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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6125 of 2011 Rajesh Kumar Versus M/S Bharat Petroleum Corporation Ltd. & Ors. ----------- Harish (S.N. Hussain, J.) 04/ 07.07.2011 Learned counsel for the Corporation files counter affidavit. Learned counsel for private respondent no.5 appears. Let the pleadings of the petitioner and respondent nos. 1 to 4 be served upon him within two days. Heard learned counsel for the petitioner, learned counsel for the Corporation and learned counsel for the State of Bihar as well as learned counsel for private respondent no.5. Let this case be listed on 14.07.2011 under the same heading retaining its position. Let the other case with similar points, namely C.W.J.C. No.2186 of 2011 be also listed on the said date along with this writ petition. Till further orders Letter of Intent, if not yet granted, shall not be granted by the authorities of the Corporation to respondent no.5.

Rajesh Kumar vs M/S Bharat Petroleum Cor.Ltd. on 7 July, 2011

Patna High Court - Orders

ORDER Harish Chander, Member (J) 1. Collector of Customs, Bombay has filed an appeal being aggrieved by an order passed by the Collector of Customs (Appeals), Bombay. The notices of hearing listing the matters for hearing on 8-2-1990, 22-3-1990 and 6-6-1990 were sent. On 6-6-1990 a Misc. Order No. 46/90-B2 was passed. The Bench had directed the appellants to file photo-copies of the catalogue and it was further directed that if the respondents have got the catalogue they were at liberty to file the same. No body has appeared on behalf of the respondents. Accordingly, we proceed to decide the matter on merits. 2. Briefly, the facts of the case are that the respondents had filed two Bills of Entries vide B/E No. 320/119 dated 16-5-1981 and B/E 435/130 dated 19-6-1981. In B/E 320 dated 27-5-1981 the description was given as second-hand machine manufactured by M/s. Hatbur Metalforming Equipment, Switzerland Automatic multi-station nut making machine type PKZ1 and PKZ1 1/2 and in the other B/E viz. 435, the description was given as second-hand machine manufactured by M/s. Hatbur Metalforming Equipment Automatic multi-station nut making machine type BKE 10 Cold Header, PKE 16 cold header. Before the Asstt. Collector the respondents had claimed the benefit of Notification No. 40/78 read with Notification No. 268/88-Cus. The respondent had contended that the goods were covered by S. No. 12 of Notification No. 40/78. After examination and perusal of the catalogue/literature the Asstt. Collector took the view that none of the machines makes a complete nut but both the machines together make a nut. The Asstt. Collector had observed that two machines can complete nut not one individually. Both the machines although have two stations each but none of them is capable of making a nut by itself but each of them work in the process of making nut (i) forming but blank (ii) another giving final shape of nut from the blank. The Asstt. Col-lector had rejected the claim of the respondents on the ground that in the Notification the word is 'machine' and not 'machines' and notification would cover only that machine if it was capable of making complete bolt or nut in self-contained manner and accordingly he had rejected the respondents' claim for benefit of Notification No. 40/78. Being dissatisfied by the order passed by the Asstt. Collector the appeal was filed before the Collector (Appeals). The Collector (Appeals) had given an observation that so long as the function of both the machines was to make nuts and bolts automatically, he did not find any reason as to why the description at S. No. 12 should have been restrictively in-terpreted by the lower authorities. He had allowed the appeal being aggrieved from the aforesaid order, the Revenue has come up in appeal before the Tribunal. 3. Shri M.K. Sohal, learned JDR has appeared on behalf of the appellant-Collector. He has relied on the Order-in-Original and pleaded that the matter is covered by a judgment of the Tribunal in the case of Guestkeen Williams v. CC vide Order No. 192/87-B2 dt. 19-12-1987 in Appeal No. CD(SB)1516//84-B2 reported in 1987 (29) ELT 68 (Tri.) and further argued that since one machine cannot have independent automatic function for the making of nut and bold the benefit of Notification No. 40/78 read with Notification No. 268/88 cannot be extended. He has pleaded for allowing of the appeal. 4. We have heard Shri Sohal, learned JDR and have gone through the records. The description of the goods given in the B/E has been duly discussed above. Hon'ble Supreme Court in the case of Hem Raj Gordhan Dass Dave v. A.C. reported in 1978 (2) ELT J-350 had held that the Notification has to be construed strictly and there is no scope for intendment. We have also gone through the catalogue of the machine. Photocopy of the catalogue for both the machines is attached vide Annexure-A. In the B/E description has been given as automatic multi-station nut making machine whereas the figure Nos. 5 & 6 which are annexure with this order clearly states that finishing presses are two station machines with solid series being partly of vertical and partly of horizontal construction. The same issue had come up before the Tribunal in the case of Guestkeen Williams v. CC cited supra. In the grounds of appeal the appellant has made a prayer for grant of relief in respect of machine model PKE and no relief has been claimed for PKZ. While disposing of the appeal the Tribunal should not extend the scope of the appeal in view of the above discussion. We are of the view that the machine PKE is not entitled to the benefit of Exemption Notification 40/78. 5. In the result, the Revenue's appeal is allowed in terms of the prayer made in the grounds of appeal and the findings of the Tribunal are only confined to machine model PKE.

Collector Of Customs (Appeals) vs Fit Tight Nuts And Bolts Ltd. on 28 August, 1990

Customs, Excise and Gold Tribunal - Delhi

Court No. - 50 Case :- CRIMINAL REVISION No. - 2673 of 2010 Petitioner :- Mintu @ Pramod Respondent :- State Of U.P. & Another Petitioner Counsel :- Sushil Kumar Pandey Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J. This criminal revision is directed against the order dated 8.6.2010 passed by the Additional Sessions Judge/ F.T.C. No. 2, Muzaffar Nagar, in S. T. No. 1335 of 2007, State Vs. Mintu and others, whereby an application moved by the prosecution u/s 311 Cr.P.C. was allowed and the witnesses were summoned. It appears from the record that an application u/s 311 Cr.P.C. was also moved earlier to the present application and that application could not be decided. The complainant approached the High Court and a direction was issued by the High Court that the application u/s 311 Cr.P.C. be decided on day to day basis. This order was passed on 12.5.2010. However, before this order, the application had already been decided by the court on 2.4.2010 but that fact was not brought to the notice of the High Court. After the High Court's order another application 64Ga was moved, which was allowed. I have heard Mr. S. K. Pandey, learned counsel for the revisionist, learned AGA for the State and perused the record. It has been argued by Mr. Pandey that once an application u/s 311 Cr.P.C. was decided by the trial court on 2.4.2010 then there could be no propriety to decide that application again by a contradictory order on 8.6.2010. I do agree with this submission. It appears from the record that the order dated 8.6.2010 was passed in compliance of the order of the High court dated 12.5.2010. This order of the High court could be complied with only if the application u/s 311 Cr.P.C. would not have been decided earlier to the order of the High court and because that application had already been decided on 2.4.2010 i.e. prior to the order of the High court, hence there remained no application u/s 311 Cr.P.C. to be decided in the garb of the order of the High Court. Once the application for summoning the witness had already been decided on 2.4.2010, the High Court's order dated 12.5.2010 had taken its effect and the court cannot be said to be justified in taking up the matter for decision again. Thus, the order impugned in this revision is nothing but a nullity on which no action is required. Accordingly, this order is liable to be set aside. The revision is allowed and the order dated 8.6.2010 is set aside. The trial court is directed to go by the order dated 2.4.2010. Order Date :- 19.7.2010 Pcl

Mintu @ Pramod vs State Of U.P. & Another on 19 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 281"" DAY OF SEPTEMBER. 2010 BEFORE THE I-ION'BLE MR. JUSTICE B.sR1«:I«:NIvAs§«:':<3§?;';jv§mA Miscellaneous First Appeal No. 8844 of BETWEEN Gangamma, W/0. Balakrishna, Aged 49 Years, R/at. Jathila House. Balpa post and Village, Subrahmanya Post,"-. _ Su11iaTa11uk. 1 . = AV Appellant .1. R2ivi_nd._ra"'Reii; = _. A, S/0.4"G._Qpannei'.Raii. , Aged abcut 35VYears, ' 3-Residing at'uK'a1enja House V -.VS'L111ia"'Ta1uk, _Thef()rienta1 Insurance Co. Ltd., .. Branch Office, "Kiishna Prasad Building. Main Road, Puttur, Rep/ by its Manager. Respondents(By Sri. S. V. Hegde Mulkhand. Adv. for R2. R.1 -- Served] fir' This MFA is filed U] S 173(1) of l\/IV Act against the judgment and award dated 02.01.2007 passed in MVC No.1486/2002 on the file of Member. MACT, _l?_uttur, Dakshina Kannada, partly allowing the claim 'petition for compensation and seeking enhance_n'1*ent"'.,_'of compensation. L" '~ This appeal coming on for Orders,» Court, delivered the following: Junomefiil This appeal is by thelvclaiinantl'for&_Ven'ha'n?cement of compensation awaiedefc', by the vTri'ot'11a.al. 2. As there in filing the appeal, an condoning the said aeiewstg i l 3. offending Vehicle though entered llappearancellcn 7--8--1O and took time to file - ggobjfectiotis, faillefldwto file objections in spite of granting the appeal is considered both on the d.e1ayv'asV'i;vel1 as on merits .. ll '=----'l'he Tribunal by impugned judgment and award 2~»1-0'7 awarded compensation of Rs.60.000/- with interest at 6% pa. for the following injuries : «£335 i) Left lower limb on above knee POP case -- on removal lacerated sutured wound of 10cm length on posterior aspect of left thigh. ii) Sutured wound over the left joint 2 cm over left. iii) Sutured Wound over lateral malleio_';;1s,'_' r- " iv) Lacerated sutured wound on right arm. Clinically tear of right X--ray examination disClose--drno fraC~ture_. V 5. The claimant nlade"applicatlioiivfor; securing Certified copy of award Of tht? Tribunal on ten months and secured "day and filed this appeal on l4--1O--OQ.._4i§he..V aft.er'Aor1e:_".year one month from the date of the "cop_y_.__» In the affidavit filed in support of ' ;de1ayv._applie'ation, it is stated, the appellant is not able "to""n1ovev-Vftiduie to accidental injuries and later on, her hulsbaizidv fell ill and even today he is under treatment A n_for'~«_ill--health and therefore, she could not present this appeal in time. 6. The injuries sustained by the claimant do not disclose, she was bedridden and was prevented from moving out. Regarding 1'll-health of her husband, no documents are produced along with the app1icatl.oin..'for condoning an inordinate delay of 985 there is no ground much less, suffi_cient"c'a"us;e is ~ for condoning an inordinate delgay':'_A_o§If385 the appeal. 7. To know whether therevlljis._sco'pe.hfor-- enhancement, I have examined The claimant had sustained' the in a road traffic on" 18-7-02, for which a sum of Rs.6O,O'GOul/A --. which is close to just and re'-asonabie coi'np_ensation appeal is dismissed both on the " ground delay as Well as on merits. it .. dill'-tlohvorder as to costs. sa/... Judge -FVmgn*

Author: B.Sreenivase Gowda

Gangamma W/O Balakrishna vs Ravindra Rai S/O Gopanna Rai on 28 September, 2010

Karnataka High Court

ORDER S.S. Sekhon (T), Member 1. Spectacles frames at a declared value of Rs. 72,06,386/- were entered for export by M/s Polynova Chemical Industries on an average price of Rs. 602/- per frame, as declared. The valuation on market enquiries were determined to be between Rs. 24 to Rs. 55/- per frame. On the ground that excessive valuation was entered for recovery extra DEPB benefit of over Rs. 10 lakhs, show cause notice was issued to the appellants herein, ie the exporter & the supplier of the frames and the authorised signatory of the suppliers. The goods were provisionally released and exported. Full realisation of the amount, as per the declared values, has been received and evidence to that effect was shown to the adjudicator. The adjudicator however confirmed the charge of over invoicing & ordered the limiting of DEPB to Rs. 3,28,900/- as against Rs. 12,25,088/- claimed. A penalty of Rs. 5 Lakhs was imposed on the Exporters proprietor Shri Milan Shah, Rs. 2 on Shri Rajesh Poojari proprietor of M/s SR Enterprises the supplier, & Rs. 1 Lakh on Ms. Sujata Poojari who is alleged to be the authorised signatory of M/s SR Enterprises. Hence these appeals. 2. After hearing both sides and considering the issues and the material it is found:- a) The shipping Bill was filed on 3rd November 1998 whereas the Show Cause Notice was issued on 22nd November 1999 which is beyond the period of 90 days stipulated by Circular No. 69/97-Customs dated 8th December 1997 as modified by Circular No. 23/99-Customs dated 22nd October 1998. The said circulars are binding on the department held in the case of JG Exports v. CC-1999 (105) ELT 258. The Circular No. 23/99-Customs dated 11 May 99 relied upon by the Commissioner and which empowers the Commissioner to extend the said period of 90 days for reasons to be recorded in writing came into force after the period of 90 days in the present case as prescribed had already expired in Feb 1999. In any case no order recording in writing reasons for extending the period had been passed in the present case nor any notice was issued to the Appellants proposing extension of the time period to issue the notice. b) As regards the value of the export goods for the purposes of the Customs Act 1962 it is held- i) It is clearly laid down by the Larger Bench Bench of the Honourable Tribunal in the case of Om Prakash Bhatia v. CC-2001 (127) ELT 81 that the value of the export goods for the purpose of Section 50 of the Customs Act 1962 means, that value as determined under Section 14 (1) of said Act, accordingly it is only when the declared FOB value is found not to be in accordance with Section 14(1) then the question of confiscation of the goods under Section 113 (d) and consequent imposition of penalty under Section 114 could arise. As per Section 14(1) the value is deemed to be the price at which such goods or like goods are ordinarily sold or offered for sale for delivery at the time and place of export in the course of international trade. Thus the export value, has to be the price at which the goods are exported in the course of international trade full foreign exchange payment for the exports have been recovered. In the present case the department has not produced any evidence whatsoever to impugned the export price of goods as exported in the course of international trade full foreign exchange payments for the exports have been recovered. What the department had disputed is the "local market value" by producing evidence of a quotation and a cash memo for a local sale in India and not of a sale for export of goods in international trade. The judgment of the Tribunal in case of Om Prakash has been upheld by the Supreme Court as reported in 2003 (155) ELT 423 in which the Supreme Court clearly held that the value of the export goods has to determined under Section 14 (1). Export value cannot be caused to be Upset by & on "Local Market value" evidence. There is no reason to arrive at mis-declaration of export value & draw any adverse consequences thereto. ii) Apart from the fact that the department has not produced any evidence of contemporary exports at lower higher or different price, the full declared export FOB value has been received by the Appellants and the Bank Realisation Certificates have been duly submitted, therefore the declared FOB value is demonstrated & proved by the Appellants to be the true sale consideration between the Appellants and the Foreign Buyers. The Supreme Court has in paragraph 21 of the judgment in the case of Om Prakash Bhatia observed that the exporter in that case did not lead any evidence to show that the declared export value represented the true sale consideration. In the present case the Appellants have submitted evidence of realization of the entire declared export value which shows that the same was the true sale consideration. Therefore the Ld.DR reliance on Om Bhatia case cannot help the Revenue. iii) In the following cases, it is laid down that where evidence is led by exporter to show full realization of the export value and there is no evidence led by the department to prove money laundering, it cannot be said that there was overinvoicing of the export value under Section 14 (1): Shilpi Exports v. CC-1996 (83) ELT 302-upheld by the Supreme Court In 2000 (115) ELT A 219 S. Chandra Sekharan v. CC--2001 (132) ELT 751-upheld by Supreme Court in 2003 (154) EX.T.353. c) No satisfactory evidence led by the department to even establish that the present local market value was less than declared is found as follows i) As the goods in the present case were examined by the Examining Officer, Mr. Himani who gave his report that the same type of goods are available with two Opticians whose names and addresses were mentioned in the report and the prices ascertained by the Examiner were far higher than those determined in the impugned order, this report was withheld in the show cause notice. It leads, to, a conclusion, exhibition of Departmental bias to somehow make out a case by suppresso versi. The Commissioner in paragraph 21 of his order admits that there was such a report, by the examiner, but chooses to disregard the same on the ground that it is based on oral inquiry. No inquiries or efforts were made by the investigating officers with the said two opticians to question or prove as incorrect the report of the examiner, or it can be concluded that they have been made and found to be not. incorrect & therefore not relied, on such a plea made. ii) On the other hand the Commissioner has relied upon a quotation obtained through oral enquiry and a cash memo which gave no details of the goods to which they relate. The goods covered by the said quotation and cash memo as also sample or the goods sought to be exported by the Appellants were never shown to any experts or person dealing in those goods to arrive at a conclusion that goods quoted & on sale memo and export consignment were of same quality/standard. The Commissioner has merely gone by his subjective satisfaction that the Appellants' goods are similar to those goods, as in the quotations & the invoice. Such an approach has been held to be not maintainable by the Tribunal in its decision in Sir Kasturchand P. Ltd v. CC-2001 (131) ELT 269, and by the Supreme Court in Hindustan Ferodo Ltd v. CCE-1997 (89) ELT 16 (SC). Moreover it is well settled & trite law to say that quotation are not acceptable evidence for transaction values to be dismissed. Reliance on a sale invoice, which is solitary & suspected to be covering the very same goods cannot be permitted. iii) The confessional statement of the Appellants proprietor dated 25th August 99 was retracted by letter dated 26 August and is clearly contrary to his two earlier statements dated 6th April 99 and 30th June which were exculpatory. Therefore it is to be held that the present local market values as alleged & found by the Adjudicator cannot be accepted. iv) The Ld Advocate for the appellants have argued on the provision in para 7.36 A of the hand book of procedures on Exim Policy 1997-2002, & questioned the jurisdiction of the Custom Authorities to determine the DEPB wherein they have held as follows: After hearing both sides and considering the material it is found - (a) The provisions regarding DEPB Scheme are contained in Paras 7.14 to 7.17 of Import-Export Policy, 1997-2002 (April, 2000 Edition). The procedure regarding applying for DEPB and obtaining credit are contained in Paras 7.38 to 7.53 of the Handbook of Procedures, Vol. 1. During the period in question, DEPB on post-export basis alone was to be granted. The provisions regarding grant of DEPB credit on pre-export basis have been deleted during the periods in question. Perusal of the relevant policy paras reveal that when the exporter, exports the goods under cover of DEPB Shipping Bills. At the time of export, the Customs Department will examine the goods vis-a-vis the description given on the shipping bill to ensure that the goods described on the shipping bill alone are actually exported. The Customs Department would also verify the FOB value declared by the exporter with regard to Present Market Value (PMV), and hand over the Export Promotion Copy of Shipping Bill to the Exporter. (b) The exporter after realising the export sale proceeds, will apply to the prescribed authority in the office of the Director General Foreign Trade Ministry of Commerce (herein after refer to a DGFT) in the form prescribed in Appendix 11C of the Handbook of Procedures, along with prescribed documents, such as Export Promotion Copy of Shipping Bills, export realisation certificate. The applicant also indicates the product description and the rate of credit available to the said goods as per the rate prescribed by the DGFT in the DEPB Schedule. The DGFT issue Duty Entitlement Pass Book licence and a Pass Book after scrutiny of the application form in Appendix 11C. The DGFT grants the DEPB rates, as claimed, on the export goods, which had been verified by the Customs Department. The credit given in the Passbook can be utilized for payment of duty on the imported goods. At the time of payment of duty on the imported goods debit the Passbook, the Customs once again verify the DEPB Licence. (c) The Central Board of Excise and Customs vide Circular dated 17-4-97 has described the procedure to be followed under DEPB Scheme. In its circular dated 3-6-1997 in paras 1 and 2 the Board has directed as under. "Attention is invited to Circular No. 10/97-Cus. dated 17-4-97 whereby detailed guidelines for operation of duty entitlement passbook scheme were issued. The said circular provides for the exporters to declare in the shipping bill the serial number of the export products in the public notice issued by the DGFT and the rate claimed. It was further provided that correctness of this declaration should be verified by processing the shipping bill and also at the time of examination of the goods. This matter has been re-examined. It has been decided that the role of customs authorities should be confined to verification of correctness of exporter's declaration regarding description, quantity and FOB value of the export product. It will be for the licensing authorities granting credit to ensure that credit is permitted by them at the correct rate as notified by the DGFT." (d) The CEGAT in the case of M.K. Fisheries v. Commissioner of Customs - 2002 (150) E.L.T. 998 has held in Para 5 as under : "............ Therefore we find that while the Customs cannot sit in judgment over any decision regarding quantum of DEPB to be credited in the passbook, yet in all fairness justice require that if the Customs find any variation between the description of the goods as declared on the shipping bill and as declared in terms of public notice issued by the Customs House for the same consignment they would be entitled to bring such discrepancy to the notice of the DGFT and await for further orders on the quantum of credit to be given under DEPB from DGFT." Similar view was taken by the Calcutta High Court in the case of Kanhaiya Exports v. Commissioner of Customs -2001 (133) E.L.T. 280 with regard to verification of the documents. This decision of the Calcutta High Court has been confirmed by the Division Bench of High Court as reported in 2001 (133) E.L.T. 537. (e) In this view of the policy, procedure instructions and the law, in the matter of DEPB, we cannot uphold the decision arrived at by the Commissioner to have impugned the exports and come to a finding that the exports made in this case were not entitled to DEPB under serial No. 86 of the Product Code 83 of the DEPB Schedule. Since all that was required, in the case was for the Commissioner to have reported the matter to the DGFT authorities and not sit in judgments over the grant and or determine entitlement of DEPB which were not within the jurisdiction of the Customs to do so. The order of determination of the eligibility or otherwise of DEPB as made in this case cannot be upheld. (f) The DEPB Schedule describe PC Boards' without any qualification or restrictions. Relying on the case of Atari (India) Electronics - 1990 (45) E.L.T. 321 it could be held that both kinds of Circuit Boards i.e. plain or unpopulated or printed and populated could be covered as PC Boards. The Commissioner has come to a finding 'In fact the items imported was fully assembled item to be used as an add on card for computer' is a finding arrived without any material or expert agencies reports on record. Para 1 of the impugned order reads as - ".......... Examination of the goods by the customs officers showed that goods were misdeclared. The item being exported was not a PC board as claimed, but was a Populated Printed Circuit Board containing various components and was infact a fully assembled component of computer system. The goods were infact thus found to be Populated PCB. 'Mercury multimedia KOB N 620, Graphic Processor with 32 MB memory size optimized for Pentium III SSB and AMD-3D NOW. The item is also described as Graphic Accelerator. The packing list also showed that the goods were described by the exporter as 'Graphic Accelerator Multimedia for graphic processing and video acceleration purposes for enhanced screen resolution, colour depths and refresh rate'. This description was not appearing either in the invoice or in the Shipping Bill. It, therefore, appeared that the goods were misdeclared with an attempt to claim DEPB that was not available. ............." These charges, as made and how the goods constitute to be an add on card and why add on card cannot be a PCB, have not been clearly and conclusively established by giving reasons in the findings. The declaration in the Shipping Bills need not always be in technical details explaining the functions. It is not brought out in the order that the packing list was suppressed or kept away from the Customs Officers. In fact the declaration made on the Shipping Bill, as seen from Para 1 of the impugned order was 'Printed Circuit Board Double Sided (AGP Card TNT2/M84)'; which would indicate that the 'Card nature' with technical specification was indeed declared. The charge of misdeclaration therefore cannot be upheld. (g) The finding of the Commissioner that Rule 14 of the Foreign Trade (Regulation) Rules, 1993 especially Sub-rule (2) thereof read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 the goods should be deemed to render the export goods, prohibited goods and therefore liable for confiscation under Section 113(d) and 113(i) of the Customs Act, 1962 on consideration is found to be not correct interpretation of law. Even if the alleged misdeclaration finding is to be upheld. It is found that Foreign Trade (Regulation) Rules, 1993 issued vide Ministry of Commerce Notification No. GBR 791(E), dated 30-12-1993 have been issued under the powers confirmed by Section 19 of the Foreign Trade (Development and Regulation) Act, 1992 by the Central Government and not under the powers which would be exercised by the Central Govt. to issue an order under Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992, which would vide Sub-section (3), would then deem then to be a prohibition under Section 11 of the Customs Act, 1962. Besides of Rule 14(1) and 14(2) of Foreign Trade (Regulation) Rules, 1993 on a plain reading, would cover declaration for obtaining a licence and import any goods and DEPB's would not be covered by the word 'Licence' as defined in the Foreign Trade (Development and Regulation) Act, 1992. A claim for DEPB export would not be a declaration for import. In this view of the matter, the liability for confiscation of the goods, being prohibited goods, under Section 113(d) and/or 113(i), as brought out by the Commissioner cannot be upheld. Confiscation arrived at under Section 113(d) or/and 113(i) cannot be upheld. (h) Ones goods are not found to be liable for confiscation, penalty under Section 114(i) of the Customs Act, 1962 cannot be sustained. The penalty imposed is required to be set aside. In view of the forgoing, herein, the order is set aside and appeal allowed. v) Nothing contrary, has been shown to the above view. No orders on DEPB eligibility could be made by the Commissioner vi) The penalty and redemption fine imposed in this case cannot be up held. 3) Consequent to the findings herein the order is required to be set aside and appeals allowed. Ordered accordingly. (Pronounced in Court on 10/09/2004)

Polynova Chemical Industries, ... vs Commissioner Of Customs on 10 September, 2004

Customs, Excise and Gold Tribunal - Mumbai

ORDER Shri G.A. Brahma Deva, M(J) 1. Case called. None appeared on behalf of the appellants inspite of the Notice. It appears that the party is not interested in pursuing the appeal. Accordingly, the appeal in hereby dismissed for non-prosecution. (Pronounced & dictated in the open Court)

M/S Falma Laborities (P) Ltd., ... vs Commissioner Of Customs & ... on 19 February, 2001

Customs, Excise and Gold Tribunal - Bangalore

[Section 8] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCA/3696/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3696 of 2010 ========================================================= AHMEDABAD MAHILA NAGRIK SAHAKARI BANK LTD(IN LIQUIDATION) - Petitioner(s) Versus PARNA INDUSTRIES LTD & 4 - Respondent(s) ========================================================= Appearance : MR DHARMESH V SHAH for Petitioner(s) : 1, None for Respondent(s) : 1 - 5. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 29/03/2010 ORAL ORDER Issue Notice returnable on 29.04.2010. (Smt. Abhilasha Kumari, J.) ~gaurav~     Top

Author: Abhilasha Kumari,&Nbsp;

Ahmedabad vs Parna on 29 March, 2010

Gujarat High Court

H»: KARNATAKA HIGH COURT czacurr BENCH, A*r5§U :9-3'éxfiG5;.«"T % Daieé this the 831 day of x A Bcfm _ _ . % THE HGN'BLE MR.JusTIc3j;;-.:s;ARAYAr~m. W P No. 40:07 of2f)(i£5'v{S?~--~.§§ESj Between: Chandrakaia D/0 Manilcrao H . U » Aged about 25 ye.:arS, "~. b if V. Occupation: AngaflWezd§§A;Assfistant,;' ~ At Anganwac1i'Centitj- No}§2,"-- -- , Marahalli, M % Taluka as District Bidar; _ V» " Petitioner (By Sri K M .§}i1:;;té$V'r'Z4ic§.:rt>\r::é::e) And: ' ' V" H V I 1; "rag Biztctor, 'W?«:ax'3':1e:;1's.._&&.A C3}1iid3fe::1's Welfare Multistoxy Building, '*»'-mécihi, ' . VBangak>re.A._ ' . 'I.'heJai3;1t Sizector, T i'!0mc:'iz's as Chiidren's r. _V - . f:W¢';,;I:fare Department, % ;S=v1barga- ~ ... . 'I'}::e Chief Secretary, Zilla Panchayat, Bidar. 4. The Assistant Director, Women's 65 Chiisdrexfs Welfare Department, - Bidar. 5. The Chiid Development, Pro3'ec::1:Oficer, Bidar. " _ '~R¢spond§nts (By Sri N Kumar - Advmm.-zxié) Writ Petitioxl is flied seekifig fiiofice issued by the respondent No.55 xr2',de dajicd 1j.9g'&7»/ 2008.dfi """ . ak % Judge ts that ., V' to _"pe%.£f:i0:J¢e.r.< " is disiacséd the This Writ fcfi my heaziing before the Court today, $340131"?Ifiééifiihé'--ffiflfivyiing; { 'Q§QER: The 1ear§1:::d"{'xoVcr;fi1§g§n§f is dimctcd to take notics, The pefitionvéi" ,.'¢1:tV.-aAzs'ci1ail*2211§ed the endorssgment issued by the a11€1..«s0ugj11v{"f£§r quashing the same. She submits that 3:352': 'as an Anganawadi Sahayala' can 29/5;' 2008 ,_ asf per s:'u1c:e than she has been Working. Dasggitg '7T§h€ same, has been issued by the 55" resmndent an ' afiezgaiiions that she has possessed Balavikasa making false sfaatcmem. The petitienar submits tha': gjaiggfions made: in A1mcxure~E is false and fztivoleus and .};$ef(31§.é doing so, no Gpportuxflty has been giving' The learned adéiiionai Government Advoca necessary direction couid be issued to 113:: 541:2: A f5é3;3ojnd t~§:fi2_ appropriate order after afiorfiing full oppo In View of the above, writ 431 nespondem to afford an ogpor1:u13ity pass appropriate csrder.

Author: L.Narayana Swamy

Chandrakala D/O Manikrao vs The Director Wormens And ... on 8 August, 2008

Karnataka High Court

Gujarat High Court Case Information System Print CR.MA/15471/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15471 of 2007 ========================================================= BALVANTBHAI GOVINDBHAI SINGAPURI Versus LAVJIBHAI BHAGWANBHAI PATEL AND ANOTHER ========================================================= Appearance : MR BC DAVE for the Applicant MR MEHUL H RATHOD for Opponent No.1 MR RC KODEKAR, ADDL PUBLIC PROSECUTOR for Opponent No.2 ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 04/07/2008 ORAL ORDER The applicant has already been granted regular bail. That being the position, the application for cancellation of bail does not survive and, therefore, the application is dismissed. Rule is discharged. (BHAGWATI PRASAD, J.) omkar     Top

Author: Bhagwati Prasad,&Nbsp;

Appearance vs Unknown on 4 July, 2008

Gujarat High Court

Gujarat High Court Case Information System Print FA/290720/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2907 of 2008 With CIVIL APPLICATION No. 7690 of 2008 ========================================================= SUNDARAM FINANCE LTD. - Appellant(s) Versus SHIV SHAKTI TRANSPORT COMPANY PROPRIETOR MR. B.R.YADAV & 1 - Defendant(s) ========================================================= Appearance : MR DHARMESH V SHAH for Appellant(s) : 1, None for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/07/2008 ORAL ORDER Admit. Learned advocate for the appellant shall supply paper book. It will be open to the appellant to move for early hearing after paper book is supplied. (K.S. JHAVERI, J.) ORDER IN CIVIL APPLICATION NO. 7690 OF 2008 Learned advocate for the applicant does not press this application at this stage. Civil application therefore stands disposed of as not pressed. (K.S. JHAVERI, J.) Divya//     Top

Author: Ks Jhaveri,&Nbsp;

Sundaram vs Shiv on 22 July, 2008

Gujarat High Court

[Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCA/12337/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12337 of 2009 ========================================= SAURASHTRA CHEMICALS LTD - Petitioner(s) Versus BABY VISHA DHANDHUKIA & 1 - Respondent(s) ========================================= Appearance : MR AK CLERK for Petitioner(s) : 1, MR TR MISHRA for Respondent(s) : 1, NOTICE UNSERVED for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/01/2010 ORAL ORDER Fresh Notice returnable on 15.2.2010. Interim relief to continue till then. (S. R. Brahmbhatt, J.) sudhir     Top

Author: S.R.Brahmbhatt,&Nbsp;

Saurashtra vs Baby on 21 January, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.589 of 2011 SHARDA DEVI Versus THE STATE OF BIHAR & ORS ----------- AMIN/ (Ajay Kumar Tripathi, J.) 2 22/06/2011 Learned counsel for the State is granted eight weeks' time to file counter affidavit. Let this matter be listed thereafter.

