on a later date. The income has to be apportioned among the partners who were partners at the time when the income was earned. All controversy about the apportionment of income or assessment of income between an earlier and later period decided by the Courts and reported in the law reports refers only to cases where there was a change in the constitution of the firm during the previous year and the income was earned in the earlier part of the year rather than in the later part of the year. No notice is taken in the decided cases or no decision given regarding the income earned by the firm in a period prior to the previous year relevant to the assessment year. For this reason also, the subsidy relating to a production during an earlier year cannot be treated as the income of a later previous year or assessment year. 14. It was pointed out that the producer was all along 'Excel Productions' and so the person who applied for the subsidy, became entitled to it and who received it was the same. There is a fallacy in this argument. The name 'Excel Productions', by itself, does not indicate the real chargeable entity or the real person who received the alleged income. This name could be adopted by different entities--an individual, a firm with one or other constitution, even a company or any other legal entity. The name, by itself, therefore, does not fix the personality of the assessee or the entity to be assessed. One has to see who carries on the business under that name. In the present case, one has to see who produced the film even though under that name. Obviously, the persons who produced the film using the name 'Excel Productions' in 1975 to 1977 apparently were not the same persons who did the business in 1978 and who received the subsidy. In fact, the group of people who were known as Excel Productions in the title of the feature films, as recognised by the Central Board of Film Censors, cannot be said to be the same group of people who received the award in 1978. In law the former group could certainly lay a claim to the award and even demand it, if received by another set of people. The assessee's claim, therefore, that the partnership as constituted during the previous year relevant to the year under appeal, has not received the subsidy, at any rate exclusively or beneficially as its income has also to be accepted. In our view, it is not necessary, therefore, to go into the question whether the same firm continues or not for this purpose. 15. It is necessary to look into the decisions cited on behalf of the parties. In Smt. Peethambari Devi's case (supra), it was claimed by the assessee that the subsidy was a capital receipt and the Special Bench applied a test as to whether the assessee was able to show that the subsidy was designed to meet the cost of any capital asset. It is on this basis and asking the question whether it was designed to meet the cost of any capital asset, that the subsidy was held assessable as part of the income of the assessee. This is not exactly the point before us. The assessee has not laid a claim that the subsidy was given for the purpose of meeting the cost of any capital asset. The assessee's claim is that it has nothing to do with any capital expenditure or revenue expenditure incurred in connection with the film production. It was given as a prize or award for a person who fulfilled certain conditions. As we have dealt with, at length, on the above point and indicated that even carrying on a business in films is not a sine qua non of getting the award, the question considered by the Madras Bench, in our opinion, is not relevant to the issue on hand. This decision does not help the revenue. 16. In Sahney Steel & Press Works Ltd.'s case (supra), the Special Bench was dealing with certain incentives granted by the Government for encouraging the setting up of industries in the State of Andhra Pradesh. The incentives included, inter alia, refund of sales tax on raw materials, machineries, etc. The refund was subject to a maximum of 10 per cent of the equity capital in the case of public limited companies and the actual capital outlay (excluding work capital) in the case of other companies. The Bench held that the amounts refunded were not really a refund of sales tax nor did they represent any profits or gains of a business carried on by the assessee. Broadly, this decision supports the assessee's case. The Bench considered extensively the other decisions cited before us on behalf of the revenue. In Circular No. 142 [F. No. 204/25/74 IT (A-II)] dated 1-8-1974, the Board had clarified the position regarding the taxability of the '10 per cent Central outright grant of subsidy scheme, 1971' for industrial units to be set up in selected backward areas, etc. The payment of subsidy under the scheme was considered primarily as given for helping the growth of industries and not for supplementing their profits. Since there was a provision to determine the quantum of subsidy with reference to the fixed capital and not the profits, the subsidy, it was advised, could be regarded as being in the nature of capital receipt. In the present case, there is no relation between the subsidy and the fixed capital of any business. That the subsidy would, therefore, go to strengthen the fixed capital base of the business also cannot be urged. 17. Much stress has been laid by the learned Counsel for the department on the decision of the Andhra Pradesh High Court in the case of Chandajee Khubajee & Co. (supra). This was a case where a firm was in existence since the year 1924-1925 with changes in composition from time to time continued up to the assessment year 1971-72. The firm was assessed to sales tax, which was allowed as a trading liability in the earlier years 1962-63 to 1965-66. It obtained a refund during the accounting year relevant to the assessment year 1971-72. The High Court upheld the assessment of the amount refunded under Section 41(1). In this case the fact that there were changes in the constitution of the firm did not make any difference to the applicability of Section 41(1), was stressed. Their Lordships, however, relied on an important fact, viz., that there was no material on record to show that the partnership deeds executed from time to time reserved a right in favour of the retiring partners to share the amount of refund of sales tax as and when received. This was actually a case of the application of Section 41(1). The decision was based on the fact that this was a case of reconstitution of the firm on the one hand and the absence of provisions in favour of the retiring partners for sharing the amount of refund of sales tax on the other. The firm was actually contesting in a litigation, the liability to sales tax and the anticipation of a refund was clearly there. Even then, no provision was made for securing the rights of the retiring partners as regards the sales tax if ever refunded. This decision does not help the revenue in the present case. Section 41(1) refers to the assessment to tax following certain allowances previously made and where there is a clear charge on the receipts. In the present case, the receipts, if at all, belonged to an earlier year when the conditions necessary for getting the subsidy were satisfied. Even for that year it cannot be held that there was a clear charge. For the year under appeal, therefore, this cannot be held taxable on the analogy of the Andhra Pradesh High Court case. 18. In the result, we hold that the subsidy received is not taxable in the hands of the assessee.

Excel Productions vs First Income-Tax Officer on 29 October, 1984

Income Tax Appellate Tribunal - Cochin

JUDGMENT S.H. Kapadia, J. 1. The following question of law has been referred to us by way of Department's appeal for asst. yr. 1994-95 : "Whether, on the fact and circumstances of the case and in law, the Hon'ble Tribunal erred in allowing the appeal of the assessee by excluding the sum of Rs. 20 crores received by the assessee being the compensation for the relinquishment of its tenancy right for the Cadell Road factory premises." 2. In view of the judgment of this Court in the case of Cadell Weaving Mill Co. (P) Ltd. v. CIT (2001) 249 ITR 265 (Bom), the question is answered in the negative i.e., in favour of the assessee and against the Department. 3. Appeal is accordingly disposed of with no order as to costs.

Author: S Kapadia

Commissioner Of Income Tax vs Bhor Industries Ltd. on 26 February, 2003

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA No. 335 of 2003() 1. SOBHA N.C. W/O.MONY K.K., ... Petitioner Vs 1. MAHILAMANI P.N., PALLATHU HOUSE, CHOWARA ... Respondent 2. DILEEP, S/O. SURBAN, KUNJUVEETTIL, 3. THE UNITED INDIA INSURANCE CO. LTD., For Petitioner :SRI.K.I.ABDUL RASHEED For Respondent :SRI.A.MOHAMED MUSTAQUE The Hon'ble MR. Justice K.T.SANKARAN Dated :13/12/2006 O R D E R K.T. SANKARAN, J. ................................................................................... M.A.C.A No. 335 OF 2003 ................................................................................... Dated this the 13th December, 2006 J U D G M E N T The claimant in O.P.(MV) 775 of 2000 on the file of the Motor Accidents Claims Tribunal, North Paravur is the appellant. By the impugned award, the Tribunal awarded a sum of Rs. 13,000/- as compensation to the appellant/claimant. However, in paragraph 17 of the judgment, it was held that the 2nd respondent, driver of the autorickshaw, was not having a valid driving licence at the time of the accident and therefore the third respondent is not liable to indemnify the first respondent, the insured. This finding of the Tribunal is not correct in view of the decision in National Insurance Co. Ltd. vs. Swaran Singh (2004 (1) KLT 781) wherein it was held that mere absence, fake or invalid licence or disqualification of the driver are not in themselves defences available to the insurer against either the insured or the third parties. It was held that the Insurance Company will be liable to satisfy an award in such cases. However, the Insurance Company would be entitled to recover the award amount from the owner of the vehicle when the insurer could establish breach of terms of policy on the part of the owner of the vehicle.  M.A.C.A. No. 335 OF 2003 2 2. The finding of the Tribunal is that the owner of the vehicle allowed the second respondent to drive the vehicle when the second respondent was not having a valid driving licence at the relevant time and therefore the third respondent insurer is absolved from indemnifying the 1st respondent insured. As stated earlier, this finding is unsustainable. In the result, the M.A.C.A. is allowed in part. The award of the Tribunal in respect of point No. 4 holding that the Insurance Company is not liable to indemnify the insured, the first respondent is set aside. The third respondent, the United India Insurance Company Ltd., would be liable to pay the award amount to the claimant in the first instance. However, as held in National Insurance Co. Ltd. vs. Swaran Singh (2004(1) KLT 781), the third respondent may recover from the first respondent the award amount paid by it. The award of the Tribunal is modified to the extent indicated above. The third respondent shall deposit the award amount within a period of two months. K.T. SANKARAN, JUDGE. lk 

Sobha N.C. vs Mahilamani P.N. on 13 December, 2006

Kerala High Court

JUDGMENT Yatindra Singh, J. 1. The main questions involved in this writ petition are : * Whether the charged officer is entitled to get the copy of the preliminary inquiry report and the correspondence in that regard or not. * Whether the charged officer is entitled for personal hearing before the appellate authority or not. * Whether the disciplinary/ appointing authority and the appellate authority are required to record detailed/ separate reasons, even if they agree with the findings of the inquiry report. THE FACTS 2. The petitioner was employed with the State Bank of India (the Bank). At the relevant time, he was posted as the Branch Manager of Raja Ka Darwaja, Varanasi branch of the Bank (the concerned Branch). He was suspended on 8.11.1982 and was given a charge-sheet on 19.5.1983 levelling three charges (the first charge-sheet) (for the details of the charges see Endnote-1). 3. The inquiry in pursuance of the first charge-sheet was conducted by Sri N, N. Srivastava. No witness was examined in this inquiry. A report dated 26.4.1984 was prepared : charge No. 1 was not proved but remaining charges were proved. However, this report was not submitted. The petitioner was given a second charge-sheet on 5.11.1985 levelling two charges (the second charge-sheet) (for details of the charges see Endnote-2) and a third charge-sheet on 14.11.1985 levelling four charges (the third charge-sheet) (for details of the charges see Endnote-3). 4. The inquiry in the second and the third charge-sheet was conducted by a different officer. It was initially entrusted to Sri R. P. Bhatnagar. In this inquiry 27.7.1987 was fixed for production of the Bank's documents and witnesses. The petitioner filed an application for adjournment. This application was rejected on 27.7.1987. The Bank produced the documents. The statement of Sri S.K. Dhusiya, who had become the Branch Manager of the concerned Branch, was recorded on 28.7.1987. He is the only witness examined on behalf of the Bank in the enquiry. 5. The petitioner filed an application in May, 1988 to change the inquiry officer. It was allowed on 14.6.1988 and Sri R. P. Srivastava was appointed as inquiry officer. According to the Bank, Sri S.K. Dhusiya was produced for cross-examination and was cross-examined by the petitioner on 29.12.1988. This is disputed by the petitioner. According to him, he was forced to sign blank papers and thereafter the proceedings for 28th and 29th of December, 1988, were filled up. The inquiry was closed on 29.12.1988 and the parties were asked to submit their briefs. The presenting officer of the Bank submitted his brief on 7.1.1989. It was sent to the petitioner, who submitted his brief on 20.3.1989. The inquiry officer found all charges in the second and third charge-sheets to be proved. This report along with the report on the first charge-sheet was submitted on 12.4.1989. 6. The disciplinary authority agreed with the findings recorded by the inquiry officer and submitted his recommendation on 5.6.1989 to the appointing authority with recommendation that the petitioner be dismissed from service. The appointing authority by his order dated 20.7.1989 agreed with the disciplinary authority and dismissed the petitioner from service. The petitioner filed an appeal which was also dismissed on 13.5.1990. Hence the present writ petition. POINTS FOR DETERMINATION 7. We have heard Sri R. N. Singh, senior advocate assisted by Sri G. K. Singh, counsel for the petitioner and Sri A. C. Tripathi, counsel for the Bank. Following points arise for determination in this case : (i) Whether the impugned orders are bad due to bias. (ii) Whether the petitioner was forced to sign the blank papers that were utilised to write proceeding for 28th and 29th of December, 1988. (iii) Whether the petitioner has been permitted to inspect the documents. (iv) The defence representative was not present on all days in the inquiry. Was reasonable opportunity afforded to the petitioner? (v) Whether Sri S.K. Dhusiya ought to have been examined again after the inquiry officer was changed. Was he cross-examined by the petitioner? (vi) Whether the inquiry is vitiated as : (a) The documents demanded by the petitioner were not supplied to him. (b) The photostat copies of the documents submitted by the petitioner along with his letter dated 27.1.1989 were not considered. (c) Sri R.B. Prasad was not examined to deny the signatures on the photostat copies produced by the petitioner on 27.1.1989. (vii) Whether the petitioner was entitled to personal hearing before the appellate authority. (viii) Whether the impugned orders are bad on the ground that detailed/separate reasons are not recorded, or there is no application of mind. (ix) Whether the punishment is disproportionate to the misconduct. POINT NO. (I) : NOT VITIATED DUE TO BIAS 8. The counsel for the petitioner submitted that the impugned orders should be set aside due to bias of the following officers of the Bank. (i) Sri R.P. Bhatnagar, the first inquiry officer in the second and the third charge-sheet. (ii) Sri S.K. Srivastava, the inquiry officer who submitted the inquiry report on the second and the third charge-sheet. (iii) Sri B. Rai, the disciplinary authority. (iv) Sri B. D. Dixit the appointing authority. (v) Sri R.B. Prasad, the controlling authority. 9. The petitioner has alleged mala fides against all officers who had any thing to do with the case except the inquiry officer who had conducted the inquiry in the first charge-sheet and the appellate authority. 10. It is relevant to note down that none of the persons against whom bias has been alleged are impleaded in their personal capacity. In their absence no allegation of bias can be entertained. Apart from this, there is no merit in the allegations. 11. At the time of submitting his brief, the petitioner did not take any plea of bias against the persons mentioned at serial numbers (i) to (iv) (paragraph 8 of this judgment). It may be said that there was no necessity to take plea of mala fides against persons at serial Nos. (iii) and (iv) as they had not taken any direct action by that time but he could have taken plea of bias against (i) and (ii) if there was any. However, he did not do so. The petitioner also did not take any specific plea of bias against them (persons mentioned at serial No. (i) to (iv) in paragraph 8 of this judgment) in the appeal. He is raising the plea of bias in the writ petition. It is a factual plea. It cannot be raised for the first time in the writ petition. 12. Sri R.B. Prasad was the regional manager and the controlling authority of the petitioner. He has not directly dealt with the inquiry or the impugned orders. The petitioner initially never made any complaint against him. It was only after he was suspended and charge-sheeted that he started making complaints against him. Sri R.B. Prasad retired in the year 1985. The fact that Sri R.B. Prasad retired in 1985 is not disputed : it is clear from the letter dated 20.12.1985 written by the petitioner to the Ministry of Finance and filed by the petitioner as Annexure-20 to the first supplementary-affidavit. The inquiry report on the second and third charge-sheet is dated 12.4.1989, Thereafter the impugned orders have been passed. They are much after the retirement of Sri R.B. Prasad. It is not clear as to how a retired person could influence the inquiry. There is also nothing to show that Sri R.B. Prasad influenced the inquiry or the impugned orders. POINT NO. (II) : DID NOT SIGN THE BLANK PAPERS 13. The counsel for the petitioner submitted that : * No reliance can be placed on the proceedings of 28th and 29th December, 1988 as no enquiry was conducted on that date. * The petitioner was forced to sign on the blank papers and later on they were utilised to write the proceeding. * The petitioner also reported this fact to the Superintendent of Police as well as to the higher Bank authorities. 14. The submission in the preceding paragraph has been disputed by the counsel for the Bank. According to him : * The enquiry was held on those dates. * The petitioner participated in the inquiry on those dates. * He filed documents on 28.12.1988. * He cross-examined Sri S.K. Dhusia on 29.12.1988. 15. The proceeding came to an end on 29th December, 1988 and the parties were asked to submit their briefs. The petitioner also submitted his brief on 20.3.1989. In this brief, he did not raise aforesaid plea. The petitioner has also filed an appeal. In this appeal also, he never took this ground. It is factual one. The petitioner is not entitled to take this plea for the first time in the writ petition. 16. Apart from above, this plea is unbelievable. The petitioner did file many documents on 28.12.1988. He has not denied that the documents were not filed by him. This shows that at least some proceeding was held on these dates. There is no reason as to why the inquiry officer would do it. We have already negated the plea of mala fides against the inquiry officer. In case the petitioner was not cooperating in the inquiry then he could have proceeded ex parts ; there was no necessity to force the petitioner to sign on the blank papers, POINT NO. (III) : THE PETITIONER INSPECTED THE DOCUMENTS 17. The petitioner along with his defence representative inspected some documents on 11th March, 1988. Thereafter he was given another date for inspection of documents. This inspection was to be done on 5th and 6th April, 1988. On both dates petitioner was present but he did not inspect the document as his defence representative was not present. The petitioner again inspected the documents on 27.10.1988. He also gave a certificate that he has inspected the documents. This fact is also indicated in the proceeding dated 28.12.1988. It is not denied that inspection certificate was not given. This shows that the petitioner inspected the documents. POINT NO. (IV) : PROPER OPPORTUNITY GIVEN 18. The counsel for the petitioner submitted that : * The petitioner was not given reasonable opportunity as his defence representative was not present on all dates in the inquiry. * The inquiry officer did not inform the defence representative about the dates of the inquiry. * The defence representative was not present for the reason that he was given other duties by the Bank. 19. The aforesaid plea was neither taken in the brief submitted by the petitioner nor in the appeal filed by him. He has mentioned in the appeal that the Defence representative was influenced. However, the plea that is being raised now was not raised. It is factual and cannot be raised for the first time in the writ petition. Apart from it, this contention has no merits. 20. There were two defence representatives : one in the inquiry relating to the first charge-sheet, and the second one in the inquiry relating to the second and the third charge-sheets. The first defence representative was present on all dates. The second defence representative was not present on some dates. The defence representative was of the choice of the petitioner. The petitioner knew about the dates and it was his duty to inform the defence representatives about the dates. There is nothing on record to show that the defence representative was given any other duty on those dates. There is also nothing on record to show that the defence representative asked for leave to attend the inquiry and it was denied. There is also nothing on the record to show that the petitioner ever informed the inquiry officer that the defence representative is not being given leave to attend the inquiry. In view of this it cannot be said that the petitioner has been denied any reasonable opportunity. 21. The petitioner has cited two decisions in support of this submission : * The first one is K. Mohan v. Distt. Controller, AIR 1970 Cal 131 (16). It has held the same thing as held by us. * The other case is Dakshinamoorthy v. Distt. Signal Telecom. Engineer, AIR 1989 Mad 201, this case is distinguishable on facts : there was evidence to show that the Defence Representative was not spared by the head and this information was with the inquiry officer. It is not so in the present case. POINT NO. (V) : S.K. DHUSIYA WAS CROSS EXAMINED 22. Sri S.K. Dhusiya was examined by Sri R. P. Bhatnagar on 28.7.1987. The petitioner was not present on that date. Subsequently Sri R. P. Bhatnagar was changed by order dated 14.6.1988 and a new inquiry officer was appointed. The counsel for the petitioner drew our attention to the inquiry report and submitted that : * Sri S.K. Srivastava, the new inquiry officer, ought to have proceeded afresh from the stage of inspection of documents. * Sri S.K. Dhusiya ought to have been examined again. * The earlier statement of Sri S.K. Dhusiya could not be relied upon. 23. The order dated 14.6.1988 is not on the record of the writ petition. It is true that there is some reference to it in the inquiry report. However, from this reference, the contents of the order cannot be ascertained. 24. The point that is now being raised was neither taken in the brief submitted by him nor in the appeal. The petitioner himself, (in paragraph 56 of the writ petition) has mentioned that Sri S.K. Srivastava was to proceed from the stage of inquiry already done by Sri R.P. Bhatnagar, this assertion negates the plea. It cannot be raised for the first time during arguments. 25. In any case, non-examination of Sri S.K. Dhusiya again had not caused any prejudice to the petitioner. The petitioner had filed an application to cross-examine Sri S.K. Dhusiya. This was allowed and Sri S.K. Dhusiya was produced for cross-examination. Proceeding of the inquiry dated 28th and 29th December, 1988, are on the record. The inquiry officer has mentioned in the order dated 28.12.1988 that petitioner had stated that he would cross-examine the Bank witness on the next date. The case was adjourned for 29.12.1988. On that date the petitioner cross-examined Sri S.K. Dhusiya. Even if Sri S.K. Dhusiya was examined again then he would have given the same statement. At the most the petitioner had right to cross-examine him and that has been done : no prejudice has been caused to the petitioner. POINT NO. (VI) : INQUIRY--NOT VITIATED 26. The counsel for the petitioner submitted that the documents demanded by him were not supplied. During arguments he has confined his case for the following documents only : (i) Report of the preliminary inquiry and the correspondence in that regard. (ii) Letters dated 18.1.1979 and 2.3.1981 alleged to have been written by him informing the controlling authority regarding the purchase of the plot by his wife and her business (relevant to the second charge-sheet). These letters are referred to as the Letters at S.N. (ii). (iii) Letter Nos. 511 and 540 of December, 1981, alleged to have been written by Sri R.B. Prasad, the controlling authority, to the petitioner for giving accommodation to the parties and for manipulating the records (relevant to the first and the third charge-sheet) . These letters are referred to as the Letters S.N. (iii). PRELIMINARY INQUIRY REPORT AND THE CORRESPONDENCE--NOT REQUIRED TO BE GIVEN 27. The preliminary inquiry is conducted to find out the persons responsible for the lapses or the misconduct. The final or the departmental inquiry is held subsequently if any prima facie case is found against any person. In the departmental inquiry, the employer has to prove the charges. The preliminary inquiry is relevant to find out against whom departmental inquiry should be held and has no relevance for proving the charges in the departmental inquiry. It is not taken into account at the time of departmental inquiry against the charged officer. 28. In the present case no part of the preliminary inquiry has been relied upon to prove the charges against the petitioner. As the preliminary inquiry was not relied upon to prove the charges against the petitioner, it was not necessary to supply a copy of the same. The case would have been different, had the inquiry officer relied upon the preliminary inquiry report while holding the petitioner guilty. 29. The same reasoning, as applicable to the preliminary inquiry, is also applicable to the correspondence in regard to the preliminary inquiry. It is not relevant for determining whether the charged officer is guilty or not. It has not been relied upon by the inquiry officer in this case. The petitioner is not entitled for the same. 30. The petitioner has cited following two cases in support of his submission : (i) State of Punjab v. Bhagat Ram, 1975 AISLJ 88 (the Bhagat Ram case) ; (ii) Sate of U. P. v. Shatrughan Lal, 1998 (3) AWC 2373 (SC) : AIR 1998 SC 3038 (the Shatrughan Lal case). These cases are not applicable to the facts of this cases. The counsel for the Bank has also cited some cases. They are mentioned in Endnote-4. 31. The Shatrughan Lal and the Bhagat Ram cases are the decisions where the Supreme Court had dismissed the appeals filed by the employer. In these cases the Supreme Court has made some observations regarding the statements recorded in the preliminary inquiry. They are casual observations. However, even in these cases, there is no observation regarding preliminary inquiry report or the correspondence regarding it. In the present case, the petitioner is asking for the preliminary inquiry report and the correspondence regarding it : he is not asking copy of statement of any witness. There is no assertion that statement of any witness was recorded in the preliminary inquiry. The two decisions cited by the petitioner are not applicable to the facts of this case. THE OTHER DOCUMENTS--NON EXISTENT 32. The petitioner had filed an application on 28.11.1987 detailing the documents that should be supplied to him and the name of the witnesses that he proposed to examine to prove his case. The letters at S.N. (ii) and (iii) were also mentioned there. The inquiry officer after considering the objection of the Bank passed an order on this application on 30.9.1987. 33. In the aforesaid order the letters at S.N. (ii) are dealt as item numbers 3 and 4 under the heading 'in respect of charge-sheet dated 5.11.1985'. The order states that the, 'charged officer should specify the number of the special letter file through which these letters were sent. Thereafter the presenting officer shall have these inspected'. 34. It appears that the petitioner gave special file number of one of the letters at S.N. (ii) namely the one dated 28.1.1979. The D.O. file of the concerned branch for the year 1979 containing 14 letters from 1.8.1979 to 6.12.1979 was produced. The order in respect of this letter and other documents was passed on 7.4.1988. The order in respect of this letter is under the heading '(a) Item No. 10 of the defence list'. The inquiry officer, after perusing the D.O. file of 1979, held that this letter was never sent and it was non-existent document. This finding has been accepted by all authorities. There is nothing to show that it is illegal. 35. The counsel for the petitioner submitted that there is no order regarding the letter dated 2.3.1981 of the letters at S.N. (ii) and this letter ought to have been supplied to him. 36. It is not disputed that there is no order regarding letter dated 2.3.1981, however by the order dated 30.9.1987, the petitioner was required to give special letter file through which this letter was sent. There is nothing to show that letter file number (through which this letter was sent) was ever indicated to the inquiry officer so that it could be summoned and examined. In absence of this, no benefit can be given to the petitioner. 37. The letters at S.N. (iii) are alleged to be by the controlling authority to the petitioner : one of them is regarding accommodation to different parties and the other one is regarding manipulation of the records. They are dealt in the order dated 7.4.1988 under heading '(g) Item numbers 27 (1). 27 (3) and 27 (4)'. The Bank produced branch register marked as 'OL ordinary letter receipt and sent, 1981'. These letters are not mentioned in this register. The Bank also produced all the documents sent by the petitioner to the controlling authority from the end of November, 1981 to December, 1981. The letters sent by the petitioner also do not refer to the above mentioned letters or the matter dealt by them. After considering this, the inquiry officer held that these letters could not be shown for inspection to the petitioner as they were not in existence. These findings have been accepted by the authorities. In view of this it cannot be said that proceedings are vitiated as necessary documents were not shown to the petitioner. PHOTOSTAT COPIES--RIGHTLY NOT CONSIDERED 38. The counsel for the petitioner submitted that : * The petitioner had submitted photostat copies of 71 documents along with letter dated 27.1.1989. * The photostat copies of the letters at S.N. (ii) and (iii) were also among them, * They ought to have been considered. 39. The petitioner was asked to produce his evidence on 28.12.1988. He produced many documents on that date. The inquiry was taken up on 29.12.1988. The petitioner said that he had no more documents to produce. The Bank submitted its brief on 7.1.1989. It is after this that photocopies of these documents were submitted along with letter dated 27.1.1989. In case these documents were available, then there appears to be no reason as to why they were not produced earlier along with other documents on 28.12.1988 and as to why the petitioner made the statement that he has no more documents to offer. The documents were not in possession of the petitioner by 29.12.1988, otherwise he would have filed them. No reasons have been indicated as to how these documents have come in his possession after that date. This creates doubt about authenticity of these documents. 40. It seems strange that the superior officer will ask his Junior to manipulate the records. In case this was done then the petitioner ought to have refused to manipulate the records. In any case, at the most, this may make liable Sri R.B. Prasad, the then controlling authority, also to be guilty, but it does not absolve the petitioner. 41. The photostat copies of the documents were received after the inquiry was closed. They were neither produced during the inquiry, nor proved. They were also not shown to the presenting officer of the Bank. The inquiry officer had already held the letters at S.N. (ii) and (iii) to be nonexistent : there could not be photostat copies of the same. The inquiry officer-on the circumstances of the case, nature of the contents, and the way they are written--has remarked in his report that they are not genuine documents. All the authorities, have agreed with finding of the inquiry officer. There is no illegality on this account. REGARDING EXAMINATION OF SRI R.B. PRASAD 42. The counsel for the petitioner submitted that adverse inference should be drawn against the Bank for the reasons that : * Sri R.B. Prasad, the controlling authority, has not denied the letters at S.N. (iii). * He was not examined by the Bank. * He was not produced for cross-examination as requested by the petitioner. 43. For the reasons given below, no adverse inference can be drawn : * Sri R.B. Prasad had retired in the year 1985. His statement was not relied upon : he was not produced by the Bank. Only a witness may be cross-examined. He could not be cross-examined by the petitioner. * In case the petitioner wanted to prove his documents, he ought to have summoned Sri R.B. Prasad or got his signatures on photostat copies of the letters compared with the admitted signatures of Sri R.B. Prasad. * The petitioner had also filed a list of witnesses to be examined by him along with his letter dated 20.9.1987. Sri R.B. Prasad is not included in this list. * The inquiry officer had not considered the photostat copies of the documents and we have upheld the reasoning. POINT NO. (VII) : PERSONAL HEARING NOT REQUIRED 44. The counsel for the petitioner submitted that his application dated 19,10.1989 for personal hearing was wrongly rejected on 9.11.1989 and personal hearing ought to have been afforded by the appellate authority. 45. In appeals, personal hearing is mandatory only in those cases where it is specifically provided. The appeal filed by the petitioner was a departmental appeal. There is no specific provision for personal hearing. It was not necessary to afford personal hearing. However, this does not mean that in an appropriate case, it should not be provided. In cases where there is no specific provision, the appellate authority lias discretion in the matter. It may--if the interest of Justice so requires--grant leave for personal hearing. 46. It is true that in L. S. Thakur v. P. N. B., 1998 (1) SLR 271, (cited by the petitioner) a Division Bench of the H. P. High Court had remanded the case to the appellate authority for affording personal hearing to the charged officer but this proposition is not universally applicable. It depends on the facts of each case. 47. In the present case, the appeal was being decided by the person who was expert in the banking practises. There is nothing to show that the case was such in which personal hearing was required. We have dealt with many points in the writ petition but most of them are taken in for the first time in the writ petition. There was some confusion too but it was due to the way this writ petition was conducted. We have made observations regarding the same under the heading 'some observations'. We should change the way the writ petitions are conduced however this does not mean that this was a case for personal hearing in the appeal. The appellate order cannot faulted on this ground. POINT NO. (VIII) : ORDERS NOT ILLEGAL Punishing/Appointing Authority--Detailed Reasons Not Required 48. The appointing authority may punish an employee for misconduct after conducting an inquiry. In case inquiry is conducted by the appointing authority itself then he has to record reasons for his finding. But generally this inquiry is delegated to another person namely the inquiry officer (as in the present case). He conducts the inquiry and submits his report along with his findings and in support of the same. He is not supposed to propose punishment but in case the inquiry officer does so then his report may not be ignored on this ground alone. The punishment is in the domain of the appointing authority. Is he--even if he agrees with the finding of the inquiry report--required to record detailed/separate reasons for the order? 49. The counsel for the petitioner cited following cases for the proposition, that detailed reasons have to be recorded : (i) Punjab National Bank and Ors. v. Kunj Behari Misra, 1998 (7) SCC 84 (The Kunj Behari case) ; (ii) Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734 : (1999) 7 SCC 739 : 1999 (6) JT 62 ; (iii) Bank of India v. Degala Suryanarayana, 1999 (3) AWC 2.103 (SC) (NOC) : AIR 1999 SC 2407. 50. In the above mentioned cases the appointing authority had disagreed with finding of the inquiry officer. It is in this context that the observations were made. They are not applicable in a case where the appointing authority agrees with the finding of the inquiry officer. 51. It has been held in the following cases that the appointing authority is not required to record detailed reasons on the finding of the charges in case he agrees with the finding of the inquiry officer, (i) Tara Chand Khatri v. Municipal Corporation of Delhi, AIR 1977 SC 567 ; (the T. C. Khatri case) ; (ii) Ram Kumar v. State of Haryana, 1987 (2) AWC 905 (SC) : AIR 1987 SC 2043 ; (iii) Indian Institute of Technology. Bombay v. Union of India, 1991 (Supp) 2 SCC 12 ; (iv) Jagdamba Prasad v. Commissioner, Varanasi, 1999 (4) AWC 3094. In our opinion, these decisions lay down the correct law. Appellate Authority--Detailed Reasons Not Required 52. The counsel for the petitioner cited following decisions and submitted that the appellate authority even in case of affirming an order should record detailed/separate reasons. (i) Union of India v. Tulsiram Patel, 1985 (3) SCC 398 (the Tulsi Ram case). (ii) Union of India v. R. Reddappa, 1993 (4) SCC 269 (the Reddappa case), (iii) A. L. Kalra v. Project and Equipment Corporation of India Ltd., 1984 (3) SCC 316 (the A. L. Kalra case), (iv) R. P. Bhatt v. Union of India. AIR 1986 SC 1040 (the R. P. Bhatt case). (v) Ram Chander v. Union of India, AIR 1986 SC 1173 (the Ram Chander case). (vi) Deokinandan Sharma v. Union of India. SCC 340 (the Deoki Nandan case), (vii) Ram Dhin Gupta v. S.B.I., 1989 (2) Bank CLR 318 (the Ram Dhin case). (viii) Bhagat Raja v. Union of India, AIR 1967 SC 1606 (the Bhagat Raja case). 53. The aforesaid cases either do not apply to the facts of this case or do not lay down the law correctly. The reasons are as follows : (a) In the Tulsi Ram case and the Reddappa case (the first and the second case) holding of enquiry was dispensed with. Different considerations apply in such cases, as enquiry was not held. The observations made in these cases are not applicable to a case where inquiry is held. (b) The A. L. Kalra case (the third case) is distinguishable and is not applicable here. In this case, the disciplinary authority and the appellate authority had not given any independent reasons but had merely accepted the reasons of the enquiry report. The Supreme Court rejected the inquiry report on the ground that no reasons were given in support of the conclusion and the conclusion was mere ipse dixit of the inquiry officer. Once the enquiry report was rejected, then the orders of the disciplinary and the appellate authority also fell through and could not stand unless independent reasons were recorded. This is clear from the following observations of the Supreme Court. "In paragraph 2 (of the inquiry report), it is stated that the appellant has committed breach............. By what process this conclusion is reached or what evidence appealed to him is left to speculation. The reasons in support of the conclusion are conspicuous by their absence. The findings are the ipse dixit of the inquiry officer. ............................................................................... The salient feature which flies into the face about the findings recorded by the inquiry officer and the order made by the disciplinary authority as well as the appellate authority is that none of them made a reasoned order or speaking order and their conclusions are mere ipse dixit unsupported by any analysis of the evidence or reasons in support of the conclusions." This case is an authority that at least one authority should record valid reasons however this does not mean appointing/ disciplinary authority or the appellate authority is required to record reasons while accepting the inquiry report which is supported by reasons. This case is not applicable here as in the present case inquiry officer has recorded valid reasons for his conclusions. (c) It is true that the in the R, P. Bhatt case and the Ram Chander case (the fourth and fifth case) it has been held that the appellate authority should record separate reasons before dismissing an appeal. The Deoki Nandan case (the sixth case) has not laid down any law but has referred to the Ram Chander case and the Tulsi Ram Patel case. These cases do lend support to the contention raised by the petitioner however they are two Judges' decision of the Supreme Court and-in view of the Constitution Bench decisions of the Supreme Court, do not lay down the law correctly. These Constitution Bench decisions of the Supreme Court are discussed in the succeeding paragraphs (paragraphs 57 to 60 of the judgment). (d) The Ram Dhin Gupta case (seventh case) is a Division Bench decision of M. P. High Court. In this case, the order was quashed on the ground that there was no application of mind. This ground is separate than the recording of detailed reasons. It is being discussed in the subsequent paragraphs under the subtitle 'There should be application of Mind'. However, merely because the appointing authority or the appellate authority have not recorded detailed reason, it cannot be said that they have not applied their mind to the case. This case is not applicable so far as this proposition is concerned. (e) The Bhagat Raja case (eighth case) does not relate to service jurisprudence and has no application here. It also goes on its facts. This has been so held in paragraphs 23 to 25 of the T.C. Khatri case mentioned in paragraph 51 of this Judgment. 54. The counsel for the Bank has cited following decisions to say that appellate authority while agreeing with reasons of original authority is not required to record detailed reasons. These cases support the submission of the counsel for the Bank and in our opinion lay down the law correctly. (i) Haji Manzoor Ahmad v. State of U. P., 1968 AWR 524 (FB). (ii) Ram Murti Saran v. State of U. P., 1970 AWR 789 (FB). (iii) Nanha v. D.D.C.. 1975 AWC 1 (FB). (iv) Tara Chand Vyas v. Chairman and Disciplinary Authority, 1997 (4) SCC 565 (the T.C. Vyas case). (v) State of Madras v. Srinivasan, AIR 1966 SC 1827 (the Srinivasan case) (Paragraph 15). (vi) S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 (the S. N. Mukherjee case). 55. The first three cases are the Full Bench decisions of our Court. In the third decision the order of the revising authority is also quoted. This case along with answer of the Full Bench was listed before single Judge and this order was upheld and writ petition was dismissed on 6.12.1974. 56. In the T..C. Vyas case (the fourth case) the orders of the disciplinary authority or the appellate authority are not quoted but the Supreme Court while upholding their validity said : "They are not like a civil court." 57. The Srinivas case and the S.N. Mukherjee case (the fifth and the sixth case) are Constitution Bench decisions of the Supreme Court and both of them have held that in the order of affirmance reasons are not required. In S.N. Mukherjee case the Supreme Court after considering all previous decisions has held that : "The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge." 58. The counsel for the petitioner submitted that : * The question involved in S.N. Mukherjee's case was whether the Chief of the Army Staff is required to record reasons while dismissing a post confirmation petition against finding of the Court Martial. * The question 'whether the other appellate authority while dismissing appeal is required to record reasons' was not involved. * The aforesaid observations are merely obiter dicta and may be ignored. 59. It is true that in the S. N. Mukherjee case the Supreme Court was required to decide the question whether while deciding a post confirming petition against finding of a Court Martial reasons are required to be recorded or not, but nonetheless the Supreme Court has specifically framed this question and then after considering the decisions of Courts in our country as well as from different parts of the world has laid down the law. It is well considered obiter dicta of the Supreme Court and is binding on us under Article 141 of the Constitution of India. 60. The decisions cited by the petitioners (discussed in paragraph 53 (c) of this judgment) are two Judges' decision of the Supreme Court and in view of the S. N. Mukherjee case and the Srinivasan case they can not be said to have laid down the correct law. There should be application of mind 61. We have held that the appellate authority is not required to record detailed/separate reasons nevertheless from the order itself or from the record it should appear that there has been application of mind to the facts of the case. 62. In this case reading of dismissal as well as appellate order indicates that both the authorities had applied their mind. They are also detailed and reasoned orders. None of the orders cannot be set aside on this ground. A Caveat 63. We have already held that it is not necessary to record detailed/ separate reasons in case the appointing/disciplinary authority or the appellate authority agrees with the findings of the inquiry officer but this does not mean that the reasons may not be recorded. It is advisable that the reasons be recorded in order to show fairness and the fact that the case has been considered. 64. Separate reasons may not be necessary for agreeing with the findings of the inquiry report however this does not mean that in case any other point, apart from the finding of the inquiry report-for example that no opportunity has been afforded or bias-is taken then it should not be dealt by a reasoned order. 65. In this case questions regarding bias and opportunity have been raised, however many of them are raised for the first time in this writ petition. We have already dealt with them while deciding the preceding points. We have negated them and see no justification to send the matter back. POINT NO. (IX) : NOT DISPROPORTIONATE 66. The counsel for the petitioner submitted that no loss was occasioned to the Bank and the punishment of dismissal is disproportionate to the misconduct. 67. The counsel for the Bank cited decisions (see Endnote-5) and submitted that neither the punishment is disproportionate, nor can it be interfered in the writ jurisdiction. 68. The inquiry officer has recorded a finding that many of the over drafts became bad debt and the suits had to be filed for recovery of the amount. Apart from this, the charges in the third charge-sheet include the charge of manipulating the bank records. The petitioner was the Branch Manager of the Bank. It is serious charge. It has been proved. In these circumstances the punishment is not disproportionate to the misconduct committed by the petitioner. Some Observations 69. In this writ petition, counter and rejoinder-affidavits were exchanged. The petitioner thereafter filed four supplementary-affidavits. In response to these supplementary-affidavits, four supplementary counter and four supplementary rejoinder-affidavits were filed. Cause list indicates that as many as 15 counsels put up appearance for the petitioner. It appears that with different set of counsels, a new affidavit was filed sometimes taking a point not raised before the authorities below and some times contrary to the points raised. This was done without amending the writ petition. This ought not to have been allowed. It would have been better and convenient if the writ petition was amended. Perhaps we should discontinue the practice of accepting supplementary affidavits and the only way to place additional information may be by amending the writ petition. 70. Filing of so many affidavits, taking new and contradictory pleas have caused difficulties and confusion. We would have been still in confusion, had we not the good notes prepared by Sri G.K. Singh and Sri A.C. Tripathi advocates for the parties. We take this opportunity to keep our appreciation on record. CONCLUSION 71. Our conclusions are as follows : (i) The copy of the preliminary inquiry report and the correspondence in that regard is neither required to be shown nor given to the charged officer. It is to be shown or given only if it is relied upon in recording finding in the departmental inquiry. (ii) In this case neither the preliminary inquiry report nor the correspondence in that regard has been relied upon in recording the finding against the petitioner. They were neither required to be shown, nor given to the petitioner. (iii) It is not necessary to hear the appellant in person in appeals unless it is specifically provided. However. the appellate authority has discretion in this regard. It may hear the appellant in person if interest of justice so requires. (iv) In this case there is no provision for hearing the appellant in person. There is nothing to show that interest of Justice required that the petitioner should be heard in person. (v) The appointing/disciplinary or the appellate authority is not required to record detailed/separate reasons in case they agree with the inquiry report containing valid reasons. However in case questions-other than finding of the inquiry officer-are involved then the appointing/disciplinary or the appellate authority is required to record its reasons on those questions. In this case some such questions were involved but most of them were raised for the first time in the writ petition. We have also rejected all of them : there is no necessity to send the case back. (vi) Neither the inquiry nor the impugned orders are bad on any account. The punishment is proportionate to the charges proved. In view of our conclusions, the writ petition has no merits, It is dismissed. In this writ petition some such questions were involved. Endnote 1 : In the first charge-sheet, following charges were levelled. Allegation No. 1 : A current account was opened at the Branch in the name of M/s. Nagar Industries cm 28.4.1979 with an initial deposit of Rs. 301. On 16.5.1979 and 17.5.1979, Sri Prasad paid two cheques aggregating Rs. 4,000 (Cheque Nos. 050054 and 050053 dated 15.5,1979 and 17.5.1979 respectively) from the account although sufficient balance was not available and as a result an overdraft of Rs. 3,849 was created in the account. The over draft, which Sri Prasad had no authority to grant and that too without any appraisal of the firm's credit-worthiness, was also not reported to the controlling authority. Allegation No. 2 : On 17.5.1979 Sri Prasad also discounted a cheque for Rs. 5,032 for the firm and till 31.5.1979, discounted further nine cheques aggregating Rs. 63,272 although neither any appraisal of the Firm's business needs and credit worthiness was made nor was any limit sanctioned for the purpose. No opinion report on the firm was complied by him, nor also the Head Cashier's opinion report obtained. Except one cheque for Rs. 6,887 all the other nine cheques aggregating Rs. 61,417 were received back unpaid for the reasons "effects not yet cleared, please present again' and 'refer to drawer' during the period 6.6.1979 to 6.7.1979. The transactions were also not reported by Sri Prasad to his controlling authority. Allegation No. 3 : Inspite of the fact that till 2.7.1979 as many as six out of 10 cheques discounted as above were received back unpaid, Sri Prasad allowed payment of a cheque for Rs. 10,000 in the firm's account against insufficient balance on 2.7.1979. On the 14th July, 1979 till when nine cheque aggregating Rs. 61,477 had been received back unpaid for the reasons 'Effects not yet cleared, please present again' and 'refer to drawer' Sri Prasad allowed payment of further two cheques aggregating Rs. 33,000 creating an overdraft of Rs. 35,327.80 on the account which overdraft was raised to Rs. 35,227.80 on the account of payment of further cheques aggregating Rs. 2,100 on 16.7.1979. Endnote 2 : In the second charge-sheet, following two charges were levelled. Allegation No. 1 : Smt. Chinta Mani Devi wife of Sri Madhav Prasad the charged officer purchased a plot of land in the year 1979-80 for a sum of Rs. 10,000 at Brij Enclave Colony, Sunderpur, Varanasi. He did not give previous intimation to the appropriate authority regarding the acquisition of immovable property in the name of his wife. Allegation No. 2 : His wife was the sole proprietress of the firm M/s. Maha Mritunjay Cement Jali and Allied Products, which was engaged in manufacture of cement Jali which business activity was being carried out at the abovementioned premises. Sri Prasad did not report to his controlling authority that his wife was engaged in a business activity. Endnote 3 : In the third charge-sheet, following four charges were levelled. Allegation No. 1 : He misused his official position and granted undue accommodation to a large number of firms by way of clean overdraft for huge amount much beyond the discretionary powers that were vested in him in deliberate violation of the instructions contained in para 12 Chapter XIII of the Banks Book of Instructions. A few such instances are given in statement A annexed. In many of these cases the outstanding have become doubtful of recovery and the bank has been exposed to financial loss. Allegation No. 2 : He did not report the sanctioning of the above overdraft to his controlling authority, nor did he seek post facto approval therefor. Not only this, he fraudulently manipulated the banks record so as to ensure that these irregular advances do not come to the notice of the controlling authority through the annual audit returns. With a view to camouflage these overdrafts, he made fictitious debit entries in various current and cash credit accounts on the 30th December, 1981 and posted the correspondent credits in these overdraft accounts. In the 1st week of January, 1982, he reversed these fictitious entries thus restoring the correct position of the overdrafts in these accounts. He prepared passed and posted the relative vouchers himself. Similar manipulations were made by him in case of irregular cash credit account also. A few such fictitious entries made on 30th December, 1981 and subsequently reversed are given in statement B. Allegation No. 3 : He granted loans to a number of firms without making any appraisal of their credit needs and allowed drawing much beyond the sanctioned limit and beyond his discretionary powers in violation of the laid down norms. He did not submit B.M.D.T. Statements. A few such instances are given in statement C. Allegation No. 4 : He granted cash credit limit of Rs. 30,000 each to M/s. Vaishali Prints and M/s. Alakhnanda on 30.12.1981 to accommodate M/s. Vaishali Sari Centre and the amount disbursed on the former accounts was credited to cash credit account of the later firm. Endnote 4 : The counsel for the Bank cited following decisions in support of his submission that neither the copy of the preliminary inquiry report nor the correspondence relating to it is required to be given or shown in : (i) Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854 ; (ii) State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255 ; (iii) Government of India v. Tarak Nath Ghosh. AIR 1971 SC 823 ; (iv) Krishna Chandra v. Union of India, AIR 1974 SC 1589 ; (v) Chandrama Tiwari v. Union of India, AIR 1988 SC 117 ; (vi) Superintendent Government T. B. Sanatorium v. J. Srinivasan, 1998 (8) SCC 572. Endnote 5 : The counsel for the Bank cited following decisions in support of his submission regarding point number (xiii). (i) M.D., ESIL v. B. Karmakar, 1993 (4) ; (ii) B. C. Chaturvedi v. Union of India. 1995 (8) SCC 749 ; (iii) State Bank of Patiala v. S.K. Sharma. 1996 (3) SCC 364 ; (iv) Disciplinary Authority-cum-General Manager v. N.B. Patnaik, 1996 (4) JT 457.