Sharda Devi vs The State Of Bihar & Ors on 22 June, 2011

Patna High Court - Orders

JUDGMENT Chandra Reddy, Offg. C.J. 1. These appeals arise out of an order of our learned brother SATYANARAYANA RAJU, J. directing public examination of directors, past and present, of a banking company, called the "Vijaya Commercial Bank Limited" (now in liquidation), under section 45G of the Banking Companies Act (X of 1949) and a similar examination of the officers of the bank under section 196 of the Indian Companies Act, 1913. 2. This concern was started in December, 1944, under the provisions of the Indian Companies Act. By order, dated 19th January, 1954, the High Court of Judicature at Madras directed the liquidation of the bank at the instance of one of its creditors. Pursuant to the winding up order, an official liquidator was appointed on the same day. He submitted a preliminary report in January, 1954, and a further report on 28th September, 1956, stating that, in his opinion, loss was caused to the bank by reason of certain acts or omissions of the directors which were set out in his report. On the strength of the report and after considering the several objections raised on behalf of the directors and the officers concerned, the order under appeal was passed on 6th December, 1957. 3. In support of these appeals, the main contention urged is that section 45G of the Banking Companies Act is ultra vires the Constitution of India in that it violates article 20(3) of the Constitution. The contention put forward at the forefront of the argument is that the appellants are deprived of the immunity granted under article 20(3) by reason of section 45G of the Banking Companies Act. To appreciate this submission, it is necessary to refer to the terms of section 45G of the Banking Companies Act and article 20 of the Constitution. Section 45G of the Banking Companies Act is in these word. "(1) Where an order has been made for the winding up of a banking company, the official liquidator shall submit a report whether in his opinion any loss has been caused to the banking company since its formation by any act or omission (whether or not a fraud has been committed by such act or omission) of any person in the promotion or formation of the banking company or of any director or auditor of the banking company. (2) If, on consideration of the report submitted under sub-section (1), the High Court is of opinion that any person who has taken part in the promotion or formation of the banking company or has been a director or an auditor of the banking company should be publicly examined, it shall hold a public sitting on a date to be appointed for that purpose and direct that such person, director or auditor shall attend thereat and shall be publicly examined as to the promotion or formation or the conduct of the business of the banking company, or as to his conduct and dealings, in so far as they relate to the affairs of the banking company." 4. Article 20 of the Constitution reads: "(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself." 5. The stress of the argument on behalf of the appellants is that section 45G of the Banking Companies Act is repugnant to article 20(3) of the Constitution in that it contains a provision enabling a court to compel a director of a banking company to give self-incriminating evidence and consequently the offending section of the Act should be struck down. It is urged that in order to attract the operation of article 20(3), it is sufficient if there is some kind of accusation against a person and not necessarily that he should be charged with a crime. The immunity contemplated by clause (3) of article 20 applies to civil proceedings as well, continues the learned counsel. The basis of this submission is a decision of the Supreme Court of the United States in McCarthy v. Arndstein, and also the judgment of a single Judge of the Calcutta High Court in Calcutta M. & C. Company v. Collector of Customs. In the first of the cases cited above, it was ruled that the provision of the Federal Constitution of the United States giving protection to a witness against self-incrimination covered the examination of a bankrupt for the purpose of obtaining possession of property belonging to his estate. We feel that the case went too far in extending the privilege conferred by the American Constitution in this behalf. The protection referred to is embodied in the Fifth Amendment of the American Constitution which reads: "No person shall be held to answer for a capital, ............ nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; ................" 6. As pointed out by Willis on the Constitutional Law of the United States, the reason that induced the Judges to extend this prohibition even to civil proceedings is the fact that even before the Fifth Amendment the Legislature should have intended to enlarge this right. In this connection, it is apposite to extract the relevant passage from the treatise at page 518. "Extent of the privilege. - A casual reading of the guaranty against self-incrimination would suggest as its obvious meaning that it applies only to oral testimony in a criminal proceeding by the accused defendant himself. However, the common law after 1688 excluded an accused from the witness-stand, and the Fifth Amendment did not overrule this principle of the common law. Hence, the stipulation in the Constitution for his immunity became pointless. Therefore, the Supreme Court, in order to make the constitutional provisions sensible, gave a meaning to the guaranty different from its obvious meaning. In determining the new meaning the court went back to the common law meaning, and lifted the common law doctrines beyond the reach of ordinary legislation. Hence, the distinction between an accused and others was dropped and a new distinction between oral testimony and other evidence was developed. However, after thus reading the common law into the Constitution, the Supreme Court in turn departed from the common law, first in coupling up the Fourth and Fifth Amendments so as to exclude evidence illegally obtained, and again in extending protection to witnesses as well as to the accused."The passage at page 49 of the American Jurisprudence (Vol. 58) is also instructive in this behalf in that it sets out the limits within which the Fifth Amendment has to be applied, and may be read. "As already observed, the various constitutions provide that no person shall be compelled in any criminal case to be a witness against himself. This prohibition against compelling a person to take the stand as a witness against himself applies only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offence, but not a proceeding in which the penalty recoverable is civil or remedial in nature. It applies to the preliminary hearing of a criminal case before a committing Magistrate, to an investigation by a grand jury, which is a criminal case within the rule, and also to an examination of the accused or cross-examination during an investigation in the jury's absence as to the voluntariness of a confession. But such a constitutional provision does not preclude compulsory examination of the defendant in other proceedings, so long as his right to refuse to answer questions rending to incriminate him is not infringed. It does not apply, for example, to a remedial proceeding in a probate court to recover embezzled or concealed assets of an estate. Moreover, it is to be noted that some constitutional provisions stipulate that no person shall be a witness against himself; such a provision is stronger than the provision of the Fifth Amendment to the Federal Constitution, and does not limit the right to criminal cases." 7. It is to be remembered that this constitutional protection originated from the common law of England. The origin and the history of this doctrine are traced by the Supreme Court of India in M.P. Sharma v. Satish Chandra. It was the inquisitorial methods adopted by the Court of Star Chamber in the exercise of its criminal jurisdiction that gave birth to this doctrine (of protection against self-incrimination) which later on developed into various kinds of protections granted to an accused. Both the Fifth Amendment and the principles embodied in article 20 of our Constitution have their source in the common law of England. Therefore, the interpretation as given to this rule in English Courts has also a great bearing on the problem before usIn English law, a bankrupt has to surrender books and papers containing incriminating evidence, which means that the privilege regarding self-incriminating evidence is not extended to him. We do not see how that position differs from the examination of a bankrupt for the purpose of obtaining possession of property. BRANDEIS J. in McCarthy v. Arndstein tried to sustain the distinction between the two by observing thus. "The books and papers of a business are a part of the bankrupt estate. Section 70A(1). To permit him to retain possession, because surrender might involve disclosure of a crime, would destroy a property right. The constitutional privilege relates to the adjective law. It does not relieve one from compliance with the substantive obligation to surrender property." 8. We find it difficult to yield assent to this distinction. We feel that the proposition is too broadly stated in McCarthy v. Arndstein, and the constitutional protection envisaged by the Fifth Amendment was unduly extended. That this rule did not command universal approval in American courts is to be seen from the decision in United States of America v. Sullivan. In that case, a person engaged in illicit traffic in intoxicating liquor refused to make a return for income-tax purposes on the ground that it would subject him to a criminal prosecution. HOLMES J. who delivered the opinion of the court overruled the objection on behalf of the assessee remarking. "It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorised a man to refuse to state the amount of his income because it had been made in crime." 9. The learned Judge further observed as follows: "He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the Government blank would bring him into danger of the law."In this context, it would not be out of place to refer to a passage in the treatise on Constitutional Law of the United States by Willis at page 524 which sets out the abuses that might arise out of unduly enlarging the scope of the Fifth Amendment. This is what the learned commentator says. "Reform needed. - As we have seen, self-incrimination did not at the common law mean what it does to-day. The clause has undoubtedly been expanded too much and is giving too much protection to the accused. It is obstructing the power of the States to obtain necessary evidence. The plea is most frequently raised in case of crimes of a fraudulent or secret nature like bribery, election frauds, gaming, income-tax evasions, extortion, kidnaping, abortion, liquor-selling, keeping houses of illfame, and conspiracies to prevent the administration of justice. It is defeating the administration both of the criminal law and civil law. It does not protect against the third degree where protection is needed, and it does protect against testimony where protection is not needed. It came into the common law by indirection. It is not one of the great forms of liberty. Its presence in the Constitution is an accident. The original intent was evidently to protect the accused in an actual prosecution against him." 10. The learned author also suggested how to balance between too much expansion of this doctrine and providing the safeguards for the innocent. 11. Mr. Jagannadha Rao has invited our attention to another decision of the Supreme Court of the United States of America in Charles Counselman v. Frank Hitchcock. This is not of much assistance to him. All that was laid down therein was that the constitutional protection envisaged by the Fifth Amendment extended to an investigation by a grand jury of alleged violations of certain Acts of Congress and was not limited to a criminal case pending before a court of law. That the Fifth Amendment applies only to a criminal proceeding is disclosed by the following observations. "This provision (Fifth Amendment) must have a broad construction in favour of the right which it was intended to secure. The matter under investigation by the grand jury in this case was a criminal matter, to inquire whether there had been a criminal violation of the Inter-State Commerce Act. If Counselman had been guilty of the matters inquired of in the questions which he refused to answer, he himself was liable to criminal prosecution under the Act. The case before the grand jury was, therefore, a criminal case." 12. Further down in the judgment, BLATCHFORD J. who delivered the opinion of the court remarked: "But this provision distinctly means a criminal prosecution against a person who is accused and who is to be tried by a petit jury ......." It is entirely consistent with the language of article 5 that the privilege of not being a witness against himself is to be exercised in a proceeding before a grand jury." 13. This decision, far from rendering any assistance to the appellants, brings out the distinction between criminal and civil proceedings. In that case, the object of the grand jury was to ascertain whether any crime was committed. 14. Be that as it may, the law as propounded by the highest court in our land is that the immunity does not extend to civil proceedings. We feel that the fact that the answers given by a person might tend to subject him to a criminal prosecution at a future date will not attract the protection envisaged by article 20(3). In other words the fact that the answers might involve a disclosure of crime or that they might form the basis of prosecution in future, would not make any difference. It looks to us that the indentment of this article was to afford some protection to a person involved in a crime, having regard to the predicament in which he would be placed and that is revealed by the juxtaposition of that clause. It was ruled by the Supreme Court in Maqbool Hussain v. State of Bombay, that the proceedings contemplated by article 20 are of the nature of criminal proceedings before a court of law or a judicial tribunal. BHAGWATI J. who delivered the judgment on behalf of the Bench, observed as follows: "The very wording of article 20 and the words used therein : 'convicted', 'commission of the act charged as an offence', 'be subjected to a penalty', 'commission of the offence', 'prosecuted and punished', 'accused of any offence', would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which crates the offence and regulates the procedure." 15. It is true that their Lordships of the Supreme Court were concerned with the interpretation of article 20(2) of the Constitution, but the passage extracted above applies to the whole of the article. This view was adhered to by the Supreme Court in Venkataraman v. Union of India. In that case, the decision in Maqbool Hussain v. State of Bombay, was referred to as laying down that the words used in article 20(3) afford a clear indication that the proceedings that the article governs are proceedings of a criminal nature. 16. Mr. Chandrasekhara Sastry cited to us another judgment of the Supreme Court in M. P. Sharma v. Satish Chandra, as rendering support to the theory that even civil proceedings fell within the ambit of article 20, if they should expose the party deposing to prosecution at a later stage. We do not find anything in that judgment which lends any colour to this proposition or annotates any proposition different from that contained in Maqbool Hussain v. State of Bombay. That was a case in which the first information report was already lodged with the Inspector-General of Delhi, Special Police Establishment. In such a situation, the question arose whether the search and seizure would interfere with the right of an accused conferred by article 20(3) of the Constitution, and their Lordship answered it in the affirmative, as, in their opinion, article 20(3) was not confined to a criminal case actually pending before a court of law or a judicial tribunal. In fact, JAGANNADHADAS J. who delivered the judgment on behalf of the Bench, made it abundantly clear, that it was a right pertaining to an accused. We may, in this connection, extract the passage in which the learned Judge summed up the position pertaining to this article"Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components. (1) It is a right pertaining to a person 'accused of an offence'; (2) it is a protection against 'compulsion to be a witness'; and (3) it is a protection against such compulsion resulting in his giving evidence 'against himself'. The case with which we are concerned have been presented to us on the footing that the persons against whom the search warrants were issued were all of them persons against whom the first information report was lodged and who were included in the category of accused therein and that therefore they are persons 'accused of an offence' within the meaning of article 20(3) and also that the documents for whose search the warrants were issued, being required for investigation into the alleged offences, such searches were for incriminating material." 17. The last sentence of the passage leaves no room for doubt that the legislative intent was only to give protection to the person who is accused of a crime. To interpret it as applying to all proceedings, civil or criminal, which might at a subsequent period expose the person concerned to prosecution on the basis of answers given by him, is to enlarge the scope of this article and to defeat justice. To stretch this prohibition to civil cases, would be to put a premium on dishonesty. We do not think that this is the purpose underlying article 20 and the intention of the Constitution makers. 18. Coming to the decision in Calcutta M. & C. Company v. Collector of Customs, we find that it was held that the proceedings contemplated by article 20(3) of the Constitution include civil proceedings also. We think that it is not in consonance with the principle enunciated above. It is not necessary for us to met every one of the reasons adduced by the learned Judge in support of his conclusion, since we have already indicated as to why article 20(3) could not be extended to civil proceedings. We are not able to agree with the learned Judge's reading of the Supreme Court decision in M. P. Sharma v. Satish Chandra. It is also interesting to note that the learned Judge had reached an opposite conclusion in an unreported case referred to in that judgment, and we are not convinced that the reasons given by him for departing from his earlier conclusion are quite sound. In Calcutta M. & C. Co. v. Collector of Customs, acting under section 172 of the Sea Customs Act, 1878, warrants were issued for the search of the premises in which the firm in question was carrying on business and the Customs Authorities made searches and seized and took into their possession certain goods, documents and files, etc. Then they laid information before the police and police investigation was proceeding. The authorities concerned also summoned one of the partners of the firm to appear before them for the purpose stated in the notice issued in exercise of there powers conferred on them under section 171A of the Sea Customs Act. The validity of section 171A of the Sea Customs Act was challenged in so far as it enabled the Customs Authority to ask a person who was accused of an offence to give evidence, and, or to produce documents which are likely to incriminate him. This objection found favour with the learned Judge for the reason that though the Customs Authorities could not in the immediate proceedings before them punish the person concerned with more than confiscation or penalty, still it should be held that he was accused of an offence since the authorities would been titled to initiate proceedings before a magistrate which might result in a conviction and a sentence of not exceeding two years or fine or both. We are not here concerned with the justification of the actual decision of the case, since it is stated that the partners of the firm were charged with having committed an offence. Exception can be taken only to the general observations that are contained in the judgment. We may also refer to the judgment of MUKHERJI J. in In re Central Calcutta Bank Ltd., which accords with the view expressed by us aboveWe must also negative the contention of Mr. Chandrasekhara Sastry that the aim of public examination of directors under section 45G of the Banking Companies Act is to find out what crimes have been committed by the directors. It is not so much for the purpose of involving the directors in criminal cases that the official liquidator invokes section 45G of the Banking Companies Act as to try to ascertain the financial position of the concern with the help of the answers that they would give and to realise all the assets of the bank concerned. Even otherwise, as we have already state, article 20(3) of the Constitution would not come into play when the directors are sought to be examined under section 45G and there is no inconsistency or repugnancy between section 45G of the Banking Companies Act and article 20(3) of the Constitution. Section 45G is intra vires of Constitution and was validly enacted by the Legislature and it is not unconstitutional. 19. A special plea was put forward by Mr. Manavala Chowdhari in O.S.A. No. 5 of 1957 that section 45G would not be attracted to the case of a person who has ceased to be a director before the liquidation of the bank. The learned counsel urges that this section applies only to directors who were in office at the time when the Act came into force, which was 30th December, 1953. We think that this argument is inadmissible and is devoid of substance. The point of time with reference to which the applicability of section 45G is to be judged, is the winding up of the concern. This is how the section commences. "Where an order has been made for the winding up of a banking company ............." 20. So, the relevant date is the date of there winding up and the continuance in office of a particular director at that time is not quite material. We may also point out that section 45V of the Act clearly brings within the scope of section 45G even ex-directors by enacting thus: "For the removal of doubts it is hereby declared that any reference in this part to a director, manager, liquidator, officer or auditor of a banking company shall be construed as including a reference to any past or present director, manager, liquidator, officer or auditor of the banking company." 21. Further, the report to be submitted by the official liquidator would cover all transactions from the inception of the bank. That being so, we do not see how a person could escape liability or could get immunity from being examined under section 45G by the mere accident of his having vacated the office by the time the concern was wound up. It may be that under the old law a director would render himself liable to be examined publicly only if loss was occasioned to the banking company by fraud having been committed. But we are not concerned with the difference between the old and the new law, the only relevant consideration being whether section 45G of the Banking Companies Act would apply to all directors, past and present, irrespective of whether or not they happened to be in office at the time of the liquidation. Therefore, the objection raised on behalf of the director who has filed O.S.A. No. 5 of 1957 is also overruled. 22. We are then left with the cases of an agent of a branch of this bank at Nuzvid and an assistant secretary of the bank at the head office, who are the first and the second appellants respectively in O.S.A. No. 4 of 1957. The point raised by Mr. Krishnamurthy in this behalf is that the applicability of section 45G should be confined only to directors and not to agents of the bank or to an assistant secretary since the section envisages a report (as to whether any loss has been caused to the banking company since its formation by any act or omission) only of persons concerned in the promotion or formation of the banking company or of any director or auditor of the banking company, and that an agent and an assistant secretary who might have come to be associated with the bank at a later stage would not be comprehended within the compass of the section. The learned counsel maintains that the cognate provision in the Indian Companies Act, 1913 (Act VII of 1913), namely, section 196, should be deemed to have been repealed by reason of section 2 of the Banking Companies Act which provides that: "The provisions of this Act shall be in addition to, and not, serve as hereinafter expressly provided, in derogation of, the Indian Companies Act, 1913 (Act VII of 1913), and any other law for the time being in force." 23. The learned counsel contends that all public examinations in regard to the affairs of a bank are expressly provided for in section 45G and, to that extent, section 196 of the Indian Companies Act has been superseded. 24. To appreciate this contention, it is necessary to extract the provisions of section 196 of the Indian Companies Act. Section 196 reads: "(1) When an order has been made for winding up a company by the court, and the official liquidator has applied to the court stating that in his opinion a fraud has been committed by any person in the promotion or formation of the company or by any director or other officer of the company, in relation to the company since its formation, the court may, after consideration of the application, direct that any person who has taken any part in the promotion or formation of the company, or has been a director, manager or other officer of the company shall attend before the court on a day appointed by the court for that purpose, and be publicly examined as to the promotion or formation or the conduct of the business of the company, or as to its conduct and dealings as director, manager or other officer thereof." 25. There are some important difference between section 45G of the banking Companies Act and section 196 of the Indian Companies Act. To attract section 196 of the Indian Companies Act, it is essential that "a fraud should have been committed by any person in the promotion or formation of the company or by any director or other officer of the company ........." before public examination could be ordered, whereas, under section 45G of the Banking Companies Act, it is enough if loss has been caused to the banking company since its formation by any act or omission. Another important difference between the two sections is that while the notes of examination reduced to writing could be used in evidence against the party so deposing in civil proceedings under section 196(7) of the Indian Companies Act, section 45G(8) of the Banking Companies Act in that behalf is more comprehensive in that the notes of evidence could be used against him even in criminal proceedings. It is true that the use of notes of evidence in criminal cases is not specifically excluded by section 196 of the Companies Act, but by necessary intendment that is the effect of it. If the question arises as to whether it is section 196 of the Companies Act 45G of the Banking Companies Act that would be attracted in the case of a director or other person falling under section 45G, surely it is section 45G that prevails in view of the language of section 2 of the Banking Companies Act. But that does not conclude the matter because section 2 specifically lays down that the provisions of the Banking Companies Act shall be not in derogation of the provisions of the Indian Companies Act, but shall be in addition to or supplementary to the latter Act. So long as there is not provision in section 45G to apply to the officers of the company, it cannot be said that there is any repugnancy or inconsistency between section 196 of the Indian Companies Act and section 45G of the Banking Companies Act. Since section 45G is silent as regards the officers of the banking company, we have to look to section 196 of the Indian Companies Act. It means that it is the latter provisions that applies to the officers of the concernMr. Krishnamurthy then fell back upon the definition of "an officer" in section 2(11) of the Companies Act which defines an officer as including any director, managing agent, manager or secretary but, save in sections 235, 236 and 237, does not include an auditor. It is argued that an agent of a branch and assistant secretary would not answer the description of "an officer" within the purview of section 2(11). We find it very difficult to give effect to this contention. It is to be noted that this is an inclusive definition and does not exhaust all persons that come within the ambit of it. To hold that an assistant secretary or an agent of a bank is not an officer is to deprive the expression of its full content. The word "officer" is of wide connotation and includes assistant secretaries or agents of all the branches. 26. In Buckley's Companies Act, twelfth edition, page 681, the following passage occurs: "The word 'officer' is not to be confined to a person who has in some way or other control over the assets of the company. A person who by the terms of his appointment is made and called an officer, who is appointed by the company, paid by the company, and whose function is to act on behalf of the company, to check the directors, and whose appointment is made, not on a special occasion for a special limited purpose, but under regulations governing the constitution of the company, is an officer." 27. For these reasons we cannot uphold this objection also. 28. It follows that the order of Mr. Justice SATYANARAYANA RAJU is a correct one and does not call for interference. The appeals are therefore dismissed with costs. Advocate's fee Rs. 100 in each case. 29. These original side appeals having been set down this day for being mentioned the court made the following ordersThe official liquidator is permitted to draw out costs from the estate in the first instance and thereafter to recover the same from the appellant.

Author: C Reddy

Mallela Suryanarayana And Ors. vs Vijaya Commercial Bank on 28 March, 1958

Andhra High Court

ORDER N.D. Raghavan, Judicial Member 1. This is an appeal of the assessee against the order dated 7-2-1986 of the Appellate Assistant Commissioner of Income-tax on the effective ground that the Tribunal may be pleased to condone the delay of nearly two months in filing the form for registration and direct the grant of registration which the Appellate Assistant Commissioner has failed to do. 2. The facts of the case are briefly these M/s. Padmasri Rice Mill originally came into existence through a deed of partnership dated 11-9-1979 consisting of six partners including two minors admitted to the benefits of partnership. The assessee firm was granted registration for the first time for the assessment year 1981-82. A fresh deed of partnership was again executed on 20-2-1981, as one of the minors became major electing to become a partner of the firm. This deed of partnership along with Form Nos. 11 & 11A were filed before the assessing officer on 28-3-1981 seeking registration of the firm for the assessment year 1982-83. The firm as reconstituted was granted continuation of registration for the assessment year 1983-84. There was again a change in the constitution of the firm during the course of the accounting year relevant to the assessment year 1984-85 as one of the partners retired from the firm as per the retirement deed dated 10-9-1982. The firm closed its books of accounts on 10-9-1983. Form Nos. 11 & 11A along with the deed of partnership in original were received from the assessee on 5-11-1983. Thus there was a delay of two months in submitting the application for registration. The assessing officer refused to accept the explanation submitted by the assessee for condoning the delay and passed order under Section 184(4) of the Income-tax Act rejecting the request. On appeal it was dismissed by the Appellate Assistant Commissioner as not maintainable under Section 246 of the Act. The order dated 7-2-1986 was served upon the assessee on 19-2-1986. Subsequently the assessment was reopened by issue of notice dated 4-4-1986 under Section 148 of the Act which resulted consequently in determination of the total income at Rs. 1,36,790. It resulted in a tax demand of Rs. 76,869 for which demand was raised by the assessment order dated 22-3-1989. Immediately thereafter the firm submitted the present appeal before the Tribunal on 3-4-1989. 3. The learned representative for the assessee submitted that : The orders of the authorities below are contrary to law, facts of the case, probabilities of the circumstances and weight of evidence. Genuineness of the firm was never doubted by the assessing officer. Refusal to grant registration is only on account of delay in submitting the application for registration. As a matter of fact, the firm was granted registration for the earlier years, It had undergone a change in its constitution due to retirement of one of the partners in the earlier firm. This change in the constitution of the firm was brought about at the beginning of the previous year relevant to the assessment year under appeal. Banking authorities had granted a term loan on the security of the assets of the firm. Partnership deeds were considered as title deeds and were retained with the bank. The assessee came to know of the situation after close of the previous year. Consequently he rushed to the bank for claiming return of the partnership deed. He submitted the application for registration late by nearly two months only. The authorities below should have considered the assessee's situation and accepted its explanation for condoning the delay to grant registration to the firm. The appellate officer has not disposed of the appeal on merits and directed the assessing officer to condone the delay and grant registration. The view taken by the appellate officer is a short-sighted one. He wrongly took into consideration only the existing facts but did not imagine the future contingencies as has happened in this case. The assessment was reopened under Section 147 and the reassessment resulted in a total income of Rs. 1,36,790 giving rise to tax demand of Rs. 76,869 on the assessee. Hence the delay of nearly two months only has to be condoned and registration of the firm has to be directed to be granted. 4. At the outset before giving reply to the submissions of the assessee on the merits of the appeal, the learned representative for the Revenue strongly raised his preliminary objection on the ground that this appeal itself before the Tribunal was time barred by more than 3 years. The assessee itself has computed the delay in its affidavit filed before the Tribunal as has also been admitted by the registry in 1079 days. Being the delay running to more than 3 years, the appeal is time barred outright and this has to be dismissed in limine. There is no satisfactory explanation for such inordinate and huge delay by the assessee. 5. He has also added that even on merits, the assessee has no case. Earlier registration has no effect for the year in question. Conduct of the assessee is of delaying nature. Even before the assessing officer when he applied for registration it caused delay of merely two months which is therefore rightly rejected by the assessing officer. The appellate officer too correctly confirmed such rejection by the Income-tax Officer and dismissed the appeal as being not maintainable. The addition made in the assessment under Section 144 was not challenged as the issue was not agitated at the relevant time when he ought to have done. In any event either for registration purposes where he has been sleeping over his right for nearly two months or even at the threshold of this proceeding praying for condonation of inordinate delay of more than three years for the duration of which too the assessee has been in coma, the prayer of the assessee has to be rejected outright. 6. On the other hand, the learned representative for the assessee issued a strong rejoinder to the stand taken by the Revenue on counts of both preliminary objection and merits that It is absolutely wrong to state that the assessee is in the habit of delaying the matters. By adopting the technique of delay nothing is there for the assessee to be achieved excepting to land itself at a disadvantageous position. Registration was denied only for the assessment year 1984-85. Because the income was determined at nil the assessee thought it was futile to exercise himself to take up the matter on appeal to the Appellate Tribunal against the impugned order before reopening of the assessment. Only when the assessment was reopened which resulted in determining the total income at Rs. 1,36,790 and giving emergence to a tax demand of Rs. 76,869, the assessee became aggrieved and at that point of time only. Had there not been such reopening of assessment and lax demand, there is no necessity for the assessee to come in appeal against the order impugned as the income disclosed by the assessee at nil was accepted by the assessing officer. That apart on the merits of the case the delay caused was nearly two months alone that too for justifiable reason. The relevant partnership deed was considered as document of title by the banking institution while granting term loans to the assessee. The assessee could not obtain the partnership deed in time so that application for registration could be submitted to the Income-tax Officer. However, application for registration along with the deed obtained in November 1983 was submitted to the Income-tax Officer on 15-11-1983 itself. It is only this delay that has to be condoned for the purpose of granting registration, on the merits of the case. As far as the preliminary objection of the revenue is concerned, it is meaningless to advance the argument by the revenue that the appeal is time barred by more than three years as the assessee had nothing to lose for appealing against the order impugned as soon as it was received since, as has already been submitted, the income disclosed for the year in question at nil was also accepted by the Income-tax Officer in toto. 7. He has also drawn support to his stand for condoning the delay either on merits or on the preliminary objection of the Revenue, from the decisions of the Hon'ble Supreme Court in the case of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi [1979] 118 ITR 507 and in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 besides the decision rendered by the Hon'ble M.P. High Court in the case of CIT v. Khemraj Laxmichand [1978] 114 ITR 75 at 78 particularly referring to another decision of the Hon'ble Supreme Court in the case of Mata Din v. A. Narayanan AIR 1970 (SC) 1953 which was extracted therein, as also the decision of the Hon'ble Punjab and Haryana High Court in the case of Manoj Ahuja v. IAC [1984] 150 ITR 696 at 701. He ultimately concluded by praying that in any event either on preliminary objection or on the merits of the case, the submissions of the revenue have no iota of substance. He thus prayed for the allowance of the appeal. 8. Learned representative for the revenue answered the assessee by slating that the cases relied upon by him have no applicability to the instant appeal and reiterated his objections on both counts. 9. We have heard the learned representative for the assessee and the revenue on both the counts of preliminary objection taken as well as the merits of the case, besides going through the facts of the case on record and the orders of the authorities below including the citations relied upon by the assessee. At the outset, we shall now take up the preliminary objection raised regarding the appeal being time barred. 10. The decision of the Hon'ble Supreme Court of India in the case of Mst. Katiji (supra) holds that power to condone delay for 'sufficient cause' is for doing substantial justice and that the Courts should have a pragmatic and liberal approach. The expression 'sufficient cause' is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice, that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. Every day's delay must be explained does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. 11. The facts of the case of Khemraj Laxmichand (supra) are these. A delay in application for registration was condoned and the firm was granted registration by the Appellate Asst. Commissioner and this order was confirmed by the Tribunal. In doing so, the Tribunal relied on the following facts. It was not the revenue's case that the firm was bogus or had no legal existence. The assessee was a firm of repute. The firm had been granted registration year after year. In 1961, the new partners joined the firm. A fresh deed was executed in 1963, with retrospective effect from Diwali 1961. The delay in application was due to the mistake of the counsel who had been looking after the income-tax work of the assessee for over 20 years. On a reference, the High Court held that the question whether the mistake of the counsel was bonafide being one of fact and that the Tribunal having come to the conclusion that the lapse on the part of the counsel was bonafide, the Tribunal was justified in condoning the delay and upholding the registration of the firm. 12. The sum and substance of the submissions of the assessee focussed emphatically was that there was no deliberate or wanton delay or lapse due to culpable negligence or mala fide on the part of the assessee in the instant case and that the mistaken advice of the earlier counsel to the assessee as has happened in this case will constitute a ground sufficient for condonation as held in the case of Manoj Ahuja (supra). The mistake that has happened in the instant case was a bonafide one had there is no ulterior motive which therefore deserves condonation as per the decision in the case of Concord of India Insurance Co. Ltd. (supra). The grievance of the assessee is that only when the matter was said to be reopened and huge tax demand was raised as a result of the re-assessment, the assessee hastened to file this appeal against the order with a delay of nearly two months in filing the application for registration. 13. If sufficient cause for excusing delay is shown discretion is given to the Court to condone the delay and admit the appeal. This discretion has been conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice vide Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361. The expression 'sufficient cause' is not defined hut it must mean a cause which is beyond the control of the party invoking the aid of the section [vide Ashutosh Bhadra v. Jatindra Mohan Seal AIR 1954 Cal. 238 at 239]. Any cause which prevents a person approaching the Court within time is sufficient. In doing so it is the test of reasonable man in normal circumstances which has to be applied (vide 1979 (All.) LJ 70). The test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention. In other words, whether it is bona fide cause, inasmuch as nothing shall be deemed to be done bona fide or in good faith which is not done with due care and attention, [vide Hisaria Plastic Products v. CST AIR 1980(A11.) 185]. The words sufficient cause should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fide is imputable to a party. The application for condonation of delay containing substantially all the relevant material and is supported by affidavit shows that there has been sufficient cause for condonation (vide 1979 Cr LR (Mah) 475 at 478). What may be sufficient cause in one case may be otherwise in another. What is of essence is whether it was an act of prudent or reasonable man. 14. In the instant case, we do not find that the stand of the Revenue is that the firm was a bogus one or had no legal existence. The firm was earlier granted registration. Afterwards due to change in the constitution of the firm fresh deed was executed. The copy of the deed could not be produced before the assessing officer along with the application for registration as it could not be immediately obtained as it was deposited with banking institutions as title-deed for having raised loans on account of which there was delay of nearly 60 days. When such delay was not condoned by the assessing officer, he had gone on appeal before the appellate officer. The Appellate Asst. Commissioner has dismissed the appeal as not maintainable and observed that he did not find any reason why the assessee could be aggrieved against determination of its status as URF when it does not make any difference either to the assessee or to the assessing officer if the status of the assessee is taken as URF or RF when for the assessment year in question viz. 1984-85, the assessee's total income was disclosed at nil which was also accepted by the Income-tax Officer. He has also given his finding that the assessee can file an appeal as per the provisions of Section 246 only when he is aggrieved and that he could not see any grievance of the assessee in the appeal before him. Thus he found that there was no need to adjudicate on the grounds of appeal raised before him. The assessee was given a mistaken advice that no appeal is necessary to be filed against such impugned order when his income disclosed for the assessment year in question was accepted by the Income-tax Officer. Thus the mistaken advice and the wrong findings of the Appellate Asst. Commissioner impressed the assessee that he was not aggrieved at that stage. He found that he was really aggrieved only when received the notice demanding tax of Rs. 76,869 pursuant to action taken under Section 148 in the reassessment on total income of Rs. 1,36,790 as per the order dated 22-3-1989. Immediately thereafter, the assessee firm submitted the present appeal before the Tribunal, thus resulting in the cropping up of grievance on 24-3-1989 when such assessment order dated 22-3-1989 was served on the assessee. Thus the instant appeal was filed by the assessee firm on 3-4-1989. 15. Indeed the relevant Section 253 which deals with the appeals to the Tribunal employs the word "aggrieved" i.e. (a) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-.... Therefore, only on the date when the reassessment order was served on the assessee, the assessee, according to him in accordance with the above section, became aggrieved and not on the date when the order impugned was served upon him i.e. 19-2-1986. To this extent, the order impugned clearly supports the stand of the assessee as it specifically gives a finding that the assessee can file an appeal as per the provisions of Section 246 only when he is aggrieved and that the appellate officer did not find any grievance of the assessee is the appeal before him in view of the fact that when the assessee's total income was disclosed at nil it was accepted by the Income-tax Officer. That apart, we find that there was also an affidavit filed by the assessee showing reasons for the delay, unlike the Department where no counter affidavit has been filed in the event of which it is not open for the revenue to brush aside the averments in the affidavit by merely stating that the assessee's averments are untrue [vide Lekh Raj. v. Fourth Addl. District Judge AIR 1982 (All.) 265]. There has been no negligence or any inaction or want of bona fide that could be imputed to the assessee. The moment he came to know that he has been aggrieved by the order of reassessment, he has filed the second appeal against refusal to grant registration supported by affidavit with all the relevant materials for the delay to be condoned. Right of appeal is a substantial right and it cannot be lightly thrown out, especially on the facts and circumstances of the case herein, to prevent the party from exercising such a valuable right. 16. It will be relevant and pertinent to quote here the principles laid down by the Hon'ble Supreme Court in the case of Mst. Katiji's case (supra): (i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. (iv) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (vi) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 17. On the peculiar facts and circumstances of the case now before us and in view of all the reasons aforesaid in the light of the decisions referred to above, we give a clear finding that the period up to 24-3-1989 on which day the grievance of the assessee cropped up by receiving the reassessment order resulting in the recomputation of total income at Rs. 1,36,790 emerging with tax demand of Rs 76,869, as against the total income determined at nil earlier, from 19-2-1986 when the appellate order dated 7-2-1986 dismissing the appeal not adjudicating the grounds therein regarding registration was received, well deserves to be condoned though the period of delay is more than three years especially when the impugned order declares that it has not adjudicated the appeal on the grounds raised therein and also has given wrong impression to the assessee that he would not be aggrieved. 18. We note that the order impugned has not dealt with the merits of the appeal before the Appellate Asst. Commissioner. It states that in the event of the assessee's total income being disclosed at nil which was accepted by the Income-tax Officer, it does not find any reason why the assessee could be aggrieved against the determination of its status as U.R.F. and it does not make any difference either to the assessee or to the Income-tax Officer if the status of the assessee is U .R.F. or R.F. and that the assessee could file an appeal as per the provisions of Section 246 of the Act only when he is aggrieved. Having the appeal been not adjudicated on the ground raised before the Appellate Asst. Commissioner as per his own such finding in his order, we are not giving our finding on the merits of the case i.e. as regards the question whether the delay of nearly two months in filing the application for registration of the firm in the proper proforma along with partnership deed before the Income-tax Officer be condoned or not. We, therefore, set aside the impugned order and restore the matter to the Appellate Asst. Commissioner himself to adjudicate the grounds raised in the appeal before him after giving real opportunity to the assessee and examining the facts and issues in the appeal before him particularly keeping in view the ratio of the aforesaid decisions and in the light of the discussions made hereinabove as regards preliminary objections dealing with the question of law for condonation. 19. In the result, the appeal is allowed for statistical purposes.