Author: Y Singh

Madhav Prasad vs Deputy Managing Director (P And ... on 25 May, 2004

Allahabad High Court

Gujarat High Court Case Information System Print SCA/9507/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9507 of 2010 ========================================= GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner(s) Versus AJITBHAI MAKANBHAI CHAUDHARY - Respondent(s) ========================================= Appearance : MR HARDIK C RAWAL for Petitioner(s) : 1, MR PRIYANK P JHAVERI for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/09/2010 ORAL ORDER Either of the parties to produce the copy of the application, Exh. 17 and the order passed below Exh. 17. Stand over to 29/09/2010. To be heard with Special Civil Application No. 89/2006. On that day, Court may take up the matter for final hearing. (M.R. SHAH, J.) siji     Top

Author: M.R. Shah,&Nbsp;

Gujarat vs Ajitbhai on 29 November, 2010

Gujarat High Court

Gujarat High Court Case Information System Print TAXAP/966/2009 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 966 of 2009 ========================================= COMMISSIONER OF INCOME TAX-VI - Appellant(s) Versus INTERNATIONAL STEEL CORPORATION - Opponent(s) ========================================= Appearance : MR MR BHATT, SR. ADVOCATE with MRS MAUNA M BHATT for Appellant None for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 27/12/2010 ORAL ORDER(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. In this appeal under section 260A of the Income Tax Act, 1961 (the Act), the appellant-revenue has challenged the order dated 8.8.2008 made by the Income Tax Appellate Tribunal (the Tribunal), proposing the following two questions : [A] Whether on the facts and in the circumstances of the case, the Appellate Tribunal erred in law in deleting the addition of Rs.10 lacs confirmed by the CIT (A) on account of unexplained credits appearing in the accounts of the assessee, without appreciating that the assessee could not discharge the onus which lay upon it of establishing the genuineness of the said credit entries? [B] Whether the Appellate Tribunal was justified in observing that the revenue failed to establish any relation between the assessee and the "Darbar", without properly appraising the evidence on record in the form of account of "Darbar" in the books of late Shri Mahendra H. Shah which clearly showed that cheques were issued in the name of "International Steel" by depositing cash amounts of Rs.7 lacs and Rs.3 lacs in the said bogus account of "Darbar"?" 2. The assessment period is the block period 1.4.1989 to 7.12.1999. The assessee is engaged in the business of ship breaking. A search under section 132(1) of the Act came to be conducted in the case of Mr. Mahendra H. Shah, Mr. Hemant Shah and their associates (Madhupuri Group). During the course of search and post search inquiries, it was found that late Mr. Mahendra H. Shah was indulging in the activity of issuing accommodative entries of loan and purchase/sale to various parties against receipt of cash from them. While examining the books seized during the course of search, it was found that entries had been obtained by the assessee concern also. Proceedings under section 158BD of the Act came to be initiated against the assessee. The Assessing Officer framed assessment under section 158BC read with 158BD of the Act determining the total undisclosed income of the assessee at Rs.44,13,657/-. The assessee partly succeeded in its appeal before the Commissioner (Appeals) who deleted the addition made the Assessing Officer in respect of loans other than the loan of Rs.10 lacs shown in the account of 'Darbar' and additions on account of interest and commission in respect thereof out of the total income of Rs.44,13,657/- Being aggrieved, both the assessee as well the revenue preferred appeals before the Tribunal. The Tribunal vide its order dated 08.08.2008, dismissed the appeal preferred by the revenue and partly allowed the appeal preferred by the assessee. 3. The present appeal arises out of the appeal preferred by the assessee before the Tribunal. 4. During the course of search certain material was recovered, which included copy of account of 'Darbar'. The copy of the account of 'Darbar' which formed part of the assessment order as Annexure "A" showed that the assessee had taken two cheques of Rs.5 lacs on 25.8.1999 and that cash of Rs.7 lacs was paid on 25.8.1999 and Rs.3 lacs was paid on 26.8.1999. There were other entries in the said account, which did not pertain to the assessee. The said cheques transactions were reflected in the account of Madhupuri Corporation for the financial year 1999-2000 in the books of the assessee as loans received from Madhupuri Corporation. The account of 'Darbar' revealed that the said account had been squared up in the books of Shri Mahendra H. Shah. The Assessing Officer was of the view that the possibility of 'Darbar' advancing money to Shri Mahendra H. Shah who in turn advanced the same to the assessee, was ruled out. That, it was clear from the account that cash had been deposited by 'Darbar' on behalf of the assessee to whom cheques of the same amount had been issued. 5. The Commissioner (Appeals) was of the view that in respect of the entries of cheques of Rs.5 lacs, against which entries of cash of Rs.7 lacs and Rs.3 lacs were reflected in the same account, the onus was on the assessee to prove that such entries of cash deposit did not pertain to it and pertained to somebody else and it had no connection whatsoever with the entries of cash deposits. The Commissioner (Appeals) was of the view that the assessee had not discharged the said onus and held that the assessee was not able to explain satisfactorily loans of Rs.10 lacs and accordingly, confirmed the addition made on account of such loans and also disallowed the interest in respect thereto. 6. In appeal, the Tribunal, upon appreciation of the evidence on record, found that the revenue has not established any relation between the assessee and 'Darbar' which was very much necessary to implicate the assessee. The Tribunal further found that proceedings under section 158BD of the Act had been initiated against the assessee on the basis of post search inquiries carried out by the DDIT from the assessee itself and not on the basis of the material/evidence gathered during the search. It was noted that the learned Departmental Representative could not pinpoint any seized material indicating that the assessee had taken any accommodative entry of loan from Shri M. H. Shah and his associates or paid any cash to any person in exchange of cheques. According to the Tribunal, the burden of showing that the assessee had undisclosed income was on the revenue. The said burden could not be discharged merely by referring to a general statement given by a third party without alluding to the assessee that cash was received from him in lieu of loans and making such a statement the sole foundation for the assessment. The Tribunal was, accordingly, of the view that the Commissioner (Appeals) was not justified in upholding the addition of Rs.10 lacs made by the Assessing Officer and disallowing the interest paid by the assessee thereon and accordingly, deleted the same. 7. Thus, both the Assessing Officer as well as the Commissioner (Appeals) had made the addition on the ground that the assessee had not explained the entry in the account of 'Darbar'. The Tribunal upon appreciation of the evidence on record has found that the revenue was not in a position to establish any relation between the assessee and the Darbar. As is apparent from the facts noted hereinabove, the entry in question was made in the account of 'Darbar' found during the course of search. The account did not belong to the assessee, but pertained to a party in respect of whom there is no evidence on record to connect it to the assessee. In the circumstances, the department could not have thrown the burden on the assessee to explain the said entries. It was for the revenue to establish its case that the entries regarding receipt of cash in fact pertained to the assessee as well as to establish the connection between the assessee and 'Darbar' to make out a case that the cash of Rs.7 lacs and Rs.3 lacs had in fact been paid by or on behalf of the assessee. However, in the absence of any evidence to establish any connection between the assessee and 'Darbar', the Assessing Officer was not justified in making the addition by presuming that the cash had been deposited by 'Darbar' on behalf of the assessee. The Tribunal was, therefore, justified in holding that the Department had not been able to make out any case to show that the cash of Rs.7 lacs and Rs.3 lacs paid in the account of 'Darbar' had been paid by or on behalf of the assessee. Since the loan amount of Rs.10 lacs had wrongly been added as undisclosed income of the assessee, consequently the disallowance of interest thereon was also not justified. 8. In the light of the aforesaid discussion, there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law, much less, a substantial question of law, so as to warrant interference. 9. The appeal is accordingly dismissed. [HARSHA DEVANI, J.] [H.B.ANTANI, J.] parmar*     Top

Author: Harsha Devani, H.B.Antani,

Commissioner vs Unknown on 2 August, 2011

Gujarat High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 31382 of 2009 Petitioner :- Renu Alias Priya Yadav And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- S.P. Mishra Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J. Applicants are directed to take steps by tomorrow. If steps are taken by tomorrow, notice will indicate that this application will come up on 4th August 2010. Respondent no.2 may file a counter affidait by the next date. In the event of failure, this case is directed to be listed on 27th July 2010. Order Date :- 8.7.2010 RK

Renu Alias Priya Yadav And Others vs State Of U.P. And Another on 8 July, 2010

Allahabad High Court

ORDER V.K. Ashtana, Member (T) 1. This is an appeal against Order-in-Original No. 11/99-CAU, dated 8-3-1999 passed by Commissioner of Customs confiscating poppy seeds imported from Pakistan and allowing by redemption fine of Rs. 11,00,000/- plus penalty of Rs. 1,00,000/- under Section 112A of the Customs Act, 1962, 2. Heard Shri Murugappan, ld. Advocate for appellants who submits as follows :- (a) The goods were imported in Nov. 1998 and were accompanied by a certificate from the Export Promotion Officer, Export Promotion Bureau of Govt. of Pakistan certifying that the Foreign Exporters' Declaration was correct. This was corroborated by another certificate from the Chamber of Commerce & Industry, Karachi stating that the goods were legally grown in Pakistan and were therefore of Pakistani origin. A third certificate dated 29-10-1998 was also submitted from the Quarantine Department at the Port of Karachi which has also been countersigned by the examining officer of Custom House, Karachi. This certificate also declares that the goods have been legally grown in Pakistan. (b) Ld. Advocate also submits that Ld. Adjudicating authority on page 3 of the Order-in-Original impugned has himself come to a conclusion that merely because some packing material having Turkish markings, etc. it cannot be said that the goods was not of Pakistan origin. (c) Ld. Advocate further submits that the only ground on which the goods have been held to be contraband is one Circular dated 30-11-1998 which refers to Resolution dated 29-9-1997 that Pakistan had banned export of Poppy seeds as no licit cultivation was taking place in Pakistan. Ld. Advocate submits that this was for the position obtaining in the year 1997 whereas the present imports are relating to 1998 and are covered by the certificates of both the Chamber of Commerce as well as the Govt. of Pakistan, duly countersigned by the Pakistan Customs authorities. Therefore, he submits that unless the department can proof that all these three certificates which corroborates one another are fraudulent or forged, they cannot be brushed aside only on the basis of a Circular of the International Narcotic Control Bureau (INCB). (d) Ld. Advocate says that under Notification 25 (RE/98) the only condition for legally importing Poppy seeds is that the same should have been grown licitly. This has been amply evidenced by the three certificates submitted above. 3. Heard Shri S. Kannan, ld. JDR who submits that as per the communication received by Government from the International Narcotic Control Bureau as mentioned in the Order-in-Original impugned, there is no licit cultivation of Opium from which Poppy seeds are derived in Pakistan. Therefore, any consignment of Poppy seeds certified as originating from Pakistan would ipso facto deemed to be not original. He further submits that the certificates produced by the importers are, therefore, of suspected veracity. However, it has not been able to get their accuracy verified. He also submitted that in some packs there was markings to show that the goods were of Turkish origin. He therefore submits that there is no infirmity in the Order-in-Original and the same should be upheld. 4. We have carefully considered the records of the case and the rival submissions. We find that the only ground on which the import of this Poppy seeds has been held to have contravened law is that as per a circular of the INCB mentioned in the Order-in-Original, Pakistan is recognized internationally a non-producer of licit Opium and therefore of poppy seeds. 5. As against this, we find that the matter is governed by the Notification No. 25 (RE/98) of the DGFT and this Notification requires that Poppy seeds imported should have been grown licitly and was to be certified by the Govt. concerned. We find that nowhere in this Notification there is any condition that these goods originating from Pakistan or Afghanistan would be deemed to be of illicit origin. There is also no condition in the said notification incorporating any advice or regulation of the International Narcotics Control Bureau. As against this, the appellants have produced three certificates as noted above. These were produced at the time of import, and therefore, it cannot be said that these have been all stage-manipulated. Furthermore, the Order-in-Original impugned does not lead any allegation, let alone any evidence on the ground that these certificates are forged or fraudulent. We further find that these 3 certificates are from three different independent authorities namely the Chamber of Commerce, the Plant Quarantine Department under Ministry of Food, Govt. of Pakistan and the Export Promotion Bureau of Govt. of Pakistan, and each of them clearly carry a declaration that the goods are of Pakistani origin and all are from licit and legal cultivation. The appellants also have submitted that the INCB Circular relied upon by the ld. Commissioner related to the position in 1997, whereas these goods were imported in late 1998. Since the aforesaid notification lays down that the only test about licit cultivation of Poppy seeds in the country of origin would be one of certification by that country's Govt. and we find that this has been complied with by the appellants in the form of certificates from Ministry of Food, Govt. of Pakistan which has also been countersigned by the examining officer of Custom House, Karachi, therefore, we find that taking a holistic view of the evidence on record, the balance of convenience clearly lies in favour of the importer. We also wish to be on record that in case the Govt. has clear intelligence and/or evidence that Pakistan and other specified countries are not allowed to cultivate Opium licitly, then the best course would have been to make such a specific announcement in the Import Policy through amending the present Notification referred to above. There is nothing on record to show that such a prohibition has been considered and imposed by the DGFT. 6. Under these circumstances, we find that the Order-in-Original impugned needs to be set aside and the appeal allowed with consequential relief. Ordered accordingly.

Diamond Traders vs Commissioner Of Customs on 7 May, 1999

Customs, Excise and Gold Tribunal - Tamil Nadu

I IN TEE HIGH COURT GF KARNATAKA CIRCUIT BENCH AT DHRRWAD DATED THIS $33 26*" any 0? SEPTEMBER 2$e8; jf, PRESEN? THE HON'BLE MR.JUsT1CEr#:é§sAgHAHmT *-- '.",uq. - . ,_ ,<._V. *'C°""'E€£Q& THE HON'BLE MR.JUSTICE,S$§ATYANARAYANA W659 c.\\<:am'o93; 4 VT V,W_. . _ _ Qwxfiwkfi WRIT PETI§¢Q§ g0.§§2§§f2§04 $H:\oh\n0% /i aawwaaw: , BALWA&TgM "m ? "~,u _ C$N@d s/0 HAN§n4A,N2"H 'r:»«':,- '\»$A}=£AL£_.1' - flK;DC%E' AGED 49'YRS,, v'"~ >.Ta.. R/A KHB ceLQNy,= BAsAvEsHwARANAGAR_ DANDEL1 581 325 " %%%%% * " *' '~. H PETETEONER ':Bi¢SR:QJ§YAK§fiAR S.PATIL, ADV) AND; é "'V '=.u'1. ?HEYsTATE OF KARNATAKA '= ..,_RE§;By ITS SECY., . DEPT.OF MUNICIPAL ADMINISTRATION, '=--M.s.BUILDING, DR.B.R.AMBEDKAR VEEDHI, BANGALORE 560 001. " 2. THE DEPUTY COMMISSEONER/ RETURNIRG OFFICER, KARWAR, UTTARA KANNABA QISTRICT. 3. ?HE CITY MURICIPAL COUNCIL, DHANDELI, UTTARA KANNADA REP.BY ITS COMMISSIONER. . RESPONDENTS(BY SRI.UMESH R.MALIMATH, ASA FOR R1 & R2) THIS WRIT PETITION IS FILED 8/A 22é"§¥2e?%;f_ 09 THE CONSTITUTION OF INDIA PRA¥ING zx>.QuAsH=, QUASH THE NOTIFICATION .AT .ANN.E DATEB" r 9:200; _ ISSUED BY R1 AND ETC., THIS PETITION CGMING- ON .Foa tHEARfi&e_.:Hfs;'. DAY, SABHAHIT J., MADE THE:EoLLoe:Ne: ORDER " ' TheMflV"petitieher;j haemi challenged the notificetion issfieq bf gee 15" respondent dated 1-9-3005: iwhereifi it5e3 Government has notified "vallQtfient 9f the offices cf President and Vice *_PreSidient':d*Various categories for the IV term in i:es§é5t_15f 34 City Municipai Ceuncils, .inclnding "the third respondent herein, under .i'éuie 13 and 13-A of the Karnataka Municipalities i»{Preeident and Vice President) Eéection "i={A¢endment} Rules 2&0}. 2. Since the term for which the said s.,a.°-Ji notification maée operative has came ta an end, \»2 the prayer sought in the writ petition does §Q§ _ survive far consideration. Accordinglyf"athé5 _= writ petition is disposed of as such. Nd/

Author: V.G Sabhahit S.N.Satyanarayana

Balwanth vs The State Of Karnataka on 26 September, 2008

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 2526 of 2008() 1. A.P.RAMACHANDRAN, AGED 44 YEARS, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ITS ... Respondent 2. THE SUB INSPECTOR OF POLICE, For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.K.MOHANAN Dated :22/04/2008 O R D E R V.K. MOHANAN, J. - - - - - - - - - - - - - - - - - Bail Application No.2526 of 2008 - - - - - - - - - - - - - - - - Dated this the 22nd day of April, 2008. O R D E R In this Petition filed under Sec. 438 Cr.P.C. the petitioner who is the accused in Crime No.359 of 2008 of Perumbavoor Police Station for offences punishable under Sections 409 and 420 I.P.C., seeks anticipatory bail. 2. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Having regard to the nature of the allegations levelled against the petitioner and the other circumstances of the case, I am inclined to grant anticipatory bail to the petitioner. Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above case on his executing a bond for Rs.25,000/- (Rupees twenty five thousand only) with two solvent sureties each for the like amount to the satisfaction of the said officer and subject to the following conditions: B.A.No. 2526/2008 -:2:- 1. Petitioner shall report before the Investigating Officer between 9 a.m. and 11 a.m. on all Wednesdays. 2. The petitioner shall make himself available for interrogation as and when required by the Investigating Officer. 3. The petitioner shall not influence or intimidate the prosecution witnesses nor shall he attempt to tamper with the evidence for the prosecution. 4. Petitioner shall not commit any offence while on bail. 5. Petitioner shall surrender before the Magistrate concerned and seek regular bail in the meanwhile. If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above. V.K.MOHANAN, JUDGE. rv 

A.P.Ramachandran vs State Of Kerala on 22 April, 2008

Kerala High Court

Central Information Commission Appeal No. CIC/WB/A/2007/00911-SM dated 21.07.2007 Right to Information Act-2005 - Under Section (19) Dated 20.10.2008 Appellant - Shri Dharm Prakash Verma Respondents - Addl. Secretary & FAA, MOD ORDER Shri Dharm Prakash Verma of Dehradun has filed this appeal to the Commission against the order of the First Appellate Authority in the Ministry of Defence. The appeal dated 21.7.2007 was received in the Commission on 27.7.2007 and got transferred to us in September, 2008. The brief facts of the case are as under. 2. Shri Verma had approached the CPIO in the President's Secretariat asking for seven items of information regarding several petitions he had filed earlier to the President of India. In response to his letter dated 23.3.2007, he received a reply from the CPIO in the department of Defence, dated 27.4.2007. This reply was not satisfactory and hence, as advised by the CPIO of the Ministry of Defence, he preferred his first appeal before the Joint secretary and First Appellate Authority in the Ministry. On reading the first appeal it is noted that he was no longer pursuing much of the information he had originally sought from the CPIO in the President Secretariat. 3. On behalf of the First Appellate Authority in the Ministry of Defence, the CPIO transferred the appeal to the D.S.P. to process it in consultation with the Appellate Authority in the Department of Defence Production. Finally, the Additional Secretary, Defence Production and Appellate Authority in that Department wrote to the appellant on 4th June, 2007 merely informing him the status of action on his petition dated 2.12.2005 along with other representations received at that stage as had been indicated by that Department, O.F. Wing in letter dated 10.5.2007. Strangely, the letter of the First Appellate Authority in the department of Defence Production does not carry with it a copy of that letter. Thus, after so much correspondence among various Government offices, the appellant is hardly any wiser. 4. What strikes one in this case is the total lack of clarity within the Ministry about who should process this case. His request for information to the CPIO in the President Secretariat has been handled not in the President's Secretariat but in the Ministry of Defence. And within the Ministry of Defence itself, the matter has been dealt with in two different departments. At the end, it is still unclear as to who would finally reply and furnish the information to the applicant/appellant which had been sought. 5. In view of the above, I remand this case to the First Appellate Authority in the department of Defence Production, Ministry of Defence with the direction that he should consider the appeal once again at some length and ensure that specific and detailed replies on the revised items of information sought by the appellant in his first appeal should be provided to him within 15 working days from the date of this order and compliance reported to this Commission. 6. The appeal is thus disposed off. Copies of this order be given free of cost to the parties. (Satyananda Mishra) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission. (Vijay Bhalla) Assistant Registrar

Shri Dharm Prakash Verma vs Addl. Secretary & Faa, Mod on 20 October, 2008

Central Information Commission

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Author: Ajit J Gunjal

Suresh vs Ningappa on 25 February, 2010

Karnataka High Court

> Title: Presentation of the statements showing action taken by Government on the recommendations contained in the Action Taken Reports of the Public Account Committee. PROF. VIJAY KUMAR MALHOTRA (SOUTH DELHI): Sir, I beg to lay on the Table Hindi and English versions of the Statements showing action taken by Government on the recommendations contained in the following Action Taken Reports of the Public Accounts Committee:   (1)   61st Report of PAC (10th Lok Sabha) on “Alleged unauthorised importations of plant and machinery, mis-declaration and under-invoicing of goods by a textiles manufacturer”.  (2)    5th Report of PAC (11th  Lok Sabha) on “Building for Permanent Mission at New York”.   (3)   8th Report of PAC (11th Lok Sabha) on “Modvat Scheme- Fraudulent availment of credits”.   (4)   21st Report of PAC (11th Lok Sabha) on ”Revision in the Format of Union Government Appropriation Accounts (Civil)”.   (5)   4th Report of PAC (13th Lok Sabha) on “The Advance Licensing Scheme”.   (6)   60th Report of PAC (13th Lok Sabha) on “Aircraft Accidents in Indian Air Force”.   (7)   6th Report of PAC (14th Lok Sabha) on “Excesses over Voted Grants and Charged Appropriations (2000-2001)”. (8)     15th Report of PAC (14th Lok Sabha) on “Refunds under the Income Tax Act, 1961”.   (9)   17th Report of PAC (14th Lok Sabha) on “Union Government Appropriation Accounts (Civil) 1996-97”. (10)    22nd Report of PAC (14th Lok Sabha) on “Excesses over Voted Grants and Charged Appropriations (2001-02)”. ___________ 12.02  hrs.

Presentation Of The Statements Showing Action Taken By Government On ... on 31 August, 2007

Lok Sabha Debates

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Author: H.N.Nagamohan Das

Karnataka Cement Pipe Factory vs Muttappa S/O Shivappa Teggi on 4 August, 2009

Karnataka High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 18577 of 2008 DATE OF DECISION : 30.10.2008 Jaswinder Singh .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. C.B. Goel, Advocate, for the petitioner. *** ( SATISH KUMAR MITTAL ) JUDGE October 30, 2008 ( JASWANT SINGH ) ndj JUDGE SATISH KUMAR MITTAL , J. ( Oral ) The petitioner, who is one of the elected Councilors of Municipal Council, Urmar Tanda, District Hoshiarpur, has filed this petition under Articles 226/227 of the Constitution of India for quashing the proceedings of the meeting dated 25.7.2008, in which respondents No.6 and 7 have been declared elected as President and Vice President of the Municipal Council. Undisputedly, after the elections, first meeting of the Municipal Councilors was called on 22.7.2008, under the orders of the Deputy Commissioner, Hoshiarpur, for the purpose of administering oath and holding elections of President and Vice President of the Municipal Council. Municipal Council, Urmur Tanda, consists of 13 Councilors. The said CWP No. 18577 of 2008 -2- meeting was attended by 6 Councilors and after administering oath to them, the meeting was adjourned due to lack of quorum. The second meeting was convened on 25.7.2008 under the orders of the Deputy Commissioner, Hoshiarpur, which was attended by 12 Councilors. The case of the petitioner is that no notice was served upon him for the said meeting. This is disputed question of fact, which cannot be gone into in writ jurisdiction. However, the petitioner has an alternative remedy to question the election of respondents No.6 and 7 by filing election petition. Since this petition has been filed much after the expiry of limitation for filing the election petition, therefore, we are not inclined to entertain this petition. Even otherwise, we do not find any illegality in adjourning the first meeting for want of quorum and the proceeding of meeting held on 25.7.2008, which was attended by 12 Municipal Councilors, in which respondents No.6 and 7 were duly elected as President and Vice President. Dismissed.