Padmasri Rice Mill vs Income-Tax Officer on 29 April, 1991

Income Tax Appellate Tribunal - Hyderabad

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 92 of 2009() 1. M/S.KERALA VYAPARI VYAVASAYI EKOPANA ... Petitioner Vs 1. P.ITTY PAUL, AGED ABOUT 60 YEARS, ... Respondent 2. STATE OF KERALA, REPRESENTED BY PUBLIC For Petitioner :SRI.MATHEW SKARIA For Respondent :SRI.MILLU DANDAPANI The Hon'ble MR. Justice P.Q.BARKATH ALI Dated :26/03/2010 O R D E R P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.92 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010 JUDGMENT Crl.Appeal.No.92/09 Page numbers  Challenge in this appeal by the complainant is to the order of Judicial First Class Magistrate I, Ernakulam dated October 29, 2008 dismissing the complaint for the absence of the complainant and acquitting the accused under Section 256(1) Cr.P.C. 2. The facts in brief are these : The complainant filed a private complaint before the trial court alleging offence under Section 138 of Negotiable Instruments Act. When the case was posted for the evidence of the complainant on October 29, 2008, he was absent. There was also no representation on his behalf. Therefore, the trial court dismissed the complaint and acquitted the accused. The complainant has now come up in appeal challenging the said order of the trial court. 3. Heard the counsel for the appellant/complainant and the counsel for the first respondent/accused. Crl.Appeal.No.92/09 Page numbers 4. Counsel for the appellant/complainant submitted that the person representing the complainant mistakenly went to Judicial Magistrate of First Class II, Ernakulam and by the time when he came back, the case was called and the complaint was dismissed and that there is no wilful negligence on the part of the complainant. The above submission made by the counsel for the appellant is seriously opposed by the counsel for the first respondent/accused. On gong through the records and on hearing the submissions made by the counsel for appellant and first respondent, I feel that the complainant should be given a chance to prove his case before the trial court, as according to the complainant, the cheque was issued by the accused for the amount due under a business transaction. Therefore, I feel that the appeal can be allowed on payment of cost of Rs. 1000/- to the first respondent/accused. Cost paid. The Appeal is allowed. The impugned order of the trial court dismissing the complaint is set aside. The trial court is directed to take the complaint on file and proceed in accordance with law. The trial court shall dispose of the case as early as possible, but  Crl.Appeal.No.92/09 Page numbers not later than six months from the date of receipt of a copy of this judgment. Parties shall appear before the trial court on April 20, 2010. P.Q.BARKATH ALI JUDGE sv.

M/S.Kerala Vyapari Vyavasayi ... vs P.Itty Paul on 26 March, 2010

Kerala High Court

ORDER Archana Wadhwa, Member (J) 1. Vide the impugned Order, the Commissioner of Customs (Prev.), Patna has confiscated 31 bags of betel nuts claimed to be belonging to the appellant. 2. As per the facts on record, the Patna Customs seized the 31 bags of betel nuts alleged to be of foreign origin from Farakka Express Train when the same reached Patna Junction. The adjudication order is also in respect of another seizure of 68 bags of betel nuts from Brahmputra Mail and in the present appeal, I am not concerned with the same. As such, I am dealing only with the appellant's claim with respect to 31 bags. 2a. After seizure of the betel nuts on 5-11-99, the appellant, Shri Sunderlal vide his letter dated 12-1-2000 claimed ownership of the goods in question and submitted the requisite papers along with the railway receipts to the Revenue. However, it was noticed that the goods were booked by one Shri Niranjan Nath of Silchar and Shri Akash Dev of Delhi. On investigations, neither the consignor nor the consignee could be located. The appellant was directed to produce the said persons. He submitted that since he possessed the railway receipts duly endorsed by the consignor/consignee in his name, he was the real owner of the goods covered under the said railway receipts as per the provisions of Section 74 of the Railway Act, 1989. He also deposed that he had collected the betel nuts in question from the local growers of Assam and had arranged the booking through the local man as a consignor and arranged for getting delivery of the same through a local man made as a consignee. The said persons had endorsed the railway receipts in his name. So he was entitled to claim the ownership and contest the case. 3. It is seen from the impugned order that the Commissioner has observed as under :- "Shri Niranjan Nath and Shri Akash Dev are the consignor and consignee for the betel nuts claimed by Shri Sundarlal, and Shri Ajay Kumar is consignor/consignee of the betel nuts claimed by both Shri Ratan Das and Shri Kian Kumar Jain. But the official consignors/consignees never appeared before the Customs Authorities to claim the betel nuts in question. On investigation, their addresses were found to be fictitious/non-existent. Thus, when the genuineness of consignor/consignee is not ascertainable or established, no validity can be given to the claims of the holders of RRs/PWBs. How can the agents be genuine when the actual official owners are non-existent/fictitious? I, therefore, hold the claims of ownership over the betel nuts by the appellants as untenable and liable to rejection." 4. The appellant has challenged the above finding of the adjudicating authority on the ground that as per the provisions of the Railway Law, the person who produces the railway booking receipt, is entitled to get delivery of the goods. Inasmuch as the RRs are in the possession of the appellant, he is the actual owner of the goods in question. Alternatively, it has been pleaded that when the consignments are booked by Railways, Railways remain the owner, in which the goods are delivered at the destination against the production of the relevant documents. My attention has been drawn to the provisions of Section 74 of the Railways Act, 1989. The Railways are not concerned with the person as to who is the actual consignor or consignee. They are only concerned with the RRs/PWBs and may deliver the goods to anyone who surrenders the railway documents. As such, the counsel for the appellant submits that inasmuch as there is no finding of the lower authority about the foreign origin of the betel nuts and their smuggled nature, the Revenue is duty-bound to return the goods to the Railways from whose possession it had seized the same and the Railways would decide about the delivery of the same in accordance with their laws. 5. From the impugned order, I find that the adjudicating authority has rejected the appellant's claim by doubting his ownership of the same. However, while doing so, he has not adverted to the provisions of the Railway Act, 1989. The appellant is claiming that he was in the possession of the railway receipts on the basis of which he can claim the goods from the Railways. Even otherwise, I find that the provisions of Section 110(2) of the Customs Act, 1962 provided for return of the seized goods to the person from whose possession, the same are seized and as such, the appellant's request that the goods may be returned to the Railways from whose custody the same were seized, is required to be looked into. As such, I set aside the impugned Order and remand the matter to the Commissioner for fresh decision in the light of the observations made above. Appeal is thus allowed by way of remand.

Sunderlal vs Commissioner Of Customs (Prev.) on 21 October, 2002

Customs, Excise and Gold Tribunal - Calcutta

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP No. 2405 of 2002() 1. P.A.GOKULAN, S/O.AYYAPPANKUTTY, ... Petitioner Vs 1. LITTLE FLOWER KURIES AND ENTERPRISES ... Respondent 2. P.UNNIKRISHNAN, S/O.NARAYANAN NAMBIAR, For Petitioner :SRI.BABU CHERUKARA For Respondent :SRI.JIMMY JOHN VELLANIKARAN The Hon'ble MR. Justice PIUS C.KURIAKOSE Dated :12/09/2007 O R D E R PIUS C. KURIAKOSE, J. ------------------------------- C.R.P. No. 2405 OF 2002 ----------------------------------- Dated this the 12th day of September, 2007 O R D E R The 1st respondent decree holder is already served with notice. The issue can be decided with the petitioner and the 1st respondent already served. This Civil Revision Petition need not be treated as defective. 2. In this Civil Revision Petition under Section 115 of the Code, the petitioner who is the second judgment debtor impugns the order of the learned Munsiff attaching his salary to the extent of Rs.1,800/- per mensem for 24 months. This court became inclined to grant stay only subject to the condition that attachment will operate to the extent of Rs.800/- per mensem from out of the salary of the petitioner. The order of stay was passed as early as on 13.11.02. The total decree debt, it is seen was around Rs.26,000/- only. Obviously, the Execution Petition was proceeding against other judgment debtors also. In all probability, the decree debt has been realised. Even otherwise, I do not find any infirmity about the impugned order which seems to have been passed on the basis of some materials placed before the Execution Court regarding the attachable portion of the petitioner's salary. I dismiss the Civil Revision Petition. However, I permit the  CRP No. 2405 of 2002 2 petitioner to produce his latest salary certificate before the court below and seek modification of the impugned order. PIUS C. KURIAKOSE, JUDGE btt  CRP No. 2405 of 2002 3

P.A.Gokulan vs Little Flower Kuries And ... on 12 September, 2007

Kerala High Court

Gujarat High Court Case Information System Print SCA/14578/2010 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14578 of 2010 ============================================= ANIL MADHUBHAI RATHOD (CHHARA)THROUGH COUSIN BROTHER - Petitioner(s) Versus STATE OF GUJARAT NOTICE TO BE SERVED THRO' & 2 - Respondent(s) ============================================= Appearance : MRKASHYAPRKODEKAR for Petitioner(s) : 1, MR LR PUJARI ADDL. GOVERNMENT PLEADER for Respondent(s) : 3, RULE SERVED BY DS for Respondent(s) : 1 - 2. ============================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 02/12/2010 ORAL ORDER1. Heard learned counsel for the parties. 2. This petition is directed against the order of detention dated 16.9.2010 passed by the respondent No.2 in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "the Act") by detaining the detenue as a "bootlegger" as defined under Section 2(b) of the Act. 3. Learned counsel for the detenue submits that order of detention impugned in this petition deserves to be quashed and set aside on the ground that two incident alleged against the detenu are not of such magnitude and intensity as to have the effect of disturbing the public order so as to pass an order under Section 3(1) of the PASA Act. He has further submitted that the detaining authority has not applied his mind to the vital facts and there was non-application of mind before recording the order of detention. In support of the above contention, the learned counsel has relied upon the following case-laws: Judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram: M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent Appeal No.223 of 2000 in Special Civil Application No.554 of 2000 (Ashok Balabhai Makwana vs. State of Gujarat); Piyush Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme Court 491 Om Prakash vs. Commissioner of Police and others, JT 1989 (4) SC 177 Kanuji S. Zala vs. state of Gujrat ando thers, 1999 (2) GLH 415. 4. Learned AGP for the respondent-State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue, indicating that the detenue is in the habit of indulging into activities as defined under Section 2(b) of the Act and, considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court. 5. Having heard learned counsel for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the four FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of Section 2(b) of the Act unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing the public order at the instance of such person. In view of the ratio laid down by the Hon'ble Supreme Court in the decisions cited by the learned counsel for the petitioner, the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of the public order and at the most fall under the maintenance of "law and order". 6. In the result, this Special Civil Application is allowed. The impugned order of detention dated 16.9.2010 passed by respondent No.2, is quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case. Rule is made absolute accordingly. Direct service is permitted. (ANANT S. DAVE, J.) //smita//     Top

Author: Anant S. Dave,

Anil vs State on 26 August, 2011

Gujarat High Court

Court No. - 32 Case :- CRIMINAL MISC. WRIT PETITION No. - 15204 of 2008 Petitioner :- Keshav Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Sudist Respondent Counsel :- Govt. Advocate Hon'ble R.K. Agrawal,J. Hon'ble S.C. Agarwal,J. It has been stated by the learned Addl. Government Advocate that the charge-sheet in this matter has been filed. Filing of the charge-sheet would mean that the allegations in the FIR have been prima-facie corroborated by evidence collected during investigation. In such a situation, it would not be appropriate to enter into questions of fact and to quash the first information report. Consequently, we dismiss this writ petition without expressing any opinion on the merits of the case. Order Date :- 27.1.2010 KU

Keshav Singh vs State Of U.P. & Others on 27 January, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37653 of 2004(G) 1. POSTMASTER GENERAL, ... Petitioner 2. THE SENIOR MANAGER, 3. THE SUPERINTENDENT OF POST OFFICES, 4. THE SUPERINTENDENT OF POST OFFICES, 5. THE SENIOR SUPERINTENDENT OF Vs 1. STATE OF KERALA, ... Respondent 2. TRANSPORT COMMISSIONER, 3. REGIONAL TRANSPORT OFFICER, 4. THE JOINT REGIONAL TRANSPORT OFFICER, 5. REGIONAL TRANSPORT OFFICER, 6. REGIONAL TRANSPORT OFFICER, For Petitioner :SRI.S.KRISHNAMOORTHY, CGC For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :24/06/2009 O R D E R P.R.RAMACHANDRA MENON J. -------------------------------------------------- WP(C) No.37653/2004 & WP(C)15432/2006 ----------------------------------------------------------- DATED THIS THE 24th DAY OF JUNE 2009 JUDGEMENT RESPONDENT'S EXHIBITS: NIL. // TRUE COPY// SD/- P.A. TO JUDGE.  RESPONDENT'S EXHIBITS: NIL. // TRUE COPY// SD/- P.A. TO JUDGE.  Whether the vehicles owned,possessed and used by the Postal Department are liable to pay the tax leviable under Section 3 of the Kerala Motor Vehicles (Taxation) Act 1976, is the moot point in both these Writ Petitions. 2. For the purpose of proper adjudication, sequence of events or the factual controversy is not a matter to be looked into, as the contention is mainly based on the legal prepositions referring to Article 285 of the Constitution of India, whereby it has been specifically provided that the property of the Union shall, save in so far as the Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State. 3. Placing reliance on the constitutional mandate, the learned Counsel for the petitioner submits that, since there is total exemption from all taxes', the vehicles belonging to '  WP(C) No.37653/2004 & WP(C)15432/2006 2 the Postal Department, being a property of the Union, are not liable to suffer any tax liability imposed by the State under S.3 of the Kerala Motor Vehicles Taxation Act 1976. Reference is also made to the reciprocal provision as it appears under the Article 289 of the Constitution of India, whereby a similar exemption from the taxation by the Union is provided in respect of the property and income of the State as well. Viewed in such circumstances, the learned Counsel submits, that the course and proceedings pursued by the respondents imposing tax under the Act for the vehicles being used by the Postal Department is not correct or sustainable under any circumstance. The learned Counsel for the petitioner also placed reliance on the decision rendered by the High Court of Punjab and Hariyana reported in A.I.R 1990 (Punjab & Hariyana) 183 to contend that the event of taxation will not be attracted to the case in hand. WP(C) No.37653/2004 & WP(C)15432/2006 3 4. The learned Govt.pleader, in response to the contentions taken by the petitioner, submits that the reliance placed on Article 285 of the Constitution is thoroughly wrong and misconceived. It is pointed out that the source of power is very much available in view of 'entry No.57' of the 2nd list under the 7th Schedule of the Constitution of India; which undisputedly is a 'State subject' and as such, no challenge can be raised against the charging provision. It is also pointed out that, as per the law declared by the Apex Court reported in [2004] 136 STC 641 SC, it has been clearly held that the protection under Article 285(1) is available only in respect of "direct taxes" and that, it is having absolutely no application with regard to the "indirect taxes" as in the instant case. 5. In the Sea Customs Act case (AIR 1963 SC 1760), a '9- Judges' Bench of the Apex Court opined , by a majority, that article 285 envisaged immunity from 'direct taxes' and  WP(C) No.37653/2004 & WP(C)15432/2006 4 not from 'indirect taxes' such as sales tax. The decision in Sea Customs Act case [1964] 3 SCR 787 was considered by another '9-Judges Bench' in the case of New Delhi Municipal Committee v. State of Punjab (1997) 7 SCC 339, and was affirmed. Both the above verdicts were considered and relied on in 136 STC 641. From the above judgments, it is clear that Union is not exempted from the levy of 'indirect tax' under Article 285 of the Constitution. 6. It is brought to the notice of this Court, that the stand being taken by the departmental authorities as clearly reflected in Ext.p4 demand notice is that the petitioners, if aggrieved, had to approach the Government/State,for obtaining 'exemption' as provided under Section 22 of the Kerala Motor Vehicles (Taxation) Act. 7. The learned Standing Counsel appearing for the petitioners submits that the 'entry 57' of 'list 2' of the 7th  WP(C) No.37653/2004 & WP(C)15432/2006 5 schedule is only a general provision, which is applicable to all vehicles. In the instant case, the vehicles belonging to the Postal Department being a property owned by the Union, it clearly comes within the sphere of Article 285(1) and hence that the stand taken by the respondents is not correct and is liable to be interfered with. It is further added that the tax imposed/levied under S.3 of the Kerala Motor Vehicles Act 1976 is actually on the vehicles ie. on the property of the Union and hence it is having all the colour and characteristics of a 'direct tax' . 8. It is very much relevant to note that the very scheme of the statute ie. Kerala Motor Vehicles Taxation Act is never to tax the vehicle as such, but is only to impose the tax for the 'user' of the road in the State. This being the position, it cannot be said that the tax is actually imposed on the vehicle, so as to make it a direct tax, to attract Article 285. In short, the legal position that the benefit of Article 285(1)  WP(C) No.37653/2004 & WP(C)15432/2006 6 can be availed of only with respect to 'direct tax' stands settled and is no more open to challenge. 9. It is to be noted that the stand of the respondents, right from the beginning, was never that the vehicles belonging to the petitioner can't be given the benefit of exemption under any circumstances and on other hand, it was being let known that the remedy was only to approach the Government/State claiming exemption as pointed out in Exhibit P4; the power being actually vested with the Government under S.22 of the above Act which is extracted below: S.22 of the K.M.V. Act deals with exemption from or reduction of tax. "The Government may, if they are satisfied that it is necessary in the public interest so to do , by notification in the gazette make an exemption or reduction in the rate or other modification either prospective or retrospective, in regard to the tax  WP(C) No.37653/2004 & WP(C)15432/2006 7 payable under this Act or under the Kerala Motor Vehicles Taxation Act,1963 (24 of 1963) or the Kerala Motor Vehicles (Taxation of Passengers & Goods) Act 1963 (25 of 1963): (i) by any person or class of person;or (ii) in respect of any motor vehicles or class of motor vehicles; (iii) in respect of any motor vehicles or class of motor vehicles using a specified route subject to such terms and conditions as they may deem fit". This being the position, it is for the petitioners to approach the 1st respondent/Government of Kerala by filing appropriate representation, claiming exemption under S.22 of the Act and it is for the first respondent to look into the same and to pass appropriate orders thereon, particularly taking note of the reciprocal provisions in this regard. 10. In the above circumstances the petitioners are permitted to file appropriate representation before the 1st  WP(C) No.37653/2004 & WP(C)15432/2006 8 respondent/State within one month and on such an event, the 1st respondent is directed to consider the same as aforesaid and pass appropriate orders after giving an opportunity of being heard to the petitioners within 2 months thereafter. Since there was an interim order in both the cases, the same will continue, till final orders are passed by the 1st respondent as above. The Writ Petitions are disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE pkk  WP(C) No.37653/2004 & WP(C)15432/2006 9 APPENDIX PETITIONER'S EXHIBITS: (W.P (C) NO. 37653/2004 G) EXT.P1: COPY OF THE COMMUNICATION OF DEPARTMENT OF POSTS DATED 13.10.1989 EXT.P2: COPY OF THE RELEVANT PORTION OF THE AUDIT REPORT FOR THE YEAR MARCH 2002 EXT.P3: COPY OF THE LETTER DATED 12.12.2003 ISSUED BY THE 2ND PETITIONER. EXT.P4: COPY OF THE LETTER DATED 8.1.2004 ISSUED BY THE R.T.O, ERNAKULAM. EXT.P5: COPY OF THE LETTER DATED 28.11.2003 ISSUED BY THE 3RD PETITIONER. EXT.P6: COPY OF THE LETTER DATED 12.11.2004 ISSUED BY THE R.T.O EXT.P7: COPY OF THE LETTER DATED 26.7.2003 ISSUED BY THE R.T.O,ALAPPUZHA. EXT.P8: COPY OF THE CHECK REPORT DATED 13.10.2004 ISSUED BY THE M.V.I, ALAPPUZHA. EXT.P9: COPY OF THE JUDGMENT IN CIVIL APPEAL NO. 6532/2002 DATED 21.10.04 OF THE HON'BLE SUPREME COURT. EXT.P10: COPY OF THE LETTER DATED 11.8.2008 ISSUED BY THE 2ND RESPONDENT. WP(C) No.37653/2004 & WP(C)15432/2006 10 APPENDIX PETITIONERS'S EXHIBITS: (W.P(C) NO. 15432/2006 K: EXT. P1: COPY OF THE CIRCULAR DATED 13.10.1989. EXT.P2: COPY OF THE RELEVANT PORTION OF THE REPORT OF THE COMPTROLLER & AUDITOR GENERAL OF INDIA FOR THE YEAR ENDING MARCH 2002. EXT.P3: COPY OF THE ORDER DATED 7.1.2005 IN W.P(C) NO. 37653/04 OF THIS HON'BLE COURT. EXT.P4: COPY OF THE LETTER DATED 27.3.2006 GIVEN TO THE 3RD RESPONDENT EXT.P5: COPY OF THE JUDGMENT IN CIVIL APPEAL NO. 6532/2002 OF THE HON'BLE SUPREME COURT OF INDIA DATED 21.1.2004.

Postmaster General vs State Of Kerala on 24 June, 2009

Kerala High Court

Court No. - 34 Case :- FIRST APPEAL No. - 517 of 1998 Petitioner :- U.P. Avas Evam Vikas Parishad & Another Respondent :- Vijay Bahadur Singh & Others Petitioner Counsel :- G.K. Pandey,Pankaj Mittal Respondent Counsel :- L.P. Singh Hon'ble Prakash Chandra Verma,J. Hon'ble Ram Autar Singh,J. Case called out. None appears to press this first appeal on behalf of the appellant. It is, accordingly, dismissed for want of prosecution. The interim order, if any, stands vacated. Order Date :- 02.02.2010. Rks.

U.P. Avas Evam Vikas Parishad & ... vs Vijay Bahadur Singh & Others on 2 February, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 8233 of 2010() 1. MOHANAN, C.,S/O.KRISHNAN, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.V.BINOY RAM For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :20/12/2010 O R D E R V. RAMKUMAR, J. ......................................... B.A. No.8233 of 2010 .......................................... Dated this the 20th day of December, 2010 ORDER Petitioner, who is the 6th accused in Crime No.359/2010 of Kannavam Police Station, Kannur for offences punishable under Sections 143,147,148,341,323 and 506(ii) read with 149 I.P.C. and Sections 3 and 5 of the Explosive Substance Act, seeks anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. After evaluating the factors and parameters which are to be taken into consideration in the light of paragraph 122 of the verdict dated 2-12-2010 of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (Crl.Appeal No. 2271 of 2010), I am of the view that anticipatory bail cannot be granted in a case of this nature, since the investigating officer has not had the advantage of interrogating the petitioner. But at the same time, I am inclined to permit the petitioner to surrender before the Investigating Officer for the purpose of interrogation and then to  B.A. No. 8233 /2010 -:2:- have his application for bail considered by the Magistrate or the Court having jurisdiction. Accordingly, the petitioner shall surrender before the investigating officer on 30.12.2010 or on 31.12.2010 for the purpose of interrogation and recovery of incriminating material, if any. In case the investigating officer is of the view that having regard to the facts of the case arrest of the petitioner is imperative he shall record his reasons for the arrest in the case-diary as insisted in paragraph 129 of Siddharam Satlingappa Mhetre's case (supra). The petitioner shall thereafter be produced before the Magistrate or the Court concerned and permitted to file an application for regular bail. In case the interrogation of the petitioner is without arresting him, the petitioner shall thereafter appear before the Magistrate or the Court concerned and apply for regular bail. The Magistrate or the Court on being satisfied that the petitioner has been interrogated by the police shall, after hearing the prosecution as well, consider and dispose of his application for regular bail preferably on the same date on which it is filed. B.A. No. 8233 /2010 -:3:- 4. In case the petitioner while surrendering before the Investigating Officer has deprived the investigating officer sufficient time for interrogation, the officer shall complete the interrogation even if it is beyond the time limit fixed as above and submit a report to that effect to the Magistrate or the Court concerned. Likewise, the Magistrate or the Court also will not be bound by the time limit fixed as above if sufficient time was not available after the production or appearance of the petitioner. This petition is disposed of as above. Dated this the 20th day of December, 2010. V.RAMKUMAR, JUDGE sj 

Mohanan vs State Of Kerala on 20 December, 2010

Kerala High Court

xxx xxx 2(h) "Establishment" means any place or premises including the precincts thereof in which or in any part of which any manufacturing process connected with the making of beedi or cigar or both is being, or is ordinarily, carried on and includes an industrial premises; xxx xxx 2(k) "Manufacturing process" means any process for, or incidental to making, finishing or packing or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal as beedi or cigar or both. JUDGMENT P. Vishwanatha Shetty, J. 1. The appellant in this appeal is a beedi contractor who gets the beedies rolled through home workers. The 3rd respondent in this appeal is one such home worker who was engaged by the appellant in rolling beedies for him as a piece rated employee. The 3rd respondent after putting in fifteen years of service as a beedi roller under the employment of the appellant voluntarily resigned from his service with effect from 29th June, 1996. Since the claim of the 3rd respondent for payment of gratuity was not settled, the respondent made an application Under Section 4 of the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act') seeking for payment of gratuity payable to him by the appellant. The appellant resisted the claim of the 3rd respondent inter alia contending that the Act is not applicable to the 3rd respondent who is a beedi roller and the calculation of the gratuity made by the 3rd respondent is also not correct. The 2nd respondent on consideration of the rival claims of the parties made an order dated 3rd May, 1998, a copy of which has been produced as Annexure-A to this appeal allowing the application filed by the 3rd respondent and directed the appellant to pay a sum of Rs. 3,732/- towards gratuity. While calculating gratuity, the 2nd respondent has taken the average of 48 days actually worked by the 3rd respondent prior to his resignation. The 2nd respondent rejected the contention of the appellant that the average of 90 days wages received by the 3rd respondent prior to the date of resignation should be taken into consideration. Aggrieved by the said order-Annexure-A, the appellant filed an appeal before the 1st respondent-Appellate Authority as provided Under Section 4 of the Act. The Appellate Authority by means of his order dated 4th December, 1998, a copy of which has been produced as Annexure-B confirmed the order-Annexure-A. The appellant filed the writ petition out of which this appeal arises before this Court challenging the correctness of the orders-Annexures-A and B. The learned Single Judge of this Court while entertaining the petition filed by the appellant on 11th February, 1998 rejected the contention of the appellant that the provisions of the Act has no application so far as the beedi rollers are concerned, following the decision of this Court in the case of Bagi Beedi Factory, Hubli v. The Appellate Authority under the Payment of Gratuity Act and Joint Labour Commissioner, Bangalore and Ors. 1998(1) Kar. L.J. 304 : ILR 1997 Kar. 2896. However, he entertained the petition only for the purpose of deciding the question whether the calculation made by the respondents 1 and 2 for payment of gratuity taking average of 48 days worked by the 3rd respondent instead of 90 days was correct or not. When the matter was finally heard on 27th September, 2002, the learned Single Judge by means of his order dated 27th September, 2002 dismissed the writ petition confirming the conclusion reached by respondents 1 and 2 so far as the basis adopted for settlement of gratuity is concerned. Aggrieved by the said order, this writ appeal is presented. 2. Sri Kasturi, learned Senior Counsel appearing for M/s. Kasturi Associates strongly urged two contentions. Firstly, he submitted that the learned Single Judge having permitted the appellant to go into the question of applicability of the Act, at the stage of final hearing of the appeal has seriously erred in law in not recording a finding as to whether the provisions of the Act is applicable to the beedi rollers. Secondly, he submitted that the interpretation placed on proviso given to Sub-section (2) of Section 4 of the Act for the purpose of determining the average of wages earned by a beedi roller for the purpose of payment of gratuity is erroneous in law. Elaborating this submission, learned Senior Counsel pointed out that the learned Single Judge as well as respondents 1 and 2 have failed to consider that what is required to be considered under the proviso given to Sub-section (2) of Section 4, is the average of the wages received by an employee for a period of three months preceding the termination of his services. In other words, according to the learned Counsel, even if an employee has not worked continuously for a period of 90 days preceding the termination of service, the average of 90 days is required to be calculated going backwards beyond 90 days, as the emphasis in the proviso is for receipt of 90 days' wages. 3. However, Sri Shivakumar, learned Additional Government Advocate strongly supported the impugned order and submitted that if an employee has not worked for a few days during the period of 90 days preceding termination of service, the average of the number of days the employee has worked is required to be taken into account and on that basis gratuity is required to be settled. He further submitted that the view taken by the learned Single Judge as well as the respondents 1 and 2 on the first proviso given to Section 4(2) of the Act is correct. 4. In the light of the rival submission made by the learned Counsel appearing for the parties, the two questions that would fall for our consideration in this appeal are: (i) Whether the provisions of the Act have no application to the beedi rollers as contended by the learned Counsel for the appellant? (ii) Whether the interpretation placed by the learned Single Judge as well as respondents 1 and 2 on proviso given to Sub-section (2) of Section 4 call for interference in this appeal? Regarding first question: Section 1(3)(b) of the Act provides that the Act would apply to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. Therefore, the Act applies to every shop or establishment within the meaning of any law for the time being in force in relation to such shops and establishments in the State. The Payment of Gratuity Act has not defined what is meant by an establishment. Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (hereinafter referred to as 'the Beedi Act') was passed with the object of providing for welfare of the workers in Beedi and Cigar Establishments to regulate the conditions of their work and for matters connected therewith. The said Act had come into force in the State of Karnataka on 10th November, 1969. Section 2(f) of the Beedi Act defines an employee. Section 2(h) of the Beedi Act defines an establishment. Section 2(k) defines manufacturing process. It is useful to extract the said provisions: 2(f) "Employee" means a person employed directly or through any agency whether for wages or not, in any establishment or godown to do any work, skilled, unskilled, manual or clerical, and includes. (i) any labour who is given raw materials by an employer or a contractor for being made into beedi or cigar or both at home (hereinafter referred to in this Act as "home workers"); and (ii) any person not employed by an employer or a contractor or both but working with permission of, or under agreement with, the employer or contractor; From the reading of Section 2(f)(i) referred to above, an employee for the purpose of the Act means a person directly employed or through an agency whether for wages or not in any establishment or godown to do any work, skilled or unskilled, manual or clerical and includes any labour who is given raw materials by an employer or a contractor for being made into beedi or cigar or both at home. Therefore, there cannot be any doubt that the respondent would be an employee within the meaning of Section 2(f)(i) of the Beedi Act for the purpose of the Beedi Act. From the reading of the definition of manufacturing process as provided Under Section 2(k) of the Beedi Act means any process for, or incidental to making, furnishing or packing or otherwise treating any article or substance with a view to its sale, transport, delivery or disposal as beedi or cigar or both. Therefore, there cannot be any doubt that the nature of the work carried on by the respondent in rolling beedi is a manufacturing process within the meaning of Section 2(k) of the Beedi Act. The definition of establishment Under Section 2(h) also makes it clear that the establishment means any place or premises including the precincts thereof in which or in any part of which any manufacturing process connected with the making of beedi or cigar or both is being, or is ordinarily, carried on. Therefore, there cannot be any doubt, that the' 3rd respondent is an employee within the meaning of Section 2(f) of the Beedi Act and the place in which the 3rd respondent is carrying on his beedi rolling work is an establishment which falls Under Section 2(h) of the Beedi Act. Therefore, we are of the view that the provisions of the Act governs the rights of the appellant as well as the 3rd respondent. It is also necessary to point out that the learned Single Judge of this Court in the case of Mis. Bagi Beedi, has taken the view that so far as the beedi rollers are concerned, the provisions of the Act applies. Similar view is also taken by the Gujarat High Court in the case of Mis. Patel Hiralal Ramlal and Co. v. Smt. Chandbibi Pirubhai and Ors. 1981 Lab. I.C. 790 (Guj.) (DB). Further, while considering the question whether the Gratuity Act would apply to a project undertaken by the Hydel Department of the Government of Punjab which has been described as the "Hydel Upper Bari Doab Construction Project", the Supreme Court in the case of State of Punjab v. Labour Court, Jullundur and Ors. , took the view that the Payment of Gratuity Act applies to an establishment in which any work relating to construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on and it is not possible to give a limited meaning to Section 1(3)(b) of the Act and Section 1(3)(b) of the Act would apply to every establishment within the meaning of any law for the time being in force in relation to establishments in a State and such establishment would include industrial establishment within the meaning of Section 2(g) of the Payment of Wages Act, 1936. Therefore, we are unable to accede to the submission of the learned Counsel for the appellant that the provisions of the Act has no application to the beedi rollers. Accordingly, question No. 1 is answered. Regarding second question: Before we proceed to consider the second question referred to above, it is useful to extract Sub-section (2) of Section 4 of the Act. The relevant portion of Sub-section (1) and Sub-section (2) of the Act reads as follows. 4. Payment of gratuity.(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen clays' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in- the case of an employee who is employed in a seasonable establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days' wages for each season. ExplanationIn the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen. (emphasis supplied) The services of the 3rd respondent was taken on piece rate basis. There is no dispute on this. As noticed by us earlier, the undisputed facts in this case show that the 3rd respondent before his resignation had worked only for 48 days and not 90 days. It is admitted by Sri Kasturi that for 42 days the 3rd respondent had not worked. The respondents 1 and 2 as well as the learned Single Judge in the course of the order impugned have taken the view that in cases where the workman works only for 48 days out of three months preceding the date of termination, the 48 days which the 3rd respondent has worked alone should be taken into account. In our view, the said interpretation placed by the learned Single Judge does not appear to be correct. It is necessary to point out that the proviso given to Sub-section (2) of Section 4 of the Act provides that in the case of piece rated employee, daily wages shall be paid on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment. The emphasis in the proviso is for the receipt of wages for a period of three months immediately preceding the termination of his employment. By this, can it be understood that if an employee has only worked for about ten days out of three months preceding the date of termination of his service, only the period of ten days he has worked should be taken into account for the purpose of calculating the average of the wages for determining the gratuity payable to him? In our view, such an interpretation will not be correct and it will not be even in the interest of the employee. It may be in some case that an employee would be earning higher wages during the first half of the period than the later half of the. period where the average of three months is required to be taken into consideration and in some other case it may be vice versa. The object behind the proviso is that while calculating the average of three months wages the receipt of three months wages by an employee should be taken into account for the purpose of settling the gratuity payable to an employee. Therefore, in our view, though the language employed is "for a period of three months immediately preceding the termination of service of the employee", the same must be understood as the, period of three months preceding the termination of service of an employee during which period he has received his wages. In cases where an employee has not worked a few days in a block period of three months prior to the date of termination, to that extent to make up that period, the earlier period where the employee has earned wages should be taken into account. For example, as in this case, if an employee has not worked 42 days in a block period of three months immediately prior to the termination of service, the earlier 42 days period during which an employee has worked must be taken into account and on that basis the average of three months period must be worked out and the daily wages must be calculated for the purpose of calculating gratuity payable to an employee. 5. Therefore, while we are unable to accede to the submission of Sri Shivakumar that the view taken by the learned Single Judge that the average of 48 days should be taken into account for determining the daily wage earned by the 3rd respondent in a block period of three months, we are of the view that the three months' period is required to be calculated by taking into account the said period of 90 days during which an employee has actually worked immediately preceding the termination of his service and the total wages received by him during the said three months period. 6. In the light of the discussion made above, order dated 27th September, 2002 made by the learned Single Judge in Writ Petition No. 3550 of 1999; and also orders dated 3rd May, 1998 and 4th December 1998, copies of which have been produced as Annexures-A and B passed by respondents 1 and 2 are liable to be set aside. Accordingly, they are set aside. 7. However, before parting with this order, it is necessary to notice the fair stand taken by Sri Kasturi that since the 3rd respondent has already been paid the amount and the amount involved is only in a sun of Rs. 3,732/- the appellant will not proceed to take any steps for recovery of the amount paid to the 3rd respondent. The statement made by Sri Kasturi is placed on record and accordingly, it is ordered. 8. In terms stated above, this appeal is partly allowed and disposed of. However, no order is made as to costs.