Jaswinder Singh vs State Of Punjab And Others on 30 October, 2008

Punjab-Haryana High Court

Gujarat High Court Case Information System Print CR.MA/14749/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 14749 of 2010 ================================================= DINUBHAI @ DINESHBHAI VENABHAI VANKAR - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ================================================= Appearance : MR PRAKASH V CHAVDA for Applicant(s) : 1, MR AJ DESAI APP for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 21/03/2011 ORAL ORDER Mr AJ Desai learned APP submits that after the bail application was rejected on 19.10.2010 by learned Additional Sessions Judge, Gandhidham now charge sheet is filed and, therefore, keeping it open for the applicant to avail the remedy before the Trial Court, this application stands disposed of without entering into the merit of the case. If fresh application for bail is filed before the trial Court, same shall be decided on its own merits and facts in accordance with law. [Anant S. Dave, J.] *pvv     Top

Author: Anant S. Dave,&Nbsp;

Dinubhai vs State on 28 March, 2011

Gujarat High Court

[Section 31(2)] [Section 31] [Complete Act]

Central Government Act

JUDGMENT Coutts Trotter, J. 1. This is a case of considerable general importance and accordingly although the sum of money involved is not large it has been brought as a test case to this court. The plaintiffs the Clan Line Steamers Ltd., are a company incorporated under the English Companies' Act having their registered office and their head place of business in Glasgow. They own a line of steamers which ply between English ports and the East calling, among other places, at ports in Southern India, among them Madras, and Cocanada on the Coromandel coast in Godaveri District. The defendents are a District Municipality constituted under the Madras District Municipalities Act of 1884, and they have demanded a profession tax from the plaintiff company. The tax has been paid by the plaintiff company under protest and they now sue to recover it. The claim is for three instalments, but I need only concern myself with the third which was demanded on the 18th January last and paid on the 80th, the other two being time barred. The tax is leviable under Section 53 of the statute on every person who within the municipality exercises any one or more of the arts, professions, trades, or callings specified in Schedule A. Schedule A, Class I will cover the plaintiff Company either under (1) as carrying on business as a company or under (ii) as shipowners, if they can be said to carry on business within the municipality at all. 2. The question is ultimately one of fact, but the facts must be examined in the light of their legal significance, and this has been discussed in a number of cases in England. I need not concern myself with the few Indian cases that were cited, because they do not profess to add anything to the principles derivable from the English authorities. Before going to those authorities I will state the broad outlines of the facts of this case. I shall have to go into them in greater detail hereafter. The agents for the Clan Line in Madras are Messrs. Gordon Woodroffe and Company. It is not disputed that the Clan Line carry on business in Madras and they in fact pay profession tax to the Madras Corporation. Ifc is said that they also carry on business in Cocinali through a firm of Messrs. Ripley and Co. Kipley and Co. are a firm of merchants at Cocanada, and for the past eleven years they have had an arrangement with Gordon Woodroffe and Co., as representing the Clan Line whereby they disburse the Clan Steamers at Cocanada, negotiate with the shippers for shipment of their cargo on Clan boats and receive payment by commission. The question is whether their activities at Cocanada, to use a non-committal phrase, constitute a carrying on of business there by the Clan Line within the meaning of the authorities. 3. These authorities fall into two classes which I may call for the sake of brevity, the tax cases and the jurisdiction cases. As pointed out by Cotton, L. J.. in Erichsen v. Last (1881) 8 Q. B. D. 414 there is a clear distinction between the two classes of cases, a distinction which I shall endeavour not to lose sight of, but I do not think that the jurisdiction cases must be wholly rejected. It seems to me that they contain enunciations of principle which can be applied at least mutatis mutandis to the other class of cases. The first case is Erichsen v. Last (1881) 8 Q. B. D. 411 itself. The question there was whether a foreign telegraph company established at Copenhagen was liable for income tax in the United Kingdom as exercising a trade within the United Kingdom. The Company had Cables with terminals at Newbiggiu and Peterhead worked by employees of the Company at Newcastle and Aberdeen respectively. It had a London Office where messages were received for transmission via Denmark to various places abroad. It was held that they carried on a business in the United Kingdom and I think the gist of the decision is contained in the following passage from the judgment of Brett, L. J. : "I should say that wherever profitable contracts are habitually made in England, by or for foreigners, with persons in England because they are in England, to do something for or supply something to those persons, such foreigners are exercising a profitable trade in England, even though everything to be done by them in order to fulfil the contracts,is done abroad." The next case is Werle and Co. v. Colquhoun(1888) 20 Q. B. O. 758. Werle and Co. were a French firm of wine merchants, in fact the proprietors of Veuve Cliequot Champagne and the question was whether they carried on business in England through their agents Fenwick Parrot and Co in Frenchurch street. The ground of the decision was clearly this: that contracts for the purchase of wine were made by Fenwick Parrot and Co. in England though they were transmitted to Werle and Co., to be executed from France. Lord Esher, M.R. says thus at page 760 : " Upon the authority of that case, (viz, Erichsen v. Last) (1881) 8 Q.B.D. 414 if authority is required, but certainly on the facts of the present case, I have not a doubt that here there was a trade carried on in England where the contracts were made. The making of contracts in such a case as the present is the whole substance and essence of the trade, and so the appellants exercised a business in England ". Fry, L.J., at page 761 says " They do not make merely an occasional contract through these agents, but they are in the habit of making contracts through them. Those contracts are so made in England. Now, pausing there, it appears to me that a most important part of the business of a champagne merchant was exercised by the appellants through the intervention of their agents within the United Kingdom." There was a distinct finding in that case that the agents did not merely make themselves the channel for the transmission of orders which could only be accepted by the principals in France but actually concluded contracts binding on the principal. This is clear from what Lord Esher says on page 758: "The agent is, if he can, to obtain orders for the purchase of the wine at the fixed price. It is suggested that he had no authority to receive these orders as contracts, but that all he could do was to forward them to Rheims for acceptance there. It seems to me that the inference is irresistible to the contrary." The next case is Grant v. Anderson and Co (1892) L.R. 1 Q.B. 108. That was a jurisdiction case, the question in which was whether a writ against a Scottish firm could be served upon their London agent. In it appears clearly the distinction between the tax cases and the jurisdiction cases which I take to be broadly this: that a person is liable to be taxed if he carries on business within the jurisdiction but he can only be sued if he can be said to have a place of business within it. At the same time the Judges both in the Divisional Court and in the Court of Appeal clearly intimate that in their opinion the state of things in that case did not amount even to carrying on business in London apart from the question of having a place of business there. There the defendants had an agent named McCallum with a London office. He obtained orders for them in London which he transmitted to Scotland to his principals to accept or not as they chose. Lord Esher says at page 116 : " If he gets an order which they accept, he gets a commission, but if they do not accept it, he gets no commission. When he gets an order he has no power himself to accept it; all he has to do is to send it on to Scotland, that the defendants may say whether they will accept it or not, and in most cases, if they do accept it, they deal directly with the person giving the order ". A little later he says : "His business is to obtain orders which are in law and in fact mere proposals." Grainger & Sons v. Gough (1896) L.R.A.C 325 was another case of a French champagne merchant, in this instance Rederier and Sons. This was a tax case. The decision again went on the broad ground as to whether contracts were made for the sale of Roederier's wine in England. See Lord Herschall at page 334 and Lord Watson at page 340, and specially the observations of Lord Herschall at page 335: " In the first place, I think there is a broad distinction between trading with a country and carrying on trade within a country. Many merchants and manufacturers export their goods to all parts of the world, yet I do not suppose any one would dream of saying that they exercise or carry on their trade in every country in which their goods find customers. When it is said, then, that in the present case England is the basis of the business, that the wine was to be consumed here, and that the business done would remain undone but for the existence of the customers in England, I cannot accept this as proof that Mr. Roederier carries on his trade in this country. It would equally prove that every merchant carries on business in every country to which his goods are exported....How does a wine merchant exercise his trade ? I take it, by making or buying wine and selling it again, with a view to profit. If all that a merchant does in any particular country is to solicit orders, I do not think he can reasonably be said to exercise or carry on his trade in that country. What is done there is only ancillary to the exercise of his trade in the country where he buys or makes, stores, and sells his goods." La "Bourgogne" (1899) L.R.A.C. 431 was a jurisdiction case, but in as much as it decided that the defendants had a place of business in England, it is obviously a case that can be relied upon by the present defendants for the less wide proposition that the business was carried on within the jurisdiction, if the facts are truly analogous to the facts of the present case. A French steamship company were lessees of an office in London of which they paid the rent where they established a certain Fanet with the title of Agent-general. In that capacity he secured freight and passage engagements, collected freight and transmitted it to the Company, paid dues and forwarded and delivered goods carried by the Company. It was held that the business that was carried on by him was the business of the Company. The Dunlop Case (1902) 1K.R.B.342 was a very peculiar case and was a jurisdiction case. A foreign firm took a stand at the Crystal Palace Cycle show and installed in charge of it an agent to exhibit there goods and take orders for them. It was held that during the show the company had a place of business in England. Again the chief test applied was whether or no contracts were concluded binding upon the company at the stand. In Lowell and Christmas Ltd. v. The Commissioner of Taxes (1908) L.R.A.C. 46 the appellants carried on a business of provision commission agents having produce consigned to them from New Zealand which they sold on commission. They made advances through New Zealand Banks to the consignors of the produce against the security of the shipping documents. They kept a salaried servant in New Zealand who made an arrangement with the shippers as to the produce they would send and fixed the amount of the advance that was to be made. It was held that the business was not carried on in New Zealand but that the business was the selling on commission in the London market. This is a strong case, because the appellants actually kept a salaried servant devoting his whole time to their affairs in the country where the tax was sought to be levied. The reason for the decision I conceive to be that Messrs. Lowell and Christmas were not themselves purchasers of the goods but only agents to sell on commission. It is difficult to see how it could be argued that there was not a making of contracts by the Company in New Zealand. There were at least the contracts involved in the advances made against the shipping documents which must have entailed on the New Zealand shippers the obligation to repay any sum by which the price realised by the produce in London might fall short of the advance made against it. I take it the their Lordships must have held that the transactions regarding the advances were so subsidiary and ancillary to the main business of sale in London that it was right to regard the company as substantially carrying on their business in London and nowhere else. I regard the decision as a clear indication that it is the duty of a court to look at the question, broadly and in substance rather than fix on some small incident in the conduct of the business and say "here is a feature of your business which involves your entering into some contracts within this jurisdiction, therefore you carry on business here." Saccharin Corporation Ltd. v. Chemische Fabrik Von Heyden Akteen Gesellschaft (1911) 2 K.B. 516 does not assist me not merely because it is a jurisdiction case but because, as is apparent from the judgment of the Lords Justices, it turned entirely on the weight to be attached to different parts of the evidence in the case. One important feature of it was that the agent apparently had in his possession and control stock of his principal's goods of which he could dispose without consulting them. Actiesselskabet Dampslil "Hercules" v. Grand Trunk Pacific Railway (l9l1) (1912) 1 K.B 222 only decided that if the directors of a company transact their financial business within the jurisdiction it does not avail them that their railway undertaking is situated and carried on outside it. O'Kura & Co. Ltd. v. Forsbawa Jernverks Aktiebolag (1914) 1 K.B. 715 is a jurisdiction case, but there is one passage in the judgment of Buckley, L.J. which I think has an important bearing on the present case. In that case the defendants were a Swedish Corporation who employed in London as agents the firm of . & J. Svedburg. C. & J. Svedburg were the London branch of C. & J. Svedburg at Stockholmin Sweden. At page 720 the learned Lord Justice says : " Whenever they (i.e., C. and J. Svedburg) se ll the defendants' steel they do so expressly as agents and after submitting the inquiry to their Stockholm house who in turn obtain from the defendants the price and terms upon which they are prepared to sell. When the agents in London have obtained the price and terms they submit them to the buyers, and if the buyers accept them, they then sign the contract as agents for the defendants. The agents have never sold any steel manufactured by the defendants except as agents and in the manner indicated. They have no control over the way in which the defendants do their business and have no general authority from them with regard to making contracts." It is clear that the learned Lord Justice was not considering the question as to whether they had a place of business merely but as to whether they were carryings on a business, for he says at page 718 : "If the acts relied on in this case amount to a carrying on of a business, there is no doubt that those acts were done at a fixed place of business." Therefore the sole question for determination was whether that which took place amounted to a carrying on of a business in London and the decision of the Court of Appeal was that it did not. In The Thames and Mersey Marine Insurance Go. v. Societa &c, Llayd Austriaco (1914) 111 L.T. 97 the decision was adverse to the foreign firm on very strong facts. The following observations of Buckley, L.J., seem to me to have some bearing on the present question : "The test in each case is to find the answer to the following question, does the agent in carrying on the foreign corporation's business make a contract for the foreign corporation, or does the agent in carrying on the agent's own business sell a contract with a foreign corporation ?" 4. These being the principles by which I am to be guided, the facts of the present case must be examined. I had before me two witnesses, Mr. Stroutts, the manager of the shipping department of Gordon Woodroffe and Co., and Mr. Hunter, a partner in the firm of Kipley and Co., who is in charge of their Cocanada business. They have placed the whole of the relevant facts and documents before the Court, and their evidence, as one would expect, is not challenged in any respect. I do not think any question arises with regard to cargo discharged at Cocanada. As a matter of fact hardly any cargo is discharged at Cocanada as it is almost exclusively an exporting town. If by chance any cargo does go there it is discharged from the ship into lighters provided by the holders of the bills of lading and it is not handled by Messrs. Ripley and Co. They may occasionally collect freight and transmit it to Gordon Woodroffe and Co., but I do not think it is in evidence that they actually have done so, and Mr. Venkatasubba Row did not invite me to draw any conclusion in his favour from anything that took place in regard to cargo discharged at Cocanada. The whole discussion ranged round the course of business with regard to cargo shipped at Cocanada. Ripley and Co. made the arrangement to act for the Clan Line steamers with Gordon Woodroffe and Co., some ten years ago, and the letters evidencing that arrangement have been put in. They are themselves fairly large shippers. They get commission on their own shipments and a smaller commission on other people's shipments. In the important matter of booking space in outgoing ships for cargo to be embarked at Cocanada it is abundantly clear that they have no controlling voice whatever. Most of the arrangements for shipments are made by the Cocanada merchants with Gordon Woodroffe and Co., in Madras either directly or through shipping brokers in Madras. Sometimes the Cocanada shippers apply to Ripley and Co., to get them space on a Clan Line Steamer. Ripley and Co. have no authority to give space even for a box of cigars without the previous authorization of Gordon Woodroffe and Co. If application is made to them for cargo room they forward it to Gordon Woodroffe and Co., at Madras, and Gordon Woodroffe and Co. generally send what is called an engagement form to the intending shipper. If time is short, Gordon Woodroffe and Co. telegraph to Ripley and Co., instructions as to what amount of room is available for the proposed shipper. The course of business is clearly seen from a specimen letter dated the 30th August 1916 relating to S.S. Maclachlan. On receiving authorization from Gordon Woodroffe and Co., Ripley and Co. issue a shipping order to the shipper. Armed with this he takes his goods to the ship, obtains the mate's receipt and in due course the bill of lading. The bill of lading is signed by Kipley and Co., for the Master. Occasionally it happens that goods are put on board in a slightly damaged condition. The shippers are of course anxious to obtain clean bills of lading and can only do so on signing indemnity forms. These are addressed to Ripley and Co., and a specimen was put in of a firm of Vavasseur and Co. Ltd., dated the 2nd May 1917. They also collect freight and disburse the ship. Most of the course of business is clear from the specimen account dated the 15th September 1917 relating to that voyage of the Clan Stuart. With regard to the disbursements a large portion of them consists in payments for stores supplied to the ship. 5. The evidence regarding these stores is that contracts are made by Gordon Woodroffe and Co., with the suppliers at Cocanada for certain rates for each article in the Schedule. Ripley and Co. have nothing to do with the formation of those contracts, When the ship arrives off Cocanada the Captain specifies what quantity he wants of each article. The goods are put on board by the contractor and Ripley and Co. pay the bill according to the scheduled rates in the contract. 6. Three points have been taken for the defendants. The first is with regard to the booking of cargo space. It is said that in those cases where the shipper applies at Cocanada to Ripley and Co., for cargo space and ultimately gets from them a shipping order that constitutes a making of a contract by the Clan Line at Cocanada. It is said that the fact that Ripley and Co. cannot make the contract without the express authority of Gordon Woodroffe and Co., is not to the point, and that the fact remains that they do make the contract. That contention seems to be disposed of by the observations of Buckley, L.J. in O'Kura and Co., Ltd. v. Forsbacka Jernverks Aktiebolag (1914) 1 K.B. 744 which I have already cited. Even apart from that, I think the course of business here shows clearly that in the vast majority of cases the real contract is made direct with Gordon Woodroffe and Co., at Madras by means of an engagement form and that the shipping order is a mere piece of office machinery to carry out the contract contained in the engagement form. In the occasional case where the shipper applies so late as to necessitate telegraphic communication to Madras I think that Bipley and Co. are and are recognised to be mere conduit pipes to obtain the assent of Gordon Woodroffe and Co., to the proposal of the shipper; and I do not think that Ripley and Co. can in any real sense be said to make a contract with the shipper. 7. The next point relied upon was that Bipley and Co. signed the bill of lading and it is said that as they signed the contract of affreightment, that is conclusive of the matter, The bill of lading is no doubt evidence of the contract of affreightment and in most cases it is practically conclusive evidence of it; but it is never perhaps, and certainly very frequently not, the contract of affreightment itself. See per Lord Bram well in Sewell v. Burdick (1884) 10 A.C. 74 at p. 105 and Scrutten on Charterparties and Bills of Lading, Article 3. It is not the contract of affreightment where there is a charter party : nor I think where there is any antecedent document undertaking the carriage of the goods. In this case it is clear that the real contract of affreightment is contained in the engagement form or in the telegram of authorization in the exceptional cases where there is no time to send an engagement form. I am therefore of opinion that there is nothing in the fact that Ripley and Co. sign the bills of lading to warrant the deduction that the Clan Line carry on business at Cocanada The modern practice of having bills of Jading signed by the local agents rather than by the Captain is one of commercial convenience, it having become evident that the commercial side of the ship's business can be better transacted in an office with a proper clerical staff than by the Master. But suppose that this case had arisen in the old days when the bills of lading were signed by the Master who is unquestionably the agent of the ship-owners if the contention on this point for the Municipal Council were sound, it would follow that the Shipping Company transacted business within the meaning of the taxing statutes at every port of call at which the Master of the ship gives bills of lading. Such a conclusion to my mind is commercially too absurd to be accepted. 8. The last contention on behalf of the municipal council is a highly technical one and is based on that unfortunate Section 5 of the Indian Contract Act. The argument is this : Suppose an intending shipper to forward through Ripley and Co. a request for cargo space to Gordon Woodroffe and Co, at Madras; Gordon Woodroffe and Co. send an engagement form to Ripley and Co., at Cocanada, to hand on to the shipper, That form contains the acceptance and completes the contract. And it is, argued that as the contract only becomes complete when the acceptance reaches the shipper, the contract is finally made at Cocanada, because Gordon Woodroffe and Co. could recall that at any moment before it reached the shipper : Ripley and Co. acted entirely under their orders, and therefore the posting of the engagement form at Madras to Ripley and Co., was not an irrevocable acceptance of the offer. The first thing I have to say about this is that there is no evidence that that has ever actually been done. Mr. Stroutts says that the regular thing is to post the engagement form to the shipper direct and he knows of no instance where in fact it was sent through Ripley and Co. Mr. Hunter says that he can recall no actual instance, either, but he says quite frankly that he is not prepared to say that it never happened and that if Gordon Woodroffe and Co. did send an engagement form filled in with the name of a particular shipper at Cocamda he would as a matter of course hand it over to the shipper. Apart from that question of fact I think the argument though superficially ingenious is really unsound. If such a transaction took place I think the only possible inference is that a shipper who knows that Ripley and Co. have no authority to accept or reject until they hear from Gordon Woodroffe and Co., must be taken to hand Ripley and Co., his request to be forwarded to Madras for acceptance or rejection there and not for acceptance or rejection at Cocanada. I think he may be regarded as selecting Ripley and Co., as a mere channel for ascertaining whether or no Gordon Woodroffe and Co. have accepted his offer in Madras. In any case I think that even if this case did occasionally happen once in a way and did amount in odd instances to a contract being technically in law concluded in Cocanada, I ought to take the broader view in obedience to the authorities and look to see where in substance the business of making contracts of the Clan Line was carried on and controlled. That was clearly in Madras and I must hold that the Clan Line does not carry on the business of ship owners in Cocanada. That conclusion is not affected by the fact that Ripley and Co. put the name of the Clan Line on their office paper and describe them-selves as its agents. More than one case shows that this is an immaterial factor. 9. There must be judgment for the plaintiff for Rs. 50 and taxed costs. I will certify for two Counsel and costs of filing suit at Cocanada.

Author: C Trotter

The Clan Line Steamers Ltd. vs The Municipal Council Of Cocanada on 2 November, 1917

Madras High Court

JUDGMENT Sarojnei Saksena, J. 1. This order shall dispose of Civil Revision Nos. 534, 535 and 536 of 1995. 2. Petitioner-Bank filed a Civil Suit No. 216/80 on May 1, 1980 against Messrs. Barar Lion Tools Limited. This suit was decreed on June 2, 1984, for Rs. 15,15,297.12 alongwith pendente lite and future interest at the rate of 17 percent annum. The decree-holder Bank filed execution petition No. 33/10/86 for executing this decree. 3. Petitioner-Bank filed Civil Suit No. 632/72 against M/s. Delhi Faridabad Textiles Private Limited on November 16,1979, which was decreed on October 16,1984, for an amount of Rs. 16,01,383.47 alongwith pendente lite and future interest at the rate of 17 percent per annum. Decree-holder bank filed Execution petition No. 34/10/85 for realising this amount. 4. Petitioner-Bank filed Civil Suit No. 336/80 on November 15, 1979, against M/s. Delhi Faridabad Textiles Private Limited, which was decreed on October 6, 1984, alongwith pendente lite and future interest at the rate of 17 per cent per annum. Petitioner decree-holder filed Execution petition No. 32/10/85 to execute the decree. 5. During the pendency of these suits and after the passing of the decree, the judgment-debtor made certain payments to the petitioner-Bank towards satisfaction of the decree. After the passing of the decrees on October 22, 1993, the judgment-debtors paid in Court two drafts for Rs. 16,75,461.22 and Rs. 2,00,000/- in aforesaid execution petition No.24/10/85 and another draft of Rs. 2,00,000/- in execution petition No. 22/10/85. Petitioner-Bank appropriated these amounts against the interest becoming due till then. Judgment-debtors M/s. Delhi Faridabad Textiles Tools Limited moved three applications under Order 21, Rule 66 and Section 151 C.P.C. with the prayer that the payments made by them be first adjusted towards the principal amount due and then against the interest due, whereas, decree-holder Bank has appropriated it otherwise. 6. Concededly, the judgment-debtor while depositing this amount in the court never gave any notice intimation to the decree-holders to appropriate the amount either towards principal or towards interest. 7. The executing Court, relying on Punjab National Bank etc. v. Prem Sagar Choudhary and Ors., A.I.R. 1988 H.P. 33, recorded a finding that payments made by the judgment-debtors should first be appropriated towards principal amount due and then towards interest and costs. Thus, the aforesaid petitions were allowed. The Executing Court further held that the future interest from the date of institution of the suit till the date of realisation of the entire decretal amount will be charged by the decree-holder only on the principal amount i.e. not on the interest which formed part of the decree and then on the diminishing principal amount as per payments made by the judgment-debtors from time to time. The executing court (Sic) directed the petitioner-decree-holder-bank to furnish its statement of account for the above payments accordingly. 8. The only point argued before this Bench was whether the decree-holder is entitled to appropriate the aforesaid payments made by the judgment-debtors towards the interest due without being noticed by the judgment-debtors about the mode of appropriation. 9. Relying on Rai Bahadur Seth Nekichand v. Seth Radha Krishna, A.I.R. 1922 Privy Council 26, their Lordships of the Apex Court held in Meghraj v. Mst. Bayabai, A.I.R. 1970 S.C. 161, that the judgment-debtor is bound to deposit the decretal amount in accordance with law as is provided by Order 21 Rule 1 C.P.C., but mere deposit in the absence of any notice and intimation that it was being deposited towards principal, it was for the decree-holder to appropriate it towards the dues. 10. In Prem Sagar Chaudhary's case (supra) this judgment of the Supreme Court was considered by a Single Bench of the High Court of Himachal Pradesh and it held that in case of money decree the normal rule approved in Meghraj's case (supra) with respect to appropriation of payments to be made towards the satisfaction of interest in the first instance and then of the principal amount of the Court decrees, has become inoperative after the amendment of Rule 1 Order 21 C.P.C. by the C.P.C. (Amendment) Act, 1976. It further held that in view of the new provisions of Rule 1 of Order 21 it is no longer open to the decree-holder to appropriate payments received by him to that part of the decretal amount which does not bear any interest. On the other hand, such payment has to be applied first towards the part of the decretal amount which bears interest, if any. Sub-rules (4) and (5) of Rule 1 of Order 21 postulate cessation of interest on any payment made for the satisfaction of the decretal amount. It further held that the words "any payment" as used, given their natural meaning, do not admit any exception. Section 60 of the Contract Act does not vest a discretion in the Creditor to apply the payment made by the debtor, without indicating to which debt the payment is to be applied, to any lawful debt including a time barred debt, this section will have to be read subject to the provisions contained in the amended Rule 1 of Order 21 relating to decretal amounts, being specific in nature. 11. This amended rule is also considered by a Single Bench of Kerala High Court in Sujatha Weaving Mills and Ors. v. Syndicate Bank, A.I.R. 1994 Kerala 386 wherein it was held that when judgment-debtor makes any deposit in the court,he should state mode of appropriation also. If he fails to do so, general rule that deposit will go in discharge of interest first will govern. The fact that decree-holder withdrew the said deposit, it cannot be said that there was compliance with Sub-rule (4) of Rule 1 of Order 21, Code of Civil Procedure, so that the decree-holder was bound to adjust said deposit towards principal first. The ratio is that under Order 21, Rule (i) Sub-rules 2 and 3 C.P.C. the judgment-debtor is duty bound to give notice or intimation to the decree-holder, stating the manner of appropriation, if he fails to do so, the decree-holder is within his rights to appropriate it first towards interest due and then towards principal. 12. This controversy is clinched by the latest judgment of the Apex Court in Mathunni Mathai v. Hindustan Organic Chemicals Limited and Anr., (1995-3)111 P.L.R. 596 (S.C.). Their Lordships of the Apex Court have held that the deposit of decretal amount made in pursuance of Order of Court cannot be deemed to be towards principal. In absence of any intimation as required by Sub-rule (2) of Rule 1 of Order 21 and indication of manner of appropriation, the payment could not be deemed to have been appropriated towards principal unless the decree-holder admits it to be so. They have further held that the ratio laid down in Meghraj's case (supra) applies now with greater rigour. The reason for the rule both in the un-amended and amended provision appears to be that if the judgment-debtor intends that the running of interest should cease then he must intimate in writing and ensure that it is served on the decree-holder. Sub-rules (4) and (5) added in 1976 to protect the judgment-debtor provide for ceasure of interest from the date of deposit or payment. But the cessation of interest under Sub-rule (4) takes place not by payment alone but from the date of service of notice referred to in Sub-rule (2). 13. Thus, relying on the aforesaid judgment of the Apex Court, I find that the executing Court has fallen into an error in holding that the decree-holder was duty bound to appropriate the amount deposited by the judgment-debtors in the Court towards principal amount first and then towards interest as admittedly no notice or intimation was given by the judgment-debtors to the petitioner-decree holder under Sub-rule (2) or (3) of Rule 1 of Order 21 C.P.C. Accordingly, all the three revision petitions are hereby allowed. The impugned Orders are set aside.

Author: S Saksena

Bank Of India vs Delhi Faridabad Textiles Pvt. ... on 22 September, 1995

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 781 of 2009() 1. SUNIL KUMAR, MADATHIPARAMBIL HOUSE, ... Petitioner Vs 1. THE OLLUR SERVICE CO-OP. BANK LTD., ... Respondent 2. ASST. REGISTRAR OF CO-OP. SOCIETES For Petitioner :SRI.JIJO PAUL For Respondent : No Appearance The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :31/03/2009 O R D E R K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 781 OF 2009 ----------------------------------------- Dated 31st March, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. He availed a loan from the 1st respondent Co-operative Bank, by mortgaging a property owned by him in Survey No.236/5 of Avanissery Village. The mortgage was created by depositing the title deeds of the property, which had an extent of 13.5 cents. The appellant submits, he has closed the loan account. But, the 1st respondent is not returning the title deeds. So, the appellant claims, he filed a representation before the 2nd respondent Assistant Registrar of Co- operative Societies on 20.3.2009, a copy of which is produced as Ext.P4. Thereafter, the Writ Petition was filed, seeking the following reliefs: The learned Single Judge, who heard the Writ Petition, dismissed the same, relying on the Full Bench decision of this Court in John v. Liquidator [2006(1) K.L.T. 11 (FB)]. Aggrieved by the said judgment, this appeal is filed. 2. The learned counsel for the appellant submitted that in view of the facts of the case decided by the Full Bench, which can be distinguished from the facts of this case, the Full Bench has not laid down any absolute proposition that no direction could be issued to the Co-operative Society in this matter. We notice that the learned Judge dismissed the Writ Petition without prejudice to the alternative remedies available to the appellant under the Co-operative Societies Act. When the learned Single Judge dismissed the Writ Petition on the ground of alternative remedy, an appeal under Section 5 of the Kerala High Court Act against that judgment is not maintainable, unless it is shown that the exercise of the discretion made by the learned Single Judge was perverse. We find it difficult to hold that the view taken by the learned Single Judge is perverse. We notice that the appellant has claimed to have filed the representation only on 20.3.2009 and the Writ Petition has been filed by him on 22.3.2009. So, even without  WA 781/2009 3 waiting for a week for the statutory authority to look into his grievance, the appellant has rushed to this Court. The appellant made submissions on the urgency of the matter. Every writ petitioner will have some urgency in his matter. Otherwise, he will not come to this Court for reliefs. But, this Court cannot afford to entertain such writ petitions, when alternative remedies are available to the petitioners concerned to redress their grievance. This Court's time and resources should be preserved for dealing with matters, which this Court alone can handle. So, we find no reason to interfere with the judgment under appeal, even if the facts of this case are distinguishable from the facts of the case decided by the Full Bench. Accordingly, the Writ Appeal is dismissed. Needless to say, if Ext.P4 is received and pending, the 2nd respondent shall endeavour to dispose of the same as expeditiously as possible. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/ 

Sunil Kumar vs The Ollur Service Co-Op. Bank Ltd on 31 March, 2009

Kerala High Court

JUDGMENT R. Jayasimha Babu, J. 1. The question referred to us at the instance of the Revenue is : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the assessee is entitled to investment allowance under section 32A in respect of dumpers used in the business of mining operation on contract ?" 2. The assessment year is 1980-81. 3. The assessee which owned dumpers was, during the relevant assessment year, using the same in terms of a contract for the purpose of mining, the contract being with the owner of the mine, Dalmia Magnesite Corporation Ltd. The claim for investment allowance on those dumpers by the assessee was negatived by the Assessing Officer, but was allowed by the Commissioner and the Commissioner's order was upheld by the Tribunal. The Commissioner, in the course of his order, has referred to a circular issued by the Central Board of Direct Taxes and this is what the Commissioner has observed in relation to that circular : "I find that the Central Board of Direct Taxes had occasion to consider the question of allowance of development rebate to dumpers and tippers though they were registered under the Motor Vehicles Act. In the Board's instruction F. No. 202/34/72-ITA-II, dated March 15, 1975, the Board had directed that the test as to whether a particular vehicle was a road transport vehicle or not would be the test of the use to which the vehicle is ordinarily put and not merely the fact that it is capable of moving on the roads. The Board expressed the view that dumpers and tippers could not be treated as road transport vehicles within the meaning of section 33(1) of the Act." 4. By the standard laid down by the Board itself, it is clear that the dumpers in this case, which were being used for mining purposes and not merely for carrying goods on the roads were not required to be treated as motor transport vehicles. The investment in the dumpers having been made by the assessee and the dumpers having been used for the purpose of mining, investment allowance was clearly allowable and had rightly been allowed by the Commissioner and the Tribunal. We therefore answer the question referred to us in favour of the assessee and against the Revenue.

Author: R J Babu

Commissioner Of Income Tax vs Bajrang Enterprises on 20 August, 2002

Madras High Court

ORDER J.K. Mehra, J. Member 1. This is an appeal which is filed against the decision of the State Consumer Disputes Redressal Commission, Rajasthan. The case of the Complainant is that in response to issue of convertible debenture of the Respondent, they had applied for allotment of 2500 convertible debentures of the value of Rs. 2,000/- each. The Respondent on receipt of the money issued the debentures. The Complainant exercised its option for redemption of such debentures on their becoming redeemable on 12.6.96. Having failed to obtain the refund with interest they filed the present complaint. The objection of lack of territorial jurisdiction raised by the Respondent was rightly rejected. Our query reveals that the company is dealing in securities, shares, debentures etc. It, therefore, appears that the Appellant/Complainant is in the trading business of shares, securities, debenture etc. It was infact on the State Commission accepting this objection by placing reliance on the judgment in the case of Bombay Dyeing and Manufacturing Co. Ltd. Vs. Union bank of India (2000 CTJ 829 (NC) that the decision was rendered against the Appellant. Commission has rightly relied on the relevant passage from the above judgement which is brought as under:- " The Consumer Protection Act was passed to provide quick justice without any court fee to the consumers. It was an additional remedy to all other remedies provided by various other Acts. The Company may come within the meaning of "Consumer" under the Consumer Protection Act (Section 2 (1) (d). Service may also include banking (Section 2(1) (0). But that does not mean all commercial disputes between a Bank and a large company must be decided by the Consumer Courts. No court fee is payable in a Consumer Court so that people of modest means can seek expeditious justice in the consumer court. The entire purpose behind setting up of the consumer courts was to provide quick, easy and affordable justice to common people who could not otherwise enforce their rights before a Court of Law. A large number of complaints have been filed in Consumer Courts at all levels all over India and the arrears of the cases pending disposal are mounting every day. One of the reasons of such mounting arrears is that large commercial organisations like the complainant, is invoking the jurisdiction of the Consumer Courts to settle their commercial disputes. There is no reason why the big companies should abandon the remedy provided by the Civil Court and seek justice from the Consumer Court by passing the Civil Courts altogether. This will have the effect of clogging the wheels of justice in the Consumer Courts and common people are subjected to unreasonable delay in getting their cases heard." 2. It was in the light of this that the complaint of the appellant was dismissed. We see no infirmity in the impugned order which is upheld, the appeal of the appellant is dismissed.

Alok Securities Pvt. Ltd. vs Bharat Hydropower Corporation ... on 1 October, 2001

National Consumer Disputes Redressal

JUDGMENT A.K. Ganguly, C.J. 1. This application under Section 11 of the Arbitration and Conciliation Act,1996 (hereinafter referred to as the "said Act") for appointment of an Arbitrator has been filed on 31.1.2007. 2. The material facts of the case are: The Petitioner was awarded a contract by the Opposite Party bearing agreement No. 08/CAO/CPM/KJR/94 dated 12.12.1994 for execution of earth work in formation in Section between Km 41.00 and 58.00 in connection with construction of B.G. Line from Banspani and Daitari (Km-147) Section VI. The original value of the contract work was Rs. 1,79,87,150.00. The original value was revised and enhanced from time to time. The sixth enhancement amounting to Rs. 4,47,54,638/- was made by the Opposite Party and the work was executed and completed in all respects by the Petitioner before 31.12.2002. But since the Petitioner instead of receiving the final payment in respect of the final bill has received lesser amount and the final bill has not yet been prepared by the Opposite Party, disputes and differences arose between them. 3. It is not in dispute that there is an arbitration clause between. the parties. The Arbitration clause has been quoted in the petition. Admittedly, in this case, the claim is more than Rs. 5 lakhs. As such, the Arbitration Tribunal shall consist of a panel of three Arbitrators as per Clause 64(3)(a)(ii) of the General Condition of the contract. The said clause is set out below: Clause 64(3)(a)(ii). Two Arbitrators who shall be Gazetted Railway Officers of equal status to be appointed in the manner laid in Clause 64((3)(b) for all claims of Rs. 5,00,000 (Rupees five lakhs) and above and for all claims irrespective of the amount of value of such claims if the issues involved are of a complicated nature. The General Manager shall be the sole Judge to decide whether the issues involved are of a complicated nature or not. In the event of the two Arbitrators being divided in their opinions the matter under disputes will be referred to an Umpire to be appointed in the manner laid down in Clause 3(b) for his decision. 4. Admittedly, in the present case, there was a demand for appointment of Arbitrator by the Petitioner. First the demand was made by a notice dated 12.12.2006. In the said notice, in the penultimate paragraph the following recitals have been made. If you fail to appoint an arbitrator within 30 days from receipt of this notice, we will have no other option than to approach the Court for appointing an Arbitrator under the provisions of Arbitrator and Conciliation Act, 1996. 5. Admittedly, the said notice was received by the Opposite Party on~22.12.2006. This appears from the receipt which has been annexed as Annexure-3. Since no Arbitrator was appointed, this petition under Section 11 of the said Act was filed in Court on 31.1.2007. Thereafter, the General Manager sent a panel of four names and requested the Petitioner to nominate two names within thirty days. The said notice was received by the Petitioner on 2.3.2007. But since the Petitioner has already come before this Court and filed a petition, the Petitioner did not send any name. On the other hand, the Petitioner on 10.3.2007 informed the General Manager that since he has already approached this Hon'ble Court for appointment of an Arbitrator and the matter is subjudice, he requested the General Manager not to appoint any Arbitrator out of the panel sent by the General Manager. Despite the said request, the General Manager appointed the arbitrators by its letter dated 5.4.2007. 6. Now the question is whether the General Manager in the facts and circumstances of the case, can make the appointment of Arbitrator. Admittedly in this case, the appointment of Arbitrator is governed by the provision of Section 11(6) of the said Act. 7. Learned Counsel for the Opposite Party submitted that since this case is covered by Section 11(6) of the said Act, the requirement of appointing an Arbitrator within thirty days, which is there under Section 11(4) and 11(5) of the said Act is not attracted. Therefore, the General Manager has acted rightly by sending a panel of four names may be thirty days after receiving the Petitioner's request and asking the Petitioner to nominate at least two persons. Since the Petitioner failed to nominate, the General Manager appointed the panel of arbitrators and in that view of the matter, this petition under Section 11 of the Act is not maintainable. 8. Both the Counsel have relied upon certain Judgments which now the Court proposes to consider. Time schedule in the matter of appointment of arbitrator was considered by the Supreme Court In Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr., . In that case also, time limit was not mentioned in the arbitration clause. In that decision, Learned Judges of the Supreme Court held that even if the appointment is made after thirty days from the date of receipt of the request for such appointment the appointment is valid provided, the Court has not been moved seeking the appointment. In other words, Learned Judges held in paragraph 19, at page 158 of the report that the right to make appointment does not cease after the expiry of thirty days from the date of demand. Such right is not automatically forfeited. But if after expiry of thirty days an application is made before the Court seeking appointment of Arbitrator, only then the right of the Opposite Party to appoint 'ceases'. 9. In the instant case, the Petitioner has made an application seeking appointment of an Arbitrator before this Court on 31.1.2007. Still then, the General Manager has not sent any panel of names and did not take any steps under the arbitration procedure between the-parties. That being the position and in view of the ratio in Datar Switchgear case, the right of the General Manager 'ceases'. 10. Reference in this case connection has also been made to the Judgment of the Supreme Court in the case of Union of India and Anr. v. M.P. Gupta, reported in (2004) 10 SCC 504. That was not a case under Section 11 of the said Act, but was a case under the old Act. In that context, Learned Judges of the found that in the facts of that case, a Learned Single Judge of the High Court appointed Justice P.K. Bahri as the sole arbitrator ex parte on an application filed under Section 20 of the Arbitration Act, 1940. Aggrieved by the said ex parte order, the Appellant moved the Hon'ble Division Bench of the High Court which dismissed the Appellant's plea. Against the said order, Hon'ble Supreme Court was moved. Hon'ble Supreme Court looking at the relevant arbitration clause between the parties, set aside the appointment made by the Learned Single Judge merely on the ground that the arbitration clause had different terms. 11. In my view the ratio of the said Judgment is not strictly attracted to the present case, since the present case is governed by totally different statutory provisions. 12. Reliance was placed on the Judgment of the Supreme Court fn the case of Punj Lloyd Ltd. v. Petronet MHB Ltd., reported in (2006) 2 SCC 638. In that case, the arbitration clause did not contain any time limit. After thirty days notice was given, the Opposite Party failed to act and the High Court was moved for appointing an arbitrator. In that circumstances, the Court held, reiterating the ratio in the Datar, that Opposite Party has lost the right. In fact, paragraph-19 of Datar Switchgear has been set out by the Learned Judges in Punj Lloyed Ltd. case. The attention of this Court was also drawn to the decision of the Supreme Court in the case of Union of India and Anr. v. V.S. Engineering (P) Ltd., . In that case, on the contractor's application, arbitrator was appointed by the Railways under Clause-64 of the General Conditions of the Contract. Before the Arbitrator, the contractor submitted its claim. Subsequently, the contractor filed a petition under Section 11 of the Act. Then the High Court appointed Mr. Justice Y.V. Narayana as the arbitrator. In the background of those facts, the Hon'ble Supreme Court by following the decision in M.P. Gupta held that the High Court cannot appoint an Arbitrator. In fact, the fact situation in that case was totally different. 13. Reliance was placed on the decision of the Supreme Court in the case of ACE Pipeline contracts (P) Ltd. v. Bharat Petroleum Corporation Ltd., . In that case also, the facts were that on 21.7.2005 request was made by the Appellant for appointment of an Arbitrator. The notice dated 21.7.2005 was received by the Director (Marketing) on 26.7.2005 and a request was made to the Appellant to supply copy of the arbitration agreement and other corresponding documents as he was not aware of the procedure for appointment of the arbitrator. The Director (Marketing) received reply to the communication dated 12.8.2005 on 16.8.2005 which was received in the office on 17.8.2005. After receiving the communication and all the materials on 17.8.2005, the appointing authority appointed Shri P.S. Bhargava as arbitrator on 22.8.2005 and a communication was sent to the Appellant through courier which was received by him on 26.8.2005. It was also pointed out after receipt of the reply to the communication dated 12.8.2005 on 16.8.2005, on 19.8.2005, 20.8.2005 and 21.8.2005 office remained closed on account of Raksha Bandhan and weekly holidays. The Director (Marketing) sent reply on 22.8.2005 appointing Shri P.S. Bhargava as arbitrator. It was also pointed out that the whole action was done with urgency and thereNwas no delay on the part of the administration. 14. On 22.8.2005 the petition was filed before the High Court. On those fact's, the appointment of arbitrator made by the Respondent was sustained. But in the instant case, the petition was made before the High Court on 31.3.2007 and the General Manager sent a panel of names only on 21.3.2007, which was substantially after the High Court was moved. Reliance was also placed on the Judgment of the Supreme Court in the case of Union of India v. Bharat Battery Manufacturing Co. (P) Ltd., reported in (2007)7 SCC 684. In that case, the initial notice was sent for appointment of an Arbitrator on 7.6.2005 and notice was received by the Opposite Party on 9.6.2005. Thereafter, second notice was served on 2.1.2006 which was received by the Opposite Party on 30.3.2006. Then the High Court being approached, the High Court appointed the Arbitrator on 26.5.2006. In facts of that case, the Supreme Court held that since the High Court was moved and an arbitrator has been appointed, the Appellants are estopped from appointing an arbitrator under Clause 24 of the agreement. Therefore, the principle of Datar Switchgear was affirmed. 15. In the facts of the case which have been discussed hereinabove, this Court is of the opinion that in this case, the Opposite Party have lost" their right to appoint an arbitrator as the High Court was moved much prior to any order being passed by the Opposite Parties under the arbitration clause. It is for the High Court to appoint an Arbitrator. 16. This Court therefore appoints Mr. Justice B.N. Patnaik a former Judge of the Orissa High Court the sole Arbitrator in this case to decide the disputes between the parties. The Arbitrator will immediately enter upon the reference within a period of four weeks from the date of service of this order upon him and thereafter he will take up all steps to decide the disputes between the parties and pass an award within a period of six months from the date of entering upon the reference. The question of remuneration of the Arbitrator and other costs and fees are left to be decided by the Arbitrator. 17. The ARBP is accordingly disposed of.

Author: A Ganguly

Vinay Agrawal vs The General Manager, East Coast ... on 4 April, 2008

Orissa High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7172 of 2007 RAN BIJAY NARAYAN SINHA Versus LALIT NARAIN MITHILA UNIVERSITY & ORS. ----------- Rsh (Mihir Kumar Jha, J.) 4 9.11.2010 Heard in part. Put up this case after ten days in order to enable the petitioner to file supplementary affidavit regarding his claim dependant on the outcome of consideration of his promotion in the merit promotion statutes.

Ran Bijay Narayan Sinha vs Lalit Narain Mithila Universit on 9 November, 2010

Patna High Court - Orders

ORDER 1. Defendants in O.S.No. 135 of 1995, on the file of Subordinate Judge, Kulithalai, are the appellants. 2. Plaintiff filed the suit for recovery of the amount borrowed by defendants from plaintiff for their business purpose. First defendant is a firm in which defendants 2 to 4 are partners. Fifth defendant is a guarantor. They had executed necessary documents in favour of plaintiff and borrowed a sum of Rs. 3 lakhs, on 15.11.1980, They have agreed to pay interest at 18% per annum. They have also hypothecated certain machineries. Thereafter, on 17.10.1983 and 16.11.1985, they have acknowledged their liability and renewed the debt. As on the date of suit, nearly, Rs. 95,000 was due with future interest. 3. Second defendant in his written statement contended that the trial Court has no jurisdiction to entertain the suit and he has not acknowledged the liability. The suit is also barred by limitation. Likewise, fifth defendant is also not liable and he has to be exonerated from his liability. Second defendant has stated in his written statement that the plaintiff is not entitled to interest at 18% per annum, but only at 12 1/2% per annum. 4. Fifth defendant has also filed a written statement supporting the claim of second defendant. 5. On the above pleadings, the trial Court took oral and documentary evidence. P.Ws. 1 and 2 were examined on the side of plaintiff-Bank and Exx. A-1 to A-19 were marked. 2nd defendant examined himself as D.W.1 Ex.B-1 was marked on the side of defendants. 6. The trial Court passed a decree in terms of the plaint. Plaintiff-Bank was also awarded its costs. 7. Trial Court found that all the documents were executed by defendants and they have also acknowledged the liability. Regarding the rate of interest, it was found by the trial Court that the defendants have agreed to pay interest at 9 1/2 % over and above the Reserve Bank rate with a minimum of 18 1/2 per annum. It further found that since the defendants have borrowed the amount in connection with commercial transactions, plaintiff is entitled to claim interest as per contract. 8. The matter was taken in appeal by defendants in A.S.No. 240 of 1997, on the file of District Judge, Trichy. The lower appellate Court confirmed all the findings of the trial Court and dismissed the appeal. 9. In this second appeal preferred by the defendants, they have raised the following questions, which according to them are substantial questions of law: (1) Whether the Courts below are correct in coming to the conclusion that the suit transaction is only a commercial transaction on the given circum-stances? (2) Whether the selling of spare parts to the Tractors which would be used in the process of agriculture, would not come under the meaning of agriculture purpose in the Banking business? (3) Whether, in the given circumstances, the lower appellate Court is correct in applying Sec. 34 of CPC and Section 21-A of the Banking Regulation Act 1949 to the pending mortgage suit? (4) Whether the provisions of Order 34, Rule 11 CPC override the provisions of Section 21-A of the Banking Regulation Act, 1949 and whether the provisions of Order 34, Rule 11 of CPC is not controlled by the Section 21-A of Banking Regulation Act, 1949? (5) Whether the Courts below had exercised their judicial discretionary power of Court to determine the rate of interest pending the suit? and (6) Whether the judgment reported in N.M.Veerappan v. Canara Bank, would apply to the case on hand?" 10. In a recent decision of the Honourable Supreme Court reported in Kondiba Dagadu Kadam v. Savitri Sopan Gujar and others, . Their Lordships have said that the purpose of amendment to the Civil Procedure Code under Act 104 of 1976 was to minimise litigation, ensure fair trial in accordance with principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is riot delayed, to avoid complicated procedure to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the courts to be substantial questions of law. In paragraphs 3 and 4 of the judgment. Their Lordships have said that after the amendment, a second appeal can be file only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to mulate the substantial question of law involved in the case. The appeal is required to be heard on the question so for mulated. However, the respondent, at the time of if the hearing of the appeal, has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence'. Their Lordships also deprecated the practice of the courts in not making a distinction between a question of law and substantial question of law. Their Lordships have held thus, in paragraph 4 of the said judgment: .....It has to be kept in mind that the right of appeal is neither a natural nor ah inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts however erroneous cannot be disturbed by the High Court in exercise of the powers under this Section The substantial question of law has to be distinguished from a substantial question of fact. This court in Sir Chunilal v. Mehta and Sons Ltd., v. Century SPG. & MFG.Co.Ltd, , held that: "The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying these principles or that the plea raised in palpably absurd, the question would not be a substantial question of law." 11. Their Lordships further went on and held thus in paragraphs 5 and 6: "It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is riot permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the, lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon imadmissible evidence or arrived at without evidence. 6. "If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This court in Reserve Bank of India v. Ramkrishna Govind Morey, held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference." (Italics supplied) 12. Why I have extracted the above legal position is because regarding the rate of interest, the matter is governed by contract between the parties, in a recent decision of the Honourable Supreme Court, reported in State Bank of India v. Yasangi Venkateswara Rao, , their Lordships have held that interference of court in deciding with the rate of interest is very much limited. In that case, their Lordships have held as follows, in paragraph 7 and 8: "7. We are unable to understand as to how the High Court could come to the conclusion that Parliament had no jurisdiction to enact Section 21-A. There can be no doubt that Section 21-A deals with the question of the rate of interest which can be charged by a banking company. Entry 45 of List I of the Seventh Schedule clearly empowers Parliament to legislate with regard to banking. The enactment of Section 21-A was clearly within the domain of Parliament. The said section applies to all types of loans which are granted by a banking company, whether to all types of loans which are granted by a banking company, whether to an agriculturist or a non-agriculturist, and, therefore, reference by the High Court to Entry 30 of List II was of no consequence. In our opinion, the said Section 21-A had been validly enacted. 8. We also find it difficult to agree with the observation of the High court that normally when a security is offered in the case of mortgage of property, charging of compound interest would be regarded as excessive. Entering into a mortgage is a matter of contract between the parties. If the parties agree that in respect of the amount advanced against a mortgage compound interest will be paid, we fail to understand as to how the court can possibly interfere and reduce the amount of interest agreed to be paid on the loan so taken. The mortgaging of a property is with a view to secure the loan and has no relation whatsoever with the quantum of interest to be charged." (Italics supplied) 13. Even on merits, I do not think that the Courts below have considered the question in the right perspective. Even the contract rate is 18 1/2% over and above Reserve Bank of India rate. The courts below have awarded only 18 1/2%, i.e., the minimum agreed. It is well-known that during the relevant time, ordinary lending rate of interest varied between 16 to 24% per annum. Even though Section 34, C.P.C. may not apply, since the machines have been hypothecated, Courts below have taken into consideration Sec. 34, C.P.C. only for the purpose of considering it as a commercial transaction. 14. The questions of law raised in the memorandum of appeal have already been decided by the Honourable Supreme Court, and the Courts below have also applied the correct legal, principles in awarding the rate of interest, taking into consideration the facts of the case. 15. In the result, I hold that the second appeal is without merit, and consequently the same is dismissed. No costs. C.M.P.No.8087 of 1999 for stay is also dismissed.

Ideal Agro Services A Registered ... vs Indian Overseas Bank, Contonment ... on 27 July, 1999

Madras High Court

JUDGMENT M.Y. Eqbal, J. 1. This appeal, by the appellant National Insurance Co. Ltd., is directed against the judgment and award dated 31.5.1991 passed by the Motor Accidents Claims Tribunal, Hazaribagh, in Misc. Claim Case No. 25 of 1990 by which the learned Tribunal awarded a sum of Rs. 13,16,755 by way of compensation on account of death of Major Niraj Sinha, an army officer in a motor vehicle accident. The claimants-respondents, who are widow and children, filed the afore mentioned claim for grant of compensation alleging, inter alia, that the deceased had boarded a mini bus bearing registration No. BRL 2223 at the Koderma Railway Station in the morning of 3.1.1990 for coming to Hazaribagh town. It is said that the vehicle was being driven in a very rash and negligent manner and dashed against a roadside tree as a result of which three occupants of the bus including driver and the deceased were killed. A number of other persons sustained injuries and were removed to hospital. The deceased was an army officer aged about 34 years and was getting a salary of Rs. 5,865 per month. The claim was contested by opposite party-appellant by filing written statement and it took the defence that the amount of compensation is excessive and exorbitant, that the liability of the insurance company is limited. The Tribunal after hearing the parties disposed of the claim case by the impugned judgment. The Tribunal held that the accident was caused due to rash and negligent driving of the bus. The Tribunal assessed the compensation by taking into consideration various factors and came to the conclusion that the claimants are entitled to compensation amounting to Rs. 13,16,755. 2. Mr. D.N. Chatterjee, the learned Counsel for the appellant assailed the impugned judgment and award as being illegal and contrary to the evidence and facts on record. Learned counsel, firstly, submitted that the person driving the vehicle had no valid driving licence and, therefore, insurance company cannot be held liable for payment of compensation. Learned counsel, secondly, submitted that the amount of compensation awarded by the Tribunal is highly excessive and exorbitant. The Tribunal has not correctly adopted the settled principle of law while assessing the quantum of compensation. According to the learned Counsel the grant of compensation for mental shock and agony is erroneous in law. Learned counsel submitted that in no case the amount of compensation should have been more than Rs. 5,00,000 to Rs. 6,00,000. In this connection, learned Counsel relied upon a decision in Sarla Dixit v. Balwant Yadav, 1996 ACJ 581 (SC). Mr. Chatterjee then drew my attention towards petition filed on 31.1.1992 under Order XLI, Rule 27, Civil Procedure Code on which this Court after hearing the parties on that application on 22.10.92 ordered that the said petition shall be considered at the time of hearing. In the said petition appellant prayed for acceptance of photocopy of the driving licence and claim form as additional evidence. According to the appellant the vehicle was being driven on the date of the accident by Upendra Kumar Singh who also died in the accident. The said Upendra Kumar Singh was authorised to drive a medium goods vehicle and the licence was valid up to 7.10.1989. According to the learned Counsel, therefore, the driving licence of the driver who was driving the vehicle had already expired and the driver was having no driving licence on the date of accident. In that view of the matter, the insurance company cannot be saddled with the liability for payment of compensation. 3. On the other hand, Mr. S. Srivastava, the learned Counsel for the respondents-claimants not only supported the judgment and award passed by the Tribunal but also pressed the cross-objections filed by the claimants-respondents for enhancement of compensation. According to the learned Counsel the amount of compensation is much low inasmuch as the claimants have claimed a sum of Rs. 45,00,000 by way of compensation but a very low sum has been awarded by the Tribunal. According to the learned Counsel if the deceased had been alive, his income would have been enhanced up to the extent of Rs. 9,000 and in that view Rs. 14,00,000 would have been reasonable compensation. 4. At this juncture, it is worth to mention here that on 12.1.1998 when this appeal was listed for hearing, a second application under Order XLI, Rule 27, Civil Procedure Code was filed by the appellant insurance company for accepting the copy of one page of the insurance certificate as an additional evidence. However, this application was not pressed at the time of hearing of this appeal. 5. First of all, I will take up the first point raised by Mr. Chatterjee, learned Counsel for the appellant, that the person driving the vehicle had no driving licence on the date of accident as the period of licence had already expired and, therefore, insurance company has no liability. I do not find any force in the submission of the learned Counsel. From the perusal of the written statement filed by the insurance company in the claim case before the court below it does not appear that any specific defence was taken that the person driving the vehicle had no valid driving licence. No evidence to that effect was led by the appellant before the Tribunal. From the petition filed under Order XLI, Rule 27, Civil Procedure Code, a plea was taken that driving licence of the driver was valid up to 7.10.1989 while accident took place on 3.1.1990. In support of that a copy of the permanent licence has been filed and annexed as Annexure-A to the said petition. From perusal of Annexure-A, it is evident that by the said licence the driver was authorised to drive the transport vehicles and the licence was valid from 8.10.86 to 7.10.1989. There is an endorsement of renewal of the licence made by the District Transport Officer, Hazaribagh, whereby the licence was renewed up to July, 1992. The defence sought to be taken by the appellant by relying on driving licence would not, in my opinion, improve the case of the appellant. It is not the case of the appellant that the person who was driving the vehicle had no valid driving licence at any point of time or the said person was not authorised to drive the vehicle. Admittedly, the driver who was driving the vehicle on the date of accident was holding a valid driving licence duly granted by licensing authority in 1986 and the licence-was valid up to 7.10.1989. The driver was, therefore, authorised to drive transport vehicles and he was a licensed driver. Although there is an endorsement of renewal of the licence also as appearing in the licence but even assuming that there is no renewal endorsement, it cannot be said that the person driving the vehicle was not a licensed driver. It is not a case where the insured entrusted the vehicle to a person who does not hold a driving licence rather admittedly the driver to whom the vehicle was entrusted by the insured was having a valid driving licence duly granted by transport authority. Merely because of expiry of the period of licence and omission of the driver to get the licence renewed it cannot be said at any stretch of imagination that there is breach of condition of policy for which insurance company can be exonerated from the liability. As stated above, the driver was authorised to drive the transport vehicles and the vehicle was entrusted by the insured to the licensed driver and, therefore, in my considered opinion, this plea of the insurance company to absolve itself from the liability cannot be sustained in law. 6. The second point raised by Mr. Chatterjee is with regard to the quantum of compensation. According to the learned Counsel the quantum of compensation awarded by the Claims Tribunal is highly excessive and exorbitant. On the question of quantum of compensation, claimants examined witness AW 1, the father of the deceased who stated that his son used to pay income tax of Rs. 6,494 per year. The witness also proved salary certificate, etc., to show that the deceased was drawing salary of Rs. 5,865 per month. The Tribunal, however, taking into consideration the monthly salary of the deceased at Rs. 5,865 took the monthly dependency at Rs. 3,910. By applying the multiplier theory and taking 24 years' purchase the Tribunal assessed the compensation at Rs. 11,26,080. The Tribunal further awarded Rs. 50,000 for suffering mental pain and agony and awarded further sum of Rs. 1,66,755 being the interest from the date of filing of the application to the date of judgment. In this way, the Tribunal awarded a sum of Rs. 13,16,755. So far the amount of compensation of Rs. 11,26,080 is concerned, I am of the opinion that the Tribunal has not correctly applied multiplier theory in assessing the compensation. The Tribunal has taken 24 years of purchase on the ground that the deceased would have served another 24 years in army service. This is not a correct approach of law inasmuch as the remaining period of" service cannot be taken as number of years purchase while applying multiplier theory. In my opinion the Tribunal ought to have taken a maximum 18 years of purchase and by applying the same the amount of compensation should have been Rs. 8,44,560 (i.e., Rs. 3,910 x 12 x 18 = Rs. 8,44,560). In my opinion round figure, Rs. 8,50,000 would be the reasonable compensation on the basis of multiplier theory. So far as compensation awarded by the Tribunal on other heads is concerned, I do not find any reason to interfere with the same. The total compensation, therefore, payable to the claimants should be Rs. 8,50,000, Rs. 50,000, Rs. 1,66,755 (which is amount of interest), i.e., total Rs. 10,66,755. The decision upon which the appellant put heavy reliance [1996 ACJ 581 (SC)] does not help the appellant for the reason that in that case the deceased was a Captain in the Army and was drawing a salary of Rs. 1,543 whereas in the instant case admittedly the deceased was drawing a salary of Rs. 5,865. So far as amount of interest awarded by the Tribunal is concerned, it appears to me that the same is not reasonable rather vague. In one place, the Tribunal came to the conclusion that the claimants would be entitled to get compensation together with interest at the rate of 12 per cent but in the operative portion of the judgment the rate of interest has been shown as 18 per cent. In any case, 18 per cent interest would be excessive. It appears that the Tribunal already awarded interest at the rate of 12 per cent from the date of institution of the claim case till the date of the judgment. Accordingly, I hold that the claimants-respondents would be entitled to further interest at the rate of 12 per cent on the amount of compensation of Rs. 9,00,000 from the date of judgment till the date of payment. 7. In the result, this appeal is allowed in part and the judgment and award of the Claims Tribunal is modified accordingly. Consequently, cross-objection filed by the claimants-respondents is dismissed.

Author: M Eqbal

National Insurance Co. Ltd. vs Abha Sinha And Ors. on 27 February, 1998

Patna High Court

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C/M Rajrishi Ram Pal Singh ... vs State Of U.P. Through The Secy. ... on 7 September, 2010

Allahabad High Court

JUDGMENT K. Jagannatha Shetty, J. 1. This is a petition for a writ of habeas corpus under Article 226(1)(a) of the Constitution challenging the validity of the order of detention of the brother of the petitioner R. Sathyadass passed by the State Government under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (called shortly as 'the Act'). 2. The case involves the personal liberty of a citizen which is one of the cherished fundamental rights guaranteed by the Constitution which the Courts of this country have always jealously protected against the arbitrary invasion, 3. The facts are these: The State Government by order dated 15th May, 1979 made an order as follows: Whereas the Government of Karnataka are satisfied with respect to the person known as Shri R. Satya Das, s/o late V. Rama Nair, No. 649, Jain Street, Mandya that with a view to preventing him from keeping smuggled goods, it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Government of Karnataka direct that the said Shri R. Satya Das, be detained and kept in custody in the Central Prison, Bangalore. By order and in the name of the Governor of Karnataka. Sd./- V. Venugopal Naidu, Commr. for Home Affairs and Secretary to Gov- ernment, Home Dept. The grounds of detention are: (1) You are doing business in the business premises in the name and style of M/s. Prakash & Brothers, Jain Street, Mandya. The Inspector of Central Excise, Preventive, IDO Mysore, searched the premises of the said shop on 13-1-1977 and seized smuggled goods, viz., wrist watches, photographic film rolls, casette tapes, cosmetics, etc. collectively valued at Rs. 830/-. Watches and cosmetics are notified under Section 11-B of the Customs Act, 1962 and also specified under Section 123 of the Customs Act, 1962. In your statement given before the Customs Officers, dated 13-1-1977 you stated inter alia that the shop belonged to your brother Prakash and since Prakash had been out of station for 2 1/2 months, you were responsible for all the transactions in the said shop; that these goods were purchased long back and the bills were not available with you, that the watches, casette tapes were for personal use and remaining goods were kept for sale. The case was adjudicated by the Supdt. of Central Excise (Technical) IDO, Mysore, vide Order No. VIII/10-2-77-Customs dated 28-2-1977. All the smuggled goods seized were absolutely confiscated and a penalty of Rs. 100/- was imposed on you. The same has been paid by you. (2) In 21-7-1977 the Inspector of Central Excise, Preventive, IDO, Mysore, searched the premises of M/s. Prakash & Brothers, Jain Street, Mandya. At the time of search you were present in the shop premises. Search resulted in the seizure of smuggled goods namely, wrist watches, blades, cigarettes, casettes, etc. totally valued at Rs. 1,535/-. Watches, cigarettes, adjustable safety razors with blades, cosmetics, cigarettes, cigarette lighters, fountain pens, casette tapes are notified under Section 11-B of the Customs Act, 1962, and watches, cosmetics, lighters, safety razors blades, cigarettes are specified under Section 123 of the Customs Act, 1962. You in your statement dated 21-.7-1977 given before the Inspector of Central Excise, Mysore, inter alia, stated that you and your brother Shri Prakash were looking after the business of M/s. Prakash & Brothers, that you did not possess any documents or bills for sale and you got little profit out of the sale; that the said goods were purchased from some Keralites; that you knew that it was an offence to deal in smuggled goods; that you had been involved earlier in a case and had paid the penalty imposed on you. The case was adjudicated on 21-10-1977 by the Supdt. of Central Excise (Technical) IDO, Mysore vide Order No. C. No. VIII/10/21/77-Cus. All the smuggled goods seized were absolutely confiscated and a penalty of Rs. 100/- was imposed on M/s. Prakash & Brothers which has been paid. (3) On 22-1-1979, your residential premises situated at Railway Station Road, First Cross, 21, Mandya, were searched by the Inspector of Central Excise, Preventive, IDO, Mysore. At the time of the search, you were present in the house. On search of the house, smuggled goods such as blades, soap, razors, cosmetics, etc. valued at Rs. 2,969/ were found in a Horlics Card Board Carton in the front room of the house. Cosmetics, adjustable safety razors and blades, playing cards, fountain pens, fabrics made wholly or mainly of synthetic yarn, casette tapes are notified under Section 11-B of the Customs Act, 1962 and cosmetics, blades, playing cards, fabrics made wholly or mainly of synthetic yarn are specified under Section 123 of the Customs Act, 1962. These goods were seized under the Customs Act, 1962 for further action. You in your statement dated 22-1-1979 given before the Supdt. of Central Excise and Customs, Mandya, stated inter alia that you were residing in the said house along with your brother Shri R. Prakash; that you had purchased the said goods from vendors of Kerala and Tamil Nadu; that you did not know the names of the vendors; that you were also not aware whether any customs duty on the said goods were obtained for purposes of sale in your shop. With reference to the letterhead seized from the house on which details of the foreign goods and values were written, you stated in your statement dated 22-1-1979 that this letterhead was kept for your information to know the value for the purpose of sale. You also admitted in your said statement that on 2 occasions earlier, smuggled goods were seized and you were penalised and you have paid the penalties. 4. In view of the urgency of the matter, the petition was taken up for hearing on top priority. Learned Advocate-General who appeared on behalf of the State to avoid any delay in the disposal of the matter preferred to argue on the basis of the connected records produced before us. 5. Mr. Jeshtmal, learned Counsel for the petitioner, urged the following grounds: (1) that the grounds for detention are stale and not proximate in time to provide rational nexus between the incidents relied on and the satisfaction arrived at. (2) The materials under ground No. 3 furnished to the detenu have no bearing or rational nexus for the purpose for which the order of detention was passed; (3) The order of detention was not in conformity with the provisions of the Act and beyond the scope thereof. AND (4) The vital and material facts were not placed before the Detaining Authority nor were considered by it. 6. Before we consider these grounds in the light of the arguments presented before us, we may say a few words about the extent to which the Court could examine the validity of a detention order. The law on this point has been stated over and over again by the Supreme Court, We may briefly recall the principles, Hidayatullah, J. in Rameshwar Lal v. State of Bihar , observed as follows: The formation of the opinion about detention rests with the Government or the officer authorised. Their satisfaction is all that the law speaks of and the Courts are not constituted an appellate authority. Thus the sufficiency of the grounds cannot be agitated before the Court. However, the detention of a person with a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the Courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. Again in Khudiram Das v. State of West Bengal , Bhagwati, J., speaking for the Constitution Bench of the Supreme Court said: The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. The learned Judge continued: Where the liberty of the subject is involved, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law. 7. With these principles in mind, we now proceed to examine the contentions. Learned Counsel urged that grounds Nos. 1 and 2 are so remote that they have no nexus with the purpose for which the detention has been ordered. It seems to us that the contention is well founded. Both the grounds refer to the incidents of the year 1977. Adjudicatory proceedings connected with those search and seizure were also concluded in 1977 itself. These two grounds, therefore, cannot furnish nexus for the purpose for which the detention has been ordered. 8. Yet there is the third ground, and under Section 5-A of the Act, the detention could be sustained on the third ground alone notwithstanding the fact that other two grounds are stale. The contention on this part of the case urged for the petitioner runs as follows : Having regard to the purpose for which the seized articles were kept by the detenu, it could properly be said that the detenu was dealing in those goods and not just keeping them and, therefore, the detention order made with a view to prevent him from keeping the goods was illegal, 9. It is no doubt true that the detenu made the statement before the Supdt. of Central Excise to the effect that he had purchased the said goods from the vendors from Kerala and Tamil Nadu and the said goods were obtained for the purpose of sale in his shop. Under Clause (iii) of Sub-section (1) of Section 3, a detention order could be made with a view to prevent a person from engaging in transporting or concealing or keeping smuggled goods. Under Clause (iv) of Sub-section (1) of Section 3, the detention order could be made only to prevent a person from "dealing" in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. Clauses (iii) and (iv), therefore, are independent of each other and cover two distinct activities of a person dealing in smuggled goods. The scope of the word "dealing" came up for consideration before a Bench of this Court in K. Hemraj Jain v. State of Karnataka W.P. No. 1219 of 1975, disposed of on 2-5-1975. It was held therein that the word 'deal' or 'dealing' occurring in Clause (iv) must involve in retailing or distributing business. That view has been reiterated again by this Court in Dungermal v. Commr. for Home Affairs and Secy. to the Govt. of Karnataka, W. P. No. 2353 of 1979, disposed of on 9-3-1979. 10. Learned Advocate-General contended that if a person is found in custody of the smuggled goods it would attract Clause (iii) and the purpose for which the goods were kept is not material. According to him, mere physical custody of the smuggled goods is sufficient to attract Clause (iii). He relied upon the Dictionary meaning of the word "keeping" as "custody or charge". It seems to us that the sweep of the word 'keeping' should not unreasonably be curtailed and there is also no warrant for restricting its ordinary meaning in the set up in which it is found. The Court must make such construction as will suppress the mischief, and advance the remedy. It has been said : * To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined. This manner of construction has two aspects. One is that the Courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. In Kanwar Singh v. Delhi Administration , the Supreme Court observed: It is the duty of the Court in construing a statute to give effect to the intention of the Legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute would defeat the object of the legislature, which is to suppress a mischief the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will 'advance the remedy and suppress the mischief. 11. In the instant case, we need not go thus far. It may be sufficient to restrict the said word to its literal meaning. The object of the Act is to conserve and augment foreign exchange and to prevent smuggling activities. The preamble of the Act states that there are activities or violations organised and carried on in certain areas which are highly vulnerable to smuggling and smuggling activities of considerable magnitude are clandestinely organised and carried on. For the effective prevention of such activities and violations, the Act was found necessary by the Parliament. Any construction that we propose, therefore, must advance the purpose and suppress the mischief which the Legislature had in mind. We should not narrow the literal meaning of the word "keeping". Mere custody of the smuggled goods, in our opinion, is sufficient to attract Clause (iii), but to attract Clause (iv) something more than the physical custody of the smuggled goods is necessary. We therefore reject the second contention urged for the petitioner. 12. This takes us to the third contention urged for the petitioner that the order of detention was not in conformity with Clause (iii) of Sub-section (1). The order just provides that "with a view to preventing him from keeping smuggled goods". It was urged that the Detaining Authority has not stated that the detention was necessary with a view to prevent the detenu from engaging in keeping smuggled goods. It seems to us that there is a good deal of substance in this contention. Clause (iii) could be invoked only to prevent a person from engaging in transporting or concealing or keeping smuggled goods. The Detaining Authority must be satisfied that it is necessary to prevent a person from engaging in such objectionable activities. The meaning of the word "engage" as found in the Concise Oxford Dictionary is "hold fast (attention), employ busily," There is thus a lot of difference between the activities of just "keeping" and "engage in keeping" and the Detaining Authority obviously has not applied its mind. In Ram Manohar Lohia v. State of Bihar the Supreme Court observed that where a man can be deprived of his liberty under a rule by the simple process of the making of a detention order, he could only be so deprived of if the order is in terms of the rules and strict compliance with the letter of the rule is the essence of the matter, and if there is any doubt regarding the observance of the rules, that doubt must be resolved in favour of the detenu. The order of detention which has the effect of depriving the liberty of a citizen without any trial must be construed very strictly and the requirement of the law has to be scrupulously observed. In Commr. of Police, Bombay v. Gordhandas Bhanji the Supreme Court observed: ...We are clear that public order, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. We must therefore be guided by the language of the order and not by the intendment of the Detaining Authority. We may also observe that if the detention order could be made to prevent a person from keeping the smuggled goods then, nobody would be safe. Every person having one or the other foreign made goods without the proof of its valid acquisition from an authorised source could be detained under Clause (iii) and we do not think that such was the intention of the Legislature. The learned Counsel was therefore justified in his contention that the detention order was not in accordance with Clause (iii). 13. The last ground urged for the petitioner also must succeed. It was urged that vital and material facts were not placed before the Detaining Authority. Learned Counsel for the petitioner in elaborating this submission, produced before us the show cause notice dated 13th February, 1979 issued to the detenu by the Assistant Collector of Central Excise, Mysore, proposing confiscation of goods and imposition of penalty. He also produced a copy of the reply given by the detenu on 7th March 1979 along with the order of adjudication in respect of the goods seized. It is undisputed that these proceedings were connected with the search and seizure made on 22nd January 1979 which are referred to in ground No. 3 furnished to the detenu. The particulars furnished to the detenu do not refer to the said proceedings nor the records produced by the learned Advocate General reveal that those materials were placed before the Detaining Authority for consideration. Those materials appear to be vital and material. One does not know what would have been the satisfaction of the Detaining Authority if those materials had been considered. It may be relevant to state that the particulars furnished under ground No. 3 indicate that the detenu admitted in his statement before the Superintendent of Central Excise that he had purchased the said goods from the vendors of Kerala and Tamil Nadu. But, in his reply to the show cause notice dated 13-2-1979 the detenu has stated that the seized goods had been purchased by his brother from some vendors in his absence. He has thus retracted from his earlier statement. Apart from that, the detention order was made to prevent the detenu from keeping the smuggled goods whereas in the show cause notice issued by the Assistant Collector of Central Excise, the detenu was not called upon to show cause as to why he should not be proceeded for keeping smuggled goods. It appears that the adjudicatory proceedings were not initiated for keeping the smuggled goods. Those proceedings were terminated with an imposition of penalty of Rs. 200/-. That order was made on 21st March, 1979 whereas the detention order was passed by the Government on 15th May 1979. If all these materials had been placed before the Detaining Authority it would have influenced the mind of the Detaining Authority one way or the other. 14. A case almost similar to one before us came up before the Supreme Court in Ashadevi v. K. Shivaraj AIR 1979 SC 447. In that case, the detention order was made with a view to prevent a person from engaging in transporting smuggled goods. The Detaining Authority based its decision on the detenu's confessional statement made before the Customs Officers, but that confessional statement was subsequently retracted by the the detenu at the first available opportunity and that retracted confessional statement was not placed before the Detaining Authority, although it was available with the Customs officials, The Court on that count observed: ...It cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Questions whether the confessional statements recorded on December 13, 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vitial facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal. 15. In the result and for the reasons stated, the rule is made absolute. The order of detention is quashed, with a direction that the detenu R. Sathyadass be released forthwith. *Maxwell on Interpretation of Statutes, 12th Edition, page 137.

Author: K J Shetty

R. Prakash vs State Of Karnataka on 22 June, 1979

Karnataka High Court

CRLP.I{9.¥:9:flfi:'lIa2(103 BEFOREZ34 % AA _ é _ THE uoumn Dr. ausnc1~:Lx. F BETWEEN: I K) BASANAGOUDA sic PA AGED30YE.&EE8_ 7- * R/'A"I"' i('U'l'3ii-HAL . 2 TALUK: xsuwrssac:-.'-*.._ V _ n:'s1'-mc7:._r:iiAs'eivAi'a .. V ' ' ~ _ -- S/OVFAKiRGOD'B'AA Pafifiar .. % % AGEB60 fiat'-23> occ: AGRICULTHJREA . " FIKT' ' 'rA,.w.x: Kuuaqon ' =Siv'I'T',_ Kamuwn _ mo eumrsnmaamaoum mm. " ._ wank savmes .occ:Hot:s.£HoLn R;!.'AT___KlIBfi-IAL 'l'Ai.UK:.. xuuooon. AA pnsrmcr: ommwan _ » FAKEERAGOUDA " . Si0 CHANNABASAHAGOUDA P,A.'!'!I_- E AGED 36 YEARS OCC: AGRICULTURE R/AT KUBIHAL TALUK: KUNDGOL Dl8'l'RlG'l': DI-IARWAD srmsilkasn P HUDBDAGADDI. ADV.) f; ms cR1..P1s man u/s.4s2 CR.P.C av ml: J-_D\!0cA'I.*I«'. ye hi 5 sur mmwwa we :rAxI.2.A.eou.r>-.. ..n.'n:. man 40 make % ace: anus.-9592.9 R/AT KUBIHALT l'{'JI'IJ\J\JL DISTRICT: DHARWAD 6 MT. SHERAVVA '-'-'30 lFs"r'»PPa': EERA' K33 AGED 34 YEARS OCC: I-!OUSEHO$ R/AT SAVANUR nu ~ UK DlS'l'RIC"l': nmggg S,-'0 HGLEFF5 AGED. :'s<":'":%ia*:,;:_:,-'i"1.i§'T":i'. . R/A"--.!_' ' T nrs'rR:c:r: HAVEIH ,. ' PE'l'l"l'l0NER8 (By srimc HA1*ii,Apv§; PA'l'lL ' AGED 21'-YEARS ace: , 3'-K').'1JSEHOLD R/~'%.'"!ARAVI om SAVANUR-581 113 ~ msmcr HAVERI RE mnpgm TTTONER PRAYING THAT THIS HOHBLE COURT MAY BEA * -VPLEASED TO SET ASIDE THE ORDER DATED 4.19.2007 mmmn RV A 'THE CIVIL JUDGE (mum AND .mnc., savmufi ift"é".éIuE5.'ia75o'55r (P. G. 110.33/9007) AND QUABI-I 'Pl-IE GRININAL VPR0(.1!!Q!!-!%; mas camnm. Pmmou comm on non Anu1s"13i0$f'i=:--:Is DAY. THE coum mum we rou.owma:- _ '- d . u ~ _ ORDER The petitkmenlaocuaed in JMFC at Savanur for the 447,% 4939» and 506 mad with %149j*dd;;;?g Q9|..|9.'! 3. subum am the Petitioner 'Off mtpomdcntl-comrlllinunt. Petitioners Petitioner NoI.4 and s are Accused um». sum. wife. Accused Noa.6 and 7 and her husband and it is contended gmuud made out four t__I;n_= dd.-.g»,«.a-.I on----............ as an avcnnent in the eomphint that Flctiflonen 6 and .7, sister and her husband. whenever @t tr.» 3% "h6usc of the accuaed, they mud:-9-_gdd._ em .h..w::-.1.-J. 9.13.1 'us uwnunu'-M" l\\--[' «.9 :7 i«;;dau--am2-..aI.i gar Iv-.+«.:..-«=..-.-z.- and 1,: ..=..-.2-I. .9.-J ___-. cm..P.iio.4§;i2uus a1|e|_:a1ionmadcagainatthcPI:tititmcra6and7. 'd d' V sister and her husband. it cannot Accused No. 1 to demand dowry not made out a prima facie case' as acdnnt Petilionazsz to 7. 6. In allowed and the file oumc at Savanur for the ofi,-nee sections 149. 323. 447. 49315) and 506 iégédérnpc as against the Petitioner: 2 1&- D Q n -run urn I III': p .5 :.;.....1....;_...: .V" -

Author: Dr.K.Bhakthavatsala

Basanagouad vs Smt Jayamma on 17 March, 2008

Karnataka High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 76 of 2011 ... Naresh Yadav ... ... Petitioner ­V e r s u s­ The State of Jharkhand  ... ... Opposite Party ... CORAM: ­ HON'BLE MR. JUSTICE PRASHANT KUMAR. ...    For the Petitioner : ­ Mr. Nilendu Kumar, Advocate.    For the State : ­ Mr. H.K. Shikarwar, A.P.P.   ... 03/03.03.2011 Anticipatory bail application filed by Naresh Yadav, is moved  by Sri Nilendu Kumar, learned counsel for the petitioner and opposed  by Sri  H.K. Shikarwar, learned Additional P.P. for the State. It is  alleged that petitioner  being  a middleman and supplier  took money from different persons. However, Sri H.K. Shikarwar, learned Additional P.P. submits  that if petitioner deposits Rs. 50,000/­ to the State exchequer as a  condition for anticipatory bail, then State has no objection. Considering the aforesaid facts and circumstances, I allow this  application and direct the petitioner to surrender in the court below  by 14th of March, 2011 and in the event of his surrender, the learned  court below is directed to enlarge him on bail on his furnishing bail  bond of Rs. 10,000/­(Ten Thousand) with two sureties  of the like  amount each to the satisfaction of Sub­Divisional Judicial Magistrate,  Madhupur at Deoghar, in connection with Karon P.S. Case No. 53 of  2010 corresponding to G.R. No. 467 of 2010, subject to the condition  as   laid   down   under   section   438(2)   of   the   Cr.P.C.  with   a   further   condition that petitioner will deposit Rs. 50,000/­ in the court below.   The Nazir, civil court, Deoghar is directed to deposit the said amount in   State exchequer.     (Prashant Kumar, J.) sunil/ 

Naresh Yadav vs State Of Jharkhand on 3 March, 2011

Jharkhand High Court

[Section 45] [Complete Act]

Central Government Act

In the Punjab and Haryana High Court,at Chandigarh. RFA No.2463 of 2005 Decided on November 12,2008. State of Haryana --Appellant vs. Phool Singh --Respondent November 12,2008 (Rakesh Kumar Jain) RR Judge Present: Ms.Ritu Bahri, D.A.G, Haryana for the appellant. Mr.Manish Soni,Advocate,for Mr.S.S.Dinarpur,Advocate, for the respondent. Rakesh Kumar Jain,J:

State Of Haryana vs Phool Singh on 12 November, 2008

Punjab-Haryana High Court

[Section 1] [Complete Act]

Central Government Act

[Section 28] [Complete Act]