Author: P V Shetty

Wazeerkhan Kudachi vs Appellate Authority Under ... on 8 December, 2005

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.24140 of 2010 NITYA NAND MANDAL Versus STATE OF BIHAR ----------- 2/ 12.08.2010 Call for carbon copy of the case diary of Tikapatti P.S. case no. 17 of 2009 (S.T. No. 698 of 2010) from the court of 3rd Additional Sessions Judge, Purnea. Put up this case on receipt of the same. (Samarendra Pratap Singh, J.) Uday/

Nitya Nand Mandal vs State Of Bihar on 12 August, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 2616 of 2008() 1. ABRAHAM AUGUSTINE, ... Petitioner Vs 1. STATE OF KERALA, REP. BY THE PUBLIC ... Respondent For Petitioner :SRI.GRASHIOUS KURIAKOSE For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :05/08/2008 O R D E R V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 2616 of 2008 * * * * * * * * * * * * * * * * * * Dated: 05-08-2008 ORDER Petitioner who was the complainant in Crl. M.P. No. 1493 of 2008 on the file of the J.F.C.M. I, Sulthanbathery, which was a prosecution under Sec. 138 of the Negotiable Instruments Act , 1881 challenges the order dated 4-7-2008 passed by the Magistrate dismissing the complaint under Sec. 203 Cr.P.C. due to the absence of the complaint. 2. Since the dismissal of the complaint was before the appearance of the accused, notice to the accused in this revision is dispensed with. 3. The order passed by the learned Magistrate is exfacie unsustainable. Along with the complaint the petitioner had filed a proof affidavit also under Sec. 145 of the N.I. Act. If the Magistrate was refusing to take cognizance of the offence on the ground that there was no sufficient ground for proceeding against the accused, then he had to give reasons and in which case he could not have dismissd the complaint under Sec. 203 Cr.P.C. He could only reject the complaint. On the other hand, if the Magistrate, after perusing  -:2:- the proof affidavit had good reason to hold that there was ground for proceeding against the accused he should have issued process to the accused. In any view of the matter, the impugned order cannot be sustained and is accordingly set aside and Crl.M.P. No. 1493 of 2008 shall stand restored to file. Petitioner shall appear before the Magistrate without any further notice on 20-8-2008 by which time he shall have taken all necessary steps for the further progress of the complaint. This Crl.R.P. is disposed of as above. V. RAMKUMAR, (JUDGE) ani.

Abraham Augustine vs State Of Kerala on 5 August, 2008

Kerala High Court

JUDGMENT Susanta Chatterji, J. 1. The present writ petition has been filed by two petitioners praying inter alia for a writ of mandamus commanding the respondents to forebear giving promotion to the respondents No. 9 to 21 in the Junior Management Grade, Scale I without promoting the petitioners first to such cadre and further directing them to promote the petitioners to such cadre on the ground that the steps taken by the respondent bank authorities are irregular and illegal. It is stated in detail that the petitioners are the employees of the UCO Bank as clerks and they are now posted in different branches. There is a scope for promotion of the clerical staff to Junior Management Grade. There is a promotion policy as framed and in terms of the agreement embodying the promotion policy, the promotion of clerical cadre to Junior Management Grade, Scale-I has certain guidelines. The specific allegation is that the respondent bank authorities have promoted the private respondents who are recommended by Union and if those persons are promoted there is no bar or impediment to consider the case of the petitioners for promoting them in the manner as claimed. 2. The writ petition is seriously opposed by the respondent bank authorities by filing affidavit-in-opposition. It is however, conceded by the bank authorities before this Court that in : order to have peace and to maintain the working atmosphere the demand of the Union had to be accepted and as per the recommendation of the Union certain employees have been promoted although they are not within the consideration zone for promotion. It is submitted on behalf of the bank authorities that there are certain requirements to be considered for promotion from clerical cadre to Junior Management Grade, Scale-I. There are certain objective tests and the scope for marking the numbers. Since the petitioners are not within the consideration zone they cannot ipso facto file a writ petition and ask for a writ from this Court to command the respondents to promote them. The promotion cannot be claimed as a matter of right nor the petitioners have any locus standi to ask for the reliefs in the manner as alleged. Unless the petitioners come within the consideration zone for promotion, they cannot claim that their rights have been denied. The bank authorities have no grudge nor any animosity towards the petitioners. If they acquire the necessary qualification and cross the eligibility criteria and they are within the consideration zone, their case will be obviously considered for effective promotion. During the pendency of the writ petition the cases of certain persons who were not promoted, have since been promoted as they have come within the consideration zone. 3. Mr. Banerjee for the petitioners in his usual fairness has submitted that certainly the petitioners cannot claim for promotion as a matter of right but if the persons similarly circumstanced are allowed to be promoted at the instance of the Union the petitioners' case for promotion will have to be considered otherwise the concept of equality before law as enshrined under Article 14 of the Constitution of India, will be defeated. The conditions laid down under Article 14 of the Constitution of India are the acid test for which the acts done and/or caused to have been done by the respondent bank authorities will have to be viewed. 4. Upon perusal of the materials on record and having heard the Learned Lawyers for the respective parties this Court does not appreciate that with a view to maintain peace the bank authorities would be compelled to promote certain employees with the recommendation of Union. If those persons who have been recommended by the Union have no eligibilities and they do not come within the consideration zone, their promotion is obviously bad in law and cannot be supported before this Court by way of effective adjudication. If the persons having similarly circumstanced with that of the petitioners are promoted and the petitioners case for promotion is not considered, then there is certainly violation of law by infringing the interest of the petitioners. 5. Considering all the aspects of the matter this Court finds that if the bank authorities want to stick to the consideration zone for promotion then it cannot give promotion to the persons at the instance and/or recommendation of the Union. If the persons as recommended by the Union have been promoted, for any other consideration by ignoring the standard and guideline as laid down by consideration zone, then the case of the petitioners should be viewed with the same yard stick. In consequence thereof the writ petition is disposed of directing the respondent bank authorities to take effective steps to consider the case of the petitioners for promotion to Junior Management Grade Scale I if the persons recommended by the Union as conceded in affidavit-in-opposition, have been allowed to be promoted, within a period of eight weeks from the date of communication of this order. If the bank authorities is of the view that nobody can be promoted without coming within the consideration zone, then no effective promotion should be given to the persons who are alleged to have been promoted under the recommendation of the Union. 6. It appears that some of the persons who are allowed to have been promoted under the recommendation of the Union are comparatively lower in the merit to that of the petitioners as stated. No separate order is passed as to costs. 7. All parties concerned to act on the signed copy of the operative part of this judgment on the usual undertaking. Writ petition disposed of.

Author: S Chatterji

B.K. Gautam And Ors. vs Uco Bank And Ors. on 26 March, 1992

Calcutta High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM LA App No. 792 of 2005() 1. THE STATE OF KERALA. ... Petitioner Vs 1. BALAN P.P., ... Respondent 2. THE SECRETARY, For Petitioner :GOVERNMENT PLEADER For Respondent :SRI.M.GOPIKRISHNAN NAMBIAR The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice K.T.SANKARAN Dated :06/02/2007 O R D E R KURIAN JOSEPH & K.T.SANKARAN,JJ. ----------------------------------------- L.A.A.Nos.792, 1127, 1392 of 2005 & L.A.A.No. 61 of 2006 ----------------------------------------- Dated this the 8th day of February, 2007 JUDGMENT Kurian Joseph,J. These appeals arise out of a common judgment in L.A.R.No.411/2000 and connected cases on the file of the Sub Court, Kozhikode. The acquisition is for widening Thadampattuthazham- Parambikadavu road. On the side of the claimants, Ext.A1 document was marked. A Commission was taken and the report and sketch were marked as Exts.C1 and C2. There was no evidence on the part of the respondents. The claimant was also examined. On evidence the reference court found that 17.23 cents which is used for taking laterite stone was sold at the relevant time for Rs.2,58,450/-. Therefore, the value per cent was Rs.15,000/-. The reference court further held that if such a barren land used only for extraction of laterite stone could be valued at Rs.15,000/- per cent it was only just, fair and reasonable to award 30% more to the acquired lands since those lands were situated at a commercially important area. The learned Government Pleader  L.A.A.No.792/2005 and connected cases. -:2:- submits that there was no evidence available before the Court below to grant such enhancement. We are afraid the contention cannot be appreciated. The report of the Commission and the sketch would indicate otherwise. All that apart, there is no evidence on behalf of the appellants. Still further it is seen that there is no appeal in some of the reference cases namely L.A.R.Nos.26/2001, 35/2001 and 135/2001. For all the above reasons we do not find any merit in these appeals. They are accordingly dismissed. (KURIAN JOSEPH, JUDGE) (K.T.SANKARAN, JUDGE) ahg.

The State Of Kerala vs Balan P.P on 6 February, 2007

Kerala High Court

Gujarat High Court Case Information System Print CA/7391/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 7391 of 2010 In FIRST APPEAL (STAMP NUMBER) No. 6186 of 2009 ===================================================== MAHASWETA DEB WIFE OF DEBABRATA DEB AND D/O MRINAL SAHA - Petitioner(s) Versus DEBABRATA DEB SON OF DWIJENDRA NARAYAN DEB - Respondent(s) ===================================================== Appearance : MR UDAY R BHATT for Petitioner(s) : 1, None for Respondent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 09/08/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Notice returnable on 13-9-2010. To be served through the regular mode as well as by Registered Post A.D./Speed Post. (Jayant Patel,J) (Smt.Abhilasha Kumari,J) arg     Top

Author: Jayant Patel,&Nbsp;Honble Kumari,&Nbsp;

Mahasweta vs Debabrata on 9 August, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 864 of 2009() 1. SUCHITHRA KRISHNAN ... Petitioner Vs 1. K.CHANDRABABU & ANOTHER ... Respondent For Petitioner :SRI.B.KRISHNA MANI For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :06/03/2009 O R D E R V. RAMKUMAR, J. =============== Crl.R.P. No. 864 of 2009 ================= Dated this the 6th day of March, 2009. ORDER The accused in C.C. No. 34 of 2004 on the file of the Judicial First Class Magistrate-IV (Mobile Court), Thiruvananthapuram for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, challenges the conviction entered and the sentence passed against him concurrently by the courts below. 2. Pending this revision, the parties have settled the matter. Crl. M.A. No. 2578 of 2009 has been filed under Section 147 of the Negotiable Instruments Act, 1881 seeking permission to record the composition entered into between the revision petitioner and the complainant. The said petition has been signed by both the revision petitioner as well as the complainant and their respective counsels. In the light of this development, the aforementioned composition is recorded and it will have the effect of an acquittal of the revision petitioner within the meaning of Sec. 320 (8) Cr.P.C. Money, if any, deposited by the revision petitioner pursuant to the orders, if any, passed by the lower appellate court shall be refunded to the revision petitioner/accused. This Crl. R.P. is disposed of as above. Dated this the 6th day of March, 2009. V. RAMKUMAR, JUDGE. rv  

Suchithra Krishnan vs K.Chandrababu & Another on 6 March, 2009

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5440 of 2011 Sanjit Singh @ Sanjeet Singh Versus The Union Of India & Ors ---------------------------------- 07. 14.11.2011 It has been wrongly mentioned before this Court that there is Typographical error in the order dated 19.10.2011 when the case is listed under the caption "to be mentioned". Learned counsel for the petitioner expresses that there is no typographical error in the aforesaid order and wrong mentioning is made before this Court. Under the above circumstances, list this case after the Summer Vacation as a last case before the appropriate Bench after obtaining necessary orders from Hon'ble the Chief Justice. (T. Meena Kumari, J.) (Vikash Jain, J.) P.K.

Sanjit Singh @ Sanjeet Singh vs The Union Of India & Ors on 14 November, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/1373/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1373 of 2010 ================================================= JITENDRA BABULAL VAJA Versus SHREE KESHAV CO OPERATIVE CREDIT SOCIETY LIMITED ================================================= Appearance : MR AR THACKER for the Petitioner MR VIMAL M PATEL for the Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 03/05/2010 ORAL ORDER Heard Mr.A.R.Thacker, learned Advocate for the petitioner and Mr.Vimal M.Patel, learned Advocate for the respondent. 2. Learned Advocate for the petitioner strenuously tried to convince this Court that the Court below has committed an error in passing the order which is under challenge in this petition. On perusal of the impugned order, the Court did not find any substance in the submissions made by the learned Advocate for the petitioner. Hence, the petition is dismissed. Notice is discharged. No costs. 3. The amount deposited by the petitioner herein before the Executing Court be permitted to be withdrawn by the respondent Credit Society by the Executing Court. (Ravi R.Tripathi, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

Shree vs Mr Vimal M Patel For The on 3 May, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 322 of 2011(M) 1. REHANA.A.B., W/O./V.J.HAREES MUSALIYAR, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. THE DISTRICT EDUCATIONAL OFFICER, 3. THE MANAGER, MUSLIM HIGHER SECONDARY 4. SABEENA.M.T., H.S.A., MUSLIM HIGHER 5. JYOTHI K.NAIR, H.S.A. (MATHS), 6. THE DIRECTOR OF PUBLIC INSTRUCTION, For Petitioner :SRI.S.SUBHASH CHAND For Respondent : No Appearance The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :05/01/2011 O R D E R T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.322/2011-M ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of January, 2011 J U D G M E N T The petitioner is working as an Upper Primary School Assistant in Muslim Higher Secondary School, Kangazha which is an aided school. Her initial appointment was approved from 08/06/2001 as evidenced by Ext.P1 order. In that school, a leave vacancy of H.S.A (Maths) arose consequent on the availing of leave by Smt.Jyothi K.Nair, and the petitioner was promoted for the period from 05/07/2001 to 06/11/2001. It is stated that the said appointment was also approved and salary was paid which resulted in the petitioner becoming a claimant under Rule 51A of Chapter XIV A K.E.R. 2. In the school, the Manager has made certain accommodations in favour of respondents 4 and 5 and, finally, the District Educational Officer passed an order as per Ext.P9, which according to the petitioner is not sustainable. It is in these circumstances, the petitioner has filed a revision petition before the Director of Public Instructions as per Ext.P10. The  W.P.(C). No.322/2011 -:2:- main prayer raised by the petitioner therein is to reject the appointment of the fourth respondent and to direct the Manager to promote the petitioner as H.S.A (English). 3. The learned counsel for the petitioner submitted that urgent orders are required in the revision petition and, therefore, the same may be directed to be disposed of expeditiously and within a time limit. 4. There will be a direction to the sixth respondent to take a decision on Ext.P10 revision petition after hearing the petitioner and respondent Nos.3 to 5 within three months. The petitioner will produce a copy of the writ petition along with a copy of the Judgment before the sixth respondent for compliance. If the petitioner seeks for any interim order before the sixth respondent, the application will be disposed of expeditiously after hearing the parties concerned within three weeks from the date of receipt of the application for interim order. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms \\TRUE COPY// P.A TO JUDGE 

Rehana.A.B. vs State Of Kerala on 5 January, 2011

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/8721/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8721 of 2009 In CRIMINAL APPEAL No. 1348 of 2009 ================================================= STATE OF GUJARAT - Applicant(s) Versus SANJAYSINH BHARATSINH JADEJA & 1 - Respondent(s) ================================================= Appearance : Mr.DEVANG VYAS, ADDL PUBLIC PROSECUTOR for Applicant(s) : 1, DS AFF.NOT FILED (R) for Respondent(s) : 1 - 2. ================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/02/2010 ORAL ORDER (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) The present application is filed seeking condonation of delay of 47 days. This Court has issued rule on 21.01.2010 returnable on 08.02.2010, viz. today. Rule is served. Though served nobody appears. Heard learned Additional Public Prosecutor Mr.Devang Vyas for the State of Gujarat. The application is allowed. Delay is condoned. Rule is made absolute. (RAVI R. TRIPATHI, J.) (J.C. UPADHYAYA, J.) karim     Top

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

State vs Sanjaysinh on 8 February, 2010

Gujarat High Court

Court No. - 20 Case :- MISC. BENCH No. - 3641 of 2010 Petitioner :- Narendra Kumar Azad, S/O-Mahaveer Prasad Respondent :- State Of U.P.,Thru. Prin. Secy., Home & Others Petitioner Counsel :- Rakesh Kumar Singh Respondent Counsel :- G.A. Hon'ble Ra° Mani Chauhan,J. Hon'ble Virendra Singh,J. Short counter affidavit is taken on record. List the case in the cause list. Order Date :- 4.8.2010 Sanjay

Narendra Kumar Azad, ... vs State Of U.P.,Thru. Prin. Secy., ... on 4 August, 2010

Allahabad High Court

ORDER G.P. Agarwal, Member (J) 1. Reverme has filed the present reference application with the request that the following alleged question of law said to have arisen out of Final Order A/1513/95-NB, dated 20-12-1995 be referred to the High Court concerned: Whether BOPP film can be termed as an input for the purpose of Rule 57A in the manufacture of aprons and cots. 2. Arguing on the application Shri S.N. Ojha, JDR submitted that the goods involved in the instant case are BOPP films and the question is as to whether the same could be termed as an input for the purpose of Rule 57A in the manufacture of aprons and cots. He submitted that against the Judgment of the Madhya Pradesh High Court, Indore Bench in M.P. No. 1187/91; dated 2-11-1992 the Department had filed the S.L.P. before the Supreme Court which is still pending for decision. In this premises he submitted that the proposed question be referred to the High Court concerned. 3. Replying to the arguments advanced by the JDR, Shri Mulchand Bhakru, Advocate submitted that no question of-law is involved meriting reference to the High Court. Elaborating he submitted that this Tribunal relying upon its earlier order reported in 1990 (49) E.L.T. 538 has held that BOPP Film/Tape used as separator in the manufacture of aprons and cots is an input and, therefore, the Collector (Appeals) rightly extended the benefit of Modvat to the respondents. He further submitted that mere filing of S.L.P. before the Apex Court cannot be termed as a question of law. 4. Considered. In the facts and circumstances of the case and particularly the nature of the BOPP Film/Tape used as separator in the manufacture of Aprons and Cots this Tribunal has taken the view that these are inputs for the purpose of Modvat. Hence no question of law is involved. That apart, merely because the Revenue had filed the S.L.P. against a particular decision of the Hon'ble Madhya Pradesh High Court as stated by the JDR it cannot be said that the proposed question is a question of law for the purpose of the present case. In view of the above, I reject the application.

Collr. Of Central Excise vs Precitex Rubber Components on 3 June, 1996

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 10822 of 2008(L) 1. E.K.PRAKASAN, S/O.APPUKUTTY, ... Petitioner Vs 1. MUTHULANGAYIL KUNHABDULLA, ... Respondent For Petitioner :SRI.V.CHITAMBARESH (SR.) For Respondent :SRI.K.JAYAKUMAR The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :05/06/2008 O R D E R M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C).No. 10822 of 2008 ------------------------------------------ Dated this the 5th day of June, 2008 JUDGMENT Petitioner is the plaintiff and respondent the defendant in O.S. 71 of 2008 on the file of Sub Court, Koyilandy. In the suit, IA 1732 of 2007 was filed for an order of attachment before judgment under Rule 5 of Order XXXVIII of Code of Civil Procedure. The case of the petitioner is that respondent is to be directed to furnish security to satisfy the plaint claim of Rs.98,40,000/- and on failure, property is to be attached. Under Ext.P3 order the learned Sub Judge dismissed the petition. It is challenged in this petition filed under Article 227 of Constitution of India. When the petition was admitted on 31.3.2008, an order was issued directing respondent not to alienate the property till the next posting date. The order was extended on the next posting day. 2. Respondent appeared through learned senior counsel Advocate S.V. Balakrishna Iyer. Learned senior counsel submitted that respondent has no objection to  WPC 10822/08 2 pass an order of attachment of the property as sought for in IA 1732 of 2007 on the failure to furnish security. On that submission, Ext.P3 order is quashed. The respondent/defendant is directed to furnish security for Rs.98,40,000/- before Sub Court, Koyilandy within one month from today and on failure to furnish security there would be an order of attachment of the property as sought for in IA 1732 of 2007 till disposal of the suit. There would be an order of conditional attachment, which will be in force for 30 days from today or till security is furnished. Petitioner is at liberty to approach Sub Court, Koyilandy to effect the order of attachment. It is made clear that if any alienation is made from 4.00 pm. on 5.6.2008, it will be subject to the order of attachment. M. SASIDHARAN NAMBIAR, JUDGE Okb/-