Central Government Act

JUDGMENT Tulzapurkar, J. 1. The question that has been referred to us for our determination by the Tribunal at the instance of the Commissioner of Income-tax runs as follows : "Whether, on the facts and in the circumstances of the case, the payment of Rs. 1,800 made by the assessee-firm to the widow of the deceased partner was an admissible deduction in computing the income of assessee-firm for the assessment year 1963-64 ?" 2. The question relates to the assessment year 1962-63. The corresponding accounting period being S.Y. 2017 (October 21, 1960, to November 8, 1961) and it arises in these circumstances : The assessee, M/s. Natwarlal Mohanlal & Co., is a registered firm carrying on business of importing and dealing in cloves, dry fruits and kirana. It also deals in shares. The firm originally consisted of four partners, Natwarlal Mohanlal, Kanji Champsey, Chimanlal Vadilal and Harilal Mohanlal, and these partners were carrying on the aforesaid business on terms and conditions contained in a deed of partnership executed on May 27, 1954. According to this deed. Natwarlal had 7 annas share, Kanji had 3 annas share, Chimanlal had 2 annas 6 pies share and Harilal had 3 annas 6 pies share, According to the deed the trade name, goodwill and tenancy rights, etc., were to belong "absolutely to Natwarlal Mohanlal and Harilal Mohanlal and no other partner shall have any rights thereto". On August 18, 1962, Kanji Champsey died. It appears that the firm had a number of import quotas and licences for import of dates and other commodities in which the firm dealt. On the death of Kanji Champsey the other three partners continued to carry on this business and a fresh deed of partnership was entered into on September 23, 1961 (giving effect to the deed as and from August 19, 1961), Kanji Champsey having died on August 18, 1961. Under this new deed Natwarlal was given 50% share, Chimanlal Vadilal was given 25% share and Harilal Mohanlal was given 25% share in the profits of the firm. Clause 15 of this new deed of partnership provided that Smt. Gunvantibai Kanji for herself and as mother and natural guardian of her children as the legal representatives of late Kanji Champsey had relinquished their right to the import licences and/or quota rights as were held by the said old firm and that the parties to the document (meaning the three partners) shall during the subsistence of the partnership be entitled to the import licences and/or quota rights and such further and other allied licences and rights as may thereafter be acquired by them in connection with the business of the firm. Obviously, Gunvantibai Kanji was not a signatory to this deed. The same having been executed by the three partner who continued the business in partnership. It appears that under paragraph 78 of the Import Trade Control Policy for the licensing period, October, 1961 to March, 1962, which had been published by the Government of India (popularly known as the Red Book it had been provided that where the established importer was a partnership firm and if any partner died the remaining partners would be granted the entire quota of the old firm if it was so provided in the partnership agreement of if the new firm produced evidence off relinquishment of rights in its favour by the legal heirs of the deceased partner. In other words, the entire quota of the old firm would be granted to the new firm if it was proved that there was relinquishment of the right to the quota by the legal heirs of the deceased partner and in the absence of such relinquishment the share which the deceased partner possessed in the quota of the old firm would be excluded from the quota of the new owners of the business and the legal heirs of the deceased partner would be recognised as the established importers in respect of the share of the deceased. Probably it was in view of this provision which was contained in paragraph 78 found in the Red Book containing the Import Trade Control Policy of the Government that clause 15 in the new partnership deed dated September 23, 1961, was accordingly worded. However, a further agreement was entered into on November, 24, 1961, between the three partners of this new firm and Bai Gunvanti. widow of Kanji Champsey, for herself and as mother and natural guardian of the minor children of the deceased and husband of one of the married daughters of the deceased and by this agreement it was provided that in consideration of the relinquishment of the said quota rights the continuing partners agreed to pay to the said Bai Gunvanti for self and on behalf of all the heirs of the deceased partner, as and by way of consideration for the acquisition and use by the continuing partners of the share and interest of the said late Kanji Champsey as one of the partners of the old firm, a sum of Rs. 600 per month for and during the period of five years with effect from August 19, 1961. In other words, relinquishment by Bai Gunvanti and other heirs of the deceased's share, right and interest in the quota rights of the old firm in favour of the continuing partners and payment of consideration therefor to Bai Gunvanti were clearly recorded in this agreement. Pursuant to this arrangement and agreement between the parties sum of Rs. 600 per month was paid to Bai Gunvanti by the assessee-firm and for the three months which fell during the accounting period being S.Y. 2017 a sum of Rs. 1,800 was paid which was claimed by the assessee as a deduction in computation of the assessable income of the firm for the assessment year under consideration. The Income-tax Officer by his letter dated January 10, 1963, made enquiries of the assessee-firm as to the basis for the payment made and as to the details regarding the unexecuted licences and quotas and how the lady, having relinquished her rights for the quotas. Would be entitled to the payment as per the agreement dated November 24, 1961. The assessee by its letter dated January 24, 1963 furnished all the information that was sought by the Income-tax Officer. On a consideration of the material that was placed before him the Income-tax Officer took the view that since in the new deed of partnership it had been recited that Bai Gunvanti had relinquished all rights in the import quotas there was no basis for fixing the amount of Rs. 600 per month to the widow and, therefore, the payment was made ex gratia to her. He, therefore, disallowed the deduction of Rs. 1,800 in computing the assessable income of the assessee. In the appeal that was preferred to the Appellate Assistant Commissioner, it was contended on behalf of the assessee that the payment that was made to Bai Gunwanti was not any ex gratia payment made to her, nor was it by way of a capital expenditure, but it was merely for user of the rights to quotas and licences which had accrued to the legal representatives of the deceased partner, the Appellate Assistant Commissioner did not accept the contention of the assessee. He took the view that the payment was made for the outright acquisition of the share of the deceased partner in the quota rights which had accrued to the legal representatives and that, therefore, the payment was not wholly and exclusively incurred for the purposes of the assessee's business, but the same was on capital account. Being dissatisfied with the decision of the Appellate Assistant Commissioner the assessee preferred a second appeal to the Appellate Tribunal, it was contended for the assessee, inter alia, that the payments was neither an ex gratia payment made to the widow of the deceased partner of the old firm, nor was it for acquisition of the rights but was for user of the rights to quotas and licences which had accrued to the legal representatives. The Tribunal took the view that the new partnership deed dated September 23, 1961, which contained clause 15 pertaining to relinquishment of the rights by the legal representatives of the deceased partner in the quota rights, etc., and the agreement dated November 24, 1961 that was entered into between the continuing partners on the one hand and Bai Gunwanti on the other. Were part and parcel of one and the same transaction; that the recitals pertaining to relinquishment of the share in the quota rights, etc., on the part of the legal heirs of the deceased partner contained in both the documents were for the purpose of satisfying the requirements of the Import Trade Control Policy particularly paragraph 78, and that in substance the continuing partners merely obtained the user of the entire quotas and licences and that it was really a case where the lady had permitted user by the continuing partners of the share and interest of the deceased in the firm inclusive of quota rights and licences and, therefore, the payment represented a revenue expenditure and the deduction claimed was allowable. The Tribunal considered the three decisions reported in V.N.V. Devarajulu Chetty and Co. v. Commissioner of Income-tax, Vithaldas Thakordas & Co. v. Commissioner of Income-tax and M. S. Kandappa Mudaliar v. Commissioner of Income-tax, and principally relying upon the decision of the Madras High Court in the last mentioned case it held in favour of the assessee, that the expenditure could be allowed as a deduction. At the instance of the Commissioner of Income-tax, therefore, the question set out at the commencement of this judgment has been referred to us for our determination. 3. Mr. Joshi appearing for the revenue has contended before us that if regard was had to the relevant clauses which re to be found in the new deed of partnership dated September 23, 1961, as well as the agreement dated November 24, 1961, it was clear that this was case where there was clear relinquishment of the quota rights by Bai Gunwanti, the widow, acting for herself and the other heirs of the deceased partner in favour of the continuing partners-rather it was a case where there was a transfer of the deceased's share, right or interest in the quota rights in favour of the continuing partners and since such share or interest in the quote rights had been in terms acquired by the continuing partners for being used in their business, the payment that was provided for in the agreement dated November 24, 1961, was for acquisition of such share, right and interest in the quota rights and, as such, the payment made should be regarded as being in the nature of capital expenditure incurred by the new firm. He pointed out that though in n earlier decision of this court in the case of Jagannath Prabhashankar Joshi v. Varadkar a view was taken that a quota right represented by an import quota certificate issued by the Chief Controller of Imports and Export under the Imports and Exports (Control) Act, 1947, was not a property which was transferable in law. That view has not been upheld by the Supreme Court in the case of Joint Chief Controller of Imports and Exports v. Aminchand Mutha, and the Supreme Court by a majority judgment has taken the view that quota allotted to an established importer firm to import certain things under a licence issued to it could be divided between the partners on the dissolution of the quota-holder firm. He, therefore, urged that in the light of this view expressed by the Supreme Court it should be clear that quota rights will have to be regarded as some asset or interest in property belonging to an established importer and if that were, having regard to the operative part of the agreement dated November 24, 1961, it must be held that the payment which the continuing partners agreed to make to Bai Gunwanti, the widow of the deceased partner, would be for the acquisition of the share and interest of the deceased partner in the licences and quota rights by the continuing partners. He principally relied upon the following three recital which occur in the agreement and the operative part contained in paragraph 2 of the agreement. The relevant recitals run thus : "AND WHEREAS the parties hereto of the other part as the legal representatives of the said late Kanji Champsey haves relinquished their right to the import/export licences and/or all other quota rights as were held by the said old firm wherein the said late Kanji Champsey was one of the partners AND WHEREAS the continuing partners have become entitled to the import/export licences and/or all other quota rights and other allied licences and rights in connection with the business of the said partnership firm AND WHEREAS in consideration of the relinquishment of the said rights the continuing partners have agreed to pay to the said Bai Gunwanti, widow of the late Kanji Champsey, for self and on behalf of all the parties hereto of the other part a sum of Rs. 600 per month for the period hereinafter mentioned for the acquisition and use by the continuing partners of the share and interest of the said late Kanji Champsey as a partner in the said partnership firm in the said import/export licences and all other quota rights on the terms and conditions agreed upon by the between them." 4. The operative part contained in paragraph 2 of the agreement is as follows : "In pursuance of the said agreement and in consideration of the premises aforesaid the continuing partners do and each of them both hereby agree to pay to the said Bai Gunwanti, widow of the late Kanji Champsey, for self and on behalf of all the parties hereto of the other part as and by way of consideration for the acquisition and use by the continuing partners of the share and interest of the said late Kanji Champsey as one of the partners in the said partnership firm, a sum of Rs. 600 per month for and during the period of five years with effect from August 19, 1961." 5. Laying considerable emphasis on the expression "for the acquisition and use" occurring both in the recitals as well as the operative part of the agreement Mr. Joshi contended that a payment which the continuing partners agreed to make to Bai Gunwanti for herself and the other legal heirs of her deceased husband who was a partner in the old firm, was nothing but a payment agreed to be made for acquiring the share and interest of her deceased husband in the import/export licences and quota rights belonging to the old firm and if the payment was for making acquisition of such rights, the payment would partake the nature of capital expenditure. As regards the three decisions which were considered by the Tribunal. he pointed out that two of the decisions were really not relevant to the point at issue and even the third decision which pertained to payment having been made for acquiring quota rights by the continuing partners was also a case where under the document in question the continuing partners had merely acquired the use of the quota rights and had not made any acquisition of the rights s such. He, therefore, contended that none of the decisions to which a reference had been made by the Tribunal was of any assistance for determining the question which we are called upon to consider and having regard to the language employed in the new partnership deed dated September 23, 1961, as well as the agreement dated November 24, 1961, the payment of Rs. 1,800 which was made by the assessee to Bai Gunwanti for the three months during the accounting period should be held to be of a capita nature and should not be allowed as a deduction in computing the assessable income of the assessee. 6. On the other hand, Mr. Dastur, appearing for the assessee, has contended that if the substance of the transaction as represented by the two documents, namely, the new deed of partnership dated September 23, 1961, and the agreement dated November 24, 1961, was looked at, it would appear clear that what the continuing partners did under the transaction was not acquisition of any new or further right, but the firm represented by the continuing partners was merely maintaining whatever rights it had before the death of Kanji Champsey. He disputed that quota rights are capital assets and further disputed that any capital assets were acquired as such by the continuing partners by the arrangement in question. He contended that after all a quota right in nothing but a right or an advantage which the holder thereof has which enables him to apply for and obtain import licence of certain value (being so percentage of the quota of the basic year) for the commodities to which the quota right in the case of established importers-this is a case of an established importer-merely enables them to obtain their stock-in-trade and, therefore, the expenditure that was incurred by the assessee-firm could not be regarded as having been incurred for acquiring any capital asset of an enduring character; be, therefore, asserted that the Tribunal was right in holding that under the agreement Bai Gunwanti and the other heirs had merely permitted the use of the share, right and interest of the deceased partner in the quota rights belonging to the old firm to the continuing partners so as to enable them to get their stock-in-trade and as such the expenditure incurred in that behalf was business expenditure of revenue expenditure. He urged that the object or purpose for which the expenditure had been incurred would go to determine the question whether the expenditure would be of a capital nature or of a revenue nature and in that behalf he relied upon a decision of the Privy Council in Mohanlal Hargovind v, commissioner of Income-tax. He naturally laid considerable stress upon the decision of the Madras High Court in M. S. Kandappa Mudaliar's case . Facts of which case were almost similar to the facts obtaining in the instant case. 7. It is true that the question whether the particular expenditure was of a capital nature or of a revenue nature, which arose in the case of Vithaldas Thakordas & Co. v. Commissioner of Income-tax and in the case of Devarajulu Chetty & Co. v. Commissioner of Income-tax arose in the context of altogether different sets of facts as pointed out by Mr. Joshi. In the former case the facts were these : One V was carrying on bullion business. After his death this business was taken over by a firm. The firm entered into an agreement with the widow of V for the use of V's name of their bullion business. Under an agreement, in consideration of the widow having agreed to allow the partners to use the name of V for the purpose of the partnership business the partners agreed to pay to her out of the net profits of the business in the first instance an amount equivalent to two annas in the rupee of the net profits. After such payment was made the balance of the profits was to be divided amongst the partners of the assessee-firm. A sum of Rs. 5,050 was paid during the year under consideration to the widow and was claimed as a deduction by way of business expenditure. This court held that the said sum paid to the widow was not an appropriation of the profits of the partnership after they had been ascertained, that the arrangement was not in the nature of a joint venture or a quasi-partnership, but that the payment was a revenues expenditure wholly and exclusively incurred for the purposes of the business, and was admissible for deduction under section 10(2)(xii) of the Act. In terms this court observed : "The agreement between the firm and Bai Tarabai (the widow) is a simple one and all that the partnership is doing is paying an amount fixed by reference to profits as a fee or charge for the use of the goodwill granted to it by Bai Tarabai." 8. In other words, obviously this court took the view that the payment to the widow was made for the use of V's name for their bullion business. In the other case, the Madras High Court had to consider the nature of payment of a sum of Rs. 18,911 made in the following circumstances. A firm of five partners started a wholesale business in piece-goods in September, 1940. In October, 1942, two of the five partners retired from the firm and the three surviving partners thereafter carried on the business under the same name and style, but as a new firm. Each of the outgoing of the old was paid a certain sum for his share of the assets and profits of the old firm up to the date of dissolution as the result of an arbitration award. This settlement was subject, however, to a reservation of the rights of the two retiring partners in respect of certain forward contracts for the purchase of piece-goods from abroad that had already been entered into by the old firm but the deliveries under which had not been effected. In September, 1943, the new firm, the assessee, took delivery of the goods and sold them at a considerable profit. In accordance with the direction of the arbitrators the new firm paid the two old partners a sum of Rs. 18,911 in respect of their interest in the goods and their share of profits realised by the sale of the goods. The old partners then executed a deed of release in favour of the new firm in March, 1944. The new firm was assessed to income-tax for the year of account ending March 31, 1944, in the sum of Rs. 45,088 which included the sum of Rs. 18,911 paid to the old partners in respect of the goods arrived under the forward contracts. The Madras High Court while allowing the deduction took the view that part of the profits payable to the old partners by the new firm was paid under an obligation imposed by law, i.e., more or less by an overriding title. The court also approached the problem from a different angle, namely, that the payment of Rs. 18,911 was really part of the price paid by the new firm to acquire full exclusive title to the goods from the old partners and that the goods so acquired were nothing but the stock-in-trade of the new firm which sold the goods and thereby made a larger profit. It would, therefore, be correct to say that the question whether the payment was of a capital nature or of a revenue nature arose in different sets of facts which obtained in the two aforesaid decisions. 9. However, in our view, the decision of the Madras High Court in the case of M. S.Kandappa Mudaliar v. Commissioner of Income-tax was on facts which were similar to the ones which are obtaining in the instant case. It was a case which dealt with the question as to whether the payments which were made for the use of quota rights were to be regarded as revenue expenditure or not. The facts were these : Four persons entered into a partnership for trading in cotton, yarn and piece-goods, and when the trade was subjected to control the firm obtained the prescribed quotas from time to time to carry on its export trade. One of the partners retired from the firm on February 5, 1944, and the firm was reconstituted under the same trade name with the surviving three partners as the continuing partners. The new firm entered into an agreement on April 14, 1944, with the partner who has retired, that until the said partner who had retired could obtain a separate quota the firm was to "buy the entire quota goods and use it for their business and as recompense for the same, pay the partner who had retired in accordance with the prevailing conditions". In accordance with this agreement the firm paid to the retired partner Rs. 13,500 and Rs. 10,000 during the accounting years 1944-45 and 1946-47, and claimed that these amounts should be deducted from their taxable profits. The claim was disallowed by the lower authorities on the ground that the payments were of a capital nature. On the terms of the agreement the court took the view that under the agreement with the retired partner nothing was laid out b the assessee-firm on the acquisition of any asset of an enduring nature with the aid of which the firm could earn its profits; it was not not even a case of acquisition of any fresh quota rights, as the assessee-firm had its quota rights and was bound to get its quota till the authorities allocated the quota between the assessee and the retired partner and what the assessee greed to pay was for the use of the quota with which the assessee could obtain its stock-in-trade for export till the retired partner was allocated his separate quota, and the amounts paid to the retired partner under the agreement were, therefore, not of a capital nature and were allowable under section 10(2)(xv) of the Act. It is true as has been pointed out by Mr. Joshi that on the construction of the agreement in question the court undoubtedly came to the conclusion that what the assessee had agreed to pay to the retired partner was for the use of the quota with which the assessee could obtain its stock-in-trade till the retired partner was located his separate quota, but the Madras High Court has further gone on to express its view on the alternative position that even if it were regarded as case where the assessee-firm had acquired the quota rights of the retired partner and in that behalf this is what the court has observed at page 318 of the report : "Even had it been a case of the assessee-firm acquiring the quota rights of Sabapathy - and we have held that factually it was not a case of such acquisition - the expenditure would not have been of a capital nature........The quota itself, it should be remembered, is not a marketable commodity, though we have earlier referred to the transaction as a purchase of quota rights. It was really a case of a payment made for the use of the quota issued to another. The export itself had to be in the name of the trader who holds the quota. The quota all through stands in the name of the person in whose name it was issued. Even had Sabapathy been allotted special quotas, and the assessee paid him money for the use of these quotas, the payment would still have been of monies laid out by way of addition to the price of the goods purchased by the assessee for export." A little later the court has further observed (page 319) : "As what the assessee undertook to pay was for the use of the full quota including what would eventually be allotted to Sabapathy, what the assessee paid Sabapathy was really an addition to the price of the goods that the assessee firm purchase for export to Ceylon on the basis of the quotas issued to the assessee-firm. Such payment came within the principle laid down by this court in V. N. V.Devarajulu Chetty and Co. v. Commissioner of Income-tax and, as we pointed out above, the Assistant Commissioner was right in applying that principle." 10. It would thus be seen that, even proceeding on the basis that the assessee-firm had acquired the quota rights of the retired partner, in that case the Madras High Court took the view having regard to the real nature of the quota rights and the advantages earned by the quota-holder, that the payments made by the firm to the retired partner were really in the nature of business expenditure or revenue expenditure, for, in substance, the assessee-firm had laid out the moneys by way of addition to the price of the stock-in-trade purchased by the assessee for export. The facts in the case before us are almost similar to the facts which obtained in the aforesaid Madras case. Admittedly, under the original deed of partnership dated May 27, 1954, there was nothing specifically mentioned about the quota rights or the licences which were obtained or were to be obtained by the firm. Under clause 6 of the original deed the provision merely was that trade name and goodwill and tenancy rights, etc., of the firm shall belong absolutely to the two partners, Natwarlal Mohanlal and Harilal Mohanlal, and that no other partner shall have any rights thereto. In other words, in the absence of any specific provision pertaining to quota rights and licences the firm had the benefit of the quota rights and the licences and each partner had a share or right or interest therein. In other words, the firm as such was entitled to make full use of the entire quota rights and licences. On the death of Kanji Champsey an arrangement seems to have been made between the three continuing partners and the widow of the deceased partner, for herself and the other heirs of the deceased partner of the deceased partner, that the three continuing partners would be permitted to make use of the quota rights and licences entirely including the share and interest of the deceased partner in such quota rights and licences and this arrangement was evidenced by the agreement dated November 24, 1961, that was entered into between the three continuing partners and the deceased partner's widow, Bai Gunwanti. Prior to the making of this agreement on November 24, 1961, a new deed of partnership dated September 23, 1961, was entered into by the three continuing partners which contained clause 15 which related to the relinquishment of the share and interest of the deceased partner, Kanji Champsey, by his widow, Bai Gunwanti, for herself and on behalf of the other legal heirs in favour of the continuing partners. It is true that the agreement dated November 24, 1961, contains recitals as well as operatives part, particularly clause 2 thereof, which record relinquishment by Bai Gunwanti as the widow for herself and on behalf of the other heirs of late Kanji Champsey, of the deceased partner's right to import and export licences and all other quota rights in favour of the continuing partners and further record that in consideration of such relinquishment of the said rights the continuing partners had agreed to pay to Bai Gunwanti for herself and on behalf all the other heirs of the deceased Kanji Champsey a sum of Rs. 600 per month for the period specified therein for the acquisition and use by the continuing partners of the share and interest of the deceased Kanji Champsey in the import/export licences and all other quota rights held by the old firm, but if the real nature of the quota rights and the type of the benefit thereunder received by the holder thereof the taken into account, it would appear clear that in substance what Bai Gunwanti did was to permit the continuing partners the use of her deceased husband's share and interest in the quota rights held by the old firm enabling the continuing partners to obtain import licences for the commodities to which the quota related, that is to say, to secure or obtain for themselves the stock-in-trade in which the new firm was to deal in the course of its business. Even if the expression "for the acquisition and use" occurring in the relevant recitals and the operative part of the agreement dated November 24, 1961, is given its proper meaning, in effect what the continuing partners obtained was the use of the share and interest of the deceased partner in the quota rights which were held by the old firm which enabled the continuing partners to apply for and obtain the necessary import licences to import stock-in-trade in which the continuing partners were dealing. It was not disputed before us that the import licences and quota rights were held by the old firm as established importers and the acquisition and use of the deceased partner's share and interest in the said quota rights which was obtained by the continuing partners was also as established importers, which, in other words, means that by acquiring such share and interest in the quota rights of the deceased partner all that the continuing partners really acquired was an advantage whereby they could apply for import licences for the commodities to which the quota rights related, under which the stock-in-trade could be imported and dealt with by them in the course of their business. It was for acquiring and using such benefit of the quota rights that the payment was agreed to be made by the continuing partners to Bai Gunwanti. Moreover, it cannot be disputed that the value of the import licences which the continuing partners would be entitled to obtain by reason of such acquisition of the quota rights of the deceased partner would depend upon the import policy that may be declared by the Government of India for the relevant period, the period in the instant case being from October, 1961, to March, 1962. In other words, under the arrangement that was made by the continuing partners with the widow of the deceased partner, the continuing partners could not be said to have acquired any capital asset or advantage of an enduring or permanent nature. On the other hand, the acquisition was in respect of the benefit of the quota rights to which the deceased partner was entitle on the basis of which the continuing partners could obtain import licences on the strength of which the continuing partners were enabled to purchase their stock-in-trade. The circumstances under which clause 15 in the deed of partnership dated September 23, 1961, came to be incorporated were explained by the assessee in its letter dated January 24, 1963, and it had been explained that clause was incorporated in the new partnership deed for the satisfaction of the licensing authorities in compliance with the provisions contained in paragraph 78 of the Red Book. It was in view of this explanation which was accepted by the Tribunal that the Tribunal took the view that though the expression "relinquishment of rights" was used in the deed, the arrangement in fact was that Bai Gunwanti would permit the user of the licences and quotas in return for payment of Rs. 600 per month for the period specified in the agreement to be made by the continuing partners to her. Having regard to these facts which obtain in the instant case, it is clear to our mind that the object or purpose for which the payment was agreed to be made by the continuing partners to Bai Gunwanti under the agreement dated November 24, 1961, was that the payment was in consideration of the user of the share and interest of the deceased partner in the quota rights that was made available to the continuing partners and since such user merely enabled the continuing partners to have the necessary facility to purchase their stock-in-trade in which they were dealing, the purpose of expenditure was clearly not to acquire an capital asset of an enduring nature. In this view of the matter, we are of the view that the Tribunal was right in coming to the conclusion that the payment of Rs. 1,800 that was made during the three months falling within the accounting period of Samvat year 2017 was in the nature of revenue expenditure and was an allowable deduction in computing the assessable income of the assessee. 11. The question is, therefore, answered in the affirmative and in favour of the assessee. The revenue will pay the costs of the assessee. 12. Question answered in the affirmative.

Author: Tulzapurkar

Commissioner Of Income-Tax vs Natwarlal Mohanlal & Co. on 10 July, 1975

Bombay High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16TH DAY OF FEBRUARY 2010 BEFORE THE HON'BLE MRJUSTICE RAVI MALIMAT.H._'<<"[:"A:'~;. V REQQLAR secgnn APPEAL Ng.2o31L2Qg§-[ O' BETWEEN: 1 Dayananda Nayak _ S/o Late Lakshman Nayak' _ Aged About 68 Years, . R/o Naga Bramasathna Road Santhakatta, PuttuvVIi~Eage_«" " ' Udupi Taluk and Dist'rict~.57e6'iZ1:,4[*2L:-A Sundar Nayak " _ 'V S/O Late Laks}hrnan'1._Naya~k " Aged Aboui'.._5'3_..Yfrs" _; . 1;. V R/0 C/ o Su-iufessh Narayajn Y'-ac%av=_ MaVhu1..eRo'ad' '«i,____ '' V * * Muvmbai'-A'?4._v 7'; Q Sureshé' » . »_ Aged About 29v._Yr'sV ' V _____ 'Ag_ed_Ab'oaut 25 Yrs 3o_thO..ae re ""'of Dayauha-nd_a reayak A -- R/o N"aga.'ABra'rna Sathna Road j;<.__"Santha"Ka'tta Post, Puttur Village " 'V.VALJdu{;i_ Taiuk and District~576215. 'Nitin Aged About 19 Yrs Dinesh Aged About 17 Yrs 1 f\.) 1 Both are children of Sundar Nayak C/o Suresh Narayana Yadav Mahul Road Mumbai--74. APPELLANTS.__ (By Sri. S. R. Hegde Hudlamane, Adv.) AND : 1 Venkatesh Nayak Aged About 47 Yrs 2 Narasima Nayak Aged About 62 Yrs 3 Madhava Nayak Aged About 53 Yrs 4 Bhavani Sh.a«nl;<:a*-r Aliies _f:5i_:ij§ak.eAr~:d.Ai\&ayék:« Aged About 5(§"1"_rs.V " Respondent No~v.._i:-tV'.:"L.;_:{Ie .. Achild ren of" ALa%<.sfL:mar1fiA: Nay"-ak'- 5 Umesého ' . Aged About 33 Yrs _ _ 6 Q3 hash ., _ " v.A'ge(_1.,Ab.eout 2S'¥-ears 'Bother-e. C'h:i'id.r'en'of 1" Respondent 4 Ve'.1k'a3_._esh'~ ¥\"i_a,ya~k; V A A A All are"---R/of.' S-anthakatta, Kaiyanapura, Puttur Viliage, "U,du,oé.__Ta|u"k and Dist. -- 576 215 "'iviA'rs.Saraswathi Aged about 83 Years Panduranga Pai Aged about 67 Years Mam 10 11 12 13 14 15 16 .18 A 21 Ramesh Pai Aged about 69 Years Ravindra Pai Aged about 57 Years Vasanthi Aged about 65 Years Sumathi Aged about 63 Years Bharathi Aged about 61 Years Prabavathi Aged about 59 YeaVr-:..._.":e'- Mrs.P.Shakuntha|a 'V A W/O. Shivananda Pai '.,;J ( Aged about 5'.?5Y_ears. 3' Bantakalé Va'i..¢S'r"'u'v_a» V" Bantat<at«.P ' -st, Udu'pi""l"a!u:3e; and "F>o's~t_"--- Kataxrafithi Bat W/<1 Devatdas'-Set." Aged About 56'Yea,rs'~.«--": Ejahumathiwugi, Sirsi V-'ft_S'a~rsg§..t}~;;:it_ut<, U}!<;--~-'--".3*ist W tjpend ra Pai Aged. 'avb_out~E37 Years '"€ha-r1'1'p'a':"" Aged':.about 29 Years jdsandya " Aged about 27 Years Asha Aged about 26 Years Rekha 2. The case of the plaintiffs is that, plaintiffs-1 and 2 and defendants--3 to 6 are the children of the first and second defendants and defendants»? and 8 are the minor of third defendant. Piaintiffs--3 and 4 are minor first plaintiff and plalntiffs~S and 6 are minor"c'hild»ren::ofV if second plaintiff. On a share being de.mahdée7d,4«'i.t'.:ihrasélreireamdi that the 9"' defendant had filedxa suit-._'i'n before the Civil Judge (Jr..Dn.), tgwes' by the first appellate court in the Civil Judge, Udupi and confirmed by 1979 on 23.3.1989. the back of the plaintiffs, seeking for partition. 13 a'nd:".by--considering the evidence on record, the suitélolf the Va'p'pe!':l'a--nts' e plaintiffs was dismissed and an appeal 'was preferred before the first appellate court along under Section 5 of the Limitation Act seel'<in'g__clo'r:d'onat.i:on' of the delay of about 801 days in filing the appeal.v-.."Tne'first appellate court considered the application came to the conclusion that since no sufficient cause has t'_j_e_er*...Vm'ade out, rejected the I.A.I and consequently the appeal if :l)yas--dismlssed as being time barred. Aggrieved by the same, the present appeal is filed. ":3/4"" 3. Sri.Hegde i-iudlamane, learned Counsel appearing for the appellants contends that, the first appellate court was in error in not condoning the delay and considering the appeal on merits. He accordingly pleads that substantial questionsjof law arise for consideration in this appeal. Therefore.,«~~--hei':pleads, that the substantial question of law consideration is, as to whether the ap;pella:te;court in not applying the principleselaid down. in the':j'udgrnie'nts'g reported in 2005(4) KCCR 2281"V"i'inHlthe m'atte'ir'--v-of.'::§TATE or NAGALAND --~vs~ LIPOK ;¢li:§'}"i~,,/llN_§Nc§A'l".l?!;f!§vf5~-_and Am 1998 SC 3222 in the 'matter :lV.B.¥lL2<i,i{£?.JSHNAN --\/S* M. KRIsHivA'Mo'iéjf;?ir."': '$1: l 4. l;lear'dVt'h,e"'v',_lie.arniéfil«Counsel for the appellants. Respondents have been served and remained unrepresented. . _ 5*.{'In."i'su'p.pAort application seeking condonation of d'ei.ay.,;-iti' that the Counsel appearing in the trial informed the lapplellants that the suit has been decreed. Since suit has been decreed and if and when the other side "'wfouVi'd~..fi',l.e an appeal, he will intimate with regard to the same. "cV%':'i~lowever, even after long lapse of time, they did not receive information from their Advocate. In order to effect the V5" partition, a document writer was approached, who said that the judgment and decree in the present suit viz., O.S.No.841/1989 was required and when they approached their Advocate for the same, they were told that it wjas.,two years' old case and it is not easy to find Thereafter, they came to know that the_.s_uit._ dismissed. It is further stated on thatlthie .:l_.:awf,r.er' apologized for giving false information éandtan app--'l.iic'a'tion made and on receipt of the copuyfliof the "order-h,' present appeal is filed. Hence, it th'a.t. it isvvbohafide and the delay in filing the application regltiirg--¢,lVtol.I',be','.condoned. 6. TVvl'1'e"'i'Ei.rsti,apip-e'l*!a'te,;'court_'"'while considering the said affidavit came to the:.c'o.nclusi-o:n,..that no evidence has been let in in support of iI;A,IV'vanld_:the Advocate, who has caused this fdelay, ..w"as,g_n:ot..,_exan9iir"ive--c5«." Hence, the appellate court came to the conclusviori ,,t'ha't'----no sufficient cause has been made out and ¢,_the a'pp'l'iicati_onV'tiEetiuires to be rejected. 7. the judgments relied upon do not refer to the ._co'ndonat«ion of delay being granted on an application being ' AIR 1998 SC 3223 would indicate the manner in which application for condonation of delay should be considered. Q34" That utmost consideration should be shown to the suitor and the door should not be shut against him. However, in the instant case, it could been seen that the applEca_ti..o_ir:..,_:'la_cks bonafides inasmuch as there is no effort appellants to justify the delay in filing the""a'pp'_ea'l';:: otherwise, the order sheet would disclose~tl:iat,*on-.'a"nurraibe'i=:,of occasions, the appellants themselves have Vrenfiailne.d,,Habsentg This would, no doubt, lead to neither the application is bonafide interested in prosecuting their legal l'eFl_'2€£.'r§.€S. even if applied to to the aid of the appellants. """ I-ion'ble Supreme Court came that the applications should receive a liberal.cori~strLi'ct.io"n.,is'In the facts and circumstances of this d;'a"se, eve"n__V_ifliberality is stretched to the maximum V".ext:en.t_,""the' would still not constitute sufficient cause in the Limitation Act. Firstly, the appellants V have very conveniently blamed their lawyer for not only giving Enforrnastion stating that the suit has been decreed, when 'real'i'Ly', it has been dismissed, but on the other hand, if the ...clonteVnts of the affidavit would be true, they should have lssllhrisghtly examined the Advocate with regard to the said facts. WK"

Author: Ravi Malimath

Dayananda Nayak S/O Late Lakshman ... vs Venkatesh Nayak on 16 February, 2010

Karnataka High Court

Court No. - 33 Case :- COMPANY PETITION No. - 40 of 2009 Petitioner :- In The Matter Of M/S Jagran Prakashan Ltd. Petitioner Counsel :- Vipin Sinha Respondent Counsel :- P.S.BaghelHon'ble Pankai Mithal.J. List in the next cause list due to illness of counsel for the petitioner. Order Date :- 3.7.2010 BK

In The Matter Of M/S Jagran ... vs Unknown on 3 July, 2010

Allahabad High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 25989 of 2010 Petitioner :- Omveer Singh And Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Niklank Jain Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J. Heard learned counsel for the applicants and learned A.G.A. The dispute seems to be between husband and wife. Having gone through the record, I prima facie find that the parties should be given a chance to settle their differences on their own terms through the process of mediation and conciliation. Let this order be placed before the Registrar/Incharge of 'Allahabad High Court Mediation and Conciliation Centre'. The Registrar/Incharge of the Mediation Centre will issue notices to both the parties fixing a date for their personal appearances at the centre before the mediator nominated by the Organizing Secretary of the Mediation Centre. Mediator/Conciliator is allowed three month's time to find a possible solution of disputes between the parties. The case will be listed before the appropriate Bench in week commencing 29.11.2010 along with the report of conciliator. The applicants are directed to deposit Rs. 10,000/- at the Mediation Centre within two weeks for the expenses to be borne by respondent no. 2. The applicants undertakes to appear at the Mediation Centre on every date fixed for mediation. Meanwhile, further proceedings of Case No. 3678/2009, under Section 498-A I.P.C. and 3/4 D.P. Act, P.S. Jaithra, District Etah pending in the Court of J.M., Etah shall remain stayed. In case of default in deposit of Rs. 10,000/- or to appear before the Mediation Centre on the date fixed, whichever is earlier the stay order shall stand automatically vacated. The report of the Mediation Centre will include a note about the deposit of Rs. 10,000/- and appearances of the applicants on the date fixed at the Mediation Centre. Order Date :- 11.8.2010 AKG/-

Omveer Singh And Others vs State Of U.P. & Others on 11 August, 2010

Allahabad High Court

ORDER H. Rangavittalachar, J. 1. The first respondent's complaint before the Executive Officer, Taluk Panchayat was that the writ petitioner has put up constructions in violation of the licence granted by the Bellur Grama Panchayat by en- croaching into his property. The Executive Officer vide Annexure-C by its endorsement dated 7-4-2001 directed the parties to approach the Civil Court for necessary redressal in this behalf. Against the said order the first respondent preferred an appeal before the President, Zilla Panchayat, Mandya who has granted an interim order vide Annexure-D, dated 23-4-2001. 2. This order of the President is challenged by the writ petitioner on the ground that the President lacks total jurisdiction even to entertain the appeal. He has therefore sought for quashing of Annexure-C and also for a writ of prohibition prohibiting the President from hearing the appeal. 3. Heard the learned Counsels for petitioners and respondents. 4. In my view, the contention of the petitioner deserves to be accepted. 5. One of the functions of "Grama Panchayat" under Section 64 of the Karnataka Panchayat Raj Act, 1993 is to regulate the erection of buildings to be constructed within its territorial jurisdiction and to ensure that the constructions are in accordance with the permission granted by it and if need be to take suitable action for any violation of the building licences. 6. Section 64(5) provides an appeal to the "Execution Officer" by any aggrieved person against every order of Grama Panchayat passed in exercise of its power under the said section. Relevant clauses of Section 64 is extracted omitting what is not necessary for ready reference. "Section 64. Regulation of the erection of buildings.--(1) Subject to such rules as may be prescribed, no person shall erect any building or alter or add to any existing building or reconstruct any building without the written permission of the Grama Panchayat. The permission may be granted on payment of such fees as may be specified by bye-laws. (2) xxx xxx xxx (3) Whenever any building is erected, added to or reconstructed without such permission or in any manner contrary to the rules prescribed under Sub-section (1) or any conditions imposed by the permission granted, the Grama Panchayat may, whether any action is taken or not against such person under Section 298, -- (a) direct that the building, alteration or addition be stopped; or (b) by written notice require within a reasonable period to be specified therein, such building, alteration or addition to be altered or demolished as it may deem necessary for the promotion of public health or the prevention of danger to life or property. (4) In the event of non-compliance with the terms of any notice under Clause (b) of Sub-section (3) within the period specified in the notice, it shall be lawful for the Grama Panchayat to take such action as may be necessary for the completion of the act thereby required to be done, and all the expenses therein incurred by the Grama Panchayat shall be paid by the person or persons upon whom the notice was served and shall be recoverable as if it were a tax imposed under Section 199. (5) An appeal shall lie to the (Executive Officer) from any order or direction or notice of the Grama Panchayat under Sub-section (1), (2) or (3) and his decision on such appeal shall be final". Thus under Section 64(5) extracted above, it is only the Executive Officer who is the designated Authority to hear the appeals against any order of Grama Panchayats and his decision is declared "Final", for purposes of the Act. If a statute declares that the decision or order of administrative body or Tribunal shall be final, to all intents and purposes it means, that there is no appeal under the statute (See Wade on Administrative Law, 7th Edition, page 730). 7. Insofar as the powers of Adhyaksha of a Zilla Panchayat is concerned, under the Panchayat Raj Act, 1993, the powers of the Adhyaksha of a "Zilla Panchayat" are traceable to Section 193 and Section 237. Under Section 193 no appellate power is vested in him against the orders or resolutions of Grama Panchayat. Section 237, gives to both Adhyaksha of Taluk Panchayat and Adhyaksha of Zilla Panchayat the powers of suspending the execution of unlawiul orders. 8. Section 237 is extracted herein for a proper understanding of the nature of power available to the President. Section 237 reads as under: "Section 237. Power of suspending execution of unlawful orders of resolution.--(1) If in the opinion of the (Adhyaksha of Taluk Panchayat), the execution of any order or resolution of a Grama Panchayat, or any order of any authority or officer of the Grama Panchayat, or the doing of anything which is about to be done, or is being done, by or on behalf of a Grama Panchayat is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace, he may by order suspend the execution or prohibit the doing thereof. (2) When the (Adhyaksha of Taluk Panchayat) makes an order under Sub-section (1), he shall forthwith forward to the Commissioner and the Grama Panchayat affected thereby a copy of the order with a statement of the reasons for making it, and the (Adhyaksha of the Zilla Panchayat) may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as he thinks fit: Provided that no order of the (Adhyaksha of Taluk Panchayat) passed under Sub-section (1) shall be confirmed, revised or modified by the (Adhyaksha of the Zilla Panchayat) without giving the Grama Panchayat concerned a reasonable opportunity of showing cause against the proposed order, (3) If in the opinion of the (Adhyaksha of the Zilla Panchayat), the execution of any order or resolution of a Taluk Panchayat or any order of any authority or officer of the Taluk Panchayat or the doing of anything which is about to be done, or is being done, by or on behalf of a Taluk Panchayat is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace, he may by order suspend the execution or prohibit the doing thereof. (4) When the (Adhyaksha of the Zilla Panchayat) makes an order under Sub-section (3) he shall forthwith forward to the Government and the Taluk Panchayat affected thereby a copy of the order with a statement of the reasons for making it, and the Government may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as he thinks fit: Provided that no order of the (Adhyaksha of the ZiJla Panchayat) passed under Sub-section (3) shall be confirmed, revised or modified by the Government without giving the Taluk Panchayat concerned a reasonable opportunity of showing cause against the proposed order. (5) If the Government is of the opinion that execution of any order or resolution of Zilla Panchayat or the doing of anything which is about to be done or is being done by on behalf of a Zilla Panchayat is unjust, unlawful, or improper or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace, it may, by an order suspend the execution or prohibit the doing thereof. (6) When the Government makes an order under Sub-section (5), it shall forthwith forward to the Zilla Panchayat affected thereby a copy of the order with a statement of reasons for making it and the Government may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as it thinks fit: Provided that no order under this Sub-section shall be passed by the Government without giving the Zilla Panchayat concerned a reasonable opportunity of showing cause against the said order". 9. A reading of Section 237 indicates that an order or resolution of a "Grama Panchayat", may be suspended only by the Adhyaksha of a Taluk Panchayat, if the circumstances stated therein exist and transmit the papers to the Adhyaksha of Zilla Panchayat. But the Adhyaksha of a "Zilla Panchayat", has powers only against the resolution or order of "Taluk Panchayat". He no where comes in the picture to act as a superior authority directly against the resolution or order of Grama Panchayat. 10. Besides even this power of suspension of resolution of Grama Panchayat, cannot be exercised in respect of orders passed under Section 64 is clear by a combined reading of Section 237 and Section 64; for if such a power is to be conceded then it leads to anomalous results, inasmuch as, if the same order of Grama Panchayat is challenged both before the Appellate Authority i.e., Executive Officer and also before the Adhyaksha of Taluk Panchayat and conflicting orders are passed it would lead to dangerous results. Therefore, it has to be held that the Adhyaksha of a Taluk Panchayat or Zilla Panchayat has no jurisdiction to deal with the order passed by Grama Panchayat under Section 64 of the Act. 11. Hence the act of the President of Zilla Panchayat in entertaining the appeal and passing orders vide Annexure-D is totally without jurisdiction and is liable to be quashed and accordingly quashed and a writ of prohibition is issued to the President prohibiting him from hearing the appeal in question. 12. Petition allowed.

Author: H Rangavittalachar

Mohammad Naaseer vs Abdul Majid And Ors. on 21 November, 2001

Karnataka High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office), Old JNU Campus, New Delhi - 110067. Tel: +91-11-26161796 Decision No. CIC/SG/A/2009/001396/4137Adjunct Appeal No. CIC/SG/A/2009/001396 Relevant FactsAppellant : Mr.Radhey Shyam Sharma S/o Late Sh. Rizak Ram Sharma, 6 C.S.C. Vasant Enclave, New Delhi-110057. Respondent : Mr.Satnam Singh ADM/LAC & PIO(SW) Municipal Corporation of Delhi RTI application filed on : 16/02/2009 PIO replied : 26/03/2009 First appeal filed on : Not enclosed First Appellate Authority order : 06/05/2009 Second Appeal received on : 06/06/2009 Sl. Information sought PIO's reply 1. What was the total area of Khasra Matter pertains to Halka Patwari, Tehsil No.33 of village Basant Nagar. Vasant Vihar. 2. How much land was acquired out of Khasra NO. 33/10, as acquired vide Award No. Khasra No. 33 and how much was left 1879 of village Basant Nagar. The total area of un acquired and what is their Khasra acquired Kh. No. 33/10 is 136 bigha 14 biswa. No. at present. 3. Supply four copies of AKS Sirzra and Copy of Aks Sizra has already supplied to the Titamma field book of Khasra No. Appellant. The Appellant can see it personally emerging from the Appeal: Office of the Addl. Distt. Magistrate/LAC(SW) Room No-12, Old Terminal Tax Bldg. Kapashera, New Delhi. 33/1 to 33/9 and 33/10. in the office, as photocopy of Aks Sizra is not clear due to its wear and tear condition. Tatima filed book is not attached in the award file. 4. Clarify that in case of non-availability Matter pertains to Halqua patwari, Tehsil of records of Titamma field book and Vasant Vihar. AKS Sizra whether it is possible to identify or certify that which particular portion of land/house is falling in which Khasra No. Page 1 of 3 Grounds for First Appeal: Not enclosed. Order of the First Appellate Authority: "The reply to question no. 2 as given by the LAC branch is not specific and complete. As such PIO(SW) is directed to supply the information within 7 working days." Grounds for Second Appeal: Non-compliance of the order of FAA by the PIO. Relevant Facts emerging during Hearing: The following were present: Appellant: Mr.Radhey Shyam Sharma Respondent: Mr. Vinod Kumar, Naib Tehsildar (LAC) on behalf of PIO Mr. Satnam Singh The Appellant has not got the reply to part of query 2 in which he had asked how much of Khasra 33 left unacquired and the Khasra nos. He has also not being provided the photocopy of Khasra nos. 33/1 to 33/9 and the Tatima Sizra Field Book. The Respondent states that this information is with PIO, SDM-Vasant Vihar. Decision dated 15 July 2009 The appeal was allowed. The PIO Mr. Satnam Singh was directed to obtain the information described above from PIO SDM, Vasant Vihar and provide it to the Appellant before 30 July 2009. Facts leading to show cause hearing on 29 December 2009: On the basis of a letter alleging non-compliance dated 03/08/2009 from the Appellant, the Commission issued a notice dated 09/09/2009 directing the PIO & ADM to provide the aforesaid information to the Appellant before 29/09/2009. The Commission then received a letter dated 17/11/2009 from the Appellant alleging that inspite of the clear directions of the Commission, the PIO & ADM had not provided the complete information. On perusal of the reply sent to the Appellant vide letter dated 14/09/2009, it was observed that the PIO & ADM had not provided information as to what were the Khasra Nos. of the unacquired land out of Khasra No.33, further, the said photocopy of AKS Sirza & Tatima Field Book of Khasra Nos. 33/1 to 33/9 had not been provided. The Commission directed the PIO & ADM to provide complete and correct information to the Appellant before 14/12/2009. He was further directed to appear before the Commission on 29/12/2009 at 11.00 AM along with his written submissions to show cause why penalty should not be imposed on him under Section 20 (1) of the RTI Act. Relevant facts emerging during the hearing on 29 December 2009: The following persons were present: Appellant: Absent Respondent: Mr. Satnam Singh, Mr. Rajeev Kamra, LAC (SW) office, Mr. BL Meena, DC Office (SW) Mr. Satnam Singh from the ADM's office stated that the information pertained to the SDM's office as it concerned unacquired land. The Naib Tehsildar from the SDM's office stated that the area demarcation had not been done for Khasra Nos. 33/1 to 33/9 and therefore they could not provide the information to the Appellant. He is directed to inform the Appellant before 31 December 2009 that the demarcation of the unacquired land has not taken place. He should also Page 2 of 3 send a copy of the Revenue Records where information relating to Khasra Nos. 33/1 to 33/09 has been recorded together and not separately. A copy of the information will be submitted to the Commission before 04 January 2010. The PIO has provided most of the information. It appears that there is no mala fide reason in not providing the remaining information. The show cause proceedings are hereby dropped. Shailesh Gandhi Information Commissioner 29 December 2009 (In any correspondence on this decision, mentioned the complete decision number.) (AK) Page 3 of 3

Mr.Radhey Shyam Sharma vs Office Of The Addl. Distt. ... on 29 December, 2009

Central Information Commission

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Jai Prakash Tripathi, Advocate ... vs State Of U.P. And Another on 31 August, 2010

Allahabad High Court

Court No. - 28 Case :- U/S 482/378/407 No. - 445 of 2008 Petitioner :- Hari Krishna & 6 Ors. Respondent :- State Of U.P. & Another Petitioner Counsel :- Syed Shabir Haider Respondent Counsel :- Govt. Advocate Hon'ble Alok K. Singh,J. List in the next cause list. Interim order, if any, passed earlier and operating today, shall continue till date. Order Date :- 13.1.2010 ML/-

Hari Krishna & 6 Ors. vs State Of U.P. & Another on 13 January, 2010

Allahabad High Court

1. 7.1.1986 .... Rs. 10,000 2. 6.2.1986 .... Rs. 10,000 3. 19.2.1986 .... Rs. 30,000 4. 19.3.1986 .... Rs. 20,000 5. 2.2.1987 .... Rs. 20,000 6. 17.2.1987 .... Rs. 20,000 Finally it paid the balance due on 29.4.1987. JUDGMENT Srinivasan, J. 1. These two appeals arise out of a petition for winding up filed under Section 433(e) of the Companies Act. The appellant in O.S.A. No. 116 of 1987 was the respondent in Company Petition No. 87 of 1985 and the appellant in O.S.A. No. 174 of 1987 was the petitioner in the company petition. The parties will be referred to hereinafter by their rank in the company petition. 2. It is not a matter in dispute that the petitioner supplied skins of sheep and goats to the respondent from January, 1981 to July, 1982, under 17 bills marked as Exs. P 2 to P 18. There was no time limit for payment of the price of the goods nor was there any agreement to pay interest on delayed payments. It is admitted that a sum of Rs. 1,24,752-88 was due to the petitioner and it was making demands on the respondents to pay the same. It issued a notice through a lawyer on 8.12.1982 and the notice is marked as Ex. P45. In that notice, it had not only demanded payment of the principal but also the payment of interest at the rate of 18 per cent per annum. There was no reply to the notice by the respondent. Thereafter, there was correspondence between the parties. On the one hand, the petitioner was demanding payment of money due to it and on the other the respondent was repeatedly assuring the petitioner that it will settle the accounts shortly. Ultimately a telegram was sent by the petitioner on 1.11.1985 demanding payment of principal and interest. Finding that it did not produce the desired result, the petitioner filed the Company Petition as stated above for winding up the respondent company. 3. The respondent while admitting that the principal amount was due, was raising a dispute with regard to its liability to pay the interest thereon. During the pendency of the petition, the respondent was making payments as follows: 4. At the time when the petition was heard by the company Court, the respondent contended that the liability to pay interest was in dispute, and, therefore, it fell outside the purview of Section 433 of the Companies Act. The contention on behalf of the petitioner was that the matter of interest was also covered by the provisions of Section 433 of the Companies Act, as the liability to pay the principal amount was not in dispute and as the demand for interest had been made long prior to the filing of the petition. 5. The learned Judge accepted the contention of the petitioner and relying upon the decision of the Punjab and Haryana High Court in Stephen Chemical Ltd. v. Innosearch Ltd. (1986)60 Com. Cas. 702, held that the matter of interest fell within the scope of the company petition. With regard to the rate of interest, the learned Judge directed the respondent to pay interest at the rate of 9 per cent per annum on the principal amount and granted three months time to the respondent to pay the same. The learned Judge directed the petition to be called on 29.7.1987. 6. The petitioner has filed O.S.A. No. 174 of 1987 contending that it will be entitled to interest at the rate of 18 per cent per annum as claimed by it in the notice dt. 8.12.1982. The respondent has filed O.S.A. No. 116 of 1987 contending that it is not liable to pay any interest and, in any event, the question of liability to pay interest cannot be gone into in the proceedings for winding up. 7. Learned Counsel for the petitioner referred to the decision of the Punjab and Haryana High Court in Stephen Chemical Ltd. v. Innosearch Co. Ltd., (1986)60 Com. Cas. 702; and in Delhi Cloth and General Mills Co. v. Stephen Chemicals, (1986)60 Com. Cas. 1046. The proposition laid down in both the cases is that the question of payment of interest is a matter to be considered by the Company Court in the winding up proceedings and the creditor cannot be permitted to file a civil suit with regard to the payment of interest alone. It is useful to refer to the following passage in the judgment in Stephen Chemical Ltd. v. Innosearch Ltd., (1986)60 Com. Cas. 702. In our opinion, where the company Judge was seized of the matter and when the liability to pay the principal debt had not been disputed by the company sought to be wound up and, in fact, paid up the debt in order to avoid winding up, the forum of the company Judge is the appropriate forum for determining as to whether the creditor was entitled to interest on amount in question or not. The basic policy of law is to avoid multiplicity of litigation. The learned Counsel for the appellant also referred us to the order of Goyal, J. rendered in C.P. No. 77 of 1983 decided on 20th July, 1984, Unisystems (P) Ltd. v. Stephen Chemical Ltd., (1985)58 Com. Cas. 875, wherein Goyal, J. had observed that where no agreement for the payment of interest existed and creditor had claimed interest, no winding up order could be passed. With respect, if the said observations are intended to cover the cases of the present kind, then we find ourselves unable to concur In that view. The said observations may be correctly applicable to a case where winding up initially is sought by a party on the ground that certain amount by way of interest was due from the other party which the other party had failed to pay up despite demand notice and the other party raises a Bona Fide dispute as to the right of the creditor to claim interest in the absence of any agreement regarding payment of interest or any other possible ground, but the position would be entirely different where the amount alleged to be due from the company sought to be wound up included the principal amount of debt and the liability to the principal amount has been accepted before the company Judgment and the creditor is sought to be relegated to a civil remedy for getting the interest on the principal amount. We are entirely in agreement with the proposition set out above. 8. Learned Counsel draws our attention to the provisions of Section 2(b) and Section 3(1)(b) of the Interest Act, 1978. Section 2(b) of the Interest Act defines 'current rate of interest' as the highest of the maximum rates at which interest may be paid on different classes of deposits (other than those maintained in savings account or those maintained by charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. 9. Section 3(1)(b) provides that if the proceedings in a Court do not relate to any debt discharged by virtue of a written statement, then interest is to be awarded from the date mentioned in this regard in a written notice given by the person entitled to or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings. 10. It is argued by learned Counsel for the petitioner that the rate of interest payable on deposits by the scheduled banks is 15 per cent. We do not find any record in support of the submission made by the learned Counsel for the petitioner. To our knowledge, the maximum rate of interest payable on deposits by scheduled Banks does not exceed 12 per cent per annum. Learned Counsel also relies on Section 34, C.P.C. The relevant portion of Section 34 is found in the proviso to the Section which reads as follows: Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction the rate of such further interest may exceed six per cent per annum but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to Commercial transactions. It is, therefore, submitted by learned Counsel for the petitioner that interest could be awarded at the rate prescribed in the Interest Act, up to the date of the filing of the petition and at the rate prescribed by the Civil Procedure Code after the date of the filing of the petition till date of payment. 11. As against this, learned Counsel for the respondent relies on the decision of the Karnataka High Court in S.L. Polymers v. Amar Formulators and Electronics, (1984) 56 Com. Cas. 77. In that case, the respondent therein had certain transactions with the petitioner company and in respect of those transactions the respondent company was due and payable to the petitioner a sum of Rs. 2,69,308-38 as on 31.3.1981. When the petition for winding up was filed on 10.9.1981, the claim was raised to Rs. 2,96,736-62. After the presentation of the petition there was an agreement between the parties in a meeting held on 10.11.1981, by which it was agreed that a sum of Rs. 3,16,072-37 should be paid by the respondent to the petitioner company by installments as mentioned in the joint memo of agreement. In terms of the joint memo, the petitioner had also agreed to withdraw the company petition. However, the memo of agreement was not acted upon strictly in terms thereof. On 12.4.1982, the respondent paid a sum of Rs. 40,000 in Court and on 2.6.1982, it had paid Rs. 15,390-64 and a further sum of Rs. 17,064-75 was paid on 18.6.1982. With the last payment mentioned, it was submitted that the entire claim against the Company had been satisfied except the interest claimed at 20 per cent though interest had been worked out at 12 per cent and paid. In that situation the Karnataka High Court made the following observation: But all outstanding claims except the amount arising out of the difference in the rate of interest calculated is outstanding. In my view, the scope of an inquiry under Section 433 cannot extend to an enforcement of the memorandum of an agreement entered into during the pendency of the proceedings. The payment made by the respondent company is clearly indicative that the respondent company is commercially solvent. Therefore, an exercise of the jurisdiction under Section 433 of the Act, admitting the parties merely because the rate of interest agreed to between the parties in regard to the transactions is disputed, would be unjust. The Karnataka High Court has not laid down any proposition of law that whenever a dispute is raised by the respondent as regards payment of interest, that would fall outside the scope of Section 433. On the facts of that case, the Court found that the petitioner in the company petition was trying to enforce a memorandum of agreement which was entered into after the filing of the petition. That could not be done. 12. The decision in the above case will not help the respondent herein to contend that the claim for interest cannot be made in these proceedings. 13. Learned Counsel for the respondents relied upon a decision of the Supreme Court in Union of India v. Watkins and Co., . In that case, it was held that interest may be awarded for the period prior to the date of the institution of the suit when there is an agreement for the payment of interest at fixed rate or when interest is payable by the usage of trade having the force of law or under the provisions of any substantive law as for instance, under Section 80 of the Negotiable Instruments Act, 1981, when no rate of interest is specified in the promissory note or bill of exchange, and the Court may award interest at the rate of 6 per cent per annum. 14. The above decision was rendered long prior to the amendment of the Civil Procedure Code in 1976. That case does not help the respondents to contend that it has no liability to pay interest. If at all, it could rely on that decision only for the purpose of contending that the rate of interest should be fixed at 6 per cent. In view of the law as it then existed, the Supreme Court held that the rate of interest should be 6 per cent. The law has since changed. 15. Learned Counsel for the respondents has cited another decision of the Supreme Court in Hirachand Kothari (Dead) Through L. Rs. v. State of Rajasthan 98 L.W. 686 : A.I.R. 1985 S.C.998. In that case the Supreme Court had to consider the powers of Court to award interest on equitable grounds on the compensation awarded. The Court held that interest should be awarded on the compensation granted from the date of dispossession till the date of judgment of the trial Court at 6 per cent and thereafter at 9 per cent till realisation. We do not see how this decision will help the respondent. 16. In this case, admittedly the amount due was out of the transactions of sale of goods. Goods were supplied to the respondents and price was due from the respondent. Under Section 62 of the Sale of Goods Act the Court is empowered to award interest at such rate as it thinks fit on the amount of the price to the seller from the date of the tender of the goods or from the date on which the price was payable. 17. Apart from the provisions of the Sale of Goods Act, the Interest Act and the Civil procedure Code provided for payment of interest. In this case, it cannot be said that there is a Bona Fide dispute with regard to payment of interest. The liability to pay the principal was never in dispute. The claim for interest was made for the first time on 8.12.1982 by a lawyer's notice. Admittedly, the respondent did not send any reply to that notice. Thereafter, the petitioner has been repeatedly making demands for interest as well as the principal by several letters. In all the replies sent by the respondent, it had been assuring the petitioner that it would settle the claim. It had never demurred that it was not liable to pay interest on the amount due. For the first time, the respondent raised the contention in the proceedings before the Company Court that it was not liable to pay interest if a dispute is raised just for the purpose of evading payment and delaying the proceedings, it cannot be considered to be a Bona Fide dispute. Unless there is a Bona Fide dispute with regard to the liability to pay the amount, the company Court was entitled to consider the matter under Section 433. In that view, we hold that the conclusion of the learned Judge that the respondent is liable to pay interest and that is a matter which has to be gone into in these proceedings is correct. 18. With regard to the rate of interest, we think that it is just and equitable in this case to award 12 per cent per annum. The petitioner will be entitled to interest at the uniform rate of 12 per cent per annum from 8.12.1982 till the date of payment. 19. It is contended by learned Counsel for the petitioner that the rate of interest should be fixed at 18 per cent per annum and it should be payable from the date which was mentioned in the notice dated 8.12.1982, issued by its lawyer to the respondent. As we have pointed out already, there is no material on record to show that the prevailing rate of interest payable on bank deposits is 18 per cent per annum. While the Interest Act refers to the interest payable on deposits in Scheduled Banks, the Civil Procedure Code refers to the rate of interest charged by banks on loans advanced. This is not a proceeding for recovery of money as such. This is only a proceeding for winding-up the Company. In the exercise of our equitable jurisdiction, we are directing the respondent company to pay to the petitioner the amount due with interest thereon in order to avoid winding up of the company. Hence we consider that the interests of justice require to fix the rate of interest at 12 per cent per annum as stated above. 20. Learned Counsel for the respondent contended that the Court should not fix more than six per cent. He relied upon the decision of the Supreme Court in Hirachand Kothari (Dead) Through L. Rs. v. State of Rajasthan, 98 L.W. 686 : A.I.R. 1985 S.C. 998. We have already referred to that decision and we find that decision does not lay down any principle of law that interest granted by Court should not exceed six per cent per annum. Hence, we reject this contention advanced on behalf of the respondent. 21. The payments made by the respondent on the various dates will be given credit on the respective dates and for the balance due on those dates the interest will be calculated. The parties are directed to file a calculation memo before the Company Court. The respondent will have four months' time from this date to pay the amount. It shall pay the entire amount on or before the expiry of four months. The Company petition will be called before the company Court on 13.6.1988. 22. O.S.A. No. 174 of 1987 is allowed to the extent indicated above. O.S.A. No. 116 of 1987 is dismissed. There will be no order as to costs.

Author: Srinivasan

Rashid Leathers (P) Ltd., Rep. By ... vs Super Fine Skin Traders on 28 January, 1988

Madras High Court

JUDGMENT Ramakrishnan, J. 1. The petitioner in this writ petition is the management of Thiru Arooran Sugars Ltd, Vadapathimangalam, Tanjore District. The first respondent is the Industrial Tribunal, Madras. The 2nd respondent is the secretary of the employees' union of the petitioner management. The third respondent is another labour union and there is also a third union impleaded as the 4th respondent, Arooran Sugar Factory and Farm Workers Union, Vadapathimangalam. The dispute which has to be considered for decision in this writ petition under Article 226 of the Constitution for the issue of a writ of certiorari arises under the following circumstances. 2. The petitioner is a public limited company with a capital of rupees one crore, formed in 1954. It acquired a large area of waste land, nearly 5200 acres in extent, in Tanjore District in the neighbourhood of its sugar factory for the purpose of cultivation of sugar-cane to meet the needs of the factory for production of sugar. Sugar-cane is cultivated in the land acquired by the company as part of the activity of the company, though separately organised as a department called farm-section. 3. The questions that arose for decision by the tribunal were the revision of the dearness allowance as well as the categorisation of the workers and the staff for the fixation of scales of wages. The Central Wage Board for the Sugar Industry, 1960, had given directions covering both the points. But it was assumed that the recommendation of the Central Wage Board would apply only to the employees in the factory or mill, but not to the employees in the farm section of the petitioner, which deals with the cultivation of sugar-cane on the management's extensive cultivable lands. The union of the workers in the farm section, therefore, wanted an adjudication on the two questions, (1) of revision of dearness allowance and (2) the categorisation of the staff for fixation of the scales of wages, by treating the issues as an industrial dispute. The management would not agree to the claim that the workers in the farm section were workers employed in an industry, to whom the provisions of the Industrial Disputes Act would apply. This dispute was referred by the State Government under Section 10(1) of the Industrial Disputes Act to the Industrial Tribunal, Madras, for adjudication. That tribunal numbered the reference as Industrial Dispute No. 21 of 1963 and passed an award on 31st December, 1963. 4. The tribunal held that the workers in the farm section of the petitioner-management are employees in an industry to whom the Industrial Disputes Act would apply and, therefore, the reference to the Industrial Tribunal for adjudication was one which the Industrial Tribunal had jurisdiction to dispose of. Thereafter, it gave specific recommendations in regard to the revision of the dearness allowance and in regard to the categorisation of the farm workers and the staff with appropriate stales of wages, these two being the points referred to the Industrial Tribunal for adjudication. 5. Though in the grounds of the writ petition filed by the management against the above award, the findings of the Industrial Tribunal both regarding the question of jurisdiction and regarding the quantum of relief afforded by it were disputed, at the time when the writ petition came on for hearing, learned Counsel Sri M.R. Narayanaswami, appearing for the management, fairly conceded that with the passage of time and bearing in mind the exigencies of the increase in the cost of living, the relief which the management has subsequently afforded to the workers in the farm section at the present moment, is really more than what the Industrial Tribunal has itself awarded. Therefore, learned Counsel contended that there is no point in examining the merits of the decision of the Tribunal in regard to the quantum of benefit by way of dearness allowance and the scale of wages. But he presses for a decision by this Court on the question of the jurisdiction of the Tribunal under the Industrial Disputes Act to decide a dispute of the present kind in regard to farm workers so that, in future at least, there may be a proper guidance in this regard. So, I shall address myself in the rest of this order to this brief question, whether the employees in the farm section of the petitioner management can be considered as workmen employed in an industry to whom the provisions of the Industrial Disputes Act will apply. 6. Evidence was adduced before the Industrial Tribunal about the nature of the work in the farm section both from the point of view of the administrative organisation, as well as the nature of the duties. We have reference to it in the award of the Tribunal and the correctness of the finding of the Tribunal on this question of fact is not disputed before me. This is what the Tribunal has recorded about the facts established by the evidence. 7. The company was incorporated in July, 1954, with the primary object of manufacturing sugar from sugar-cane. The factory was put up at Vadapathimangalam in Tanjavur district. The area where the factory is situated was predominantly, if not exclusively, a paddy producing area. A large area of nanja lands was acquired by the company for the purpose of raising sugar-cane to feed the factory. This became necessary because sugar-cane cultivation was not carried on in the locality in and around Vadapathimangalam at the time when the factory was put up. To start with, a seed nursery was raised over an area of 600 acres in the latter part of 1954, and the seed obtained therefrom was transplanted in about 3,000 acres early in 1955, and the sugarcane harvested therefrom during the year 1956 was crushed in the factory from February, 1956, onwards, The production of sugar started with regular crushing in December, 1955. It is true the sugarcane produced in the farm belonging to the company is not sufficient to meet all the requirements of the sugar factory and the management is obliged to buy some quantities of sugar-cane from ryots who produce them in their own fields. Exhibit M-1 gives the figures of such purchases. In respect of sugar-cane purchased from ryots, the government of Madras levy a purchase tax while the cane produced in the farm owned by the company and consumed by the factory is not liable for such levy. 8. This farm section is put in charge of a Chief Sugarcane Officer, No separate balance sheet or profit and loss account is prepared for the farm section and the only balance sheet published is that of the limited company wherein expenditure incurred for the farm section by way of salaries, wages and other expenses of working the farm is included. In the balance sheet of the company under the heading "assets", one finds mention of 6,200 acres of land on which sugar-cane is cultivated. It is also clear that there is only one provident fund for all the workmen employed in all the various sections of the company, i.e., in the farm, factory or office. There is only one medical officer attending to the medical needs of all the workmen of the company including those employed in the farm section. Besides, there is only one staff regulation which governs the staff matters of the employees of the company, barring the factory workers who are governed by separate standing orders. Orders of employment of the workmen attached to the farm section are issued by the Administrative Manager of the company. It is also in evidence that there have been transfers from farm section to the factory and there is nothing in the staff regulations which prevents the management from transferring an employee from one section to another, Coconut trees standing on the farm are leased out by the Administrative Manager and the income comes into the profit and loss account of the company. 9. From the above facts, the Tribunal concluded that the farm section crushing sugar-cane is integrated with the sugar production section in the factory and both form an industry. There is no room to view the farm section independently as involving only an agricultural activity in contradistinction with an industrial activity or to treat the workers in the farm section as agricultural workmen and not as industrial workmen to whom the provisions of the Industrial Disputes Act would not apply. It is this finding which is the finding of jurisdiction which is attacked in this writ proceeding. 10. There has been a long catena of decisions of the Supreme Court relating to the question, how the definition of "industry" found in Section 2(j) of the Industrial Disputes Act has to be construed. The principle laid down in the decisions have now become crystallised. There is no substantial difficulty in my judgment for applying the principles of those decisions to the facts of the present case. The definition in Section 2(j) is that: 'Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. This definition prima facie is in two parts. The first part referring to business, trade, undertaking, manufacture or calling appears to have been intended to consider the nature of the activity, from the point of view of the employers, and the second part referring to calling, service, employment, handicraft or industrial occupation or avocation of workmen is intended to deal with the activity from the point of view of the workmen. But this does not mean that the two parts of the definition are water-tight compartments. They are intended only to amplify by means of a clear definition the nature of the activity which is to be called as an industry. A decision of the Supreme Court, namely, Madras Gymkhana Club Employees' Union v. Madras Gymkhana Club (1967) 33 F.J.R. 157 has laid it down that the cardinal test is to find out whether there is an industry according to the denotation of the word in the first part and that the second part will then show what will be included from the angle of the employees. The two parts of the definition are interrelated and are obviously to be knit together. 11. Several antecedent decisions were cited before me at the hearing of the case; but it is sufficient to refer to the latest decision of the Supreme court in Madras Gymkhana Club Employees' Union v. Madras Gymkhana Club (1967) 33 F.J.R. 157, for the purpose of explaining the principles involved in the definition, because that decision has referred to the important earlier decisions bearing on the subject. There were early decisions which distinguished between a regal function and a municipal function, when dealing with the activity from the point of view of the employer. But that distinction is not relevant for the present case. What is relevant is a summary contained in the decision cited above and which is described as new tests established by later Supreme Court decisions, namely, State of Bombay v. Hospital Mazdoor Sabha (1960) 17 F.J.R. 423, Ahmedabad Textile Industry Research Association v. State of Bombay (1960) 19 F.J.R. 329, National Union of Commercial Employees v. M.R. Meher (1962) 22 F.J.R. 25, Harinagar Cane Farm v. State of Bihar (1963) 24 F.J.R. 485, and University of Delhi v. Ram Nath (1963) 24 F.J.R. 509. These tests, as summarised in the decision of the Supreme Court in Gymkhana case (1967) 33 F.J.R. 157, are the following : (1) The activity must be organised as business or trade as ordinarily organised. (2) The activity need not necessarily be preceded by procurement of capital in the business sense, nor must profit be a motive. So long as the relationship of employer and workmen is established with a view to production of material goods, or material services the activity must be regarded as an undertaking analogous to trade or business. (3) The association of capital and labour must be direct and essential. In the decision which gave rise to this particular test, namely, National Union of Commercial Employees v. M.R. Meher (1962) 22 F.J.R. 25, the services of a solicitor were regarded as individual depending upon his personal qualifications and ability, to which the employees did not contribute and that therefore a solicitor's office is not an industry. (4) It may be possible to have a work or operation which is incidentally connected with the main industry of t e employer and the workmen in that incidental activity may also come within the scope of the Industrial Disputes Act. Vide J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Labour Appellate Tribunal (1963) 25 F.J.R. 93. 12. There is one other decision of the Supreme Court where the facts are very analogous to the facts of the present case. This is the decision of the Supreme Court in Harinagar Cane Farm v. State of Bihar (1963) 24 F.J.R, 485. The Supreme Court itself in the Gymkhana case at page 165 of the report has made reference to this decision as representing a case where the difficulty of laying down tests from case to case was felt. The Supreme Court observed that agricultural operations were held to be an industry on the facts of the case, the Harinagar Cane Farm but at the same time agriculture under all circumstances could not be called an industry. This decision in Harinagar Cane Farm v. State of Bihar (1963) 24 F.J.R. 485, is one in which the Tribunal below placed a great deal of reliance and is therefore necessary to consider it more fully. There were two managements in that case. The Motipur Zamindary Company, appellant in Civil Appeal No. 31 of 1961, which produced sugar-cane for sale to Motipur Sugar Factory in pursuance of an agreement, also undertook certain contract work for other activity. But we are not concerned, for the purpose of the present case, with the finding of the Supreme Court in regard to the Motipur Zamindari Company. The other management concerned in that decision was Harinagar Cane Farm, the appellant in Civil Appeal No. 349 of 1962. The judgment mentions the fact that Harinagar Cane Farm had been purchased by the Harinagar Sugar Mills and since then was functioning as a department of the said mills. It was a subsidised concern of the mills and a part of the organisation of the mills itself. The mills through this section produced sugar-cane (the word sugar in the report appears to be a mistake for sugar-cane) for its own purpose. It is in the background of this character of the activity of the respective appellants that the question raised by the appeals had to be determined. After observing the necessity to take care not to lay down an unduly general or broad proposition which may affect facts and circumstances which are not before industrial adjudication in the particular case with which it is concerned, the Supreme Court, with reference to the facts of the Harinagar Cane Farm case, (1963) 24 F.J.R. 485 at page 490 observed: Bearing in mind the importance of adopting this approach in dealing with industrial matters, we propose to deal with the narrow question as to whether agricultural operation carried on by the two appellants constitute an industry under Section 2(j) or not. There is no doubt that for carrying on the agricultural operations, the appellants have invested a large amount of capital, and it is not disputed that the appellants have invested capital for carrying on their agricultural operations for the pupose of making profits. It is also common ground that the workmen employed by the appellants in their respective operations contribute to the production of agricultural commodities which bring in profit to the appellants. Therefore, even the narrow traditional requirements of the concept of trade or business are, in that sense, satisfied by the agricultural operations of the appellants. What is more important in the present appeals is that the appellants are limited companies which have been formed, inter alia, for the express purpose of carrying on agricultural trade or business. We have noticed how the agricultural operations carried on by the appellants are within their objects, and so there is no difficulty whatever in holding that the said operations are organised by the appellants and carried on by them as a trade or business would be carried on by any trader or businessman. When a company is formed for the purpose of carrying on an agricultural operation, it is carrying on trade or business and a plea raised by it that this organised trade or business does not fall within Section 2(j) simply and solely for the reason that it is an agricultural operation, cannot be sustained. 13. It appears to me from the findings of fact in the present case that there is no real distinction between the principles referred to above and adopted by the Supreme Court for dealing with an agricultural operation of the Harinagar Cane Farm in the context of the Harinagar Sugir Mills to which it supplied sugar-cane for crushing into sugar, and the principles to be adopted for dealing with the activity in the farm section of the petitioner-company which also likewise produces sugar-cane which is entirely consumed by the factory of the petitioner for being converted into sugar. Learned Counsel Sri M.R. Narayanaswami appearing for the petitioner said that there is a vital difference in the present case because the petitioner company buys sugar-cane from other growers also and that sugar-cane so purchased, along with the sugar-cane grown by the company, is consumed by the factory for production of sugar, This situation is due to the fact that the production capacity of the petitioner's factory, namely 1200 tons, could not be adequately met by the sugar-cane produced from its farm. Therefore to work the sugar mill to full capacity additional sugar-cane had to be purchased, besides the sugar-cane grown on its own farm. But that will not deprive the activity in the farm section, of its integral relationship with the activity of the sugar production in the factory. The circumstances of a common organisation, with interchange of staff, a single union, a single profit and loss account to which the Tribunal has referred and which are also referred to earlier in this order, would show that the elements of an integrated activity between the cane farm and the factory clearly exists. That the cane farm has got an organisation of an elaborate nature is also amply made out by the evidence. That there is co-operation between the workmen in the cane farm and the management which controls the farm as well as the factory for the production of a marketable commodity is also not denied. There is a large investment of capital. Practically all the tests laid down in the several decisions, and. in substance, in the decision in the Harinagar Cane Farm case (1963) 24 F.J.R. 485, are satisfied in this case. The distinction which the learned Counsel seeks to draw between the present case and the Harinagar Cane Farm case (1963) 24 F.J.R. 485, seems to be a distinction without a difference. 14. Before the Tribunal and also before me, learned Counsel for the petitioner referred in detail to the several provisions of the Constitution starting from the directive principles in Article 43 where agricultural workers and industrial workers are separately mentioned. Reference was made to the entries in the Union Lists as well as the State Lists in the Schedule to the Constitution, where agriculture and industry, agricultural income and non-agricultural income for the purpose of taxation, succession duty, estate duty and so on are referred to. But these cannot be used in the context of the Industrial Disputes Act. That much is clear. The Industrial Disputes Act is a special enactment intended for the purpose of bringing about a harmonious relationship between the employers and labour in consonance with the modern principles of social justice. The provisions of the Act for the purpose of defining an industry, workmen and so on must be construed with reference to the terms of that Act itself, and not from a priori inference derived from the classification of industry and agriculture found in the Constitution, which was devised for purposes entirely different from the purpose for which the Industrial Disputes Act was enacted. Certain other analogies were sought to be drawn by the learned Counsel for the petitioner from the classification found in the schedule to the Employees' Provident Funds Act between specific industries on the one hand and establishments on the other. There are similar schedules in the Minimum Wages Act. Thirdly, reference was made to the Industrial Disputes Act itself where in Section 25-A an industrial establishment has been specifically mentioned, as including a plantation as defined in the Plantations Labour Act. It is urged that since the sugarcane farm and a plantation involve similar agricultural activities, the fact that in the above explanation it was found necessary to specify plantation in precise terms to make it an industrial establishment, would show that the framers of the Industrial Disputes Act also did not want to include an agricultural industry as an industry. This approach appears to me to be farfetched. What is attempted in the present case is not to bring every sugar-cane farm into the category of an industry, whereas the definition in Section 25-A. Explanation brings every plantation as defined in the Plantations Labour Act into the category of an industrial establishment. The attempt on the facts of the present case is to find out whether a sugar-cane farm where agricultural operations are no doubt carried out but which is integrated with a sugar-cane producing mill under the same management with a common organisation, should be considered as an industry, and the workmen in the cane farm entitled to the provisions of the Industrial Disputes Act. The nature of the interrelated activities in the present case clearly show that there is no scope for dissociating the agricultural activity in the farm from the main activity carried on in the factory. On the other hand, both are only different units of a single, integrated business activity, which is an industry. From this point of view, the finding of the Industrial Tribunal about the jurisdiction appears to me to be correct and calls for no interference in the writ petition. The petition is dismissed. No order as to costs.