E.K.Prakasan vs Muthulangayil Kunhabdulla on 5 June, 2008

Kerala High Court

(1) REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.293 OF 1995. Abhiman S/o Baburao Gaikwad, Age 34 years, Occ.Labour, R/o Bansarola, Tq. Kej, Dist.Beed. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mr.N.N.Shinde, advocate for the appellant. Mr.V.H.Dighe, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Reserved on :04.03.2009. Pronounced on:26.03.2009. JUDGMENT The Police registered a case of accidental death after her death (A.D.No.28/1990) U/s 174 of the Cr.P.C. It was during course of inquiry of the . "The three prosecution witnesses, P.W.6 - Dharuba, P.W.7 - Kisanbai and P.W.8 - Jalindar Bade had, however, deposed that when they had met Radhabai in the Hospital and asked her about the Thus, Radhabai had not told these witnesses that her husband had poured She deposed that at the time of festival of Rakhi Pournima (somewhere in August) the appellant and Radhabai both had visited her house. He had joined the demand for Rs.1,000/- (Rupees one thousand) made by Radhabai. This part of her version is contradictory to the version of P.W. Dharuba. She Kisanbai and P.W.Jalindar are insufficient to reach conclusion that deceased Radhabai was subjected to matrimonial cruelty on account of her failure to meet any unlawful demand of the appellant. Indeed, the only unlawful demand stated by P.W. Dharuba is in respect of Rs.1,000/- (Rupees one thousand) but that too was not directly made by the appellant for himself. The amount was not accepted when tendered to his father but it was suggested that a nose ring may be purchased for Radhabai and that was done by P.W. Kisanbai. In this view of the matter, it is difficult 1. Challenge in this appeal is to judgment rendered by Additional Sessions Judge, Ambejogai, in Sessions case No.44/1991 whereby the appellant has been convicted for offence punishable U/ss 498-A and 306 of the I.P.C. and is sentenced to suffer rigorous imprisonment for three (3) years on each count and to pay fine of Rs.1,000/- (Rupees one thousand), in default to suffer rigorous imprisonment for two (2) months, on each count. 2. Briefly stated, the prosecution case is that deceased Radhabai was a good looking young woman. Her marriage with the appellant was performed on March 10, 1988. The appellant was employed as a postman. He use to reside at village Yusufwadgaon. After about couple of months of the marriage, he started beating, harassing and ill-treating the wife (Radhabai) in the matrimonial home. He was addicted to vice of liquor drinking. He use to regularly return home in drunken condition and beat her. He use to express suspicion about her character. He had demanded amount of Rs.1,000/- (Rupees one thousand) from her parents. Her mother took the money and went to house of the appellant. However, his father refused to accept the money. She purchased one nose-ring (Nathani) for her daughter. In her presence, at the time of Rakhi Pournima festival of 1989 i.e. in the month of August, the appellant had beaten up Radhabai in the matrimonial home. Thereupon his father urged her mother to take away Radhabai to her house. So, mother of Radhabai returned to her house at Ambejogai alongwith Radhabai. She resided with her mother uptill 6.11.1990. Even during that period, the appellant use to visit the house of his inlaws and use to ::: Downloaded on - 09/06/2013 14:28:10 ::: (3) ill-treat deceased Radhabai. He use to ask the inlaws to send her with him. In a common meeting of the relatives, her parents ultimately decided to send her with the appellant when he agreed to execute an undertaking in writing to give her proper treatment. He executed a written undertaking on stamp paper and assured that he would not beat her or ill-treat her any more. Thereafter, Radhabai was sent with him on the next day. Within about a fortnight, her parents received information that she was admitted in SRTR Medical College Hospital at Ambejogai due to burn injuries. They ig visited the Hospital and met her. She narrated to them that the appellant did not allow her to speak out the truth. She narrated to them that it was the appellant who had done all the things and, therefore, she had received the burn injuries. She succumbed to the burn injuries on 30.11.1990. Initially a case of accidental death (A.D.No.28/90) was registered. The Police investigation, however, indicated material to show that deceased Radhabai was subjected to matrimonial cruelty meted out to her. On basis of the material gathered during the investigation, the appellant was charge-sheeted for offences punishable U/ss 498-A and 306 of the I.P.C. 3. The appellant denied truth into the ::: Downloaded on - 09/06/2013 14:28:10 ::: (4) accusations. He adopted defence of simple denial in the context of allegations of the matrimonial cruelty and suicidal death of deceased Radhabai. He asserted that Radhabai met with an accident due to bursting of stove and hence, had received the burn injuries. 4. At the trial, the prosecution examined in all ten (10) witnesses in support of its case. The appellant examined D.W. Chandrakant in support of his defence. Certain documents were also placed on record. On appreciation of the evidence, the learned Sessions Judge ig came to the conclusion that the deceased was subjected to matrimonial cruelty at hands of the appellant. The learned Sessions Judge further held that she committed suicide, as a result of unbearable cruelty meted out to her by the appellant. In keeping with such findings, the appellant was convicted and sentenced as described hereinabove. 5. Heard learned counsel Mr.N.N.Shinde, for the appellant and Mr.V.H.Dighe, learned A.P.P. for the State. 6. At the outset, it may be mentioned that out of the ten (10) witnesses examined by the ::: Downloaded on - 09/06/2013 14:28:10 ::: (5) prosecution, none has highlighted the circumstances in which deceased Radhabai received the burn injuries in the relevant evening. The marriage was performed on 10.3.1988. The incident occurred in the evening of 22.11.1990. At the relevant time, deceased Radhabai was in the matrimonial home at village Yusufwadgaon. The injured Radhabai succumbed to the burn injuries whilst under medical treatment in SRTR Medical College Hospital, Ambejogai on 30.11.1990. accidental death that the parents and other relatives of deceased Radhabai suspected foul play. 7. The spot panchanama (Exh.17) was drawn on 1.12.1990. The recitals of the spot panchanama (Exh.17) indicate that Radhabai was involved in accidental burns due to sudden bursting of stove while she was cooking in the matrimonial home. The learned Sessions Judge noticed that some pieces of burnt clothes and chittis etc. were recovered from the house in question, yet, no stove was found. It was for such a reason that inference of suicide was drawn. It is pertinent to note that during his cross-examination the I.O. - P.W.10 - PSI Kautik ::: Downloaded on - 09/06/2013 14:28:10 ::: (6) admits, unequivocally, that dying declaration of Radhabai was recorded by the Executive Magistrate and was also received alongwith inquiry papers in connection with case of accidental death (A.D.No.28/1990). He admits further that during his inquiry and investigation he could not find out any material to indicate suicidal or homicidal death of Radhabai. 8. In the above background, the version of D.W.1 Chandrakant is significant. At the relevant time, he was attached to Tahsil Office, Ambejogai as Naib Tahsildar. His version purports to show that his services were requisitioned by the Police for recording dying declaration of injured Radhabai. He deposed that on 23.11.1990 he received letter from PSO Ambejogai for recording of the dying declaration and, therefore, he approached the Hospital. He recorded the dying declaration of injured Radhabai vide Exh.45. He admits that she was suffering from pains due to burn injuries. He denied that relatives of the appellant had informed him that she received burn injuries while cooking. The dying declaration was recorded on next day of the incident little after mid-day. It is important to notice that parents and other paternal relatives of deceased Radhabai never ::: Downloaded on - 09/06/2013 14:28:10 ::: (7) expressed any suspicion about involvement of the appellant in her death. They did not report to the Police that the appellant had set her on fire. According to the Police version, Radhabai orally informed her parents, when they interrogated her, that the appellant was responsible for what had happened. She had not narrated to her parents the cause of the burn injuries. 9. The version of P.W.1 Dr.Satyanarayan purorts to show that Radhabai had received 55% burns on the head, neck, face, chest and abdomen as well as back side. He states that there were no burns on the lower extremities and perineum. He gave details of such injuries in column No.17 of the postmortem notes (Exh.13). His version would show that Radhabai died as a result of septicemic shock caused by the 55% burns. He admits that from the nature of burn injuries it could not be stated whether they were accidental, suicidal or homicidal. He admits further that he did not notice smell of kerosene being emitted from the clothes or person of Radhabai. The prosecution did not lead any evidence to show that hair and clothes of deceased Radhabai smelt of kerosene when she was admitted in the Hospital nor opinion of the Chemical Analyser is placed on record ::: Downloaded on - 09/06/2013 14:28:10 ::: (8) to show that burnt pieces of clothes found in the house at the time of spot panchanama (Exh.17) bore smell of kerosene. Thus, it is manifest that there is no iota of evidence to infer that Radhabai, in fact, poured kerosene on her person and immolated herself in the matrimonial home in the relevant evening. The prosecution did not prove that she committed suicide due to self-immolation. It cannot be inferred that because she died within a period of 2-1/2 years of the marriage, the death could be only of suicidal nature. The learned Sessions Judge observed : incident, she had told them that whatever is done to her, is done by her husband. In other words, it appears that Radhabai wanted to tell that whatever had happened to her, her husband was responsible for it. These three witnesses have also deposed that Radhabai had told them that let her recover first and then she will tell the details of the burn injuries. kerosene on her person and had set her on fire. On the contrary, she appears to have told them that let her recover first and then she will tell them the real details. This evidence of aforesaid three (3) witnesses is highly insufficient to infer that the accused had caused death of Radhabai by setting her on fire. The death of Radhabai does not appear to be homicidal one." 10. The learned Sessions Judge, however, discarded the dying declaration (Exh.45) because D.W. Chandrakant did not consult the Medical Officer before recording of the dying declaration. The learned Sessions Judge appears to have reached the conclusion that Radhabai committed the suicide because if there was accidental fire due to bursting of stove then most of the burns would occur on near the abdomen and not on the head or neck. In the absence of any tangible evidence to support such inference, it will have to be said that the learned Sessions Judge gave such a finding merely on surmises and conjectures. As stated earlier, there is no evidence on record to show that ::: Downloaded on - 09/06/2013 14:28:10 ::: (10) clothes or person of Radhabai gave smell of keorsene nor she narrated to her parents that she had poured kerosene on her person and set herself on fire. What she narrated to them was that the appellant was responsible for what had happened and she may give details thereof if she would live. If this really was her version then, in the ordinary course of human nature, her parents would have lodged a report with the Police. An attempt would have been made to record her further dying declaration. The record shows that the Police Officer also had recorded the statement of injured Radhabai in the Hospital. It was on the basis of her such statement that a case of accidental death was registered. Needless to say, in her second dying declaration to the Police too, Radhabai did not speak of the attempted suicide nor attributed authorship of the burns to the appellant. Under these circumstances, I have no hesitation in holding that prosecution utterly failed to prove that the death of Radhabai was of suicidal nature. 11. So far as the charge of matrimonial cruelty is concerned, the prosecution relied upon versions of P.W.6 Dharuba, P.W. 7 - Kisanbai and P.W.8 - Jalindar. They the parents and brother-in-law of the deceased Radhabai. The version of P.W. Dharuba purports to show that Radhabai was a good looking young girl. He states that the appellant had demanded amount of Rs.1,000/- (Rupees one thousand). He gave such amount to P.W. Kisanbai and the latter had gone to village Bansarola, i.e. native place of the appellant, so as to give it to him. It is worthwhile to note that P.W. Dharuba vaguely states that Radhabai was ill-treated by the appellant on account of the demand for Rs.1,000/- (Rupees one thousand). He did not give any other reason for the so-called ill-treatment nor he spelt out the manner in which she was igill-treated by the appellant. His version purports to show that after festival of Dipawali, Radhabai had been to his house and told him that she will not go to reside with the appellant. His version further purports to show that the appellant and Baburao (father of the appellant) had visited his house with intent to fetch Radhabai. She was sent with them after obtaining an undertaking on stamp paper (Exh.22). It is pertinent to note that P.W. Dharuba does not say that the appellant was addicted to liquor drinking nor there is any whisper in his evidence that the appellant use to suspect character of Radhabai. He deposed that Radhabai used to ask him money as and when she used to visit his house because the appellant had lost his job. He ::: Downloaded on - 09/06/2013 14:28:10 ::: (12) admits that the appellant did not demand Rs.1,000/- (Rupees one thousand) from him. His version pruports to show that such demand was made after Dipawali festival. 12. As regards demand of Rs.1,000/- (Rupees one thousand) by the appellant, P.W. Kisanbai gave different version. She states that the appellant use to send Radhabai to her house in order to fetch money. deposed that after a couple of months of the marriage, the appellant started beating Radhabai on account of suspicion about her character. As pointed out earlier, P.W. Dharuba does not say anything about conduct of the appellant regarding suspicion about her character. The version of P.W. Kisanbai reveals that after a couple of days, subsequent to Rakhi Pournima festival, she and Radhabai had gone to house of the appellant at village Bansarola with the amount of Rs.1,000/- (Rupees one thousand). She tendered the amount to father of the appellant but the latter did ::: Downloaded on - 09/06/2013 14:28:10 ::: (13) not accept it. The appellant then told her to purchase a nose ring for Radhabai. She purchased a nose ring from the local market. She deposed that in the said night, the appellant had beaten Radhabai by means of fist blows and kicks. She further narrated that even at her own house, the appellant use to beat Radhabai when nobody use to be there. How come that she gathered such information is rendered in obscurity. Her version reveals that Radhabai was brought to her house due to ill-treatment meted out to her. She narrated that the appellant daily visited her house and use to demand to send Radhabai with him. According to her, Radhabai was sent with the appellant when he gave undertaking (Exh.25) to behave properly with her. She narrated further that when she met Radhabai in the Hospital then the appellant was present there. He had not allowed her to tell the true facts. She deposed that Radhabai told her that the appellant had burnt her. Had this been a fact then there was no reason for her to suppress it. It need not be reiterated that Radhabai was alive upto 30.11.1990 and during the period of one week, FIR could be lodged by her parents about the ill-treatment caused by the appellant as well as his attempt to cause her death by setting her ablaze. The belated police statements of P.W. Dharuba and P.W.Kisanbai ::: Downloaded on - 09/06/2013 14:28:10 ::: (14) suffer from embellishment. It is probable that due to anguish caused due to death of their daughter, they attempted to search for the reason and gave statements according to their surmises. 13. Similarly, P.W. Jalindar narrated that the appellant use to beat and ill-treat Radhabai. He narrated that on one occasion he had visited house of the appellant because he had received information that the appellant use to beat and ill-treat Radhabai. He had no personal experience about such ill-treatment meted out to Radhabai by the appellant. However, according to him, on next day when he urged the appellant to send Radhabai with him then the latter refused to do so. The appellant then told Radhabai to go after keeping the clothes provided by him at his house. The version of P.W. - Jalindar reveals that he and three more persons thereafter took Radhabai to house of her parents at Ambejogai. He did not give details of the period when such incident had occurred. His version is quite vague in the context of such an incident. According to P.W. Jalindar, the appellant use to demand money from P.W. Kisanbai for the purpose of making his job permanent. This is not the case put forth by the prosecution nor P.W. Kisanbai says that demand for money was on account of need to ::: Downloaded on - 09/06/2013 14:28:10 ::: (15) make the appellant's job permanent. 14. The above three witnesses are closely related to deceased Radhabai being parents and brother-in-law. They did not spell out anything immediately after the incident of her burning. It no doubt appears that the appellant gave an undertaking (Exh.22/Exh.25) on 6.11.1990 to the effect that he would not ill-treat and beat her. The confessional part of the undertaking is inadmissible in evidence. The inconsistent versions of P.W. Dharuba, P.W. to hold that the appellant subjected deceased Radhabai to matrimonial cruelty which was of such degree that she was driven to path to end her life nor it can be gathered that the appellant made unlawful demands and ::: Downloaded on - 09/06/2013 14:28:10 ::: (16) failure of Radhabai or her parents to fulfill the demand was the cause of her harassment or ill-treatment. 15. The other evidence tendered by the prosecution need not be discussed in detail. The inquest panchanama (Exh.11) is corroborated by P.W.2 Gajendra. The spot panchanama (Exh.17) is corroborated by P.W. 3 Dagdu. He admits, however, that he had not entered the house when the spot panchanama was drawn in the evening of 1.12.1990. The versions of P.W.4 - Shrikishan and P.W.5 Ravan are of no much avail to either side. Both of them were declared hostile. The prosecution examined P.W. Ravan in order to show that there use to be quarrels between the spouses. He did not subscribe to the case of prosecution. The version of P.W.9 Kaluram PHC (B.No.865) shows that he recorded case of accidental death (A.D.No.28/1990) U/s 174 of the Cr.P.C. after death of Radhabai. He sent concerned papers to P.S.I. P.W. 10 Kautik Iedhate. His version reveals that he had received statements of Radhabai which was recorded by the Executive Magistrate. The offence was registered on the basis of the F.I.R. lodged by P.W. 10 PSI Kautik on the basis of the investigation. 16. The circumstances in the present case are sufficient to raise strong suspicion. Still, however, it is well settled that suspicion cannot take place of proof. The learned A.P.P. referred to presumption available U/s 113-A and 113-B of the Evidence Act. Before such presumptions are invoked, it is necessary to establish that the deceased bride committed suicide within seven (7) years of marriage, she was subjected to matrimonial cruelty which would come within the ambit of Section 498-A of the I.P.C. and there are "other circumstances of the case" which if considered together would ig give rise to such presumption. The presumptions are of rebuttal nature. In "Baban Anna Dixit Vs. The State of Maharashtra" 1991(1) Crimes 439, this Court held that where the appellant bride gave two dying declarations, one to Police constable showing suicide because of cruel treatment of inlaws, and second to the Executive Magistrate showing accidental burns while cooking on stove, the presumptions could not be drawn. Unless there is adequate evidence to infer matrimonial cruelty and that the proximity test is satisfied, after the proof of suicidal nature of the death, there is no scope to consider the request to draw presumptions. In the present case, the prosecution evidence is insufficient to reach conclusion that deceased Radhabai was ::: Downloaded on - 09/06/2013 14:28:10 ::: (18) subjected to matrimonial cruelty on account of her failure to meet unlawful demands of the appellant. 17. Taking a stock of foregoing discussion and circumstances placed on record, I have no hesitation in holding that the prosecution could not establish the charge levelled against the appellant beyond reasonable realm of doubt. It is not proved that deceased Radhabai was subjected to matrimonial cruelty which was of the degree as envisaged in explanation (a) or (b) of Section 498-A of the I.P.C. It is also not proved that she died suicidal death. The impugned judgment is, therefore, unsustainable. 18. In the result, the appeal is allowed. The impugned judgment rendered by the learned Sessions Judge in Sessions Case No.44/1991 is set aside. The appellant is acquitted for the offences punishable U/ss 498-A and 306 of the I.P.C. His bail bonds be deemed as cancelled. The fine amount if deposited be refunded to him. (V.R.KINGAONKAR,J.) Authenticated Copy ::: Downloaded on - 09/06/2013 14:28:10 ::: (19) (Pvt.Secy. to Hon'ble Judge) asp/Crappeal29395 ::: Downloaded on - 09/06/2013 14:28:10 :::

Abhiman vs The State Of Maharashtra on 26 March, 2009

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.23482 of 2015 Arising out of PS.Case No. -75 Year- 2015 Thana -TARAIYA District- SARAN ====================================================== Haricharan Singh, Son of Late Nathuni Singh, resident of village - Deorhi, P.S. Taraiya, District - Saran ( Chapra ). .... .... Petitioner Versus The State of Bihar .... .... Opposite Party ====================================================== Appearance : For the Petitioner : Mr. Brij Kishor Mishra, Advocate. For the Opposite Party : Mr. Gopesh Kumar (App) ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH ORAL ORDERU.K./- (Sudhir Singh, J) U T 2 21-09-2015 Heard learned counsel for the petitioner and learned counsel for the State The petitioner is apprehending his arrest in connection with Taraiya P.S. Case No. 75 of 2015 for the offences instituted under Sections 341, 323, 307/34 of the IPC and 30 of the Arms Act. The prosecution story, in brief, is that the petitioner gave rod blow causing injury on the head of the informant and when he fell down the petitioner again gave rod blow on the head of the informant. Other co-accused Sonamati Devi assaulted the informant with Lathi. When brothers-in-law of the informant assembled, the petitioner brought gun from his house and opened 4-5 rounds firing to create terror. It has been submitted on behalf of the petitioner that the Patna High Court Cr.Misc. No.23482 of 2015 (2) dt.21-09-2015 2/2 petitioner has got no criminal antecedent. There is case and counter case. It has further been submitted that the injury is simple in nature. The petitioner has falsely been implicated in the present case due to land dispute. On behalf of the State it has been submitted that the petitioner is named in the F.I.R. Considering the aforesaid facts and circumstances, let the petitioner above named, be released on bail in the event of his arrest or surrender before the learned court below within a period of four weeks from today in connection with Taraiya P.S. Case No. 75 of 2015 on furnishing bail bond of Rs. 10,000/-(Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned C.J.M., Saran at Chapra, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

Haricharan Singh vs The State Of Bihar on 21 September, 2015

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16/02/2007 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL APPEAL No.370 of 1999 1. Ramasamy 2. Sengeni 3. Nagooran 4. Rajendran ..Appellants Vs State by the Inspector of Police Mamallapuram. .. Respondent This appeal is filed against the Judgment made in S.C.No.116/1997 dated 16.4.1999 on the file of the Court of Principal Sessions Judge, Chenglepet. For appellants : Mr.K.veera Raghavan For respondent : Mr.V.R.Balasubramanian,APP. JUDGMENT This appeal arises out of the Judgment in S.C.No.116 of 1997 on the file of the Court of Principal Sessions Judge,Chenglepet. 2. The short facts of the prosecution case relevant for the purpose of deciding this appeal are as follows: On 28.3.1996 at about 8.15.a.m., A1 to A4, due to previous enmity with an intention to cause the death of one Arasappan, have assaulted him with a stick causing the grievous injuries all over his body which resulted in his death on the same day in the hospital. 3.P.W.1 is the complainant. According to P.W.1, the deceased is his brother and there was no previous enmity between the accused and the deceased. On 28.3.1996 at about 8.15 a.m., when he was proceeding to Mahabalipuram to pay the electricity consumption charges, via., Kadumpadi Tank Bund, all the four accused wrongly restrained him, acacia stick and immediately accusing him and his brother Arasappan who was also accompanied him at the time of occurrence and A1 assaulted Arasappan on the left side of the head with stick and also on the left hand ; A2 also assaulted the deceased Arasappan on the left leg;A3 assaulted Arasappan on the left leg and nose and A4 assaulted Arasappan on the right side of the head ,left shoulder, and both hands causing bleeding injuries. Thereafter they also assaulted him(P.W.1) with the same acacia stick and A4 had also assaulted him(P.W.1) on the head left flank on both hands and the occurrence was seen by the vegetable hawkers Chandra, Navaneetham and Indirarani and that immediately they proceeded to Mahabalipuram Police Station and preferred a complaint Ex P1. The police have admitted them in the Government Hospital, Chenglepet for treatement but Arasappan died on the same day at about 1.30p.m., without responding to the treatment. 3a)P.W.2 is an eye witness to the occurrence and also an injured witness, who would depose that the deceased Arasappan was attacked by A1 Ramasamy on the left side of the head and the left hand with a stick; A2 Sengeni had assaulted Arasappan on the left ear ; A3 Nagooran had assaulted Arasappan on the eye and nose with a stick and A4 had assaulted Arasappan with acacia stick causing bleeding injuries and would also depose that the accused have assaulted him (P.W.2) on the head, right hand and left eye and both hands causing injuries and that A4 had chased P.W.1 Balasundaram and assaulted on his fore head, left flank and on the head with acacia stick and the occurrence was witnessed by the vegetable hawkers Indirani, Navaneetham and Chandra and that the complaint was preferred by P.W.1. 3b) P.W.3 who is the occurrence witnesss would depose that on the date of occurrence at about 8.15 a.m., while she was proceeding on the bund, she saw P.Ws1,2 and deceased were going along the Bund towards Mahabalipuram and suddenly, the accused came from behind each of them had assaulted with acacia stick on the head and nose. According to her, A1 had assaulted on the head and both hands of Arasappan , A2 had assaulted Arasappan on the right side of the ear, A3 had assaulted Arasappan on the left eye brow and on the nose and on the right ear and that the abovesaid four accused assaulted P.W.1 and P.W.2 causing injuries and that she had raised distress call. 3c) P.W.4 is also an eye witness to the occurrence. According to her, while she was proceeding on the bund of the tank on the date of occurrence at about 8.15 a.m., she saw the deceased Arasappan, P.Ws 1 and 2 proceeding towards Mahabalipuram on the bund of the tank were chased by the accused, and all the four accused have assaulted Arasappan and A1 had assaulted Arasappan on the head, lelft hand and left leg, A2 had assaulted right side ear; A3 had assaulted left side of the eye brow and nose; and A4 had assaulted on the left eye of Arasappan who fell unconscious due to the attack. Thereafter, the accused have also assaulted P.Ws 1 and 2 causing simple injuries with stick and that the injured were taken to bus stand where the police were informed through phone from the house of the Village Administrative Officer. 3d) P.W.5 and P.W.6 even though cited by the prosecution as independent eye witnesses, they have not supported the case of the prosecution. Hence the Addittional Public Prosecutor has treated them as hostile witnesses. 3e) P.W.7 is the Doctor who had admitted and treated the deceased Arasappan on 28.3.1996 at about 1.15p.m., while he was on duty in Chengleput Government Hospital. He would depose that Arasappan died on 1.30p.m., without responding to the treatment. Ex P2 is the death intimation given by him to the police. He has also treated,P.W.1 as an inpatient for the injuries, he had sustained and he(P.W.1) was discharged from the hospital on 4.4.1996. Ex P3 is the wound certificate relating to P.W.1 issued by P.W.7, the Doctor. 3f) P.W.8 is the Doctor who had conducted an autopsy on the corpse of Arasappan. Ex P5 is the postmortem report which contain the following injuries on the corpse of the deceased. "1.Abrasion on the upper part of left shoulder joint 1 = x = cms reddish brown in colour.O/D contusion of soft tissues underneth the abrasion 2 x = cms reddish in colour. 2.An obliquely placed reddish abrasion on the posterior surface of left side chest close to medial order of left scapular spine 2 x = cm.O/D subcutaneous soft tissues contused 3 x 3 cms. 3.Reddish abrasion on the middle 3rd of right scapular spine 2 x 1 cm O/D subcutaneous tissues found contused 3 x 2 cms. 4. Reddish abrasion with loss of cuticle on the posterior midline of back of chest at the level of T.5 vertebral spine.O/D underlying structures intact.Pale. 5.Sutured wound on the peripheral part of curvature of right ear pinna 7 cms above the right ear lobe. Tow sutures in tact.On removal of sutures, the wound-gaping reddish. Margins-irregular.Deep to cartilage 0.75 x = cm cartilage, deep obliquely placed. 6. Sutured wound seen on left side forhead close to the lateral part of the left eye brow,vertically placed in which two sutures in tact. On removal of sutures, the wound-gaping, margins irregular 1 x = cm bone deep. 7. Sutured wound on the peripherall margin of (torn) pinna 6 cms above the left ear lobe in which two sutures in tract. On removal of sutures the wound-gaping 1 x = x = cm deep to cartilage. Margins irregular with abradedness.(Lacerated wound). 8. Sutured wound on the left parietal region 9 cms above the upper part of left ear pinna in which 2 sutures in tact, on removal of sutures, the wound gaping 1 x = cm muscle deep. Subcutaneous tissues contused.Dark red in colour. 9. Both eyelids of left eye-contused. 10. Transversely placed dark brown abrasion on the lateral surface of left side face extending from left ala of the nose towards the lateral surface of left maxillary region 10 x 11 cms at its centre a sutured wound on the left maxillary region along the middle 3rd of abrasion with a single suture. On removal of suture, the wound-gaping , reddish, Margins-irregular = x = cms subcutaneous deep 11. Contusion on the anterior wall of upper part of abdomen across the midline transversely placed 10 cms above the umbilcus 4 x 2 cms muscle deep, reddish. 12. Peritoneal cavity contained 170 ml of fluid blood. 13. Contusion on the left side posterior surface of the lumbar region, reddish, 10 x8 cms muscle deep. On further exam, fracture of left 12th x 11th ribs as well as fracture of 6 to 10 ribs at its posterior part. 14. Contusion of Peripheric pad opf fact of left kidney seen.O/D transversly placed laceration at the level of Uretro-pelvic junction 1 = x = cm deep to the uretro-pelvic junction. 15.Multiple subscapular lacerations on the posterosuperior surface of right lobe of liver 6 x 5 cms subscapular deep. 16. O/D Scalp:Calvarium-intact.Dura Intact. Brain: Oedematous.Multiple petechial haemorrhage seen on the campus colossum of the brain c/s CSF-stained with blood. Base:intact." 3g) P.W.9 is the doctor who had treated P.W.1 on 28.3.1996 at about 11.50a.m., in the Government Hospital, Chengleput. The injured had informed him that he was assaulted by four known persons on the same date at about 7.30 a.m.,. Ex P6 is the wound certificate issued by P.W.9 to P.W1 which contain the following injuries. "1. Contusion 10 cm x 10 cm left front of the abdomen. Blueish in colour. 2. A lacerated wound = cm x = cm left parietal regioon of the scalp." He has also treated Arasappan before his death at about 12.00 noon on the same date and issued Ex P7 copy of the accident Register .The following injuries were noted. "1. A cut injury 1" near left ear.Fresh bleeding present. 2. Abrasion =" x =" left shoulder. 3.A lacerated wound 1" x 1 =" left side of the forehead. 4. Contusion over the left eye. Blueish in colour. 5. A lacerated wound 1" x 1" x = left parietal region of the scalp. 6. Abrasion =" x =" right side of the back. 7.Bleeding from both nostrils." P.W.2 was also treated by P.W.7 and P8 is the copy of the accident register relating to P.W.2. The following injuries were found in Ex P8. "1. Contusion 6 cm x 4 cm with cut injury left eyebrow. 2. Diffuse contusion over the right side of the face 8 cm x 5 cm. 3. A small cut injury 1 cm right side of the face. 4. Abrasion = x = cm right parietal region of the scalp. 5. Abrasion = cm x = cm left occupital region of the scalp. 6. Contusion 4 cm x 4 cm right supra scapular region. 7.Contusion 4 cm x 4 cm lelft supra scapular 8.Contusion 3 cm x 3 cm left lower end of upper arm. 9. Contusion 7 cm x 5 cm proximal = of the right forearm. 3h) P.W.10, the Doctor working in Orthopaedic Department, Government Hospital, Chengalput. He would depose that he knows the signature of Dr.Muthiah who was working in the same department previously and that Dr.Muthiah had examined the injured Murugesan(P.W.2) on 8.3.1996 and Ex P9 is the wound certificate.Ex P10 is the report given by Dr.Muthiah in respect of the injuries sustained by P,.W.2 on the left elbow which reveal that he had sustained grievous injuries and fracture below the left elbow. P.W.11 has not supported the case of the prosecution hence he was treated as a hostile witness. 3i)P.W.12 is the then Sub Inspector of Police, Mahabalipuram Police Station who has deposed that after receiving the complaint Ex P1 from P.W.1, he registered a case in Mahabalipuram Police station in Crime No. 316/1996 under Sections 341,323,506(ii) IPC.Ex P11 is the First Information Report and he sent the injured to the Government Hospital, Chengleput for treatment and proceeded to the place of occurrence and prepared Ex P12 Observation mahazar and had drawn a rough sketch Ex P13 and examined the witnesses and recorded their statement. After receiving intimation from the hospital, about the death of Arasappan, he has altered the first information report into an offence under Section 302 IPC and sent Express First Information report to the Judicial Magistrate and concerned officials under Ex P14. 3j) P.W.13 is the Inspector of Police who took up the investigation in this case On 28.3.1996 at 7.00p.m., after receiving Exs P11 and P14 First information reports, on the next day ie., 29.3.1996 at about 8.00a.m., he proceeded to the Government Hospital, Chengalput and conducted an inquest to the corpse of Arasappan in the presence of Panchayatars between 8.oo a.m., and 10.00 a.m., Ex P15 is the inquest report. He sent the corpse through police constable Kasinathan for postmortem with a requisition Ex P4. He has received the material objects M.O 1, and M.O.2 under Form 95 which were produced by the postmortem constable after postmortem. He had arrested A1 to A3 on 4.4.1996 at about 1.15p.m.,. The material objects were sent to forensic science laboratory for chemical analysis. EX P17 is the requisition letter addressed to the Judicial Magistrate for the said purpose. The Judicial Magistrate along with this requisition letter has forwarded the material objects connected with this case to the forensic science laboratory. Ex P19 is the analyst's report and Ex P20 is the seriologist's report. He had arrested A4 on 4.4.1996 at about 2.30.p.m., in the presence of witness. 3g) P.W.14 is the Inspector of Police who had succeeded P.W.13, had took up investigation and after completing the investigation, has filed the chargesheet against the accused on 12.12.1996 under Sections 341,302,307 and 307 r/w 34 IPC. 4. The case was taken on file by Judicial Magistrate, Thirukazhukundram as P.R.C.No.3 of 1997. The learned Judicial Magistrate, furnished copieis to the accused under Section 207 Cr.P.C. and since the case is trible by Court of Sessions, the learned Judicial Magistrate had committed the case to the Court of Sessions under Section 209 Cr.P.C. After the appearance of the accused, the learned Principal Sessions Judge,Chenglepet has framed charges under Sections 341,302,307 and 307 r/w 34 IPC and when questioned the accused pleaded not guilty. 5. When incriminating circumstances were put to the accused, they were denied their complicity with the crime.Before the trial Court, P.Ws 1 to 14 were examined. Exs P1 to P20 were marked . On the side of the accused D.W.1 was examined and no documents were marked on the side of the accused and M.Os 1 and 2 were also marked. After going through the evidence, both oral and documentary, after getting satisfied, that the guilt against the accused have been proved beyond any reasonable doubt and that the accused are liable to be convicted under Section 304(ii) IPC the learned trial judge accordingly convicted each of the accused to undergo four years rigorous imprisonment and also slapped with a fine. Aggrieved against the findings of the learned trial Judge, the accused have preferred this appeal. 6. Now the point for consideration in this appeals is, is there any inordinate delay in preferring the first information report which warrants interference from this Court in the finding of the trial Judge? 7.I heard Mr.K.Veera Raghavan, the learned counsel appearing for the appellants and Mr.V.R.Balasubramanian, the learned Additional Public Prosecutor for the respondent and carefully considered their rival submissions. 8. The point: Mr.K.Veera Raghavan, the learned counsel appearing for the appellants mainly focused the attention of this Court to an inordinate delay of 27 days in preferring the first information report. There are two first information reports Ex p11 and EX P14. Ex P11 is the earliest first information report which was registered on 28.3.1996 at about 10.30a.m., by P.W.12 and the case was registered in crime No.316 of 1996 under Sections 34,323,506(ii) IPC; Ex p14 is the altered first information report which was registered on 28.3.1996 at abaout 4.30p.m., after the death of the victim Arasappan on 28.3.1996 at about 1.30p.m., in the Government Hospital, Chengalput. The charge has been altered into that of Section 302 IPC and the express first information report was registered and sent to concerned officers on 28.3.1996 at 4.30p.m., according to P.W.12. But both the first information report have reached the Court only on 29.3.1996 at 1.05 p.m. Neither the Court clerk nor the Magistrate, who can speak about the receipt of information report was not examined in this case. Further the postmortem constable was also not examined. There is no explanation forthcoming from the Investigating Officer to this inordinate delay in sending the Express first information report to the Court. 9. The learned counsel appearing for the appellants would rely on series of ratio-decidenties to show that non explanation of in ordinate delay in sending the FIR is fatal to the prosecution case. He would rely on a decision reported in 1974 Law Weekly(crl.,) 147 one of the earliest dictum on this point available in Kolandaivelu. The learned counsel would contend that if the delay in sending the express first information report to the Court is not explained by the prosecution that will lead to the inference that the investigation was not fairly done by the prosecution. The exact observation by the learned Judge at page 150 para 18 runs as follows: "I have given my anxious consideration to this case bearing in mind the effects of an unjustified acquittal, but I find it not possible to accept the prosecution evidence with safety. Indeed , I feel that the witnesses P.Ws 1,2,3 and 5 did not witness the occurrence at all, as they claim, and that the evidence of P.W.4 is also false. The most important reason for my conclusion is that, though the evidence as put forth purports to be cast-iron. Ex D-42, which is in copy of the village Headman's cooking reports of the occurrence, reached the Sub Magistrate at Tiruthuraipundi only at 2.15 p.m., on 16th November 1972 and Ex D-43 which is a copy of the first information report which the Sub Inspector sent to the Sub Magistrate, reached the Sub Magistrate only at 4.10p.m., The delay has not been explained which suggests that Ex P1 did not come into existence at 8.a.m., as it purports, but only later, that it was not registered at the police station at 9.01 a.m., as alleged and that the first information report(ExP1) came into existence only much later." 10. In State of Rajasthan-vs- Teja Singh and others(2001 Supreme Court Cases(crl)439) the Honourable Apex Court of this Country has held that even the intervening public holidays is not an excuse for the delay in sending the first information report. It was contended on behalf of the appellant in the above said dictum that the first information report in question was lodged at about 7.30 p.m., on 15.8.1981 since the said day happened to be a holiday on account of it being the Independence Day and the next Sunday, the Court being closed, the first information report could reach the Court only on Monday i.e., on 17.8.1981 hence there was nothing unusual about the delay in sending FIR to the Court. But rejecteing this argument, the learned Judge of the Apex Court have held as follows: " we have examined three eye witnesses as also that of Iqbal Singh(P.W.10), the Investigating Officer. We do not find any reason to differ with the finding of the High Court which sitting as the first Court of appeal on facts, had every right to reappreciate the evidence. In our opinion, the High Court, in that process, has not committed any error. As a matter of fact, the explanation put forth by the learned counsel in regard to the delay in the FIR reaching the Court is not tenable because assuming that there were some Court holidays that cannot be a ground for the delay in the FIR reaching the Magistrate, because requirement of law is that the FIR should reach the Magistrate concerned without any undue delay. We are of the opinion that the explanation given by the prosecution regarding the delay in the FIR reaching the Magistrate is neither convincing nor acceptable. 11. For the same point, the learned counsel appearing for the appellants rely on a decision reported in Suresh Chaudhary -vs- State of Bihar(2003 Supreme Court Cases(cri) 801) 1 = days delay in sending the first information report to the Magistrate after the registration of complaint was considered to be an inordinate delay and in the absence of any explanation which was held the said delay contributed to the doubtful circumstances surrounding the prosecution case. 12. A case with the similar facts was cited by the learned counsel appearing for the appellants in Kunju Muhammed Alias Khumani and another-vs- State of Kerala(2004 Supreme Court Cases(cri) 1425) . The short facts of the said case is that in an altercation that took place between Kunjumuhammed, P.W.3,Kochunni, P.W.4, Khadarkunju, P.W.5 on one side and Moosakutty,A-2,Ummer,A-3,Ali ,A-4,kochunni,A-5, Ashraf,A-6 and Subair,A-7 on the other, on 3.11.1991 at about 8.15 am., in the north-eastern portion of Korathukudy House No.III/209 of Vengola Panchayat, the accused persons assaulted P.W.4 and P.W.3. At that time,the deceased Majeed came to the place of incident and resisted the said accused from assaulting P.Ws 3 and 4 at which time Ummer, A3 beat Majeed with an iron rod, M.O1 which blow was warded off by Majeed who caught hold of the iron rod and a scuffle ensued between Majeed and Ummer-A3. At this point of time, Kunju Muhammed A1 came to the scene with a fishing sword, M.O.2 and stabbed on the back of Majeed with the same.Majeed having received the said stab injury then allegedly turned towards A1 and caught hold of the sword which was pulled back by A1 who again stabbed Majeed on the left side of his chest. Seeing the assault on Majeed, it is stated Muhammed,P.W2 rushed to the scene but he was intercepted and stabbed by A1 on the right side of the lower part of his belly. P.W.2 then caught hold of the sword but he was assaulted by Ummer, A3 on the head with the iron rod. Due to the stab injuries, Majeed died on the spot. It is the case of the prosecution that on the same day at about 8.45 a.m. Sacaria,P.W.1 went to Perumbavoor Police Station which is about 2 to 3 km from the place of incident and lodged a complaint as per Ex F-1. The Assistant Sub Inspector of Police,P.W.18 attached to the said police station recorded Ex P1 and registered Crime No.408 of 1991 he then sent the file to the Circle Inspector of Police,P.W.19 who initiated the investigation of the case and proceeded to the scene of incident at about 9 a.m., and prepared an inquest panchnama as per Ex P6 which was attested by P.W.10 Azeez. The trial Court acquitted the accused. The State preferred an appeal t the High Court of Kerala at Ernakulam which reverse the finding and found that A1 and A2 guilty under Section 302 IPC and convicted and sentenced to undergo life imprisonment. A1 to A3 were also convicted under Sections 323 and 324 r/w Section 34 IPC. On appeal the appellants mainly placed their arguments on the delay of 27 hours in preferring the first information report. While reversing the findings of the High Court, the learned Apex Court have observed as follows: "P.W.1 was treated as hostile and cross examined by the prosecution. If this was the sole piece of evidence on which the trial Court relied upon to come to the conclusion that the incident in question might not have taken place at 8.15 a.m., on 3.11.1991, we would have definitely disagreed with the trial Court but then the trial Court also relies on the fact that Ext P1 did not reach the Magistrate's Court at least till the evening of 4.11.1991 as could be seen from the endorsment in the FIR. This omission on the part of the prosecution to explain why the FIR did not reach the Jurisdictional Magistrate till the evening of 4.11.1991 even though the incidient in question had taken place at 8.15 a.m., and reported to the police at 8.45a.m., on 3.11.1991 itself casts a very serious doubt, which lends support to the evidence of P.W.1 that the complaint was got ready only on the midnight of 3.11.1991/4.11.1991. It should be borne in mind that the distance between the Magistrate's Court and the police station being in the same town was very close. Then again it is to be noticed from the evidence of P.W.10, who is admittedly a very close friend of deceased Majeed that on 3.11.1991 at about 7.a.m., which was again a time much earlier than the time of incidient as projected by the prosecution. This also supports the defence version that the incident in question could not have taken place at 8.15 am., We further notice that the doctor, P.W.13 who conducted the post mortem examination had noted that rigor mortis had formed and was found all over the dead body at the time when he conducted the post mortem. He in his evidence had stated that in his opinion rigor mortis sets in within about 4 to 7 hours of the death. If we apply the yardstick as spoken to by P.W.13 of the starting of rigor mortis to the facts of this case then we notice that in the instant case the death must have occurred prior to 8.a.m., because if rigor mortis starts within 4 to 7 hours of death then it would take some time to reach all parts of the body and in the instant case, rigor mortis was found in the entire body of the deceased, therefore, to reach this stage if we take 4 hours as the starting point, it would have taken some more time to reach different parts of the body therefore, we think it is reasonable to take the upper limit of rigor mortis reaching the entire body as 7 hours and if we would backwards then we notice that the death in question must have occurred before 6.30a.m., on 3.11.1991 which actually fifts into the other facts noticed by us hereinabove while discussing the time of death. . . . . . . .Thus relying on (a) the statement of P.W.1 that the complaint was signed on the midnight of 3.11.1991;(b) the FIR reaching the Jurisdictional Magistrate more than 36 hours after the incident in question though the court is situated in the same town; (c) the evidence of the doctor as to the presence of rigor mortis on the body of the deceased indicating death must have occurred much earlier than 8.15 to 8.30 a.m, on 3.11.1991 and (d) recording in the inquest report Ext P-6 that the body of the deceased when examined was found to be cold and frozen; we find that the conclusion arrived at by the prosecution is a probable one. .So on the basis of the non explanation of delay of 36 hours , the Apex Court have held that the benefit of doubt must go to the appellants and has allowed the appeal and consequently acquitted the accused. 13. In another case 29 hours delay on receipt of first information report reaching the Sub Magistrate was considered to be inordinate delay to throw away the case of the prosecution Marudanal August-vs-State of Kerala(1980 Crl.L.J.446= AIR 1980 Supreme Court 638)wherein the Honourable Apex Court have held as follows: "The facts of the case have been fully detailed in the Judgment of the Sessions Court and the High Court and it is not necessary for us to repeat the same all over again. The trial Court appears to have acquitted the appellant on the ground that there were certain infirmities in the investigation conducted by the police Officer. The manner in which the FIR was lodged, the delay in despatch of the F.I.R. And the delay on the part of P.W.1 in getting the injuries examined by the Doctor, were features which according to the Sessions Judge, were so gravely suspicious that they went to the root of the matter. . . . . . . . .The most serious infirmity which appears in the case is although the FIR was lodged in the midnight of 23/24 -6-1971.It was despatched to the Sub Magistrate at 5.30 a.m., on the 25th June 1971 that is to say there is delay of as many as 29 hours in receipt of the FIR by the Sub Magistrate... . . . . . . . The High court seems to have ovoerlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. Only on the ground of 29 hours of unexplained delay in receipt of the FIR by the Sub Magistrate giving benefit of doubt , the Apex Court has allowed the appeal and acquitted the appellants. 14. For the same point, the learned counsel appearing for the appellants would rely on a decision reported in Karunakaran Jabamani nadar In re(1974 L.W.(crl)190) wherein it has been held as follows: " It is imperative that the following documents should be despatched immediatley, without any delay by the investigating officiers to the Sub magistrate. The Station House Officer should record the time of the actual despatch of the various documents in the various registeres particularly the statement recorded under Section 154 of the Cr.P.C., On receipt of the said documents, the Magistrate should initial the same, noting there in the time and date of the receipt of those documents. This would provide the only judicial safeguard against subsequent fabrication of such documents in grave crimes. 1) The original report or complaint under Section 154 Cr.P.C 2) The printed form of the FIR (first information report)prepared on the basis of the said report or complaint. 3)Inquest reports and statements of witnesses recorded during the inquest 4) Memo sent by the Station House Officers to doctors for treating the injured victims who die in the hospital subsequently and the history of the case treatment. 5) Memo sent by the doctor to the police when a person with injuries is brought to the hospital, or the death-memo sent by the doctor to the police on the death of the person admitted into the hospital with injuries. 6) Observation mahazars and mahazars for the recovery of material objects search lists and the statements given by the ccused admissible under S.27 of the Evidence Act etc., prepared in the course of the investigation. 7. The statementns of witnesses recorded under s.161(3) of the Crl.P.C. 8) Form No 91( Now Form No.95) accompanied by material objects." In the above case, the learned Sub Magistrate has omitted to put his initial with date on the above said documents which are supposed to be material documents to prove the guilt of the accused beyond any reasonable doubt. But in the case on hand in both the F.I.Rs Ex P11 and Ex P14 even though they were lodged on 28.3.1996 at about 10.30 a.m and 1.05 p.m., respectively they have reached the court only on 29.3.1996 at 1.05p.m., ie after an unexplained long delay of 27 hours which I considered to be fatal to the case of the prosecution. 15.The learned Additional Public Prosecutor relied on a decision reported in Dalbir Singh and others-vs-State of Punjab(AIR 1987 Supreme Court 1328) and contended that even 16 hours delay was not considered by the Apex Court as an inordinate delay. But the facts are different because in the above said dictum, the investigation officer has recorded dying declaration of the victim before his death and the investigation Officer was in a position to explain the reason for the delay.Even in this case FIR Constable was not examined to explain the delay. Even though in the Investigation Officer P.W.13 has not given any explanation for the delay in sending FIR to the Court.Apart from this, there are also discrepancies in the evidcence of P.W.9 and P.W.10, the doctors who have examined the injured witness P.W1 and P.W.2 respectively. According to P.W.9 at the time of treatment has informed to him that he was assaulted by four known persons whereas P.W.2 who had sustained injury in the same place of occurrence at the same time, has stated before P.W.10 at the time of treatement that some unknown persons have assaulted him. The learned Additional Public Prosecutor informes this Court that the distance between Mahabalipuram Police Station and the Court at Thirukazhukundram is 15 km., There is no possibility for sending FIR after an inordinate delay of 27 hours from the police station to the Judicial Magistrate Court. Under such circumstances, I am of the view that non explanation of the inordinate delay of 27 hours is fatal to the case of the prosecution. Point is answered accordingly. 16. In fine, the appeal is allowed setting aside the Judgment in S.C.No.116 of 1997 on the file of Principal Sessions Judge,Chengalput. The accused are set at liberty forthwith, if they are not required in any other case. Fine amount, if any paid, shall be refunded to the accused. Bail bond executed by the appellants shall stand cancelled. sg To 1. The Principal Sessions Judge I, Chengalput. 2. The Public Prosecutor, High Court, Madras 104 3 The Superintendent, Central Prison, Cuddalore. 4. The Judicial Magistrate, Thiruzhukundram 5. -do- through the Chief Judicial Magistrate, Chengalput. [PRV/9634]