Author: Ramakrishnan

Thiru Arooran Sugars Ltd. vs Industrial Tribunal And Ors. on 10 January, 1969

Madras High Court

___________________________________________________________ Assessment year Sale of wild grass Net profit from sales of books and photos ___________________________________________________________ 1967-68 Rs. 1,000 Rs. 1,020 1968-69 Rs. 1,500 Rs. 1,207 1969-70 Rs. 2,000 Rs. 1,297 ____________________________________________________________ ORDER D.S. Meenakshi Sundaram, Judicial Member 1. In IT Reference No. 948 of 1975, the following question of law was referred to the Allahabad High Court: Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the income derived by the Radha Swami Satsang, a religious institution, is entitled to exemption under Sections 11 and 12 of the Income-tax Act, 1961 ? By their Judgment dated 7-7-1980, their Lordships of the Allahabad High Court have answered the question in the negative, in favour of the department and against the assessee. Now the matter comes up for passing an order under Section 260(1) of the Income-tax Act, 1961 ('the Act'), conformably to the Judgment of their Lordships referred to above. 2. When the matter came up for hearing, Shri G.C. Sharma, the learned counsel for the assessee, submitted that though the decision of the High Court on the question referred to them, has gone against the assessee, still the alternative submission made by the assessee to the Tribunal at the time of original hearing of the appeals, remains to be considered and disposed of. In this connection, he invited our attention to paragraph 20 of the order of the Tribunal dated 24-8-1974, where the Tribunal held that in the view they had taken that even on an independent and fresh examination of the whole issue for the assessment years under consideration, the assessee is entitled to exemption, it was unnecessary to consider how far the assessee was justified in its argument based on 'estoppel'. He, therefore, submitted that the assessee's submission on the basis of the estoppel should be considered now and disposed of by the Tribunal. According to the learned counsel, the argument based on the ground of estoppel would be clear from ground No. 2 in all the three years, which is as follows : 2. Because the authorities below have been arbitrary and unjust in deviating from the past without any fresh evidence or record. 3. The learned counsel next contended that he was pressing ground No. 1, read with ground No. 9, in the appeal for 1967-68, the corresponding grounds being ground Nos. 1 and 11 in the appeals for 1968-69 and 1969-70. These two grounds read as follows : 1. Because the refund claimed should have been allowed. 9. Because the assessment is bad in law. Shri G.C. Sharma, the learned counsel, submitted that the assessee had submitted applications foe refund along with returns of income for these three years and that these applications filed by the assessee for refund could not be converted by the ITO into proceedings for assessment of the total income of the assessee for these three assessment years. According to Shri Sharma this was a legal ground which should be decided now as this has not been withdrawn by the appellant specifically. 4. Shri Sharma then argued that the A AC erred in sustaining the following additions which were made by the ITO to the income of the assessee :According to the learned counsel, there was no basis for these additions made by the departmental authorities and that the same should be deleted, in case we do not agree with his submissions set out earlier. Shri Sharma relied on the following three decisions in support of his contentions that grounds whick were not decided earlier by the Tribunal have to be decided by it while giving effect to the order of the High Court-CIT v. Hyderabad Deccan Liquor Syndicate [1974] 95 ITR 130 (AP) ; Udhavdas Kewalram v. CIT [1967] 66 ITR 462 (SC) and CIT v. Hanumanbux Inderchand [1980] 125 ITR 248 (Gauhati). 5. Shri M.M. Prasad for the revenue contested every one of the contentions urged on behalf of the assessee and submitted that what the assessee was seeking to do was to indirectly get a decision in its favour in spite of the answer given by the High Court against the assessee on the crucial question that was referred to the High Court regarding the exemption of the assessee's income under Sections 11 and 12 of the Act. Shri Prasad submitted that this was not permissible in law. He, however, submitted that the assessee's contentions based on the ground of estoppel were misconceived as there could be no estoppel against statute. He then argued that the contention based on ground Nos. 1 and 9 should not be allowed to be taken for the first time at this stage of the appeals, as no such contention seems to have been argued at the time of hearing of the appeals. Shri Prasad also submitted that the additions made by the departmental authorities were fully justified and that the same should be upheld. 6. We have carefully considered the submissions urged on both sides in the light of the authorities cited and relied on by the learned counsel. In para 20 of the appellate order dated 24-8-1974, the Tribunal disposed of the alternative contention based on the ground of estoppel in the following words : 20. In the view we have taken that even on an independent and a fresh examination of the whole issue for the assessment years under consideration the assessee is entitled to exemption, it is unnecessary to consider how far the assessee is justified in its argument based on 'estoppel'. The assessee's contention that the position in the years under appeal is not different from the position in the earlier years (except for the non-existence of the Satguru) appears to be correct. We are of opinion that the non-existence of the Satguru is a difference which goes in favour of the assessee and that to the extent the departmental authorities purported to depart from the earlier position on the ground that the position of facts was different, their orders cannot be supported. We do not, however, wish to discuss the issue whether even without a change ia the facts it was open to them or not to come to a different conclusion. This is rather a difficult issue because both the principles are well-settled. The first is that for income-tax purposes each year is a self-contained period and it is open to the authorities to examine the facts and the position at law independently without being bogged by a rule of estoppel or res judicata. Equally, it is well-settled that the decision arrived at on earlier occasion should not be lightly departed from and that there should be a consistency of approach unless there is a change either in the factual position or the legal position. To what extent either of these two rules operate in the event of there being a conflict between them is a difficult question to decide. Since we have taken the view that even if the position is re-examined the assessee is entitled to succeed, it is unnecessary to resolve this conflict in the present case. It is in the light of the above observations that the learned counsel for the assessee contends that we should decide this ground which was left open by the Tribunal. In our view, such an exercise will be a futile exercise in view of the fact that there has been an independent and fresh examination of the whole issue for the three assessment years under consideration of the assessee's claim for exemption not only by the Tribunal but also by the High Court. In fact, it is not open to the Tribunal to traverse beyond its jurisdiction while giving effect to the Judgment of the High Court on the question referred by the Tribunal to the High Court. As rightly contended by the revenue, the assessee cannot the guise of urging an alternative plea which was not originally decided by the Tribunal (sic). Further, there cannot be any estoppel against a statute. Realising this position in law the learned counsel did not rightly put his case on the ground of estoppel but relied on the rule of 'stare decisis'. In support of this plea, the learned counsel has given quotations from 'Words and Phrases'. But a perusal of the extracts from this book clearly shows that this rule of stare decisis is inapplicable in the present case. The decision of the Commissioner given in the assessment years 1937-38 and 1938-39 and followed by the department in all the subsequent assessment years up to and inclusive of the assessment year 1963-64 are not decisions of any High, Court or the Supreme Court to which alone this rule of stare decisis would be applicable. It is not, therefore, necessary for us to discuss in detail the extracts given from the book 'Words and Phrases' or the extracts from the book of Interpretation of Statutes by Vepa P. Sarathi in which the learned author has relied on the decision in the case of CIT v. B. Malhotra [1971] 2 SCC 547/[1973] 2 SCC 35. In fact the extract relied on by the learned counsel from these two decisions only support our conclusion that the rule of stare decisis would be applicable only to decisions of a High Court or the Supreme Court and not to any decisions either of the departmental authorities or even of the Tribunal. In British Indian Corporation Ltd. v. CIT [1966] 60 ITR 793 (All.), their Lordships of the Allahabad High Court reviewed English and Indian case law on the question of res judicata in tax litigation and held that the decision of the same High Court in the earlier reference in the case of the same assessee which was reported in British India Cor poration Ltd. v. CEPT/CIT [1958] 33 ITR 826 did not operate as res judicata as a matter of pure law. Their Lordships further held that in the said case there was no identity between the question of the earlier reference and the present question because the chargeable accounting periods and the sums were different and that the earlier decision did not also have effect as stare decisis as it was overruled by the decision in Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. CEPT [1960] 38 ITR 675 (SC). 7. In this connection we may usefully refer to the decisions of the Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh [1979] 118 ITR 326 and CIT v. B.N. Bhattachargee [1979] 118 ITR 461. In the first case, the Supreme Court held that the doctrine of promissory estoppel cannot be applied in the teeth of an obligation or liability imposed by law, that promissory estoppel cannot be invoked to compel the Government or even a private party to do an act prohibited by law, that there can also be no promissory estoppel against the exercise of legislative power and that the Legislature can never be precluded from exercising its legislative function by resort to the doctrine of promissory estoppel. In the latter Judgment, the Supreme Court again considered the rule of estoppel and held as follows : What, in essence, is estoppel ? Estoppel is a rule of equity which forbids truth being pleaded or representation, on which faith another has acted to his detriment, being retracted. Even extending the rule into the new flanged empire of promissory estoppel it cannot go beyond the limits of the Law Revision Committee in England which Lord Denning allowed to blossom in High Trees' case [1947] 1 KB 130 (KB), see Discipline of Law by Lord Denning, page 202 : 'We, therefore, recommend that a promise which the promisor knows, or reasonably should know, will be relied upon by the promisee, shall be enforceable if the promisee has altered his position to his detriment in reliance on the promise.' The soul of estoppel is equity, not facility for inequity. Nor is estoppel against statute permissible because public policy animating a statutory provision may then become the casualty. Halsbury has noted this sensible nicety (Halsbury's laws of England, para 1515) : 'Where a statute, enacted for the benefit of a section of the public imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers.' [Maritime Electric Co. Ltd. v. General Dairies Ltd. [1937] AC 610 ; [1937] 1 All ER 748 (PC)]. 'A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the Court has a statutory duty to inquire into the truth of a petition.' [Hudson v. Hudson [1948] p. 292 ; Halsbury's Laws of England, para 1515]. The luminous footnote cites rulings and states that : 'This rule probably also applies where the statute bestows a discretion rather than imposing a duty.' [Halsbury's Laws of England, 4th Edn., p. 109], To sum up, where public duties cast by statute are involved, private parties cannot prevent performance by invoking estoppel. We do not discuss further since the facts here exclude estoppel.(p. 484) 8. In our view, these two decisions of the Supreme Court as well as the decision of the Allahabad High Court directly answer the assessee's contentions on the alternative plea of estoppel or stare decisis as was sought to be argued by the learned counsel for the assessee. We, therefore, respectfully follow these decisions and reject ground No. 2 in all the three years. 9 to 11. [These paras are not reproduced here as they involve minor issues.]

Radha Swami Satsang vs Income-Tax Officer on 26 April, 1982

Income Tax Appellate Tribunal - Delhi

[Complete Act]

Central Government Act

JUDGMENT J.C. Shah, J. 1.For many years before 1955 the appellant was a tenant of the Government in respect of a part of a building which was originally evacuee property. The property was treated as part of the compensation pool and was put up for auction on December 7, 1955. A bid offered by respondents 1, 2 and 3 in this appeal was accepted by the Government, but no certificate was immediately issued. The Managing Officer addressed a letter to respondents 1, 2 and 3 on December 8, 1956 informing them that "provisional possession" was "decided to be given of the property subject to terms and conditions stipulated in the Indemnity Bond and the special affidavit executed by them." One of the conditions Was that the respondents were entitled to realise rent from the tenants who were directed to attorn to respondents 1-3 with effect from December, 1956. Pursuant to this direction the respondents collected the rent from the appellant from and after December 4, 1956. 2. The Delhi Rent Control Act (59 of 1958) was brought into force with effect from some time in the year 1958. The first respondent served on the 21st February 1964 a notice on the appellant determining the tenancy and requiring the appellant to deliver possession of the premises in his occupation. He thereafter instituted on August 7, 1964 a suit in the Civil Court at Delhi for an order in ejectment. The suit was resisted by the appellant contending inter alia that under the provisions of Delhi Rent Control Act, 1958 the suit was not maintainable in the Civil Court and that in any event the notice served upon the appellant did not operate to terminate the tenancy. These contentions were rejected by the Trial Court and a decree in ejectment was passed. The decree was confirmed in appeal to the District Court and in Second Appeal (to the High Court. By special leave the appellant has appealed to this Court. 3. The principal question which falls to be determined in this appeal is whether the Civil Court had jurisdiction to entertain the suit. The facts may be recalled. The appellant was originally a tenant of the Government; the property was put up for sale by an auction on December 7, 1955 and the bid of the respondents was accepted; till the institution of the suit no certificate of sale or any deed conveying title to the property Was executed in favour of the respondents by the Government. Under the Delhi Rent Control Act jurisdiction to entertain a proceeding in ejectment on the ground of termination of tenancy is maintainable not in the Civil Court but before the Rent Controller. But by Section 3 of the Act it is provided Nothing in this Act shall apply - (a) to any premises belonging to the Government; or (b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government; Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy. 4. The respondents contended that the Civil Court had jurisdiction because the premises belonged to the Government. The appellant contended that the premises at the date of the institution of the suit did not belong to the Government and that in any event they were let to him by the respondents "by virtue of an agreement with the Government or otherwise" within the meaning of the proviso. This Court has held that where evacuee property is put up for sale at an auction and the bid is accepted by the Government and price is received by the Government even in the absence of a sale deed executed or a certificate, the purchaser would be deemed to be an owner and not the Government. See the judgment of this Court in Bishan Paul v. Mothu Ram and Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, Shiv Nath v. Shri Mela Ram D/- 25-4-1969 (SC). But Mr. Misra contended that those cases have no application here for there is no evidence on the record that the price stipulated to be paid was in fact paid by the respondents before the suit was instituted. The question whether the consideration has been paid by the respondents to the Government is one of fact within the special knowledge of the respondents. They have not stated in the plaint nor have they attempted to prove that they have not paid the consideration which was agreed to be paid by them. Our attention was invited to some documents which were not before the trial Court nor before the District Court nor the High Court but were sought to be produced in this Court in support of the plea that the price could not have been paid by the respondents before the suit. We have declined to consider those documents as part of the record. If it was the case of the respondents that the property did belong to the Government and the title was not conveyed to them, it was for them to allege and prove that case. The case therefore does not fall under the terms of Section 3(a) of the Delhi Rent Control Act. 5. In any event the case is clearly governed by the proviso to Section 3. This Court has in interpreting the proviso to Section 3 observed in Civil Appeal No. 546 of 1966 (SC) and the companion appeals. Even if it were-assumed that the premises belonged to Government it would have to be held in the circumstances of the case, that it was lawfully let by the respondent to the appellants inasmuch as the Managing Officer's giving "provisional possession of the property to the respondent" would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are not impressed by the argument that 'letting' within the meaning of the proviso can only apply to -a voluntary act on the part of the landlord allowing the former tenant to continue in possession. Acting in pursuance of the direction of the managing officer after the property had been auctioned to the respondent would in law amount to a letting by the respondent to the persons who were tenants under the custodian before. The facts which gave rise to Shiv Nath's case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/- 25-4-1969 (SC) appear to be identical with the facts of the present case. The provisional possession had been given by the Managing Officer authorising the respondents to recover the rent and the tenants were directed to attorn to them. There is no dispute that the appellant did attorn to the respondents and according to the decision of this Court in Shiv Nath's case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/- 25-4-1969 (SC), a direction of the Managing Officer after an auction sale, to the tenant to attorn to the purchaser and receipt of the rent by the purchaser constitute letting within the meaning of the proviso to Section 3. In either view of the case the suit was not maintainable in the Civil Court. 6. The appeal is therefore allowed and the plaintiff's suit is dismissed with costs throughout. Appeal allowed.

Author: J Shah

Sangat Singh vs Ch. Perma Nand Bahl And Ors. on 26 November, 1969

Supreme Court of India

Gujarat High Court Case Information System Print SCA/25772/2007 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25772 of 2007 ========================================================= ALPESHKUMAR RANJITSINH SOLANKI - Petitioner(s) Versus THE STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR BIPIN P JASANI for Petitioner(s) : 1, MR DEEPEN SONI AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 3. MR SACHIN D VASAVADA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 24/06/2008 ORAL ORDER Mr.Jasani, learned counsel for the petitioner, submits that duly constituted Selection Committee in accordance with the provisions of Section 35 of the Gujarat Higher Secondary Education Act, 1972, selected the petitioner on the basis of merit of the marks obtained by him in HSC examination, including the subject drawing. Undisputedly, the petitioner secured highest marks amongst the candidates appeared in the interview. The proposal was sent to the District Education Officer for approval which was rejected on the ground that marks obtained by the petitioner for the subject of drawing in the HSC ought not to have been included and calculated. According to Mr.Jasani, the above objection is contrary to rules and regulations and inclusion of marks in drawing subject is as per proper calculation of marks obtained by the candidates in selection. There is acute necessity in the respondent No.4 school for drawing teacher and advertisement was issued for recruitment of drawing teacher. It is submitted that rules and regulations of the Board also provide for consideration of drawing marks. Learned AGP has relied on the affidavit in reply and submitted that calculation of marks of the petitioner by the Selection Committee for seven subjects is not permissible and therefore, objection can be sustained. However, learned AGP is unable to justify the rationale behind not including marks of drawing subject. Considering the above facts and circumstances of the case, when no provision, statute, rule or regulation is shown by learned AGP prohibiting calculation of marks of drawing subject subsequently cleared by the petitioner, Rule. In the meanwhile, impugned order dated 17.9.2007 at Annexure-F is stayed till further orders and the respondent No.3 is directed to accord ad hoc approval to the selection of petitioner as Sikshan Sahayak in drawing, subject to the final outcome of the petition. Direct Service is permitted. (ANANT S. DAVE, J.) *pvv     Top

Author: Anant S. Dave,&Nbsp;

Alpeshkumar vs The on 24 June, 2008

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30.10.2007 CORAM: THE HON'BLE MR. JUSTICE K.MOHAN RAM A.S.No.943 of 1993 1.Poongavanam Ammal 2.Chinnapillai Ammal 3.Bagyammal 4.Kandan .. Appellants -Vs- 1.Karuppayi Ammal 2.Karuppayi Ammal 3.Desi Ammal 4.Valliammal 5.Chandra .. Respondents Appeal against the judgment and decree dated 15.06.1993 made in O.S.No.34 of 1987 on the file of the Sub-Court, Vriddhachalam. For Appellants : Mr.V.Raghavachari For Respondent 1 : Mr.V.Ayyadurai For Respondents 2 to 5: No appearance - - - J U D G M E N T The unsuccessful defendants 1 to 4 in O.S.No.34 of 1987 on the file of the Sub-Court, Vriddhachalam are the appellants in the above appeal. 2. For the sake of convenience the parties are referred to as per their ranking in the suit. 3. The case of the plaintiff is as follows: The plaint 'C' schedule properties belonged to one Muthukaruppa Servai; Muthukaruppa Servai's only son was Subburaya Servai and Subburaya Servai's only son was Ayyakannu Servai; Ayyakannu Servai's wife was Angammal; Ayyakannu Servai and Angammal had two sons namely Murugan and Duraisamy and two daughters namely the defendants 1 and 2; the plaintiff is the wife of Duraisamy; the third defendant is the daughter of the first defendant; Muthukaruppa Servai, Subburaya Servai and Ayyakannu Servai died intestate prior to 1937; Murugan died unmarried and intestate in the year 1954; Duraisamy husband of the plaintiff also died intestate in the year 1952; Since the plaint 'C' schedule properties are the ancestral properties of Ayyakannu Servai, after his death the same devolved upon his sons Murugan and Duraisamy and both of them were entitled to = share each; On the death of Duraisamy his wife as sole heir succeeded to his = share as per Hindu Law; since Murugan died intestate and issueless in 1954 his mother Angammal succeeded to his = share as per Hindu Law; thus the plaintiff and Angammal became entitled to = share in the plaint 'C' schedule properties. 4. It is the further case of the plaintiff that on the death of Duraisamy, the plaintiff and Angammal were in joint possession and enjoyment of the 'C' schedule properties; in 1959 due to difference of opinion both of them as per the advice of the panchayatdars divided the properties and as per the decision of the panchayatdars 'A' schedule properties were allotted to the plaintiff and 'B' schedule properties were allotted to Angammal; from then on both of them were enjoying the said properties by paying kist separately; the plaintiff was paying kist for the properties allotted to her and she continued to be in possession; after the said arrangement in 1959 the plaintiff and Angammal are entitled to their respective shares. Angammal has no independent right over the 'C' schedule properties and even if she claims any such right it is untenable; Angammal died in 1982; after her death her daughter namely the defendants 1 & 2 are entitled to her = share; thus the plaintiff is entitled to = share and defendants 1 & 2 together are entitled to = share in the 'C' schedule properties. While so, in July 1985, since the defendants 1 & 2 attempted to alienate Item No.3 of the 'A' schedule property which was allotted to the plaintiff, the plaintiff caused a legal notice dated 05.07.1985 to the defendants 1 to 3. On receipt of the legal notice, the defendants 1 to 3 sent a reply notice dated 23.07.1985 contending the averments as false. In the said reply notice the defendants 1 to 3 contended that items 4,5 & 6 of 'A' schedule properties and items 4 to 7 of 'B' schedule properties belonged absolutely to Periyasamy Servai husband of the 1st defendant. The rest of the properties are the separate properties of Angammal. Neither Ayyakannu Servai nor Muthukaruppa Servai had any right in the properties. Angammal executed a settlement deed on 02.05.1960 in favour of the defendants 1,4 and the 2nd defendant. Angammal and defendants 1 & 2 have jointly executed a settlement deed dated 18.08.1979 in favour of the third defendant. The settlement deeds mentioned in the reply notice have not come into force and were not acted upon and the settlees under the settlement deeds were not in possession of the properties. Since the suit properties are ancestral properties of Ayyakannu Servai and as the plaintiff is entitled to = share in it and Angammal has no right to execute the settlement deed in respect of the plaintiff share and as such the settlement deeds in so far as the share of the plaintiff is concerned are void and not binding on the plaintiff. 5. Pursuant to the oral partition in 1959, the plaintiff and Angammal were enjoying the 'A' and 'B' schedule properties respectively, while so, Angammal alienated the 3rd item of 'B' schedule property in favour of the defendants 5 to 7. Since Angammal was dealing with the properties allotted under oral partition, the plaintiff did not object the same. To get a binding adjudication, the alienees have also been impleaded as parties. Since the plaintiff and defendants 1 & 2 are co-sharers they are in joint possession of the suit properties in consonance with the oral partition in 1959. The plaintiff has sought for a declaration of title in respect of 'A' schedule properties. Since the defendants 1 to 4 have trespassed into 'A' schedule properties after filing of the suit, recovery of possession was also prayed for and mesne profit was also claimed. Since the 8th defendant has purchased the 1st item of the 'A' schedule properties on 13.02.1987 she has also been impleaded as a party. 6. It is further pleaded in the plaint that in case if the Court comes to a conclusion that oral partition made in 1959 is not proved, the plaintiff is praying for an alternative relief of partition and separate possession of her = share in the 'C' schedule properties and for mesne profit. 7. The defendants 1 to 4 contested the suit, the written statement filed by the 4th defendant has been adopted by the defendants 1 to 3. They contested the suit inter alia contending as follows: The allegations in paragraphs 3 to 10 are false; Muthukaruppa Servai has no property at all; Ayyakannu Servai was mentally retarded; the date of death of parties as given in the plaint are denied; the plaint 'C' schedule properties did not belong to Ayyakannu Servai; the oral partition of 1959 claimed by the plaintiff is not true; plaintiff was never been in possession of any properties; the properties described as item Nos. 4 to 6 in 'A' schedule and item Nos.4 to 7 in 'B' schedule properties belonged to Periyasami Servai father of the defendants 1 & 2 as the same was acquired by him under assignment from the Government. Items 1,2,3,7 and 8 of 'A' schedule and items 1,2,3,8 and 9 in 'B' schedule properties belonged absolutely to Angammal wife of Ayyakannu Servai, as such the plaintiff cannot claim any right in the properties; as absolute owners Periyasami Servai and Angammal were in possession and enjoyment of the properties on their own right. The settlement deed executed by Angammal have been properly accepted by the settlees and they have come into force and the settlees continue to be in open and peaceful possession of the properties; the defendants 1,2 and 4 in their own right are in possession and enjoyment for over the statutory period and their title has been perfected by adverse possession. The gift deed dated 18.08.1979 executed by Angammal in respect of items 1 and a portion of item 3 in favour of the 3rd defendant is legally valid; the 3rd defendant also perfected the title by adverse possession. 8. The suit is in the nature of champerty, the plaintiff has purportedly executed in favour of her counsel in respect of item 1 of 'A' schedule property knowing fully well that she had no right over the property and as an agreement for the conduct of the suit on behalf of the plaintiff. Hence the suit is liable to be dismissed in limine; the suit properties have not been properly valued; the plaintiff is not in joint possession of the properties, therefore valuation adopted under Section 37(2) is untenable; inspite of the assertion of title, the plaintiff has not chosen to mention how Muthukaruppa Servai was entitled to the suit properties; the claim of the plaintiff is vexatious and on the above said pleadings the defendants 1 to 4 sought for the dismissal of the suit. 9. The 6th defendant filed a separate written statement inter alia contending as follows: The allegations in paragraphs 3 to 10 are false; even assuming the oral partition pleaded by the plaintiff to be true, since on the death of Angammal, the defendants 1 and 2 are entitled to the 'B' schedule property; the registered sale deed dated 26.04.1971 executed by them in favour of the defendants 6 & 7 in respect of an extent of 2.64 acres out of 3.95 acres in R.S.No.216/1 is valid; ever since the date of purchase, defendants 6 & 7 are in possession and enjoyment of the same; apart from possession and title, defendants 6 & 7 prescribed title by adverse possession also. 10. In the additional written statement filed by the 4th defendant it is contended as follows: The relationship mentioned in para 4 of the plaint is not correct; the year of death of the predecessors-in-title as shown in the plaint is not correct; the allegation that the defendants 1 to 4 trespassed into 'A' schedule property after filing of the suit is not correct; the plaintiff never enjoyed 'A' schedule properties and in particular she was not in possession of the properties from 1959 as claimed by her; the suit is barred by limitation; the plaintiff has executed the sale deed dated 19.11.1985 in favour of the 8th defendant in respect of item 1 of 'A' schedule property on the same date when the suit was filed; thereafter intentionally has got the plaint returned and re-presented the same only after a delay of two years and with an intention to cause hardship and loss to the defendants. 11. The plaintiff filed a reply statement contending as follows: The allegation contained in the written statement of the defendants are false; having admitted the relationship of the parties in the reply notice sent by them, the defendants have denied the relationship in their written statement; after the summons in the suit was served, the 4th defendant using his manpower harvested the crops raised by the plaintiff in her properties and from then on the defendants 1 to 4 are in possession of the 'A' schedule properties and therefore they are liable for mesne profit till they deliver possession of the properties; since the 4th defendant is an influential person, by using his influence he has obtained patta under U.D.R. Scheme in respect of the 'A' schedule properties; he has prevented the Village Administrative Officer from collecting kist from the plaintiff; the plaintiff paid kist in respect of her share of land till 1985; though the defendants 1 to 4 have stated in their written statement that the suit properties belonged to Angammal, they have not stated as to how they are entitled to the same; since the defendants 1 to 4 have claimed properties belonging to Angammal they are not entitled to claim title by adverse possession; in respect of item 1 of 'A' schedule property the plaintiff has executed a sale deed in favour of the 8th defendant after receiving the sale consideration of Rs.6,600/-; the defendants 1 to 4 are not entitled to question the said sale; the suit was filed on 19.11.1985 but the sale deed was executed only on 14.02.1987 and as such the allegations of the defendants to the contrary are not correct. 12. The 8th defendant has contested the suit by filing a separate written statement inter alia contending as follows: The 8th defendant has purchased an extent of 0.33 cents in Survey No.84/5 which is shown as item No.1 in 'A' schedule under a sale deed dated 13.02.1987 for valid consideration of Rs.6,600/-. Since the plaintiff was in possession and enjoyment of the property, the 8th defendant has purchased the property from her; but as per the recitals in the sale deed, the 8th defendant could not take possession since the defendants 1 to 4 prevented her from taking possession and the defendants 1 to 4 are in possession of the property and therefore they are liable to pay mesne profit to her; the property purchased by the 8th defendant should be allotted to the share of the plaintiff. 13. On the above said pleadings the following issues have been farmed by the trial court:- (i)Whether the plaintiff is entitled for declaration as prayed for? (ii)To what relief the plaintiff is entitled to? The following additional issues have also been framed: (a) Whether the defendants 1 to 3 are liable to pay mesne profit? (b) Whether the 8th defendant is entitled to get any relief on equity? 14. During trial, on the side of the plaintiff her brother Periyasamy Servai was examined as P.W.1 and Exs.A-1 to A-15 have been marked. On the side of the defendants, the fourth defendant was examined as D.W.1 and three other witnesses have been examined as D.Ws.2 to 4 and Exs.B-1 to B-46 have been marked. The trial court on a consideration of the oral and documentary evidence adduced in the case, held that items 2 to 8 of the plaint 'C' schedule properties belonged to Periyasamy Servai as the same had been assigned to him by the Government and as such the plaintiff is not entitled to seek partition in respect of the suit properties. The trial court further held that the plaintiff is entitled to seek partition of her = share in respect of items 1, 9 to 13 and 14 in the plaint 'C' schedule properties and granted a preliminary decree, but rejected the relief of mesne profit claimed by the plaintiff as well as the 8th defendant. The trial court further held that since the 8th defendant is not a bonafide purchaser, he is not entitled to get any equitable remedy. Being aggrieved by the judgment and decree of the trial court, the defendants 1 to 4 have filed the above appeal. 15. In the memorandum of grounds of appeal, the judgment and decree of the trial court is challenged as under:- The judgment and decree of the trial court is contrary to law, erroneous and opposed to the probabilities of the case; The court below erred in decreeing the suit for partition on the basis of Ex.A1 which is termed as a holding register when the contents of the document have neither been proved by any other independent evidence or by production of title deeds; Ex.A1 does not have any statutory value as it is not a register which is to be maintained under the Indian Registration Act; the court below should not have based reliance on Ex.A1 and should have dismissed the suit for partition holding that the properties are the properties of Angammal; the litigation is in the nature of champerty should have been dismissed as the wife of the plaintiff's counsel had purchased the items of suit properties and is financing the litigation; even in Ex.A1 reference was made to Angammal in respect of certain properties and as such those properties should have been excluded. 16. Heard Mr.V.Raghavachari, learned counsel appearing for the appellants and Mr.V.Ayyadurai, learned counsel appearing for the 1st respondent. 17. The main contention of Mr.V.Raghavachari, learned counsel appearing for the appellants is that Ex.A1 does not have any statutory value in as much as it is not a register which is to be maintained under Section 51 of the Indian Registration Act and unless it is a document which is liable to be maintained by a statutory authority in the course of discharge of his statutory functions, the lower court ought not to have placed reliance on the same. 18. The learned counsel appearing for the appellants further contended that since the plaintiff had executed the sale deed in favour of the wife of his counsel in respect of item 1 of the 'A' schedule property, the litigation is champertons in nature and the suit should have been dismissed in limine. 19. The learned counsel appearing for the appellants wanted to make submissions assailing the findings of the trial court negating the claim for adverse possession put forth by the defendants 1 to 4 but as no grounds have been raised in the memorandum of grounds of appeal questioning such finding of the trial court, this Court is of the view that the appellants are not entitled to advance any arguments on such findings. 20. Countering the said submissions, the learned counsel appearing for the 1st respondent submitted that Ex.A1 has been summoned and produced from the office of the Sub-Registrar and the same is maintained under the Indian Registration Act and a perusal of Ex.A1 will shows that it contains entries relating to various transactions and the name of Ayyakannu Servai in patta No.221. The learned counsel further submitted that Ex.A1 has not been questioned by the defendants 1 to 4 while the same was marked as Exhibit in the trial court and as rightly pointed out by the trial court the contents of Ex.A1 has not been disputed while cross examining P.W.1. The learned counsel further submitted that only based on the entries contained in the registers similar to Ex.A1, encumbrance certificates are being issued by the office of the Sub Registrars. The learned counsel further submitted that the trial court has accepted the case of the plaintiff that the suit properties are the ancestral properties of Ayyakannu Servai not only on the basis of Ex.A1 but also on the corroboration provided by Ex.A15 in which Ayyakannu Servai has mentioned a portion of land comprised in S.No.51/8. The learned counsel further drew the attention of this Court to the suggestion put to P.W.1 in the course of his cross examination by the defendants 1 to 4 suggesting that items 1, 2, 3, 7 & 8 of 'A' schedule properties belonged to Periyasamy Servai, father of the 4th defendant by virtue of TKT patta issued in his favour and items 4 to 6 of plaint 'A' schedule properties and items 4 to 7 of 'B' schedule properties also belonged to Periyasamy Servai and as such the plaintiff is not entitled to claim any right over the same. Similarly items 1,2,3,7 & 8 of the plaint 'A' schedule properties and items 1,2,3,8 & 9 of plaint 'B' schedule properties are the separate properties of Ayyakannu Servai and the plaintiff has no right to seek a share. 21. The learned counsel appearing for the respondent further submitted that since the defendants 1 to 4 though have suggested to P.W.1 that items 1,2,3,7 & 8 of 'A' schedule property and items 1,2,3,8 & 9 of 'B' schedule properties are separate properties of Ayyakannu Servai and they are not entitled to claim that the suit properties are the separate properties of Angammal wife of Ayyakannu Servai. It has been further suggested to P.W1 in his cross examination that Angammal was paying kist in her name and in the name of her husband for patta No.221. 22. I have carefully considered the above submissions made by the learned counsel on either side, the materials available on record and perused the judgment of the Court below. 23. The contention of the learned counsel for the appellants that Ex.A-1, which is termed as a holding register does not have any statutory value inasmuch as it is not a register which is to be maintained under Section 51 of the Indian Registration Act, in the considered view of this court, is untenable. Documents which are compulsory registrable are enumerated in Section 17 of the Registration Act, 1908 (hereinafter referred to as "the Act"), where a document is employed to effectuate in all the transactions specified in Section 17 of the Act, such document must be registered notwithstanding that the transaction is one which the law does not require to be put into writing. Part XI of the Act deals with the duties and powers of Registering Officers and the Register-books to be kept in the several offices. Section 51 of the Act reads as follows:- "51. Register-books to be kept in the several offices. - (1) The following books shall be kept in the several offices hereinafter named, namely:- A  In all registration offices - Book 1, "Register of non-testamentary documents relating to immovable property"; Book 2, "Record of reasons for refusal to register"; Book 3, "Register of wills and authorities to adopt"; and Book 4, "Miscellaneous Register"; B  In the office of Registrars - Book 5, "Register of deposits of wills". (2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills. (3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property. (4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar." A reading of the above provisions shows that all registration offices should maintain Book 1, which is a register of non-testamentary documents relating to immovable property. A reading of Section 51 (2) of the Act shows that details of all documents registered under Section 17 of the Act and which relate to immovable property shall be entered in book 1. Sections 54, 55 (1) and (2) and 57 (1) and (5) of the Act read as follows:- "54. Current indexes and entries therein.- In every office in which any of the books hereinbefore mentioned arekept, there shall be prepared current indexes of the contents of such books; and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of, the document to which it relates. 55. Indexes to be made by registering officers, and their contents.- (1) Four such indexes shall be made in all registration  offices, and shall be named, respectively, Index No.I, Index No.II, Index No.III, and Index No.IV. (2) Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No.1. 57. Registering Officers to allow inspection of certain books and indexes and to give certified copies of entries.- (1) Subject to the previous payment of the fees payable in that behalf, the Books Nos.1 and 2 and the Indexes relating to Book No.1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies. (2) .... (3) .... (4) .... (5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents". A combined reading of the above said provisions of the Act shows that when book 1 is kept in every office indexes of the contents of such book shall be prepared and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of, the document to which it relates. Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No.1. On payment of prescribed fee any person applying to inspect book Nos.1 and 2 and indexes relating to book no.1, are entitled to inspect the same and subject to the provisions of Section 62 of the Act copies of entries in such books shall be given to all persons applying for such copies. As per Section 57 (5) of the Act, all copies given under Section 57 of the Act shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents. If Ex.A-1 is considered in the light of the above said provisions it could be seen that it comes within the purview of Section 55 (2) of the Act since Ex.A-1 contains all the details as contemplated in Section 55(2) of the Act. Therefore, the contention of the learned counsel for the appellants that Ex.A-1 is not a document to be maintained under any provision of the Registration Act is untenable. Whereas the contention of the learned counsel for the first respondent that Ex.A-1 contains all the details relating to encumbrances made in respect of the properties which stood in the name of Subburaya Servai and Ayyakannu Servai is acceptable. A perusal of Ex.A-1 shows that the following properties comprised in S.F.Nos.51/8, 316/1, 219/6, 78/12, 84/5 and 84/7 were comprised in patta No.221 and stood in the name of Subburaya Servai and Ayyakannu Servai. The properties in S.F.No.216/1 had been dealt with by Ayyakannu Servai by document dated 13.06.1984. Similarly, the lands comprised in Survey Nos.51/8, 72/12, 84/5 and 84/7 have been dealt with by Angammal, Murugan and Duraisamy Servai under a document executed on 26.04.1942 and registered on 11.05.1942. In respect of an extent of 66 cents in Survey No.51/8 Ayyakannu Servai has executed a mortgage deed on 14.07.1933 in favour of Nallathambi Pathar and Kesabudayar and Ex.A-15 is the certified copy of the said mortgage deed. In respect of land comprised in Survey No.216/1, Angammal, Murugan and Duraisamy have executed a mortgage deed in favour of one Virudambal. All the above said entries in Ex.A-1 makes it abundantly clear that the properties dealt with by Angammal and her sons were originally comprised in patta No.221 belonging to Subburaya Servai and Ayyakannu Servai. If the properties really belong to Angammal, as her separate property, they would not have been shown as comprised in patta No.221 as admittedly patta No.221 stood in the name of Subburaya Servai and Ayyakannu Servai. Further, if the properties were the separate properties of Angammal there was no need for joining Murugaservai, Duraisamy, the son of Angammal, Angammal and Ayyakannu Servai in the execution of various documents. The irresistable inference that could be drawn from the above said entries in Ex.A-1 is that the properties dealt with thereunder are the ancestral properties of Ayyakannu Servai. Ex.A-15 also shows that Ayyakannu Servai had dealt with the properties comprised in Survey No.51/8. 24. A perusal of the evidence of P.W.1 shows that during the cross examination of P.W.1 with reference to the entries in Ex.A-1, P.W.1 has not been cross examined and the correctness of the entries in Ex.A-1 have also not been disputed. It has not been explained by any acceptable evidence by defendants 1 to 4 as to why Murugan Servai and Duraiswamy Servai had joined with Angammal in the execution of the above said documents if really the suit properties belonged to Angammal as her separate properties as claimed by defendants 1 to 4. It has also been suggested to P.W.1 that in respect of patta No.221, Angammal had paid Kists in her and in her husband's name. If really, as claimed by defendants 1 to 4, the suit properties are the separate properties of Angammal, it is un-understandable as to how patta no.221 came to be issued in the name of Iyyakannu Servai alone. Whereas it is clear that after the death of Iyyakannu servai, Angammal was paying Kists in respect of patta no.221. It is pertinent to point out that it has been suggested to P.W.1 during his cross-examination that item Nos.1, 2, 3, 7 and 8 of plaint 'A' schedule and items 1, 2, 3, 8 and 9 of plaint 'B' schedule are the separate properties of Iyyakannu Servai. This particular suggestion has been put to P.W.1 after making suggestion relating to the properties belonging to Periyaswamy, the father of the fourth defendant. The learned counsel for the first respondent relying upon the above said suggestion made to P.W.1 submitted that defendants 1 to 4 themselves have admitted that the above said items are the separate properties of Iyyakannu Servai and defendants 1 to 4 have no case to argue. But countering the above said submission the learned counsel for the appellants submitted that the said suggestion has been made only by the counsel who appeared for defendants 1 to 4 in the trial court and such suggestion it would not bind defendants 1 to 4. In support of the above said contention, the learned counsel for the appellants relied upon a decision of the Apex Court in the case of Swami Krishnanand Govindanand Vs. M.D.Oswal Hosery (Regd.) and reported in (2002) 3 Supreme Court Cases 39, wherein in paragraph 3 the Apex Court has observed as follows:- "3. Mr Jaspal Singh, learned Senior Counsel appearing for the appellant, has vehemently contended that statement made by the learned counsel of the respondent across the Bar is indeed an admission of the party and, therefore, the Additional Rent Controller recorded his satisfaction on the basis of the admission; the order of the Additional Rent Controller cannot thereby be treated as being without jurisdiction. We are afraid we cannot accede to the contention of the learned counsel. Whether the appellant is an institution within the meaning of Section 22 of the Act and whether it required bona fide the premises for furtherance of its activities, are questions touching the jurisdiction of the Additional Rent Controller. He can record his satisfaction only when he holds on these questions in favour of the appellant. For so holding there must be material on record to support his satisfaction otherwise the satisfaction not based on any material or based on irrelevant material, would be vitiated and any order passed on such a satisfaction will be without jurisdiction. There can be no doubt that admission of a party is a relevant material. But can the statement made by the learned counsel of a party across the Bar be treated as admission of the party? Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel of the respondent cannot be accepted as an admission so as to bind the respondent. Excluding that statement from consideration, there was thus no material before the Additional Rent Controller to record his satisfaction within the meaning of clause ( d ) of Section 22 of the Act. It follows that the order of eviction was without jurisdiction." A careful consideration of the above said observation of the Apex Court shows that a statement made by the learned counsel of a party across the bar cannot be termed as an admission of the party. But in the case on hand what is sought to be relied upon by the learned counsel for the first respondent is not a statement made by the learned counsel for defendants 1 to 4 across the bar, but a suggestion put to P.W.1 in the course of his cross-examination. It is presumed that all questions put to a witness by a learned counsel are put as per the instructions of the parties for whom the counsel is appearing and as such the above suggestion put to P.W.1 cannot be explained away as a statement made by the learned counsel across the bar. Hence the above said decision of the Apex Court is not applicable to the facts of this case. 25. The evidence of P.W.1, entries in Ex.A-1, Ex.A-15 and the above suggestion made to P.W.1, if taken as a whole clearly shows that the properties described in plaint 'C' schedule excluding the properties which have been assigned by the Government in favour of Periyaswamy Servai were the ancestral properties of Ayyakannu Servai. 26. It is worthwhile to consider the evidence of D.W.1. Though defendants 1 to 4 have claimed that the properties are separate properties of Angammal no documentary evidence has been adduced to prove the same. D.W.1 in his cross examination has stated that the properties belong to Angammal through her mother and the said information was furnished to him by his grandmother. D.W.1 has stated that he does not know as to whether the parents of Angammal possessed any properties. He has also stated that he does not remember the name of Angammal's father and mother and about that he has not asked his grandmother. He has denied the suggestion that the properties are the ancestral properties of Muthukaruppa Servai, Subburaya Servai and Ayyakannu servai. He has also stated that the parents of Angammal purchased the properties for her and the said information was furnished by his grandmother. He has also admitted that he had not made any search for the documents. Though D.W.1 has been questioned with reference to the entries in Ex.A-1, he had not stated anything disputing the correctness of the entries in Ex.A-1. As pointed out above, D.W.1 has also not been cross examined about the correctness of the entries contained in Ex.A-1. 27. For the above said reasons, this Court is of the considered view that the plaintiff has proved that the properties in respect of which the plaintiff is seeking for partition were the ancestral properties of Ayyakannu Servai and the said properties are not the separate properties of Angammal. 28. The trial court has considered the oral and documentary evidence in the proper perspective and has rightly held that the plaintiff has not proved the oral partition said to have taken place in 1959 between her and Angammal. The trial court has rightly pointed out that since the plaintiff and Angammal are co-sharers adverse possession cannot be claimed by defendants 1 to 4 as D.Ws.1 to 4 are claiming only through Angammal. The trial court has also rightly pointed out that defendants 1 to 4 have not pleaded ouster. Since the plea of ouster has not been raised in the pleadings, defendants 1 to 4/appellants herein have not chosen to question the correctness of the findings recorded by the trial court on the question of adverse possession. 29. After hearing was over and judgment was reserved the learned counsel for the appellants have circulated the written arguments calling it as additional written arguments after serving a copy of the same on the learned counsel for the first respondent. The learned counsel for the first respondent has also filed the written submissions. 30. I have carefully considered the submissions contained in the written arguments submitted by the learned counsel on either side. In respect of the submissions contained in the written arguments it has to be pointed out that no argument was advanced by the learned counsel for the appellants in the course of hearing. It has also to be pointed out that no such ground has been raised in the memorandum of grounds of appeal. Therefore the learned counsel for the first respondent has raised an objection that the said submission cannot be entertained. 31. In the written arguments, the learned counsel for the appellants has submitted that even assuming that the suit properties are the ancestral properties, if it is proved that the plaintiff is in possession after her husband's death, she is entitled to only 1/4th share in the suit properties. If the plaintiff was not in possession after the death of her husband, she is not entitled to any share. It is further contended that in the year 1952, the plaintiff's husband died and the plaintiff will not have any right over the share of the joint family properties except the right of maintenance and death of Duraisamy, the husband of the plaintiff, his half share would go to Murugan, the other son of Ayyakannu Servai and after the death of Duraisamy, Murugan had become the absolute owner of the entire share. In the year 1954, Murugan died and so his mother-Angammal would get limited right over the entire properties and the limited right of the mother would amount to an enlarged interest by Section 14(1) of the Hindu Succession Act. It is further submitted that P.W.1 himself has admitted that immediately after the death of the plaintiff's husband, she went to her brother's house and that would show that the plaintiff would not be entitled to any share over the suit properties. 32. The learned counsel for the first respondent in his written submissions, as stated above, has raised the objection that since no such ground has been raised in the memorandum of grounds of appeal, the above said contention of the learned counsel for the appellant could not be entertained. Without prejudice to the above said contention it is submitted by the learned counsel for the first respondent that the plaintiff is entitled to half share by Section 3 of the Hindu Women's Right to Property Act, 1937 in her capacity as a sole widow of her husband-Duraiswamy who died in the year 1952. Duraiswamy's mother is not entitled to any share under the provisions of the Hindu Women's Right to Property Act, 1937. Though specific pleading has been made in paragraph 5 of the plaint regarding the apportionment of share the same has not been specifically denied or dealt with in the written statement or in the additional written statement. It is further submitted that the contention of the learned counsel for the appellant that the plaintiff is entitled only to an extent of <-th share in the suit properties even if the suit properties are held to be ancestral is not based on any legally recognised principles of Hindu Law, but is opposed to express provisions contained in the Hindu Women's Right to Property Act, 1937. It is further contended that the contention of the learned counsel for the appellant that the plaintiff would get only right to maintenance is wholly unsustainable in law besides being misleading in the light of Section 3 of the Hindu Women's Right to Property Act, 1937. 33. I have carefully considered the above said submissions contained in the written arguments. The preliminary objection of the learned counsel for the first respondent has to be dealt with first as to whether the contention put forth by the learned counsel for the appellants can be entertained or not. 34. It is settled law that if the facts proved and found as established are sufficient to raise a new plea under Order 41 Rule 2 of the Code of Civil Procedure it is not only competent to but expedient in the interest of justice to entertain that plea. But when the question is not a pure question of law but a question of fact, the Court should not allow such question to be raised for the first time. Similarly, the appellate court ought not to allow a party to rely upon a point which was not raised in the Court of first instance and which requires an investigation into facts. It is also settled position of law that a Court of appeal is not entitled to allow an appellant to raise a new case, which is dependent for its determination on facts which have not been investigated and to which the parties have not directed their evidence. A point not explicitly taken in the memorandum of appeal to raise but raised at the time of argument cannot be entertained. It is also settled proposition of law that an appellate court is quite competent to base its decision upon a point arising out of the pleadings of the parties, if there is evidence on record as regards the same, although it is neither expressly taken before the Court. Therefore, it has to be considered whether the above said contention put forth by the learned counsel for the appellants is a pure question of law or a question of fact. Though the above said contention has neither been raised before the trial court nor raised in the memorandum of grounds of appeal nor argued during the course of hearing, this Court is of the considered view that the said contention is a pure question of law which can be decided on the basis of the findings recorded by the trial court. Further, for considering the said contention, no further investigation into the facts is necessary. 35. The above said contention of the learned counsel for the appellants as rightly contended by the learned counsel for the first respondent is against the provisions contained in Section 3(2) of the Hindu Women's Right to Property Act, 1937. The trial court has recorded a finding that the properties in respect of which the plaintiff is seeking partition have been found to be the ancestral properties of Ayyakannu Servai and as such on the death of her husband Duraisamy, the plaintiff being his widow takes his interest in the family property. The interest of the widow, namely the plaintiff, viz-a-vis her husband's undivided interest arises not by inheritance nor by survivorship but by statutory substitution as laid down in A.I.R. 1967 Supreme Court 232 (Satrughan Vs. Sabujitpari). As per Section 3(3) of the Hindu Women's Right to Property Act, 1937 any interest devolving on a Hindu Widow under the provisions of Section 3 shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition to a male owner. It is pertinent to point out that the trial court on a consideration of Exs.A-2 to A-12 has found that the plaintiff was in joint possession of the properties with defendants 1 to 4. Therefore at the coming into force of the Hindu Succession Act, 1956 and as provided under Section 14(1) of the said Act, the limited estate of the plaintiff would have got enlarged into her absolute property. 36. It is also pertinent to point out that the said finding of the trial court that the plaintiff was in joint possession of the properties with defendants 1 to 4 has not been questioned in the memorandum of grounds of appeal. For the said reasons, the contention of the learned counsel for the appellants are liable to be rejected and accordingly rejected. As rightly pointed out by the learned counsel for the first respondent the submission made by the learned counsel for the appellants in the written arguments is not only opposed to the provisions contained in the Hindu Women's Right to Property Act, 1937, but it is also misleading, since under the Hindu Women's Right to Property Act, 1937, the mother of the Hindu male who died intestate is not entitled to get any right in the property left behind by her deceased son. 37. For the above said reasons, the above appeal fails and the same is dismissed with costs of Rs.10,000/- (Ten thousand only). 30.10.2007 Index : Yes Internet : Yes srk/kk To The Sub-Court, Vriddhachalam. K.MOHAN RAM, J. srk/kk Pre-delivery Judgment in A.S.No.943 of 1993 30.10.2007