Ramasamy vs State on 16 February, 2007

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.959 of 2007 Raj Kishore Singh @ Gopal Singh. Versus Arun Kumar Singh ----------- 5. 20.07.2011 No one appears on behalf of the petitioner. A perusal of the impugned order shows that this revision application is not maintainable in view of the law laid down by the Apex Court in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and others, reported in (2003)6 Supreme Court Cases 659 and Surya Dev Rai Vs. Ram Chander Rai and others, reported in (2003)6 Supreme Court Cases 675 as well as by a Division Bench of this Court in Durga Devi Vs. Vijay Kumar Poddar, reported in 2010(2) PLJR 954, The petitioner is allowed to convert this Civil Revision into a Writ Petition under Article 227 of the Constitution of India within four weeks failing which this Civil Revision shall stand rejected as not maintainable without further reference to a Bench. ( V. Nath, J.) Nitesh/

Raj Kishore Singh @ Gopal Sing vs Arun Kumar Singh on 20 July, 2011

Patna High Court - Orders

IN 'IIHE HIGH COURT OF KARIQATAKPL; BANGALORE HATED THIS THE 8" DAY OF J-'hPP.II. 2008 BEFORE THE I-IDN'BLE 2{P.. JUSTICE N.I(.PATIL Hl!2'.L'WEEN THE HATIDNAL INEURPLNCE CO LTD Lil"-3l;$lE.'31~I,-11..L ER lE.EE'rIIl.OFE'ICE 3'-1'{IDDI:E TONE STREET P B Ei'G.§"$£9 KOLFI-'aT'fA "r'Z'L . T'n"1iG'I..T€§'rI DIVIEIOHRL MANAGER NRTIDNAL INSURANCE |!3'EJ.I.'I'D..- BIIJKGUI-IDI CDHP'1.EX GEE MINI "a"IDH1°1.HPs SOUIZIEIP; _- I15 REGIUNRL OFFICE 140.144 % GOHPLEX Pé.a'-".1"Ia".3.'u+;-"=.'I..01-"a.E . . . EE'.1".{."'.E.'I~..»""'HE'.oP. 11331' SM!' : '.33&NC?rEE'1'HFs R LA'I'I'II.?'&_. ADV.) 1 nmmm we sansmm H;.mEm'~:1'H man :5": we HIL 1*-:.*.n.r.r I-IMIHAL conomr TIT' "¥'fi'l"'4'l"I' -H3-Ul'Is1uT|-I 2 c.:1-mm-Imrm. % we HUDHRYYA Hxnmmwrm I-EGEB .-'-EBCIUT 32 ms DEC: HDUSEHGLI3 mm 'n-Mm" 'I-'l".'|!§'I.'fl1l'l.'n.'l". -£1-|' in ink 1-Jl-fill'!-'III I-bl in-l'\vFuh1 -l- ]! IJAPUR 3 LAKMI mfg RUDRAYYA HIREMETH EQEE AEQUT 12 YES HTNDF Hwy. 5! -dc-hV'..r.l.\ .I.\-Gal flflfiflfihflflh CCU NIL Effil nnmman fl0'"fiY BIJAFUR 4 EANQAYYA SIG RUDRAEYA HIREMAIH EEKD ABGUT H YRS MINOR REP. BY UH Lfififififififlfi RIRT HENMAL COLQNY EIJAPUR 5 aaanamaaas VA SID RUDREYYA HIREHATH fiflfifl ABQUT 2 was MIHDR REP. 33 cnammamn EffiT HEfifiAL coL@fiY BIJAPUR :55 IE '=-=. ' 3 :35 'G 3'1 EADGIRI GULEARGA DIST ... RESPONDENTS THEE CIEIE: PETITIflN' I5 EILEE 'U!s.24 93 Gym, PRRYING TD RAN5FER Mvc. 9932005 FEEEING EEFGRE THE MEET, EIJ*'flR Ta THE COURT 0% ERL.CIVIL JUDGE(SR.BIVN.] a can a :MAcT, BAGALEDT. IN THE INTEREST GE JUSTICE AND EQUITX= -I 5 I I I Lnifi CI?IL PETITI"h 6'nI EHI5 flAYy THE COURT MADE THE FOLLOWING: 0 I D E I Waugh this mattar :15 listed for non- nna 4; 4- uuu; Ab Lfi IND nu-J 'I1 "I Uiiul J..Lufin hvauard. ami takean up far final dispcusal. E i In thg 'inn 'I-'maid-' I"'-ix?-I 'I figtitinn the -I-an-I-or I--h-you-In \G-D-'H'oOn-in an 'Inn; patiti-one: has sought for trarxafer of ETC I=i'c:a.E9.:"'2()£"JE'.c panding on the file of the I-IACT, Bijapmr to the Gaunt of the Principal Civil Judge acsr. nn..: 5: can a mew, Eagalkot, in the intmtmat af jutice and equity. 23. Thin: Count an 11.3.2008, has granted ten days tzime at request, to take necessary atep. tr: serve nratice an the 1.41"-59.. . evfi. ....._...- .......:.......a...... -N .n..... E' .._....a _-|...._ _.....__..__'1_:___1 1.1 _ .L'§5|E§£.iI 'LlZIIU.8.l1.l.Lt£ .1. LU -Z1 5.1 fl..Lf.'5U PEI! lE'n'.'QC1 EH9 cezxunaaal appaaring fun: the patitiamar to take. abut rmtiqza ta serve on the czaunsel app-aaring fur tribe xeapctndenta 1 to 5 before the Trial emurt. The learned counsel apmmring for the geetiti ner has -=mhmH*i'¢=--"1 +*1'~a+.: 1*-etice ta the unrserved raapondenta 1 to 5, may be dispensed with tn the graund that a similar matte: has PETTIQN ND.15B!200? in the case of saw NfiTIflNAE INEURANGE CO.fiTD., VS. ILIYAS AND GTHERS. Tharufwre, the submitted that the atdar dated 11.2.2008 may be dispensed with. 4. The aubmiaaion made by the learned aaunsal appearing for tha patitionar as stated 0 -'1 EX! 4!-' *5}? ha' it-' IE9 I I3 4:; 9 33 H IE I') 0 {EL 1-3 E3' 13 'g ....u |..I is {'1 (I 13 H1 Fl' flu F1?' tha tiak of tha counael appearing for the patitionet. . In the light of the submission mafia by ill! the learned counsel appearing for the patitianar and as the suhjact matter involved in thmse cases are direatly cevered by thfi GP I~T::-.1E.5Br'2I(Z!II'4'? disposed of on 13.2.2fl08 in the aa-e cf Ratianal Insuzanc Cc.Ltnd., ¥s. /.__.____. Iliyaw and others, . " ' Wu aadexr tha be diamiaewd. mrderad accordingly. 91* and ffiliawiwg the , . . '1 instant Glv1¢ 0- Int. U! 1...: Eu 4...: ED .. Patitxar -5 tilted; as devaid of merits. sci!-~ 'judge

Author: N.K.Patil

The National Insurance Co Ltd vs Basamma on 8 April, 2008

Karnataka High Court

ORDER P.K. Tripathy, J. 1. Heard. 2. This revision application has been filed by the 2nd party in Criminal Misc. Case No. 72 of 1995 under Section 145 Cr.P.C. of the Court of Executive Magistrate, Kendrapara, challenging issue of the prohibitory order while passing the preliminary order under Sub-Section (I) of Section 145 Cr.P.C. The impugned order reads as hereunder : "Perused the Misc. petition filed by the 1st party and enquiry , report made thereon by the A.S.I., Patkura P.S. dated 3.5.1995. Also perused the xerox copy of the R.O.R. published on 7.10.1987 and heard the Advocate on behalf of the 1st party. It appears that there is apprehension of breach of peace arising out of construction of pucca building over the proceeding land as scheduled below, which is situated within the local limits of Court's jurisdiction. I am satisfied that there is apprehension of serious breach of peace between the parties at any moment3, which may lead to serious bloodshed and loss of human lives. I, therefore order for initiation of a proceeding under Section 145, Cr.P.C. restraining both the parties to construct any pucca building on the scheduled land until further orders. Both parties are also directed to appear in my Court on I 8.5.1995 in person or through Advocate and to file written statement and produce original documents in their favour. Given under my hand and seal of the Court, this the 4thday of May 1995. Sd.... Executive Magistrate Kendrapara" 3. Learned counsel for the petitioner argues that in a proceeding under Section 145. Cr.P.C, the Magistrate is not empowered to issue a prohibitory order restraining the parties not to proceed with any construction, which in essence is an order under Section 144. The 1st parties/ppposite parties has not appeared and contested the case. Learned Additional Standing Counsel appearing for opp. party No. 1 State of Orissa concedes ; to the correctness of the position of law in the aforesaid manner. However, he states that when a proceeding under Section 145. Cr.P.C. is meant to prevent apprehension of breach of peace, in appropriate cases, to avoid break of heads and/or clash between the parties, Magistrate may pass appropriate order either for appointment of receiver or attachment to the subject matter of dispute. Learned counsel for the petitioner also does not dispute to the power and jurisdiction of the Magistrate to act in the aforesaid manner in appropriate cases. 4. Therefore, keeping in view the aforesaid submission and the position of law, this Court finds that the order, passed by learned Executive Magistrate "restraining both the parties to construct any pucca building on the scheduled land until further order" being not an order in confirmity with the provision in Section 145, Cr.P.C, that stands vacated. However, upon his satisfaction about existence of sufficient cause, on any of the grounds as provided in Sub-Section (1) of Section 146, Cr.P.C, learned Executive Magistrate may pass appropriate order for attachment of the subject-matter of dispute and if necessary he can pass appropriate order under Sub-Section (2) of Section 146, Cr.P.C. for looking after the property or to appoint a receiver. At present, when the proceeding under Section 145, Cr.P.C. is pending at the stage of appearance of the 2nd party therefore, the only ground available is that of emergency, as provided in Sub-Section (1) of Section 146. If such emergency shall be found existing, learned Executive Magistrate may invoke the power to pass appropriate order. In that respect, learned Magistrate shall pass appropriate order after affording reasonable opportunity of hearing to both the parties. If required, learned Magistrate may allow the parties to file affidavits in support and against the motion of attachment. If, he shall think it necessary, may call for a report from the concerned Officer-in-charge of the Police station regarding existence of emergency. The said matter be attended to expeditiously and if necessary by granting short adjournment Apart from that in case of extreme urgency, learned Magistrate may pass appropriate interim orders which may be continued or discontinued after hearing the parties in the aforesaid manner. 5. The above order shall not be treated as a direction to pass an order of attachment. The learned Magistrate shall exercise his jurisdiction and discretion only in the case of existence of appropriate situation. 6. It appears that though the proceeding under Section 145, Cr.P.C. is of the year 1995 the 2nd party/petitioner has not yet appeared in the proceeding and has not yet filed his written statement, if any. Since the petitioner has knowledge and information about pendency of the said proceeding and keeping in view the old ness of the proceeding this Court observes that no further notice be issued to him and the 2nd party petitioner shall enter appearance in the Court below within ten days hence and shall file his written statement, if any, within one month from the date of receipt of the L.C.R. by the Court below. 7 .The criminal misc. case is allowed accordingly. Send back the L.C.R. immediately

Author: P Tripathy

Bhikari Charan Rath vs State Of Orissa And Anr. on 29 February, 2000

Orissa High Court

JUDGMENT Arnold White, C.J. 1. In this case the defendant was indebted to the stake-holder of a chit fund in a sum of Rs. 750. He undertook to pay this sum in half-yearly instalments of Rs. 62-8-0, and in default he bound himself to pay in a lump sum on demand the principal debt and interest at the rate of 1 pie per diem per rupee from the date of default. The half-yearly instalments of Rs. 62-8-0, which the defendant undertook to pay, were on account of the principal only. There is some conflict' of authority with reference to the enforcement of the stipulations which provide for the payment of a higher rate of interest on default, but the authorities appear to be uniform at any rate to this extent--that when the higher rate of interest is payable as from the date of default and not as from the date of the contract, the contract rate is enforceable. See 2 M H.C.R. 205, Nanjappa v. Nanjappa I.L.R. 12 M. 161, the judgment of this Court (Shephard and Davies, JJ.) in S.A. No. 1303 of 1896 (unreported), Dullabhdas Devchandshet v. Lakshmandas Swarupchand I.L.R. 14 B. 200, Umed Khan Mahamad Khan Deshmukh v. Salekhan 17 B. 106, Mackintosh v. Crow I.L.R. 9 C. 689, and Deno Nath Singh v. Nibaran Chandra Chuckerbutty I.L.R. 27 C. 421. The result of the authorities is thus stated by Sargent, C.J., in the case reported in I.L.R. 17 B. 106, (at p. 113)--"a proviso for retrospective enhancement of interest, in default of payment of the interest at due date is generally a penalty which should be relieved against, but a proviso for enhanced interest in the future cannot be considered as a penalty, unless the enhanced rate be such as to lead to the conclusion that it could not have been intended to be part of the primary contract between the parties." As pointed out by this Court in the case reported in I.L.R. 12 M. 161 (see page 166), when the agreement is to pay the higher rate as from the date of default, no question of penalty really arises. At the moment of the breach no larger sum can be exacted by the creditor, but from the date of the breach the terms on which the debtor holds the money become less favourable. "By the default he accepts the alternative arrangement of paying a higher rate of interest for the future. On the other hand, when the stipulation is that on default the higher rate shall be payable from the date of the original obligation, the debtor does on default become immediately liable for a larger sum.'' The decisions in the cases in which the Courts have gone further and, following the decision of the Privy Council reported in Balkishen Das v. Run Bahadur Sing I.L.R. 10 C. 305, have held that the contract rate is enforceable even where the higher rate is payable as from the date of the agreement (see for instance Basavayya v. Sabbarazu I.L.R. 11 M. 294, Narayanasami Naidu v. Narayaua Rao I.L.R. 17 M. 62, Arjan Bibi v. Asgar Ali Chowdhuri I.L.R. 18 C. 200, Banwar v. Muhammad Mashiat 9 A. 690, and Banke Behari v. Sundar Lal 15 A. 232 do not of course conflict with this view. 2. It seems to me both on principle and on authority that as the law stood under the Act of 1872, when the enhanced rate of interest only becomes payable as from the date of default, the stipulation ought not to be construed as a stipulatiotn by way of penalty, and the debtor ought not to be relieved therefrom. The mere faei that the rate of interest which the debtor agrees to pay is high, or even exorbitant, is, in itself, of course no reason for relieving him from his bargain, although it may be evidence that the parties were not dealing at arm's length and that some unfair advantage was taken by the creditor--in other words, that there was 116 real contract between the parties. In the present case, however, having regard to the relations between the parties and the circum-stances in which the defendant undertook the obligation which he failed to fulfil, I am certainly not prepared to say that the rate of interest was exorbitant. 3. Moreover, in the present case it is to be observed that the contract was not one which provided for the payment of a given rate of interest in any event and a higher rate in the event of default. Under the agreement the debtor incurred no obligation to pay interest at all on the money which he owed. His liability to pay interest only arose in the event of default. It seems to me that if the principle on which the Courts have drawn a distinction between agreements under which a higher rate of interest is payable as from the date of default and agreements under which a higher rate of interest is payable as from the date of agreement, is sound, as 1 think it is, the principle applies a fortiori whether the creditor may be said to waive his right to interest so long as the debtor fulfils his obligation and where the liability to pay interest at all only arises as from the date when the debtor fails to fulfil his obligation. 4. So much for the law as it stood under the Act of 1872. The next question for consideration is--assuming the Amending Act of 1899 applies, is the defendant entitled under Section 4 of the Act to be relieved from his contractual obligation? 5. As regards the exacting portion of the section, the alterations would seem to be merely verbal. The explanation, however, declares that a stipulation for increased interest from the date of de-fault may be stipulation by way of penalty. The explanation appears to be intended to meet the decisions to which I have referred. It is to be observed, however, that the explanation only says that the stipulation may fee a stipulation by way of penalty. There is nothing in the explanation to preclude a Court from holding that, notwithstanding that the stipulation was for increased interest from the date of default and not from the date of agreement, the stipulation ought not to be regarded as a stipulation by way of penalty. Further, the explanation does not apply to the contract in the present case where the stipulation was not for increased interest on default, but for interest on default which would not hare been payable at all if there had been no default. None of the new illustrations cover the present case, but there is nothing in any of the illustrations which conflicts with the view indicated above. Putting the proposition of law in the form of an illustration it r would run thus: A. undertakes to repay B a loan of Rs. 1,000 by five equal monthly instalments, with a stipulation that, in default of payment of any instalments, the whole shall become due, with interest, from the date of default. The fact that interest is payable from the date of default does not, in itself, render the stipulation one by way of penalty. 6. It seems to me, therefore, that as a question of construction Section 4 of the Act of 1899 would not preclude a Court from holding that the stipulation in the contract in question is not a stipulation by way of penalty. 7. If the view, expressed above, is right, the question whether, on the construction of Section 1(3) of the Act of 1899, the Act applies at all to the contract in the present case, would not arise. This question of construction, however, has been fully argued, and I propose to deal with it. The Act came into operation on May 1899. The decree of the Court of First Instance (which gave the plaintiff interest at the contract rate) was before the Act came into operation. The decree of the lower appellate Court, which gave the plaintiff interest at the rate of 12 per cent. only was after the Act came into operation. Section 1(3) of the Act of 1899 provides that the Act shall apply to every contract in respect of which any suit is instituted, or which is put in issue in any suit, after the commencement of the Act. The question, therefore, turns on the construction of the words "or which is put in issue in any suit." 8. The contention on behalf of the defendant was that the words "put in issue" were not intended to be used in any technical sense and that the word "suit" included "appeal." On behalf of the plaintiff it was argued that the word "suit" as first used in the sub-section obviously meant suit in the restricted sense and that it should be so construed when it is used in connection with the words "put in issue." In the view I take of the construction of the section it is not necessary to deal with these points. If it were,. I should be disposed to say that the words "which is put in issue" mean nothing more than "which is in issue'' and that where there is an appeal from a decree in a suit instituted in respect of a contract the contract is "In issue" in the appeal. It seems, to me, however, that the words "put in issue" in any suit mean put in issue in any suit instituted after the commencement of the Act. I concede that this intention could have been made clear beyond all doubt by the introduction of the word "instituted'' after the words in any "suit" and that the construction which I am prepared to adopt is not the strict grammatical construction of the sub-section. It seems to me, however that to construe it otherwise, would lead to serious inconveniences and anomalies and that having regard to the general scope of the amendment made by the Act and the canons of construction in cases where vested rights are affected or. the legal character of past transactions is concerned, the legislature only intended the Act to apply to suits instituted after the commencement of the Act. I think the words "or which is put in issue in any suit" were intended to apply to cases where, although the suit is not' instituted in respect of the contract, the contract is put in issue in the suit. The words "contract in respect of which any suit is instituted" apply to cases where a suit is brought to enforce a contract or to have a contract set aside. The words "contract...which is put in issue" apply to cases where it becomes necessary for the court to adjudicate upon a contract, although the suit was not brought either to enforce it or to have it set aside. 9. I think this appeal should be allowed with costs here and in the lower appellate Court; the decree of the lower appellate Court is set aside and that of the District Munsif restored. The plaintiff is entitled to interest at the contract rate on the principal debt Rs. 600 from the date of the plaint until the date of the Munsif's decree and interest at the rate of 6 per cent. from the date of the Munsif's decree until payment. Davies, J. 10. The defendant was under an obligation to pay Rs. 750 in half yearly instalments of Rs 62 1/2 to a Benefit Fund and he executed a bond to the plaintiff who was managing the fund to make payment accordingly. In default of' the payment of the instalments on due dates, he stipulated that the whole principal should become payable at once and that he would pay interest on the instalments in case of non-payment on the fixed dates at the rate of 1 pie per diem per rupee. 11. The only question before us is whether the interest so agreed upon is recoverable in full as the contract rate between the parties under Section 2 of Act XXVIII of 1855 which provides that "in any suit in which interest is recoverable, the amount shall be adjudged or decreed by the court at the rate (if any) agreed upon by the parties'' or whether that rate being a very high one amounting as it does to about 180 per cent. per annum - ought to be relieved against as a penalty, and only a lower rate allowed. The contract rate was allowed by the District Munsif, but the Subordinate Judge in appeal holding that rate to be exorbitant decreed at the rate of only 12 per cent per annum. Hence this second appeal by the plaintiff whose pleader points out that in an exactly similar case in the same Munsif's Court, a Division Bench of this Court in S. A. No. 1303 of 1896 decided in favour of the contract rate. There is no question here, nor was there in the second appeal just referred to, as to the contract being voidable on the ground of the defendant not understanding the transaction. He entered into it with full consent and the parties were on an equal footing. Section 74 of the Contract Act and the numerous and various decisions of the High Courts in India in regard to the provision in a contract for an increased rate of interest when there is a default in payment of a lower rate are also in my opinion inapplicable to this case, inasmuch as no increased rate of interest is here stipulated for. The agreement simply was that interest was to be paid on overdue instalments, and the rate of such interest was once for all fixed. So what the respondent's pleader mainly relies on is a ruling of the Allahabad High Court that when an extravagant rate of interest is provided for it is only equitable to hold that "interest" was not intended to mean "interest" but a penalty, in other words that though nominally interest, it was really penalty. Bansidhar v. Bu Ali Khan I.L.R. 3 A. 260. But I am unable to agree in this view. When persons make an engagement with their eyes open, they should be bound by it although to the Court the bargain may appear extortionate it may in reality not be so. It is impossible for the Court always to know what are the considerations weighing between parties when they come to an agreement, especially in money matters. The urgency of the demand and the scarcity of the supply would often operate to increase the cost--or in this case the fund might itself have had to pay for the money it required to enable it to be carried on, an exorbitant rate of interest if the defedant failed to keep his engagement. So that, when the intention of the parties is plain and unmistakeable as it is here, that intention must be given effect to. In accordance with this view, it was held in Appa Rao v. Suryanarayana in I.L.R. 10 M. 203 that the mere fact that the terms are exorbitant is of itself no reason for not enforcing a contract duly made and on the same principle in I.L.R. 13 C. 200 a rate of interest almost as high as that m the present case, namely, 2 annas per rupee per month was decreed. I am, therefore, clearly of opinion that the decision in S.A. No. 1303 of 1896 was right and following it, I would reverse the decree of the lower appellate Court and restore that of the Munsif plus the further interest awarded in the judgment of the learned Chief Justice. The respondent must pay the appellant's costs in this and in the lower appellate Court.