Poongavanam Ammal vs Karuppayi Ammal on 30 October, 2007

Madras High Court

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Author: N.K.Patil

Sri Maruthi Yuvaka Sangha vs The Deputy Commissioner on 13 April, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 5407 of 2009(U) 1. ARUNA ... Petitioner Vs 1. M.N.DASAN AND 7 OTHERS ... Respondent For Petitioner :SRI.A.BALAGOPALAN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :18/02/2009 O R D E R ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.5407 of 2009 --------------------------------- Dated, this the 18th day of February, 2009 J U D G M E N T According to the petitioner, there are errors apparent on the face of Ext.P1, and therefore, she has filed Ext.P2 seeking review of the said order. Orders have not been passed on Ext.P2 and it is with this grievance, this writ petition is filed. 2. If as stated above, Ext.P2 filed by the petitioner for modification of Ext.P1 has been received and is pending, the same shall be considered with notice to the other contesting parties and orders shall be passed thereon. This shall be done as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment. It is clarified that this Court has not examined the maintainability of Ext.P2. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg 

Aruna vs M.N.Dasan And 7 Others on 18 February, 2009

Kerala High Court

[Section 31] [Complete Act]

Central Government Act

Between : 1. IN THE HIGH COURT OF KARNATAKA Dated this the 25*?" day Of " PRESENT-' ;Me" ' 'e, W THE HONBLE MR.J.s.KH:2;AHz;;R+, AND T} . ._ THE HQNBLE 1\/IV}{.;fi5VS1'IC.f'Ia:' wp Ne.1843AQ[V2O_1G.._(GM?C(§N) 7 M/S. Vyalikaval House.' Co --Op S_o<:i__ety _ A C0~0pe1*?a,t-five S.0ciie't'y§ 'fegi'siere.éi under the proV_iSif5:1_s7«Qf;TKar:1_;itaka;' Operative S0cietie--$_ Actf} A Having Its Register Qffieceuzkt NU;_1_O0,.V *'S'aha1<:2u:a Kunja" 16th C11*QIs_s,_«V 1?1Vt11.a1\'/i~ajr1,_ .-- MaI1es11Wafati1;» B'a.ngg110re~560003 Rep by itSvw_S€«C1'€j_t€if3f' " Sri Srveenivasa ' « ' Presentigpatv : ' " N.o.6,2, 91h"Cr-33$, Between 7111 <3: 891 Main " V _ 1\z'£.a11eSvgfaram E'af;vga}Q'1'e--56OOO3. my Sri K. Divakar, Adv, for Sri K Suman, Adx/.,} Coaoeefative Society Ltd. N-50.62} 9"? Cross, "13e1*Lween 70* «$1 81" Main = 4_ Maileswaram Banga.1ore--560008 Petitioner And: 1. Sri. K Ramaehandra Major in Age {)5 E 9', Swarnamba Krupa :§f®%1ai.sa.»@v ts.) Gokuiar Sundarnagar Banga1orew580054 ,. Respondent(Respondents served} This Writ Petition is filed under Articles of the Constitution of India praying to q_u"as'h-.i'_the"Order _ 28.5.10 passed by the Hon'bIe:vKarnata'i_:a-I'State V Disputes Redressal Cornniission, E§an'ga1ore',_in Appeal: No. ' 'A 692/ 10; as arbitraiy, illegal and ii-.nj"u.st VideLAr11'ieXi':A';'peter up, This Writ Petition eon1irigv--ori»., for ijreiiiminary Hearing this day, Chief Justi_ee._ma;de:_thefollowing: " Eipetitioner states, that the instaiifi of in terms of the order passed S. Vyalikaval House Building Co.~§?pe'1*ative'i"Sooiety Limited ~vs-- Smt. C.M. Ambika ' (VViP.i\iAo;2'1.iZ'99_/2010, decided on 21.03.2011). 2: ' .viAf~i.§earned counsel for the respondent states, that he has-no objection for disposal of the instant writ petition, i_n*terrns of the prayer made by the {earned Counsel for the petitioner. 3 abové, the instant writ patitien is 3' In V16"; Of 'Chg; terms as in the order passed in dismissed in the SQJIIE W'P.N0.21299/2610. VR V Index: 17

Author: J.S.Khehar(Cj) And H.G.Ramesh

M/S. Vyalikaval House Building Co ... vs Sri. K Ramachandra on 25 May, 2011

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.39 of 2009 DILIP KUMAR & ORS Versus THE STATE OF BIHAR & ORS ----------- P. Kumar (Navin Sinha, J.) 3. 23.06.2011 List on Monday i.e. 27.06.2011 for Orders.

Dilip Kumar & Ors vs The State Of Bihar & Ors on 23 June, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 146 of 2008(P) 1. K. VIJAYAN, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. DIRECTOR, 3. ADMINISTRATIVE OFFICER, 4. K.V. PUSHPARAJAN, 5. B. CHITHARANJAN, For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice V.GIRI Dated :28/01/2008 O R D E R V.GIRI, J ------------------- W.P.(C). 146/2008 -------------------- Dated this the 28th day of January, 2008 JUDGMENT Petitioner challenges Ext.P16 order passed by the Government and Ext.P17, which is consequential to Ext.P16. Several contentions have been raised challenging Ext.P16. It is contended that settled seniority has been unsettled, purportedly by accepting the petitions under Rule 27B of Part-II of KS and SSR. It is contended that such petitions under Rule 27B were not maintainable at all. Apparently, Government had proceeded to consider Exts.P3 and P4 statutory representations marked in Writ Petition No.16264/2006 without considering whether the petitions were maintainable or not and within the time stipulated in Rule 27B. No doubt, Writ petition No.16264/2006 was disposed by this Court under Ext.P18 judgment. But notice was not given to the petitioner herein who was an affected person. 2. Learned Government Pleader, on instructions, submits that the petitioner's contention that Ext.P16 was  W.P.(C).146/2008 2 passed without notice to him and without hearing him is correct. Mr.Jaju Babu, learned counsel for the contesting respondents, also affirms this in as much as the order itself has been passed without hearing the affected persons. In my view, it is unsustainable and I declare it to be so. 3. In the result, writ petition is disposed of directing the first respondent to treat Ext.P16 as a notice of show cause and hear all the affected persons including the petitioner and the contesting respondents. If there are other affected persons, who are not parties to this Writ petition, they shall also be given notice. Copies of the representations marked as Exts.P3 and P4 and Writ Petition No.16264/2006 shall also be supplied to the petitioner and other affected persons. They shall be given permission to file objections thereto. Fresh orders thereafter, shall be passed in this regard by the Government taking note of all the contentions of the petitioner including the maintainability of the statutory  W.P.(C).146/2008 3 representations referred to in Ext.P18. Needless to say the contentions of the contesting respondents will also be adverted to before any order is passed in this regard. Fresh order shall be passed in the place of Exts.P16 and P17 within a period of three months from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs 

K. Vijayan vs State Of Kerala on 28 January, 2008

Kerala High Court

JUDGMENT 1. This is an appeal on behalf of the first defendant in an action for recovery of possession of immoveable property. The plaintiffs-respondents founded their claim on two execution sales which took place on the 22nd July 1892, and were confirmed on the 28th October following. The property in dispute, a tank with its banks, belonged admittedly to a person named Hari Mohan, and the sales on which the title of the plaintiffs is founded, took place in execution of a decree against some of his heirs. The defendant resisted the claim principally on the ground that the sales, as well as the decree on which they were based, were vitiated by fraud. They also questioned the extent of the interest which the plaintiffs had acquired by their purchase. At the same time, they instituted under Sections 244 and 311 of the Code of Civil Procedure of 1882 separate proceeding to set aside the execution sales on the ground of fraud and material irregularity. There proceedings have now been terminated by a judgment of this court, and it has been finally decided between the parties that the execution sales, which were the root of the title of the plaintiffs, cannot be impeached on the grounds set forth In the suit itself, the learned Subordinate Judge, differing herein from the Munsiff has found that neither the sale nor the decree on which it was based, is open to attack on the ground of fraud. In this view of the matter he has decreed the claim in full. The first defendant has now appealed to this court, and on his behalf the decision of the Subordinate Judge has been challenged substantially on four grounds, namely, first that the court of appeal below ought not to have given a decree on the footing of the execution sales when their validity was in question in the proceedings instituted to set them aside; secondly, that as the plaintiffs had purchased the right, title and interest of a Hindu widow in the estate of her husband, the appellant who represented the interest of the reversioner was in no way affected thereby; thirdly, that as the execution sales on which the title of the plaintiffs is founded, had taken place during the pendency of proceedings to enforce a mortgage previously executed by the judgment-debtor, the title of the plaintiffs cannot take precedence over that of the purchaser at the mortgage sale from whom the appellant has derived his title; and fourthly, that inasmuch as the plaintiffs as well as their predecessor in title had allowed the judgment-debtor to continue in possession in spite of the execution sales, they could not recover the property from the appellant who was a bona fide purchaser for value without notice of the title of the respondents. 2. As regard the first contention of the appellant, it is obvious that there is no substance in it. The proceedings to set aside the sales have now terminated and the result of the final decision is that the validity of the sale cannot be questioned on the ground of fraud and material irregularity. It is unnecessary, therefore, to consider what the position of the plaintiffs might have been if in the collateral proceedings the execution sales had been set aside. There can be no question that at the present moment there are valid subsisting sales on which the plaintiffs are entitled to rely in support of the title they set up. The first ground, therefore, completely fails. 3. In support of the second ground urged on behalf of the appellant, it is pointed out that the interest of Hari Mohan which extended over a five annas share of the property, was taken equally by inheritance by his two sons, Modhu Shudan and Gopal Chandra. Upon the death of Modhu Shudan his share was inherited by his widow, Nobin Kishori, who had at the time a daughter Radharani. The share of Gopal Chandra upon his death passed to his three sons, Brojo Nath, Radhanath and Gopinath, of whom Radhanath subsequently transferred his share to Akhoy Kumar The result of this devolution of the property was that Nobin Kishori, Brojonath, Gopinath and Akhoy Kumar became owners of the entire share, originally owned by Hari Mohan. Subsequently in 1892 Kirti Bhusan, husband of the second plaintiff, purchased the entire share at the execution sales upon which the plaintiffs rely. It appears that Brojonath Sarkar, Kirti Bhusan and several other persons had previously purchased at execution sale, certain other properties which formed part of the estate of Modhu Shudan and his co-sharers, Gopinath and Akhoy Kumar. Nobin Kishori along with, her co-sharers brought in 1890, a suit to set aside the auction sale in the court of the Munsiff of Howrah. Objection was apparently taken on behalf of the defendant that the real value of the property in dispute placed the matter beyond the jurisdiction of the Court. When the suit came on for final disposal, the Munsiff held that be had no jurisdiction and ordered the plaint to be returned to the plaintiff for presentation to the proper Court. He further directed the plaintiff to pay the costs of the proceeding to the defendant. The plaint was subsequently filed in the Court of the Subordinate Judge of Hooghly and Nobin Kishori as well as her co-sharers obtained a decree for recovery of the disputed property. One of the defendants in that case, however, took out execution of the decree for costs made in his favour in the infructuous proceedings before the Munsiff, and in the course of this execution proceeding the property now in dispute was sold and purchased by the decree-holder, Kirti Bhusan, from whom the plaintiffs have derived title. The defendant appellant has derived title from the reversionary heir to the estate of Modhu Shudan, that is, his daughter Radharani, as also from her co-sharers in the property, namely, Gopinath, Akhoy Kumar and Benoy Krishna, who was the representative in interest of Brojonath. On behalf of the defendant appellant it is contended that the effect of the execution sale on the basis of the decree for costs against Nobin Kishori was to pass her limited interest only which terminated upon her death. It is argued, on the other hand that the decree was made against her in her character as representative of her husband's estate, and that the effect of the execution sale was to vest the property in the purchaser so as to give him a title binding upon the reversionary heirs. In our opinion the view put forward on behalf of the plaintiffs is well-founded and must prevail. There can be no question that the suit to set aside the sale and to recover possession of the property was commenced by Nobin Kishori as the representative of the estate of her husband and for the benefit thereof. There can be no dispute also that that claim was well founded on the merits, as the result of the trial before a court of competent jurisdiction subsequently manifested. The decree for costs against her in the preliminary proceeding must be taken to have been made against her as representative of the estate, and when in execution, the property was brought to sale it must be taken that not merely her limited interest but the entire inheritance passed to the auction purchaser. The learned Vakil for the appellant argued that the decree for costs was purely personal and that the sale of her right, title, and interest in the execution proceedings signified a transfer of her limited interest only. This contention is opposed to the principle of the decision in Ram Kishore (Chuckcerbutty v. Kally Kanto (Chukerbutti 6 C. 479, which was accepted as good law in Premmoyi v. Preonath 23 C. 636, it is also opposed to the cases of Dinanumi v. Elahudad 7 C.W.N. 678, and Dinamoni v. Elahudut. 8 C.W.N. 843. In the first of these cases, a Hindu widow had instituted a suit to recover possession of property as part of the estate of her husband. The suit was dismissed with costs but before execution could be taken out the widow died. The decree holder sought to take out execution against the reversionary heirs of the husband of the widow. They resisted the claim on the ground that the decree was a purely personal one and could not be executed against the estate in her hands. This contention was overruled. The learned Judges held that inasmuch as the widow did not seek to recover any interest personal to herself and incurred liability for the judgment-debt in the effort to recover a portion of her husband's estate, it must be taken that the estate itself was liable for the satisfaction of the judgment-debt. It was pointed out that it was only in her character as representative of the estate of her husband that she instituted or indeed could have instituted that suit, and any land which she might recover in the suit would necessarily form portion of her husband's ancestral estate which would be enjoyed by her during her lifetime and would at her death pass to the reversionary heirs. The case before us is really much stronger than the one to which reference has just been made. In that case, the widow was unsuccessful, and the result of the litigation in which she was made liable for costs showed that her claim was unfounded; yet the liability for costs which she incurred was thrown upon the estate in the hands of the reversionary heirs. In the case before us, the ultimate result of the litigation showed that the claim was well founded; but the costs for the recovery of which the disputed property was sold, were incurred by the widow by reason of a mistake she made in the choice of the forum of litigation; the Court where she instituted the suit, it so turned out, had no jurisdiction to entertain it; and it is not suggested that the suit was instituted in a wrong Court wilfully or capriciously. It seems to be obvious, therefore, that the decree for costs was capable of execution against the estate of the husband in the hands of the widow. The authority of the widow to throw.this liability upon the estate in her hands cannot be taken to be more restricted than that of a Shebait to charge Debut-ter property under similar circumstances; and with regard to the powers of a shebait it has been recently held in Raja Pramada Nath v. Purna Chandra 7 C.L.J. 514 that when a shebait has wrongfully taken possession of immoveable property as part of the debutter estate and has consequently been made liable for mesne profits the decree must be taken to be not against the shebait in his personal capacity so that the property of the idol is liable to make good the claim for mesne profits. It was pointed out by Mr. Justice Doss that the liability of the estate of an idol for wrongs committed by its shebait in the reasonable management of its property may be assimilated not only to the liability of a corporation for wrongs by its agents in the course of their employment and for the furtherance of its purpose, but also to the liability of a trust estate for damages for wrongs committed by the trustee in the reasonable management of the trust estate. Mersey Docks Trustees v. Gibbs L.R. 1. H.L. 93, Taff Vale Railway v. Amalgamated Society (1901) A.C. 426 In re Raybald 1 Ch. 199 So far as trustees are concerned the well (sic) rule is that, if they are compelled to pay costs the amount paid may be allowed to them a their account, if the litigation was just and proper; but the rule is otherwise, if the litigation was improper and vexatious. In other words, if the litigation was forced upon the trustee or was necessary for the protection of the estate, the costs arc recoverable from the estate; but, if the suit was improperly instituted;or costs had been incurred by reason of his own misconduct, he must personally bear them; and whenever the costs are properly payable to the trustee out of the estate, the execution creditor is entitled to be subrogated to his rights and to realize them from the estate. The principle is that in cases of misconduct, where trustees are decreed to pay the costs of the suit, they cannot charge the expenses to the trust fund, on the ground that as the misconduct was personal, the posts are personal also, and must be borne by them personally, Attorney General v. Daugars (1864) 33 Beav. 621; 55 Eng. Rept. 509; Lathrop v. Smally 23 N.J. Eq. 192. Prima facie, therefore, where costs are given against parties who are trustees, they must be taken to have been given against them as trustees and not as individuals. We may refer also in this connection to the case of Brigel v. Tug River Coal Company 73 Fed 13. There certain trustees had instituted an action in respect of properties which they held as trustees. The court of first instance made a decree in their favour. The court of appeal reversed the decision on the ground that the first court had no jurisdiction to take cognizance of the suit and allowed costs to the defendants as against the plaintiffs. The question arose, whether this was a decree against the plaintiffs in their character as trustees or against them personally. It was ruled that the decree must be taken to have been made against them as trustees on the ground that their standing in the court was as trustees and as they had no other standing the decree could not be taken to have been made against them in their personal capacity. In our opinion, the position of a Hindu widow, so far as the present question is concerned, is not inferior to that of a trustee for she represents the estate fully and the only limitation upon her title is that she has a qualified right of alienation. Nobin Kishori, as we have already stated, commenced the litigation in her character as representative of the estate of her husband and for the benefit thereof, and the decree for costs must be taken to have been made against her in that character. 4. The learned Vakil for the appellant argued, however, that, even though the decree against her (sic) taken to have been made in a representative capacity, the execution proceedings show that the decree-holder did not intend to sell (sic) beyond her limited interest in the property and in support of this position he relied upon the cases of Baijun Doobey v. Brij Bhookun 1 C. 133; L.R. 2 I.A. 275; 24 W.R. 306, and Giribala v. Srinath 12 C.W.N. 769. In Our opinion, there is no force in this contention. The authorities on the subject were reviewed by this court in Rai Radha Kissen v. Naoratun Lal 6 C.L.J. 490 (519), and the rule laid down there is identical with what is deducible from Jotendro Mohun Tagore v. Jugul Kishore 7 C. 357; 9 C. L R. 57, which was confirmed by the Judicial Committee in Jugal Kishore v. Jotendro Mohun L.R. 11 I.A. 66; 10 C. 985. The principle is that in order:to determine the exact interest which passes at a sale in execution of a decree against a Hindu widow or a qualified proprietor similarly situated the test to be applied is whether the suit in which the sale was directed was brought against the widow upon a cause of action personal to herself or one which affect-ed the whole inheritance of the property in suit. Where it appears that the decree against the widow is in respect of the husband's estate and binds the reversionary heirs, the purchaser of her right, title and interest in execution takes the estate absolutely. No inference can be drawn from the circumstance that the sale-certificate describes the property sold as right, title and interest of the widow, because, as observed by Their Lordships of the Judicial Committee in many of the cases, although the right, title and interest of the widow had been sold, the whole interest in the estate was held to have passed and the reversionary heirs were held to be bound by it, because the suit had been instituted against the widow in respect of the estate or was for a cause which was not a personal cause of action against her. The decisions referred to by the learned Vakil for the appellant are clearly distinguishable. In Baijun Doobey v. Brig Bhookun Lal Awusti 1 C. 133; L.R. 2 I.A. 275; 24 W.R. 306, the suit was to enforce the personal liability of the widow and consequently the execution in that suit passed merely the widow's interest. The case of Giribala v. Srinath 12 C.W.N. 769, upon which reliance was placed on behalf of the appellant as well as the case of Kallu v. Faiyaz Ali 30 A. 394, similarly turned upon their special facts and in any event, if they lay down any rule inconsistent with the decision of the Judicial Committee in Jugal Kishore v. Jotendro Mohun Tagore L.R. 11 I.A. 66; 10 C. 985, we are not bound by their authority. On all these grounds, we must hold that in this particular case, in the circumstances we have set out, the execution sales upon which the title of the plaintiffs is founded passed not merely the limited interest of Nobin Kishori, but the entire estate and are consequently binding upon the reversionary heir and her representatives. 5. The third ground taken on behalf of the appellant raises the question of the extent of interest acquired by the plaintiffs by their purchase. It was argued that so far as the one-sixth share of Brojo Nath, one of the sons of Gopal Chandra, is concerned, the plaintiffs have not acquired any valid title. Brojo Nath, it appears, had executed a mortgage in respect of his share in favour of a person named Rameswar. The mortgagee obtained a decree on his mortgage on the 26th December 1888. The property was brought to sale in due course in the Original Side of this Court and on the 18th March 1893, Benoy Krishna Mitter purchased it in execution. Meanwhile on the 22nd July 1892, the plaintiffs had purchased at the sale held in execution of the decree for costs obtained by Kirti Bhusan the right, title and interest of Brojo Nath in the mortgaged properties. The question arises, whether the purchaser at the mortgage sale is not entitled to precedence. In our opinion the purchaser at that sale has acquired an indefeasible title which was in no way affected by the sale of the 22nd July 1892. It is now firmly settled, as laid down in the case of Surjiram Marwari v. Barhamdeo Persad 2 C.L.J. 288 at p. 300, that in the case of a mortgage suit lis continues after the decree nisi and the doctrine of Us pendens is applicable to proceedings to realise the mortgage after the decree for sale. Consequently in the case before us, the Us pendens continued down to the 18th March 1893, and the purchaser at the execution sale of the 22nd August 1892, was affected by it. In other words, when the mortgage-sale took place on the 18th March 1893, it passed the equity of redemption to the purchaser, although in the meanwhile it had been transferred from the mortgagor to the purchaser at the execution sale, who was no party to the proceedings and need not have been brought on the record. We may add that it appears to have been also suggested before the Subordinate Judge that the Court could not take notice of the mortgage sale as the sale certificate was not produced. This view is clearly wrong, for as pointed by this Court in Tantardhari Singh v. Sunder Lal Missor 7 C.L.J. 384, a purchaser of immoveable property at an auction sale can establish his title by evidence independently of the sale certificate, as a sale certificate does not create title but is merely evidence of title. In this case, however, the sale certificate has been produced before this Court and there can be no doubt that at the present moment the title acquired by Benoy Krishna at the mortgage sale is in full force and operation and must take precedence over the title acquired by the plaintiffs at the execution sale of 1892. We must hold consequently that the claim of the plaintiffs in respect of the one-sixth share of Brojo Nath must be disallowed. 6. The fourth ground taken on behalf of the appellant raises a question of estoppel. This question was not raised in the Court below and there are no materials on the record upon which this Court can be invited to decide it. We must not, however, be taken to hold that there is any substance in that contention. The plaintiffs have brought their suit within the Statutory period of limitation and it is, difficult to appreciate upon what principle they can be held to be barred because the judgment-debtors have been allowed to continue in possession of the property. The fourth ground must consequently be overruled. 7. The result, therefore, is that the decree of the Subordinate Judge must be varied to this extent, namely, the plaintiffs will have a decree for five-sixths of the 5 anna share of the tank with the bank and garden. Their claim in respect of the remaining one-sixth will stand dismissed. The parties will receive and pay costs in proportion to the extent of their success and failure throughout this litigation.

Brojo Nath Pal vs Juggeswar, Bagchi And Ors. on 20 January, 1909

Calcutta High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No.260 of 2000 Date of decision: 1 .12.2008 Rewti and another ....Appellants Vs. The State of Haryana and another ...RespondentsCORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: None for the appellants. Mr. Lokesh Sinhal, Addll. AG,Haryana RAJESH BINDAL J. For the detailed reasons recorded in RFA No.431 of 2000 titled as "State of Haryana and another Vs. Jaipal and another", vide separate order of even date, the present appeal is disposed of in the same terms. (RAJESH BINDAL) JUDGE 1.12.2008 amrit

Rewti And Another vs The State Of Haryana And Another on 1 December, 2008

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.521 of 2011 In (CIVIL WRIT JURISDICTION CASE 9742/2009) The Bihar State Electricity Board Versus M/S Iceberg Industries Ltd. &O ---------------------------------- with Letters Patent Appeal No.1490 of 2010 IN (CIVIL WRIT JURISDICTION CASE 7314/2008) Bihar State Electricity Board& Versus M/S Iceberg Industries Ltd.&Or ---------------------------------- with Letters Patent Appeal No.1491 of 2010 IN (CIVIL WRIT JURISDICTION CASE 4637/2008) Bihar State Electricity Board& Versus M/S Ice Berg Industries Ltd.&O ---------------------------------- 6 12-9-2011 Learned counsel appearing for Bihar State Electricity Board submits that the revised bill has been made ready and shall be served upon the consumer in course of the day. He prays for some time to come ready on that point. With consent of parties, let this matter be listed under the same heading on 21st. September, 2011. The case shall retain its position in the list. ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J) Naresh 2

The Bihar State Electricity Board vs M/S Iceberg Industries Ltd. &O on 12 September, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/8471/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR FIXING DATE OF HEARING No. 8471 of 2008 In FIRST APPEAL No. 2043 of 2005 ========================================================= RANMALBHAI ARJANBHAI AHIR - Petitioner(s) Versus JIVIBEN MANDANBHAI SADUL & 4 - Respondent(s) ========================================================= Appearance : MR CHETAN K PANDYA for Petitioner(s) : 1, None for Respondent(s) : 1, 1.2.1,1.2.2 - 2,4 - 5. MR MEHUL SHARAD SHAH for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 13/08/2008 ORAL ORDERHeard learned Advocate Mr. CK Pandya for the applicants original claimants. Learned Advocate Mr. Mehul Sharad Shah is appearing for the Insurance Company. Considering the prayer made in this civil application, First Appeal No. 2043 of 2005 is ordered to be fixed for final hearing on 18th September, 2008. Registry is directed to notify the said first appeal for final hearing on 18th Sept. 2008 accordingly. Accordingly, this civil application is allowed and disposed of with no order as to costs. (H.K. Rathod,J.) Vyas     Top

Author: H.K.Rathod,&Nbsp;

Ranmalbhai vs Jiviben on 13 August, 2008

Gujarat High Court