Author: A White

Sankaranarayana Vadhya vs Sankaranarayana Iyer on 14 November, 1901

Madras High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 874 of 2010 Petitioner :- Devendra And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Jawahir Yadav Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the applicants and learned AGA. This application has been filed with a prayer to dispose of the bail application of the applicants on the same day in case crime No.393 of 2009 under sections 307,323,504 I.P.C., P.S. Babugarh, District Ghaziabad. However, considering the facts and circumstances of the case, it is directed that applicants move application for appearance/surrender before the court concerned within 30 days from today, on which the court concerned shall fix the date of surrender/appearance, in the meantime the court concerned shall seek the instructions from the prosecution side. In case the applicants move the application for bail on the day of the appearance or surrender, the same shall be considered and disposed of expeditiously, if possible, on the same day by the courts below. With this direction this application is finally disposed of. Order Date :- 13.1.2010 Salim

Devendra And Others vs State Of U.P. And Another on 13 January, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Mat.Appeal.No. 320 of 2007() 1. K.V.THOMAS, S/O. VARKEY, AGED 57 YEARS, ... Petitioner Vs 1. SMT. ELSY KURIAN, D/O. KURIAN, ... Respondent For Petitioner :SRI.V.J.JAMES For Respondent :SRI.MATHAI VARKEY MUTHIRENTHY The Hon'ble MR. Justice R.BASANT The Hon'ble MRS. Justice M.C.HARI RANI Dated :08/06/2009 O R D E R R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.1235 of 2007 in Mat.Appeal Nos.320 of 2007 & C.M.Appl.No.1235 of 2007 in Mat.Appeal No.323 of 2007 and Mat.Appeal Nos.320 and 323 of 2007 ------------------------------------- Dated this the 8th day of June, 2009 ORDER/JUDGMENT BASANT, J. The Mat.Appeals are directed against a common order passed by the Family Court. These appeals have been filed along with applications for condonation of delay. 2. When these applications for delay and the Mat.Appeals came up for consideration today, the learned counsel for the appellant/petitioner submits that all outstanding disputes have been settled between the parties. All the amounts payable have been paid. In these circumstances, the appellant does not want to prosecute the petitions for condonation of delay and the Mat.Appeals. The learned counsel for the respondent accepts that the entire amounts due under the impugned common order have already been paid. C.M.Appl.No.1235 of 2007 in Mat.Appeal Nos.320 of 2007& C.M.Appl.No.1235 of 2007 in Mat.Appeal No.323 of 2007 and Mat.Appeal Nos.320 and 323 of 2007 2 3. Recording that submission of the counsel for both sides, these petitions for condonation of delay and the Mat.Appeals are dismissed as agreed. Needless to say, the order of attachment passed shall stand vacated. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-

K.V.Thomas vs Smt. Elsy Kurian on 8 June, 2009

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 1926 of 2007() 1. SREEJAYAN, S/O.SREEDHARAN, ... Petitioner 2. ABDU RAHIMAN @ HYDRU, 3. K.UMMER, S/O.MUHAMMED HAJI, Vs 1. THE STATE OF KERALA, REPRESENTED ... Respondent For Petitioner :SRI.BABU S. NAIR For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :29/03/2007 O R D E R V.RAMKUMAR, J. ---------------------------- Bail Application No. 1926/2007 ----------------------------- Dated this 29th day of March, 2007 O R D E R The petitioners, three in number, seek anticipatory bail on the allegation that the Forest Range Officer, Ottappalam is about to arrest the petitioners in connection with O.R.No.2/2007 registered for an offence punishable under Section 27 of the Kerala Forest Act. 2. The learned Public Prosecutor, on instructions, submitted that as per Annexure-A notice issued under Section 160 Cr.P.C., the Forest Range Officer wanted to record the statement of the petitioners being persons acquainted with the facts of the case and that the petitioners are not accused in the above case. It cannot be said that the Forest Range Officer who conducts investigation into an offence is not entitled to summon any person acquainted with the facts of the case for the purpose of recording his statement under Section 160 Cr.P.C. If so, the apprehension of arrest entertained by the petitioners is unfounded. 3. This application is closed recording the submission made by the learned Public Prosecutor. V.RAMKUMAR, JUDGE mrcs  2

Sreejayan vs The State Of Kerala on 29 March, 2007

Kerala High Court

Court No. - 25 Case :- WRIT - A No. - 69152 of 2009 Petitioner :- Faridduddin Respondent :- State Of U.P. & Others Petitioner Counsel :- J. H. Khan,Gulrez Khan Respondent Counsel :- C. S. C. Hon'ble Amreshwar Pratap Sahi,J. Heard learned counsel for the petitioner. The claim of the petitioner is that juniors to him have been considered for regularization and according to the seniority list the claim of the petitioner ought to have been considered but the respondents have failed to proceed the process claim of the petitioner. These are factual aspects which cannot be gone into at this stage and it will be appropriate that the respondent no. 2 examine the claim of the petitioner and pass an appropriate order in accordance with law within three months from the date of presentation of a certified copy of this order before him. The writ petition is disposed of. Order Date :- 16.7.2010 Sahu

Faridduddin vs State Of U.P. & Others on 16 July, 2010

Allahabad High Court

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No 3016 of 2003 in SPECIAL CIVIL APPLICATIONNo 11152 of 2002 -------------------------------------------------------------- VAJESINGH KOHYABHAI DABHI Versus G.S.R.T.C. AHMEDABAD DIVISION -------------------------------------------------------------- Appearance: 1. Civil Application No. 3016 of 2003 MR ND SONGARA for Petitioner No. 1 MR ASHISH M DAGLI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of Order: 02/05/2003 ORAL ORDERHeard learned advocate Mr.N.D.Songara appearing on behalf of the applicant - original respondent and learned advocate Mr.A.M.Dagali on behalf of the respondent - original petitioner. The original petitioner has challenged the award passed by the Labour Court in Reference No.1319 / 1999 dated 5th April, 2002 wherein the labour court has granted reinstatement with continuity of service without backwages of the interim period and also awarded punishment of stoppage of two increments with permanent effect. In the main petition, this Court has passed the order on 29th October, 2002 issued Rule and granted ad-interim relief in terms of Para-7[C] of the prayer clause, meaning thereby, stayed the operation of the award impugned and thereby stayed reinstatement of the workman concerned and therefore, civil application No.1209 / 2003 preferred by the original respondent workman with prayer to grant relief under Section 17-B of the I.D.Act but as such, this Court was not inclined to pass any order in that civil application in this behalf and therefore, this civil application is filed with two prayers, first, to vacate the ad-interim relief granted by this Court or alterantively, to direct the opponent Corporation to pay the wages last drawn as provided under Section 17-B of the I.D.Act. It may be noted that the workman concerned has specifically averred that that he is unemployed and not gainfully employed during the interim period. The workman has also stated that he is not employed in any establishment and not receiving adequate remuneration from the employer. He, however, made it clear that in the affidavit, unemployment is shown from the date of the award. Learned advocate Mr.A.M.Dagali for the petitioner Corporation has submitted that today is the first date of hearing and the copy of this civil application is received yesterday only and therefore, the original petitioner needs some time to make inquiry as to gainful employment of the workman. This Court has considered the request made by the learned advocate Mr.Dagali on behalf of the petitioner corporation. In my opinion, once stay has been granted by this Court staying operation of the award granting reinstatement, the workman is entitled to benefits under Section 17-B of the I.D.Act, 1947. It may also be appreciated that the affidavit has already been filed by the workman before this Court and a copy thereof has been served on the other side. Therefore, at this stage, the workman is entitled to benefits under Section 17-B of the I.D.Act. However, this Court is inclined to grant liberty to the petitioner Corporation to the effect that in case if the petitioner Corporation finds any material to satisfy this Court that the workman has been employed in any establishment and receiving adequate remuneration from the employer, in that case, it will be open to the petitioner to file necessary application for modification of the order that is being passed by this Court. Since this Court has granted liberty to the petitioner corporation, there will be no injustice to the petitioner in case this Court grants benefits under Section 17-B of the I.D.Act in favour of the respondent workman and accordingly, the request made by the learned advocate Mr.Dagali for grant of some time for making necessary inquiry as to gainful employment of the workman concerned is not accepted by this Court. In view of above observations, it is directed to the petitioner Corporation to pay the last drawn monthly wages inclusive of maintenance allowance if any so available to the respondent workman with effect from 5th April, 2002 till 30th April, 2003 within a period of six weeks from the date of receiving the copy of this order. It is further directed to the petitioner to pay regularly the last drawn monthly wages inclusive of maintenance allowance if any so available to the respondent workman during pendency of the main petition till final disposal. However, it is made clear that in case if the petitioner Corporation finds any material to satisfy this Court that the workman has been employed in any establishment and receiving adequate remuneration from the employer, in that case, it will be open to the petitioner to file necessary application for modification of this order. In view of above observations and directions, present civil application stands disposed of accordingly. No order as to costs. Direct Service permitted. Date : 2-5-2003[ H.K.Rathod, J.] #kailash#

Author: H.K.Rathod,&Nbsp;

Civil Application No. 3016 Of 2003 vs Mr Ashish M Dagli For on 3 August, 2010

Gujarat High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/11/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.7272 of 2011 and M.P.(MD)No.1 of 2011 S.Durgeshwaran ... Petitioner vs. 1.The Presiding Officer, Employees Provident Fund Appellate Tribunal, New Delhi. 2.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Tirunelveli. 3.The Recovery Officer, Employees Provident Fund Organisation, Sub-Regional Office, Bhavishyanidhi Bhawan, NGO 'B' Colony, Tirunelveli-627 007. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the proceedings of the first respondent in A.T.A.No.303(13)2011, dated 25.04.2011 and quash the same as illegal. !For Petitioner ... Mr.P.Pethu Rajesh ^For Respondents ... Mr.K.Murali Shankar ****** :ORDER ******* When the petitioner mentioned for extension of interim order, this Court was not inclined to grant extension of interim order and this Writ Petition is a clear abuse of process of law. The very same petitioner earlier filed Writ Petitions in W.P(MD).Nos.6174, 11472 and 1700 of 2008 before this Court, challenging the order demanding dues including the distraint proceedings initiated. All the three Writ Petitions were dismissed by this Court stating that if the petitioner is aggrieved, the effective remedy by way of appeal under Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 [hereinafter referred to as "the Act"] before the Employees' Provident Fund Tribunal alone is available and he cannot dispute before this Court regarding the partnership business liability as well as the status of the petitioner in the said partnership. 2. Even though the order was made as early as on 06.10.2010, the petitioner moved the Division Bench with Writ Appeals in W.A.(MD)Nos.221 to 223 of 2011. When the Writ Appeals themselves were taken up for hearing, for the reasons best known, the petitioner withdrew the Writ Appeals with liberty to file appeals under Section 7-I of the Act and he has also made an endorsement in the appeal bundles. Accepting the endorsement made by the counsel, the Division Bench dismissed the Writ Appeals with liberty to file appeals. The original order of assessment was also handed over and he was directed to file appeals within two weeks vide order dated 01.03.2011. 3. Thereafter, the petitioner exhausted the right of appeal under Section 7-I before the Employees' Provident Fund Tribunal and the said appeal was taken on file as A.T.A.No.303(13)2011. As a pre-requisite for entertaining the appeal, the Tribunal directed the petitioner to deposit 40% of the assessed amount within two months and in case of such deposit, the respondents, Employees' Provident Fund authorities were directed not to take any coercive measures till the disposal of the appeal presented. The counsel for the respondent Provident Fund Department opposed the admission of the appeal. However, in any event, the appeal was admitted and the interim order was granted on a conditional basis. It is once again the petitioner is before this Court challenging the interim order dated 25.04.2011. It is not clear as to how the petitioner can have a second round of litigation, that too, against the conditional interim order passed by the Tribunal. Under Section 7-O of the Act, no appeal by the employer shall be entertained by a Tribunal, unless he has deposited 75% of the amount due from him as determined by an officer referred to in section 7-A. The proviso to Section 7-O gives liberty to the Tribunal, for reasons to be recorded in writing, to waive or reduce the amount to be deposited under the said Section. 4. In the present case, the Tribunal, in exercise of its discretion, had only directed the petitioner to deposit 40% and not the entire 75% and there cannot be any further judicial scrutiny on the conditional order of stay granted by the Tribunal. The petitioner cannot state that such an order is reviewable before this Court and raise once again the contentions, which weighed in the earlier round of litigation, for the purpose of getting further reduction. In essence, the petitioner cannot improve his terms of stay order, which is granted by the Tribunal, when the main appeal is pending under Section 7-I, for which, he took permission from the Division Bench to move the Tribunal, even though, at the relevant time, the time for filing an appeal has already expired. Having exhausted the right of appeal and also having made the Tribunal to exercise its discretion in granting interim stay with reduced deposit, no further judicial review is permissible. 5. The Supreme Court, vide its judgment in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement reported in (2010) 4 SCC 772, has held that if an appeal is provided under the special enactment, it has to be exhausted by an aggrieved party and merely because the appeal provides for a pre-deposit, that will not make the appeal illusory and on that ground, the High Court under Article 226 of the Constitution of India cannot entertain any Writ Petition. In paragraph Nos.30 to 35, 39 and 40, the Supreme Court had observed as follows: "30.The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India7. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. 31.When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32.No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum. 33.Reference may be made to the Constitution Bench decision of this Court rendered in Thansingh Nathmal v. Supdt. of Taxes8, which was also a decision in a fiscal law. Commenting on the exercise of wide jurisdiction of the High Court under Article 226, subject to self-imposed limitation, this Court went on to explain: (AIR p. 1423, para 7) "7. ? The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (emphasis added) The decision in Thansingh8 is still holding the field. 34.Again in Titaghur Paper Mills Co. Ltd. v. State of Orissa9 in the background of taxation laws, a three-Judge Bench of this Court apart from reiterating the principle of exercise of writ jurisdiction with the time-honoured self imposed limitations, focused on another legal principle on right and remedies. In para 11, at AIR p. 607 of the Report, this Court laid down: (SCC pp. 440-41, para 11) "11. ? It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford10 in the following passage: (ER p. 495) '? There are three classes of cases in which a liability may be established founded upon a statute. ? But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ? The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd.11 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd.12 and Secy. of State v. Mask and Co.13 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 35.In this case, liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable. 39.In the instant case none of the aforesaid situations are present. Therefore, principle laid down in Ratan case15 applies in the facts and circumstances of this case. If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount of penalty or fulfilment of some other conditions for entertaining the appeal. (See para 13 at SCC p. 408.) It is obvious that a writ court should not encourage the aforesaid trend of bypassing a statutory provision. 40.The learned counsel for the appellant relied on a decision of this Court in Monotosh Saha v. Enforcement Directorate16. That was a decision entirely on different facts. In that decision Saha preferred an appeal before the Appellate Tribunal with a request for dispensing with requirement of pre- deposit, but the Tribunal directed the deposit of 60% of the penalty amount before entertaining the appeal. When an appeal was preferred before the High Court under Section 35 of FEMA, the same was dismissed by the High Court holding that no case for hardship was made out either before the Tribunal or before it. In the background of those facts, this Court observed that since pursuant to this Court's interim order Rs 10 lakhs have been deposited with the Directorate, the appellant was directed to furnish further such security as may be stipulated by the Tribunal and directed that on such deposit the Tribunal is to hear the appeal without requiring further deposit." 6. In the present case, this Court is satisfied that the petitioner had invoked the Tribunal's discretion for the reduction of the pre-deposit. He cannot have any further concession, as it is the second round of litigation and the earlier attempt was terminated by this Court. Hence, there is no case made out to entertain the present Writ Petition. Hence, the Writ Petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No costs. SML To 1.The Presiding Officer, Employees Provident Fund Appellate Tribunal, New Delhi. 2.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Tirunelveli. 3.The Recovery Officer, Employees Provident Fund Organisation, Sub-Regional Office, Bhavishyanidhi Bhawan, NGO 'B' Colony, Tirunelveli-627 007.

S.Durgeshwaran vs The Presiding Officer on 11 November, 2011

Madras High Court

IN THE HIGH COURT OF' KARIUATAICA AT EAKGALORE DATED THIS THE 2"') DAY OF JULY, 2009 BEFORE THE H()N'BLE MRJUSTICZE SUBHASH B.uFiDI h'. j" ' CRIMINAL PETITION NO_.244;~2[2f;_;Q§"~: .';v» BETWEEN: SAROJ @ PINTU AGED ABOUT 21 YEARS s/0 HARIRAM ms 18TH CROSS, CAUVERY NAGAR _ MAPIADEVPURA, BANGALOR'E;=,_ .,_ , ~ - 2 _PE'".E'I'l'IONER (By Sn'.K.A.PASHA FOR DR;1VP I3jDGAi1frAé£'A$Soé1ATEs,wvs.) AND: STATE BY 1{..R..PU'R§_;mVafs,._ ~ V % % Q ..RESPONDEN'l' " _ '(By's';4i;sATI$H12:.-elm, HCGP) 'r;:;;1s"cRL.P FILED' U/53.439 CR.P.C BY THE ADVOCATE FOR ;j'?1*HE ;>ETr=*r:¢>%NER..APi2AY:'I¥ié3'THAT THIS HOISPBLE COURT MAY BE FL_,,EAs'E»n,'ro_:2ELgAsE HER ON BAIL IN 8.C.NO.233/2008, on THE FILE} ._() F_' 'I'HE3"_~».,I_I--x5éI)'13L. sgssrows JUDGE, BANGALORE cm '*«..«.{c.c.H.'1.?}{cR.NQ.3;a4/2008} FOR THE OFFENSE P/U/S 3?6,42o,5+:)6 Rm sE¢.;a4%..0F IPC AND UNDER 3(1)(XjOF THE SCHEDULED jv»-V¢gs;*rESL_ANb~~ /SCHEDULED TRIBES(PREVEN'I'ION OF ATROCITIES) ': Ac%*._;93_é';'A_~ ....9r1»x1s PETITION comm on FOR 0253323 THIS DAY, THE " .{;§::>um* MADE WE FOLLOWING: 9% Petitioner is accused No.2 in Crime No.48f}-[2008 mgstemd by K.R.Puram police on 19.12.2003 for punishable under Sections 376, 420, 506 r/W 34 r/W Secfion sac) of SC 65 ST (Pmvenfiqn.o{Auoéi&¢g;'.'A§t eigsge, K V' 2. Complainant is the v:cfim.7shee. hasTi%.az;egedV accused No.1 was inducing her sfie this accused with the help' gf éppiied some cream and on account of and committed rape. If: also threatened the eomplainatfieiefi Vthis regaxd, she could not file pxegnant, she filed a complaint -. ' 3. The 5:' the case prima flacic shows the deIayD'¥'i1eIe are serious ailegatrion against the ._ for grant of bail. However, the Trial Court e.__H_may as early as possible. Sd/-'W Judge *A})I__

Author: Subhash B.Adi

Saroj @ Pintu vs State By K.R.Puram P.S on 2 July, 2009

Karnataka High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 3012 of 2010 Petitioner :- Madan Singh And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Kamesh Kumar Arya Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the applicants and learned A.G.A. This application is filed by the applicants with a prayer that the charge sheet of the case crime no. 614 of 2009, under Sections 323. 326, 504, 506 I.P.C., P.S. Thakurdwara, District Moradabad pending in the court of Judicial Magistrate I, Thakurdwara, District Moradabad may be quashed. From the perusal of the record it appears that on the basis of the material collected by the I.O. during investigation, prima facie aforesaid offences are constituted. There is no illegality in submission of the charge sheet, therefore, the prayer for quashing the charge sheet is refused. However, considering the facts and circumstances of the case, it is directed that in case the applicants move application for appearance/surrender before the court concerned within 30 days from today on which the court concerned shall fix the date of surrender/appearance, in the meantime the court concerned shall seek the instructions from the prosecution side. In case the applicants move the application for bail on the day of the appearance or surrender, the same shall be heard and disposed of expeditiously if possible on the same day by the courts below. With the above direction the application is finally disposed of. Order Date :- 2.2.2010 Su

Madan Singh And Others vs State Of U.P. And Others on 2 February, 2010

Allahabad High Court

Writ Petition No.11818/2010 01.09.2010 (Krishn Kumar Lahoti) (S.C. Sinho) Judge Judge RC* Shri Pushpendra Singh Yadav, Advocate for the petitioner. Petitioner sought for following reliefs. Though the petition is filed for the aforesaid reliefs but substantially it is the petition for extension of time granted in W.P. No.5032/2010 to the Tribunal for deciding second appeal preferred by the petitioner. The petition, earlier filed by the petitioner bearing W.P. No.5032/2010, was decided on 4.5.2010 in which this Court directed the M.P. State Co- operative Tribunal, Bhopal to decide the second appeal preferred by petitioner bearing S.A. No.21/2010, expeditiously within a period of 90 days from the date of communication of the order. It is submitted by learned counsel for the petitioner that the Tribunal was not functioning, as such appeal preferred by the petitioner was not decided within the prescribed period and prays for further extension of 90 days from today to the Tribunal to decide S.A. No.21/2010. Considering the prayer made by petitioner, we find appropriate to dispose of the matter with the following direction : With the aforesaid direction petition is disposed of with no order as to costs.

Avinash Phasate vs Shashkiya Mudran Karmachari Grah ... on 1 September, 2010

Madhya Pradesh High Court

Gujarat High Court Case Information System Print SCA/4229/2010 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4229 of 2010 =================================== DHIREN NARENDRABHAI GALANI & 8 - Petitioners Versus VICE CHANCELLOR THRO. REGISTRAR OF BHAVANAGAR & 1 - Respondents =================================== Appearance : M/S RJ RAWAL ASSOC. for Petitioners. NOTICE SERVED BY DS for Respondents. =================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 29/04/2010 ORAL ORDERThe petitioners have filed this petition under Article 226 of the Constitution of India praying for declaration that the respondents have no power or authority to withhold the result of the petitioner and commanding respondent No.1 University to declare the result of the petitioner for the final examination of M.Sc. Part-I (Industrial Chemistry) for the Academic year 2008-2009. This Court has issued notice on 21st April, 2010. Pursuant to the notice Mr. M. M. Desai, learned advocate has an instruction to appear on behalf of the respondent No.1 and he undertook to file his appearance in the matter. Heard Mr.Rawal, learned advocate for M/s. R. J. Rawal Associates for the petitioners and Mr.M.M.Desai, learned advocate appearing for the respondent No.1 University. It appears that the respondents have no objection in declaring the result of the petitioner. However, the controversy between the parties lies in narrow compass as earlier, decision was taken by the University to declare the result of the petitioner which was withheld on furnishing the undertaking which was furnished by the petitioner. However, by letter of March, 2010, the petitioners informed the respondent No.1 University that if the result is not declared immediately, the undertaking filed by them would be treated as cancelled. It is, therefore, submitted by Mr.Desai that on furnishing the letter by the petitioners indicating withdrawal of earlier letter, the respondent University would declare the result. Mr. Rawal, learned advocate for the petitioner has agreed that the petitioners have no objection to give such letter indicating withdrawal of earlier letter of March, 2010. He has further submitted that no inquiry is pending against the petitioners and hence, it should be made clear as to whether any inquiry is contemplated against the petitioners and even if such inquiry is contemplated against the petitioners, the same would be completed. Be that as it may since the petitioners have agreed to give another letter to the respondent University indicating the withdrawal of the earlier letter, the respondent University is directed to declare the result of the petitioner within two weeks from the date of receipt of such letter from the petitioner. The respondent University is further directed to decide as expeditiously as possible as to whether any inquiry is contemplated against the petitioners and if there is no such contemplation the petitioners should be relieved from such undertaking. With these directions and observations, this petition is accordingly disposed of. Sd/- [K. A. PUJ, J.] Savariya     Top

Author: K.A.Puj,&Nbsp;

Dhiren vs Vice on 29 April, 2010

Gujarat High Court

THE HIGH COURT OF ORISSA : CUTTACK Writ Petition (Criminal) No. 220.of 2007 In the matter of an application under Article 226 of Constitution of India. M /s. Shakti Bricks .......... .. Petitioner -Versus- The Collector, Bhadrak and others .......... .. Opp. Parties For Petitioner : M / s. Prafulla Kumar Rath, R.C.Jena, P.K.Satpathy, R.N.Parija 85 A.K.Rout For Opp. Parties 1 to 4: Addl. Govt. Advocate For Opp. Parties 5 85 6: M/s. None. For Opp. Party No.7 : ' M / s. Chittaranjan Nanda, S.N.Kar, A.C.Mohanty, R.C.Rath, N.Das, N.M.Praharaj, P.Das, A.Parida, M.Behera and A S.Acharya. For Opp. Party No.8 : M /s. Subha Bikas Panda, * M.K.Dash and P.K.Beura. PRESENT: THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY. Date of hearing: 21.12.2007 Date of Judgmentzgig .O8.2008 I.Mahanty, J. The petitioner--M/s. Shakti Bricks, represented by its Proprietor Sri Bibhuti Bhusan Mishra, has filed this writ application seeking a direction to the District Administration as well as the police authorities to provide protection to the life and property of the petitioner who claims to be threatened by the private opposite parties 5 and 6 who are allegedly restraining them from carrying on their business activity and trade. 2. I In course of proceeding, certain intervenors either supporting the petitioner intervened and they were impleaded as opposite parties 7 and 8. 3. The main grounds of challenge as narrated in this writ application are : (a) The freedom of carrying on occupation, trade and ' business is one of the Fundamental Rights of a citizen of this country provided under Article 19(l)(g) of the Constitution of India. The petitioner's industry which has been lawfully registered and is supposed to carry on his business but then only because he could not satisfy the demand of the private opposite parties, they have been creating illegal impediment by blocking the village road for transporting the materials from the petitioner's industry. (b) As a result, the loss suffered by the petitioner is huge and enormous. In View of the illegal act of the opposite parties, the petitioner's right of carrying on business and occupation is affected and the District Administration who are 'authorities of the State are supposed to protect the same by preventing the illegalities being committed.' Though the petitioner has sought for protection by representation to all the authorities, inaction on their part is unjust, illegal and contrary to law. 4. The petitioner asserts that the petitioner-firm is a registered as an industrial unit under the District Industries Centre and the petitioner and his family members have been carrying on business of Brick Kiln Unit for more than 15 years, over 8-10 acres of land said 'to be recorded in their favour under Routrapur Mouza. He asserts that the property over which the Brick.-Kiln is situated stands recorded in the name' of the petitioner's father. It is also assertedithat the Brick Kiln is located about 26 K.Ms and 24 K.Ms from N.H.--5 and N.H.53 and the railway line respectively. The petitioner states that for the purpose of running his business, he has obtained "No Objection Certificate" from the Tahasildar, Bonth and the Unit has also obtained "consent order" for carrying on business of Brick Kiln as required under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 from the Orissa Pollution Control Board. It is also asserted that the initial consent order granted by the Pollution Control Board on 24.12.2005 was originally valid upto 31.3.2006 and on expiry of the same, the petitioner has applied for renewal of consent and such renewal has been granted in favour of the petitioner extending the same up to 31.3.2011. 5. The petitioner contended that the younger brother of the petitioner had entered into an agreement with Nrusingha Nath Jew Trust Board for utilizing their sandy soil for the purpose of preparing raw material for the Brick Kiln business under Routrapur Mouza. It is stated that the local Tahasildar objective to the same, effected seizure of the raw bricks manufactured by same sandy soil obtained from Nrusingha Nath Jew Trust Board and put the same to public auction. The petitioners' younger brother being the highest bidder offered Rs.l lakh and on being successful, deposited the said amount of Rs.l lakh with the Revenue Authority and took possession of the bricks. 6. The petitioner submits that for carrying coal, which is required for the purpose of firing the brick kiln, the petitioner had to use the only passage for transport such materials, which runs through the village Patkura. It is stated that some anti-socials and criminals of the locality, named in the petition including opposite parties 5 and 6, demanded huge amount of contribution from the petitioner and since the petitioner did not support their demands, they obstructed the passage running through their village byputting an unauthorized gate- and started demanding contribution from all the trucks carrying materials to and from the petitioner's unit as well as from the labourers, working in the said unit. It is further submitted that the persons named in paragraph-10 of the petition also assaulted the Tahasildar, Bonth While he was carrying on auction of raw materials and the Tahasildar has lodged an F.I.R. before the police against such anti-socials, some of whom were arrested and some remain absconding. 7. It is stated that since no furtherlaction was taken against the said law breakers, the petitioner had to approach this Court in W.P.(Crl.) No.51 of 2007 and this Court was pleased to dispose of the same by directing the O.l.C., Agarpada P.S. to take appropriate action against the accused persons. It appears that the accused persons had approached this Court and obtained bail and it is alleged that, those accused persons taking advantage of the bail order granted by this Court, carried on committing similar activities and whenever the petitioner's trucks loaded with coal and/ or bricks were sought to be carried over the public road, these accused persons with their supporters blocked the passage by sitting in front of the vehicle, as a result of which the petitioner's business activities have come to a standstill. It is further asserted that on an occasion, the petitioner's truck driver was assaulted by the accused persons and when he lodged the F.I.R. against them, no action whatsoever has been taken against them. Accordingly, the petitioner has filed the Writ application praying for issue of writ of certiorari and/ or mandamous and/ or any other directions commanding the Superintendent of Police, Bhadrak to provide adequate police protection to the petitioner for carrying on his trade or business. 8. A counter affidavit dated 23.7.2007 has been f1led'by opposite party No.4-O.I.C., Agarpada P.S. alleging therein that the petitioner had not obtained any permission from the competent authority regarding running of his Brick Kiln for the year 2006-07 for which the Tahasildar, Bonth had been to Brick Kiln of the petitioner for spot enquiry and had submitted an enquiry report dated 26.6.2007 stating that the petitioner had manufactured bricks unauthorisedly. The O.I.C. avers that during the spot enquiry of the Tahasildar, he noticed one Check-gate had been putting in the village road for collecting Chanda (Donation) from each truck carrying bricks. It appears that villagers" to remove the check--gate from the village road as it is a public road but the villagers opposed him and on the written report of the Tahasildar, Agarpada P.S. Case No.1/2007 was registered under Sections 143, 342, 294, 353, 506 85 149 l.P.C. read with Section--3 SC/ST (P.A.) Act against 11 accused persons. It is further stated that in course of - investigation, four accused persons had obtained anticipatory bail from this Court and one accused was arrested and forwarded to the court and other accused persons surrendered in the court of S.D.J.M., Bhadrak and were released on bail subsequently. In paragraph~11 of the said counter affidavit, it is averred by the O.I.C. that subsequent to the representation made by the petitioner, the police has taken adequate protective measures and has also registered cases and apprehended some accused persons. It is further stated therein that since lifting of brick is a continuous affair, it is not possible on the part of the police to provide continuous protection. A further 'additional affidavit' on behalf of opposite party No.4--O.I.C., Agarpada P.S. was filed on 31.10.2007, alleging that the petitioner had manufactured bricks unlawfully and for the said purpose thetpetitioner had appeared before the Tahasildar, Bonth on 12.7.2007 O\ and on admitting that he had manufactured bricks unauthorisedly, he agreed to pay penalty for it. But till date the petitioner has not paid any penalty and, therefore, he is not entitled to the relief sought for in the writ application. Further, it is stated therein that no police protection shall be given to the petitioner for shifting of his finished products or otherwise as it would put the entire district administration and police in bad light and will only boost the confidence of people violating laws for their petty self-interest. It is also averred that it can lead to serious law and order problems in the areas in future. '9. M " 'lniitheifrejoinder"affidavit filed by the petitioner in reply to the counter affidavit of O.P.4-O.I.C., it is stated that the petitioner's industry which has been lawfully established, should be allowed to use the public road and the proceeding against the petitioner initiated by the Tahasildar, _Bonth vide case No.3 / 2007-O8 imposing penalty and royalty of Rs.60,000/--, has been closed with the petitioner's depositing _ the demanded amount and, therefore, there could be noquestion of petitioner's business activities being Violative of any statutory provision. It is further averred that the petitioner is entitled for protection of his life and property as guaranteed under Article 21 read with Article 19(1)(g) of the Constitution of India and it is the constitutional obligation of the police to provide protection to the citizens and denying the said protection amounts to be the violation of the petitioner's constitutional rights. 10. As noted hereinabove, a group of persons headed by one Narayan Ch. Bhutia claiming to be the villagers of village Pattakana have been impleaded as opposite party no.7. In their intervention application, the interveners claim that the petitioner was excavating earth from the embankment of the river Shalandi which belongs to the Irrigation Department, Govt. of Orissa and adjacent reserve communal (Gochar) land belonging to the deity Sri Nrushinghanath Dev under the admi.nistrative control of the Endowment Department. They asserted that the petitioners have been carrying on illegal Brick Kiln for more than 15 years by removing thousands of trees from adjoining government land and their actions have been resulted in "soil erosion, environmental pollution and ecological imbalance, due to which over 1000 acres of agricultural land lost its fertility and become unfit for agricultural operation. It is contended that the soil erosion and excavation of earth near to the bed of river Salandi causes weakness to the embankment and therefore, there is every possibility of flood to the adjoining villagers. Apart from the aforesaid factual assertions, it is averred by the intervenors that Rule--3 of the Orissa Minor Mineral Concession Rules, 1990 (in short '1990 Rules') providesthat no person shall undertake any quarrying operations for the purpose of extraction, collection and/ or removal of minor minerals, except under and in accordance with the terms and conditions of quarry lease, permit and / or auction sale provided under these rules. It is further submitted that Rule 24(1) of the 1990 Rules provides that whoever contravenes the provisions of Rule--3 shall be liable to punishment with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000/- only or both. It issubmitted that the petitioner and his family members have contravened the provisions mentioned in Rule--24(1) of 1990 Rules and are liable for the penalty under the same and the bricks made by the earth extracted by violating Ru1e--20 becomes property of the Government and, therefore, neither the petitioner nor his family members have any right on those bricks. Therefore, no direction should be issued to provide police help from taking away these bricks. i 11. A further set of interveners headed by Arun Kumar Prusty, have intervened and have been impleaded as opposite party no.8 in the present proceeding. They, on the other hand, support the prayer of the lit.' petitioner and state that_they are belonging to the village Patkana and are labourers Working in the petitioner's industry and state that their livelihood is at stake since the private opposite parties and interveners who are villagers of Mouza Routrapur are preventing the petitioner's vehicle from moving through the village which is the only road thereby affecting their livelihood. They asserts that the industry in question is not creating any kind of hazard to the intervener no.7 and asserts that private opposite parties 5 and 6 demanded huge amount of "batti" (donation) from the petitioner as a pre--condition for carrying on such business. 12. In the light of the aforesaid controversy since opposite party no.3 (Tahasildar) had not filed any counter affidavit, a direction was issued to the Tahasildar, Bonth on 4.12.2007 directing him to file an affidavit indicating the legal impediment if any exists for not granting the prayer sought for by the petitioner. In terms of the said direction, an affidavit was filed by the Tahasildar--O.P.3 on 18.12.2007. From this affidavit, it appears that the petitioner's firm Which operates a Brick Kiln is situated at Routrapur and the land on which the Brick Kiln is located, stands recorded in the name of Bibhuti Bhusana Mishra, the proprietor of petitioner-firm. The Tahasildar further stated. that the petitioner had manufactured approximately 17.5 lakhs of bricks Without the prior permission of the competent authority and that the petitioner had deposited an amount of Rs.60,600/-- towards penalty, royalty etc. on 27.09.2007. Most importantly, the Tahasildar has stated in paragraph--5 that the petitioner had manufactured the above bricks "using his own land". In the light of the aforesaid contention and/ or the averments of the Tahasildar in his affidavit, it is apparent that the petitioner--firm is a registered small-scale 'industry manufacturing bricks and is located at Routrapur Mouza. This unit was issued a "No Objection Certificate" by the Tahasildar on 11.3.2003 and the State "Pollution Control Board has also given its consent to the petitioner to operate the brick kiln and the said consent is valid up to 31.3.2011. The assertion of the petitioner is that the petitioner's unit is established over his own land which is accepted by the Tahasildar in his counter affidavit. The sale of 2.5 lakhs bricks on the allegation of non-payment of royalty, is also an admitted fact.iIt is also a matter of fact that the petitioner's brother, being the highest bidder at the public auction, had paid Rs. 1 lakh to the Revenue Authority and purchased those bricks in auction. It is also a further matter of record that there is only public road which runs through the village Patakana for communicating to and from the petitioner's unit. 13. In the light of the averments made in the various affidavits, noted hereinabove, it is clear that the issues raised against operation of the petitioner's Brick Kiln were raised for the first time only during the month of January, 2007 and not on any point of time earlier thereto. The "assertion made by" the petitioner is that certain individuals belonging to Routrapur Mouza started demanding "dada batti" (forced donation) from each truck going to and from the unit of the petitioner, is borne out from the Spot Enquiry Report of the Tahasildar. It is averred by the O.l.C., Agarpada in his counter affidavit that villagers of Mouza Patakana had set up a "check gate" on the village public road and that when the Tahasildar requested them to remove the same, the relevant law and order situation compelled the Tahasildar to lodge F.I.R. under various sections of I.P.C before the local police. 14. The assertions made by the intervener--O.P.7 that the petitioner's unit has been situated on Govt. Gochar land and causing environmental pollution and endangers to the villagers at large, is not borne out from the records. The affidavit of the Tahasildar indicates that the petitioner's Brick Kiln is located on his "oWn private land". In so far as. the environmental pollution is concerned, the petitioner has annexed as Annexure-4, the consent of the State Pollution Control Board to operate the Brick Kiln in question and the same is valid till 31.3.201 1. In so far as danger to the villagers is concerned, the same is not affirmed by the Tahasildar in his affidavit and on the contrary, the Tahasildar himself has granted "No Objection Certificate" on 11.3.2003 for operating the brick kiln and such allegation to the contrary made by the intervenors cannot be accepted. The only objection raised by the O.I.C. in his counter affidavit is that by the date of the said affidavit the petitioner had not I paid the assessed penalty as demanded, but the Tahasildar has ' accepted the fact that the petitioner had deposited the said assessed penalty of Rs.60,600/-- in respect of 17,50,000 bricks. 15. In the light of the aforesaid fact, it now becomesimportant to determine as to whether the prayer of the petitioner seeking direction to the Superintendent of Police to provide necessary legal protection to carry on the trade/ business should be passed or not ? The O.I.C. in one of its counter affidavit has asserted that the brick business being' a . continuous activity, necessary protection cannot be provided and there is likelihood of the law and order situation, that may arises if such direction is issued. Hence, it is relevant to quote Articles 21 and l9(1)(g) of the Constitution of India hereinbelovv: "21. Protection of life and personal liberty.-- No person shall be deprived of his life or personal liberty except according to procedure established by law. I . 19. Protection of certain rights regarding freedom of speech, etc.-(1) All citizens shall have the right- (g) to practise any profession, or to carry on any occupation, trade or business." Article 19(l)(g), is contained in part-III of the Constitution under the heading Fundamental Rights of India. In terms thereof, all citizens of India have a right to practise any profession, or to carry on any occupation, trade or business. In terms of the said Constitutional right, the petitioner having obtained "No Objection Certification" from the Tahasildar in 2003 and having registered itself in the District Industry Center as small-scale industry and further, after having obtained the necessary consent from the said Pollution Control Board which remains valid as on date, is entitled and is guaranteed the right to carry on his occupation trade or business by the Constitution of India. The petitioner who is also a citizen of India is entitled not to be deprived of his personal liberty except in accordance with to the procedure established by law as guaranteed under Article--2l. Both the Articles read together along with the fact that the Tahasildar, Bonth admits that there is no legal impediment for the petitioner to carry on his business, justifies the petitioners' prayer. . 16. In view of these facts, it is the constitutional obligation of the State and its agencies including the police to ensure that no impediments are cast on a citizen from practicing his profession or carrying on any occupation, trade or business. In the present case, I am of the considered view that the stand of the police authorities that they are not in a position to provide necessary protection, is clearly opposed to the constitutional rights guaranteed under the Constitution to every citizen of India. Since I am of the considered View that there is no legal impediment for the petitioner from carrying on his business or occupation and/ or since no legal impediment has been cited and/ or brought to my notice, the police authorities are duty bound and are under a Constitutional obligation to every citizen including the petitioner to provide all 12 necessary assistance so that lawful business can be carried on. It needs to be kept in my mind that demand for unlawful donation for various oblique purposes, and it is proved in this case that the villagers had set up a check-gate on a public road and the Tahasildar has. directed to remove the same. I reiterate that it is obligatory on the part of the District Administration as well as the police authorities to ensure that no such unlawful act, such as setting up of check-gates for the purpose of collecting donation, should be allowed and whenever such gates being put up, immediate actions should be taken to remove the same and to take appropriate action against the persons who have erected such gates for such unlawful purposes. No doubt, the local villagers may have certain complaints against the industries operating in their locality and it is open for such villagers to make representation or to act as law--abiding citizens by bringing it to the notice of appropriate authorities. Even if any infraction ever occurs, neither the Constitution of India nor the law of this country authorize any individual or group of individuals to take law into their own hands and to start collecting donations by setting up check--gates/ road blocks at 7 their respective villages over public roads and. thereby impeding the lawful business of any citizen. 17. In View of the conclusions arrived by me hereinabove, the District Collector, Bhadrak and the Superintendent of Police, Bhadrak e as well as the O.I.C., Agarpada are directed to provide all necessary V. assistance in order toensure that the public road is permitted to be i used by all persons including the petitioner without any impediment" and] or inconvenience. In case of any obstruction to the movement of such vehicle to and from the petitioner's Brick Kiln, immediate assistance and prosecution against the accused persons must be taken immediately. For such purposes, if required, the police may set up a out--post to be located at the village along with necessary police ,.\-s»cq«4i-rLmlenn.m':n~m»Maw... ., t . .,...,., .. ., ms, .,._...,_.-MW;-.a. personnel to ensure compliance of those directions. This would be the only manner by which the rule of law can be enforced and at the same time, the obligation of the 'State to its citizens can be fulfilled. 18. Accordingly, the writ petition is allowed with the aforesaid directions. O/RISSA HIGH COURT; CUTTACK August, 2008/ RKS.

India vs Unknown on 8 August, 2008

Orissa High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.3492 of 2010 Dr. Satyendra Kumar Singh Versus The State Of Bihar & Ors. ---------------------------------- 4 15.09.2011 Learned counsel for the University submits that he will produce the relevant part of the Agrawal Commission Report dealing with the services of teaching and non-teaching employees of this particular College on the next date. Put up on the next appointed date along with the records of CWJC No.6890 of 2007. Arvind/ ( J.N. Singh, J.)

Dr. Satyendra Kumar Singh vs The State Of Bihar & Ors. on 15 September, 2011

Patna High Court - Orders

ORDER G. Sankaran, President 1. The issue arising for determination in these two appeals being the same, the appeals were heard together and are disposed of by this common order. 2. The issue concerns the classification under the First Schedule to the Customs Tariff Act, 1975 (the "Schedule", for short)-as it stood prior to 28.2.1986-of two consignments of Off-set Litho Paper Plates imported by the appellants. The lower authorities had upheld the classification of the goods Under heading No. 48.01/21(1), rejecting the appellants' claim for heading No. 84.34, of the Schedule. 3. The two competing headings read as follows: 48.01/21 Paper and paperboard, all sorts, whether in rolls, sheets or cut to size or shape (including cellulose wadding, composite paper or paperboard and impregnated, coated, corrugated, embossed, perforated, surface coloured or decorated, ruled or printed paper or paperboard); filter blocks, slabs and plates of paper pulp; stationery made of paper or paperboard; articles not elsewhere specified, of paper, paperboard, paper pulp or cellulose wadding; (1) Not elsewhere specified. (2) Newsprint containing mechanical wood pulp amounting to not less than 70 per cent of the fibre content (excluding chrome, marble, flint, poster, stereo, and art paper). (3) Other printing and writing paper. 84. 34 Machinery, apparatus and accessories for type-founding or type-setting; machinery, other than the machine tools of Heading No. 84.45/48, for preparing or working printing blocks, plates or cylinders; printing type, impressed fiongs and matrices, printing blocks, plates and cylinders; blocks, plates, cylinders; and lithographic stones, prepared for printing purposes (for example planed, grained or polished). 4. In the import relative to Appeal No. C/1481/86-C, the goods, on test, were reported to consist of coated rectangular cut sheet having holes on upper and lower sides and composed of chemical wood pulp 120.2 G.S.M. The Customs House Laboratory opined that the sample did not have the characteristics of stereoflong or matrix board and that it was not used in printing and that the process described in the pamphlet was seen to be one of reprography (copying). It was contended before the Assistant Collector that the imported goods consisted of paper sheets subjected to special coating of chemicals on one side and that they were used for printing. The coating, in conjunction with chemical solutions, had the property of attracting ink in the image areas and repelling ink in the non-image areas. Such paper sheets were known as paper master plates. They could be prepared for use on offset printing machines by paper copier or typewriter or even with hand, without the aid of negative etc. for instant and economic use. The Assistant Collector, however, took the view that the goods were more in the nature of copying paper rather than plates prepared for printing purposes. Heading 84.34 covered plates prepared for printing purposes. The imported goods had to be prepared by paper copier, typewriter or hand before they could be used for printing. The goods were a type of coated paper. The explanatory notes in the C.C.C.N. (Customs-Co-operation Council Nomenclature) on which the Schedule is broadly based classified master paper plates under the head copying papers in heading 48.13. In view of this, the Assistant Collector held that the goods fell under the corresponding heading No. 48.01/21 of the Schedule. In appeal, the Collector (Appeals) approved the Assistant Collector's order inter alia also observing that offset printing plates were made of zinc, or aluminium, and similar flexible metal sheets on which the design was reproduced in the flat. 5. In the Assistant Collector's order relative to Appeal No. C. 3410/88-C, the Assistant Collector's order is cryptic and does not spell out any reason for dismissing the appellants' claim. The Order-in-Appeal is, however, somewhat detailed. Dismissing similar contentions of the appellants, the Collector observed that the goods were used in lithographic printing not directly but after further coating with photo sensitive chemicals. As coated paper, they fell under heading No. 48.01/21 of the Schedule corresponding inter alia to C.C.C.N. heading 48.13 and heading 48.16 of the Harmonised System of Nomenclature (HSN) on which the Schedule in force from 28.2.1986 was based. 6. The manufacturers' test report dated 22.2.1985 on "LACOMA PAPER MASTER LITHO PLATES" reads as follows: Our LACOMA PAPER MASTER LITHO PLATES consist of Paper base coated with special chemicals e.g. Casein, Polyvinyl Alcohol, Acrylic Resins, Carboy Methyl, Cellulose & Starch etc. Paper works as a carrier and the special chemical coating in conjunction with special solutions achieves the remarkable phenomenon of attracting ink in image areas and repelling ink in non-image areas, though unlike block both areas fall in the same plane. Our PAPER LITHO PLATES are non-sensitized and are suitable for all types of reproduction including Printing with Offset Machines. The literature on the other brand involved in the present dispute-"COLITHO"-gives the following information: COLITHO MORE THAN JUST A LITHO PLATE PLAIN PAPER COPIER Any document can be copied up to 2,000 times without the excessive expense of repetitivephoto-copying simply by using a plain paper copier in conjunction with an offset machine. The normal copy paper is replaced by Colitho D. 1 material-either sheets or rolls. The machine is operated in the normal way to produce an instant offset master. The Colitho D. 1 coating allows unwanted marks to be easily removed before the plate is run on the offset press. Even short run Colitho D. 1 plates can produce up to several hundred copies when imaged in most plain paper copiers. TYPEWRITER The instant Litho plate Up to 2,000 copies of a typewritten original can be produced from the appropriate grade of Colitho D.I. plate. By fitting a Colitho litho-inked ribbon, any make or model of typewriter can be used to make a perfect offset litho plate. The Colitho coating is designed to resist accidental ink deposits and fingerprints. Typing errors can be easily corrected with the Colitho eraser. Alterations are smudge-free both on the original and subsequent litho copies. An easy-to-read, non-reproducing typing guide, pre-printed on the plate, can be supplied if required. HAND DRAWN Freehand drawings or precisely drafted illustrations can be made directly on Colitho D.I. plates. Colitho plates withstand the handling necessary in office or studio work. The Colitho repro and non-repro pencils and the repro pen provide the perfect media for planning and executing work directly on the plate. Guidelines and preliminary layout marks will not reproduce if the non-repro pencil is used. The Colitho eraser provides smudge-free corrections. The goods are described as "Offset Litho Plates - Paper base" in the LACOMA invoice. The invoice for the COLITHO brand has not been produced before us but it is seen from the impugned order that the goods were described as "Direct image offset paper plates". 7. The Learned Consultant, at the outset, submitted that the appellants never claimed that the goods were sensitized. Their claim was that the paper base was coated with a chemical preparation which had the property of attracting/repelling printing ink. He stated that the Collector (Appeals) had not disclosed the basis of his observation that such plates were normally not directly used as printing plates and that they were coated further with photo sensitive chemicals before they were used for printing. It may be stated even at this stage that this statement was not commented on by the Learned D.R. in his reply. There does not seem to be on record any material to support the Collector's statement. In fact, the literature on record shows that the subject paper litho plates are non-sensitized. The chemical coating thereon, in conjunction with special solutions, attracts, ink in the image areas and repels ink in the non-image areas. This does not suggest that the goods have to be further coated with photo-sensitive chemicals before use in off-set printing. 8. Shri Sogani's next submission was that the words "prepared for printing purposes" in Heading 84.34 of the Schedule qualified only "blocks, plates, cylinders and lithographic stones" and not the group "printing type, impressed flongs and matrices, printing blocks, plates and cylinders" immediately preceding the aforesaid group. Again, the Learned D.R. did not make any submissions on this point. The text of the heading has been reproduced earlier. Having regard to the semi-colon which separates the former group from the latter group, the submission of Shri Sogani, in our view, is correct. The 'lower authorities were not correct in applying the qualifying words "prepared for printing purposes" to the latter group. 9. Shri Sogani next submitted that the subject paper was not a copying paper. It was made ready for use in printing on an off-set printing machine by imparting onto it the required text or drawing or other material by means of a photo copier, typewriter or hand. The resultant master plate was used in an off-set printing machine for making a number of copies. Thus, it was not a copying paper. In reply, Shri Jayaraman, the Learned D.R., relied on the Chemical Examiner's opinion that "The processes described in the pamphlet seem to be one of reprography (copying)". On going through the literature available on record, we do not find that the above opinion is supportable. On the other hand, Shri Sogani's submission appears to be correct. 10. Next, Shri Sogani submitted that the goods would go out of the scope of heading 84.34 of the C.C.C.N. only because of the explanatory notes but these notes had no legal force, only persuasive value, as laid down in several decisions of this Tribunal. That the explanatory notes have no legal force but only persuasive value was not disputed by the Learned D.R. but he drew our attention to the fact in the revised tariff in force from 28.2.1986, offset plates of paper were specified in heading 48.16. This accorded with the position as could be gathered from the C.C.C.N. explanatory notes under heading 48.13 of that nomenclature. The said notes state: Masters for office type offset machines have a special coating on one side rendering them impervious to lithographic ink; they are used on office-type offset machines for the reproduction on ordinary paper of texts or designs applies to them by hand, with a machine or by any other marking process. These notes appear under a head appropriate to copying paper. Therefore, according to the D.R., the subject goods appropriately fell under heading 48.01/21(1) of the Schedule which covers paper, all sorts, including coated paper. The contention of Shri Sogani, however, was that apart from the settled position that reliance on the C.C.C.N. explanatory notes had no legal backing, the goods being offset printing plates were appropriately covered by heading 84.34 of the Schedule which specifically covered printing plates. In this context, he also drew our attention to heading 48.07 of the C.C.C.N. which covered inter alia coated paper-also covered by heading 48.01/21 of the Schedule. The ''explanatory notes relied on by the Revenue figured under heading 48.13 ["Carbon and other copying papers (including duplicate stencils) and Transfer papers cut to size, whether or not put up in base"] a description that did not appear in heading 48.01/21 of the Schedule. Therefore, according to Shri Sogani, the said explanatory notes were of no avail to the Department. 11. Shri Sogani relied on the Tribunal's orders Nos. 261 to 278/86-C dated 14.5.1986 in Kasturi and Sons v. Collector of Customs, Madras on the classification of "Toyobo" Printing Plates (exclusively used for printing purposes), under heading 84.34 of the Schedule. These plates were photo-sensitive nylon printing plates. The assessee's contention was that they were used in printing and the photographic principle employed did not detract from their essential nature and characteristic of printing plates. The Revenue, however, sought to rely on theexplanatory notes under heading 37 of the C.C.C.N. ("Photographic plates and film in the flat, sensitised, unexposed, of any material other than paper, paperboard or cloth") and heading 84.34 thereof, classifying such goods under the former heading and excluding them from the latter, in support of classification under heading 37.01/08 of the Schedule. The Tribunal noted the admitted position that the plates were exclusively used for printing and for no other purposes. It took the view that such plates were only printing plates under heading 84.34 and not photographic plates under heading 37.01/08 of the Schedule though the photographic principle was involved in their use and technically they might be photographic plates. The learned D.R., however, contended that the above decision was not applicable to the present case since the goods were different. 12. We are of the view that the decision in the Kasturi and Sons case is apposite though the goods may have been different. The principle emerging from the decision is that printing plates must be considered to be such though they may work on the photographic principle (in that case). There is no dispute here that the goods herein are master printing plates though made of coated paper. The fact that they arc coated paper would not, applying the above principle, detract from their nature and characteristics as printing plates. 13. Shri Sogani also relied on the Supreme Court's judgment in State of Uttar Pradesh and Anr. v. Kores (India) Ltd. 1977 (Vol. 39) STC 8 : 1990 (26) ECR 464 (SC) : ECR 731 SC laying down that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. It is to be noted that the Revenue, on whom the onus lies, has not shown that the subject goods are known as "coated paper" in the popular and commercial sense of the term. The goods are undoubtedly a coaled paper. But it has to be shown that it is known as a sort of coated paper rather than as a printing plate. The goods have been invoiced as offset printing plates and the literature shows their use in printing as master plates from which copies are made. In the circumstances, the term "printing plates" simpliciter or "plates prepared for printing purposes" is more specific and is more appropriate since the term does not restrict itself to any specified material or materials. 14. The learned D.R. Shri Jayaraman has relied on the Supreme Court's judgment in Krishna Carbon Paper Co.v. Collector of Central Excise, Kanpur (sic) holding that carbon paper, a sort of coated paper, was covered by the Central Excise Tariff entry for paper, all kinds, including coaled and impregnated paper. In our view, this decision is of no help to the Revenue. The Central Excise Tariff at the relevant time did not have a specific entry for printing plates. In the present case, we have to choose between printing plates and coated paper. We think the former is more specific. 15. The fact that the tariff in force from 28.2.1986 has a specific heading for offset printing plates of paper is also not relevant to the dispute in the present case which relates to a period prior to 28.2.1986. 16. In the result, we hold that the paper offset printing plates imported by the appellants were classifiable under heading 84.34 and not under heading 48.01/21. We set aside the impugned orders and allow the appeals with consequential relief to the appellants.

Hari And Co. vs Collector Of Customs on 24 October, 1990

Customs, Excise and Gold Tribunal - Delhi

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Pramod Kumar Tharu vs Shailendra Kumar Singh & Another on 7 September, 2010

Allahabad High Court

JUDGMENT B.J. Wadia, J. 1. This is a rule nisi taken out by the defendants in suit No. 572 of 1935 against Cooverji Keshavji Shah, the editor, printer and publisher of a weekly newspaper in Bombay called the Satya Prakash and Swadesh, to show cause, if any he has, why he should not be committed for contempt of Court in having edited, printed and published in his newspaper the four articles set out in the rule, and why he should not be restrained by an order and injunction of this Court from publishing further articles of a like nature in the future. 2. This suit was filed on April 9, 1935, by the plaintiff against the defendants for maintenance and residence out of joint family properties which, she says, are in the possession of the defendants. On the day on which the plaint was filed the plaintiff took out a notice of motion for an order that she should be paid a sum of Rs. 3,000 per month for interim maintenance, and that the defendants should be restrained by injunction of the Court from alienating the properties in their hands. The notice of motion came on for hearing on June 27, 1935, when by consent no order was made for interim maintenance but the suit was expedited. The suit is still pending. 3. The four articles referred to in the rule are dated April, 18, July, 4, and two of December 26, 1935. The first article was published after the suit was filed but before the notice of motion was heard. The remaining three articles were published after the notice of motion was heard. The first article is headed, "A Widowed Member of a Wealthy Multimillionaire Family". It is not necessary for me to relate the substance of this article in detail. It has been translated, and the relevant passages in it have also been set out and referred to in the affidavits. In this article the editor expressed his opinion that widows in the community of the defendants, viz., the Cutchi Visa, Oswal caste, seemed to have no alternative left for the assertion of their rights but to go to a Court of law, meaning that there was no hope for the plaintiff to get anything from the defendants except what she could get by a decree or order of the Court. The second article is headed, "Rao Saheb Raoji Sojpal J.P. thinks that fighting in Court against a helpless widow is creditable on his part". This implies that in defending a widow's suit defendant No. 1 was acting discreditably, irrespective of whether his defence was good or otherwise. In that article defendants Nos. 1 and 2 have been attacked personally. I do not agree with the editor in his contention that he has criticised them, not in reference to the suit, but as public men, or men of importance in their own community. The third article is headed, "The Cat is coming out of the Bag". It is in the form of a letter, and the substance and the tone of the article generally, with its metaphors and comparisons, assume a more serious aspect than the first two articles. The comparison with Aurangzeb and that Emperor's treatment of his brothers, which is known to all students of history, is very unfortunate, because it represents defendants Nos. 1 and 2, who are described as "the treacherous pair", as treating their deceased brother's widow in the same ruthless manner in which Aurangzeb dealt with his brothers. I do not agree with the defendants in their contention that there is an allegation against them of misappropriating the plaintiff's husband's estate. The mere fact that comment is made on a sum of Rs. 5 as being grossly inadequate for maintenance or even niggardly does not in any way substantiate an allegation of misappropriation. The article, however, openly alleges that defendant No. 2 is more concerned with the welfare of dogs and pigeons than of a widowed member of the family. The last article is headed, "Intoxication of Wealth". Defendants Nos. 1 and 2 are described as very rich men, intoxicated by their wealth, so intoxicated as not to care to give to the plaintiff what is her due, considering that her deceased husband belonged to a rich and well-to-do family in the community. 4. These are all the articles with which I am concerned. As I have stated before, I do not wish to go into them in detail, but I agree with counsel for the defendants that there are statements in them which refer to the defendants, not merely as men of importance in their community, but as defendants, and in relation to their defence in the suit. They contend that the articles tend to prejudice them in their defence in the suit, and thereby prejudice a fair trial at the time of the hearing. There are also statements made in those articles which are not correct in all material particulars. The respondent, on the other hand, alleges that he has been working and writing as a social reformer in the interest of the widows of the community for some time past, and that he has been criticising the conduct of defendants Nos. 1 and 2, merely as leading members of their community and not as parties to the suit, and therefore whatever other remedies they may have against him, he is not guilty of contempt of Court. 5. The law on the subject of contempt of Court has been laid down from ancient times, and is to be found in Hailsham's Laws of England, Vol. VII, in the well-known work of Oswald on Contempt, and in several decided cases, which were referred to and mentioned in the argument. It has been laid down in an old case of 1742, The St. James's Evening Post case (1742) 2 Atk. 469, 471, that offences which constitute contempt of Court are of three kinds, viz., those which (1) scandalise the Court, or (2) abuse the parties concerned in causes there, or (3) prejudice mankind against persons before the cause is heard. It has also been laid down that anything which tends to excite prejudice against the parties in litigation while it is pending is contempt of Court. That case has been followed in numerous later decisions, and is reproduced by Oswald in his third edition at p. 91 : see also The William Thomas Shipping Co., In re : H.W. Dillon & Sons, Ld. v. The Company : Sir Robert Thomas, In re [1930] 2 Ch. 368, 375. There is no question here of scandalising the Court. The question is only whether the editor has been guilty of abusing and vilifying the parties to a pending suit in relation to their defence, and thereby prejudicing a fair trial for them at the hearing. The test in such cases is not whether the writings have in fact obstructed or interfered with the administration of justice, or will obstruct or interfere with the administration of justice, but whether they are calculated to do so, or whether it is likely that they will have that effect. The intention of the writer may often be of secondary importance; the question is, what is the effect of the articles, and have they a tendency to obstruct and interfere with the due and proper course of administration of justice? It has been held that a libel on the parties to a suit which does not amount to an interference with the course of administration of justice is a matter in respect of which the aggrieved party can have his remedies elsewhere. He may either prosecute the writer in a criminal Court of law, or he may bring an action for defamation in a civil Court. But he cannot proceed in contempt against the author of the libel. Another proposition which has been well established is that all proceedings in suits pending in a Court of justice are privileged, and any comment on the subject-matter of the suit, and any abuse of the parties or holding them up to ridicule and contempt in the eyes of the public, whilst the suit is pending, are not allowed. In my opinion it would be simply disastrous for the due and proper administration of justice, if when a suit is still pending investigation in a Court of law, that investigation was to be taken out of the hands of the Court and practically left to the press. The object of proceedings in contempt is not so much to vindicate the dignity of the Court or the person of the Judge, as to ensure that every litigant in a Court of justice has a fair and unprejudiced hearing at the trial on the merits of his case. 6. Taking this to be the established law on the subject, I have to consider it in connection with the statements contained in the four articles which are the subject-matter of the rule. The editor is entitled, and has every right to carry on his work of social reform in his journal, and to work in the cause of the uplift of Hindu widows. It is also well-known that in order to reform, the reformer must first educate, and there is no medium through which the work of educating public opinion on an important subject can be better carried on than a well-conducted press. If the editor had merely indulged in the ornate language which he has used, being carried away by his zeal, the Court would have had nothing to say. this Court is not a Court of morals, nor can it adjudicate upon the taste in which articles are written in the press. The only question is whether the writer has not overstepped the limits by publicly attacking parties to a suit who may have a good defence, but whose defence has not yet been heard. Whether the articles will in fact prejudice the defendants or not, or scare away their witnesses, or lead them to compromise the suit, is not the real and proper test in such a case. The Court has to read the articles and see whether the articles may have that effect, and thereby tend to interfere with the proper course of justice. In my opinion the articles have that tendency. I am well aware of the principle that contempt proceedings are quasi-criminal, and that the Court does not commit for contempt unless the offence is of so serious a nature as to render the exercise of the Court's summary jurisdiction necessary in order to prevent interference with the course of justice. Considering the articles as a whole, they do constitute a contempt of the Court, and I must make the rule absolute. I take into consideration the fact that the editor has stated, though half-heartedly, that if the Court thought that he was guilty of contempt, he would be willing to apologise to the Court. That is not the sort of apology which would save him from the consequences of his act, but I still take it into consideration, and in my opinion the requirements of justice will be satisfied if I severely reprimand the editor for the articles that he has written, and warn him against the repetition of such articles in reference to parties to pending suits in the future. I have already made the rule absolute, which imposes upon him an injunction restraining him from writing articles of a like nature in the future, that is, articles abusing parties to pending suits in relation to the subject-matter of those suits. In addition to the injunction I also warn him as to the future conduct of his newspaper in relation to pending1 suits. For the present the Court will only express its sense of displeasure by imposing the injunction upon him, severely reprimanding him for what he has written, and cautioning him for the future. He will also pay the taxed costs of the defendants of the rule as between attorney and client. In my opinion this -was a fit case for the engagement of two counsel, and I certify accordingly.

Author: B Wadia

Demibai Gengji Sojpal vs Rowji Sojpal on 9 July, 1936

Bombay High Court

JUDGMENT K. Thankappan, J. The petitioner is an injured in a motor accident which occurred on 15.2.1999. On account of the serious injuries sustained by the petitioner, he was treated in the hospital for more than 75 days as an inpatient. The petitioner spent Rs. 65,000/- for his treatment. On the basis of the settlement arrived at by the petitioner and the Insurance Company on 19.3.2002, the Tribunal passed an award for an amount of Rs. 1,40,000/-. The Insurance Company issued a cheque for Rs. 1,40,000/- on 8.5.2002 in favour of the Tribunal. The Tribunal deposited the amount in the name of the petitioner on 9.10.2002 for a period of two years, but the petitioner was allowed to withdraw only an amount of Rs. 25,000/-. The grievance of the petitioner is that though he filed an application to withdraw the balance amount for continuing his treatment and for the purpose of his daughter's marriage, the Tribunal neither numbered the application nor allowed him to withdraw any amount. Hence, the petitioner has approached this Court for a direction to the Tribunal to release the amount deposited in his name. 2. Learned counsel appearing for the petitioner submits that the accident occurred on 15.2.1999 and the Insurance Company deposited the award amount on 9.10.2002. The petitioner was allowed to withdraw only an amount of Rs. 25,000/-. He is an educated man. The petitioner actually spent more than Rs. 65,000/- for his treatment and he is continuing the treatment. He also needs money for his daughter's marriage. 3. In paragraphs 3 and 4 of the counter affidavit filed on behalf of the 1st respondent-Insurance Company it is stated as follows:- "3. As per Ext.P1, an amount of Rs. 1,14,228/- is deposited for a period of 24 months from 9.10.2002 with interest at the rate of 7.25% per annum. 4. The petitioner sustained injuries in a motor accident that occurred on 15.2.99. The claim so settled on 13.12.2000 for Rs. 1,40,000/-. This respondent has deposited the entire amount before the Tribunal by letter dated 8.5.2002. It is stated that the petitioner requires the amount for the marriage of his daughter." 4. It is a fact that the petitioner is an educated man and that he is in need of money. The apprehension of the petitioner is that in the light of the decision of the Supreme Court reported in K.S.R.T.C. v. Susamma Thomas (1994 (1) KLT 67) the Tribunal would not take any favourable decision in the matter. In the above decision the Supreme Court had issued certain guidelines to be followed by the Tribunals while releasing compensation to the claimants in accident cases. The guidelines read thus:- "(i) The Claims Tribunals should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn; (ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a rouge (sic-ruse) to withdraw money; (iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding an existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order; (v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above; (vi) In personal injury cases, if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing permit withdrawal of such amount as is necessary for incurring the expenses of such treatment. (vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid directly to the claimant or his guardian, as the case may be; (viii) In all cases, the Tribunal should grant to the claimants liberty to apply for withdrawal in case of emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated." The above guidelines were issued in order to safeguard the feed from being flittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation. Even considering the safety measures to be followed in deserving cases the Supreme Court has given ample discretion to the Tribunals to allow to withdraw the amount of compensation considering the need and other circumstances mentioned in the applications for withdrawal. All these aspects were considered by a Division Bench of this Court in Gopalakrishnan Nair v. The Motor Accidents Claims Tribunal, Thiruvananthapuram and Anr. (2003 (1) KLJ 654). In the above decision this Court stated as follows:- "... In the case of literate persons it is not mandatory to invest the amount of compensation in long term fixed deposit. The expression used in guideline No. (iv) is that "in the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above", whereas in guidelines Nos. (i), (ii), (iii) and (v), the expression used is that in ""the Tribunal should". Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, unfortunately the Motor Accidents Claims Tribunals are often taking a very rigidstand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposits. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by the Honourable Supreme Court in the case of minors, illiterate claimants and widows and in the case of semi-literate and literate persons." 5. In the above decision this Court also considered the official memorandum No. D1(B) - 41320/99 dated 26.7.1999 issued by this Court with regard to release of compensation by Motor Accidents Claims Tribunals and noted that "even in cases where there is no possibility or chance of the 'feed being flittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation', the investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a mater of routine, totally ignoring the spirit of the directions given by the Supreme Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit even without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded to him. In effect and practice the exception has been made general. The Tribunals are disposing of the applications of the claimants for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind to the spirit and content of the guidelines issued by the Honourable Supreme Court. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to be inhibited by a wrong impression that in view of the guidelines given by the Honourable Supreme Court, in every case the amount of compensation should be directed to be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change in the attitude and approach of the Tribunals is highly necessary in the interest of justice. 6. In the above circumstances, it would be more advantageous to mention some more aspects. Prior to the amendment of the Motor Vehicles Act and the Rules there was limitation for filing an application for compensation. The Tribunals pass award after completing the legal formalities, which may take months or even years. Hence, between the period of accident and the release of compensation, the victims or the claimants have to depend upon either their relatives or friends or they have to avail loans to meet the necessity. Further, the award amount is released to the injured or the claimants in chronological order. After the introduction of the 'adalat' system in the State, immediate release of the amount as settled between the parties is ordered. On the other hand, the amounts deposited by the Tribunals are released only after the expiry of the period of deposit. This fact also cannot be ignored by this Court. Reduction of interest rate is another relevant factor. 7. Considering all these aspects, with regard to the deposit and release of compensation awarded in accident cases, this Court feels that the following directions shall be issued: 1) The Motor Accidents Claims Tribunals, while ordering or not ordering (a) deposit of whole or part of compensation; (b) release of whole or part of compensation to the claimants; (c) withdrawal of whole or part of the compensation before the expiry of the normal period of deposit already ordered; and (d) withdrawal of compensation allowed to minors, widows and old parents of deceased, shall consider and pass appropriate orders with reasons, in the light of the guidelines issued by the Supreme Court in Susamma Thomas's case (supra); 2) With regard to the applications for release of deposits, the Tribunals shall dispose of the same within 15 days from the date of receipt of such applications; 3) The Tribunals shall not allow time beyond the statutory period allowed to deposit the compensation; 4) The Tribunals, while ordering deposit of compensation, shall see that the entire expenses met by the claimants from the date of the accident till the date of award are discharged from the amount so ordered to be released; 5) The Tribunals shall also see that the immediate future expenses to be incurred by the claimants or legal heirs are included in the amount to be released or withdrawn. In the light of the above conclusions, the Original Petition is allowed. The 2nd respondent shall consider Ext.P4 and pass appropriate orders within 15 days from the date of receipt of copy of this judgment. 8. Registry is directed to circulate a copy of this judgment to all the Motor Accidents Claims Tribunals of the State and also to the Finance Secretary, Government of Kerala, Trivandrum.

Author: K Thankappan

Pathrose vs Oriental Insurance Company Ltd. on 28 July, 2003

Kerala High Court

[ 2696 ] (SHOW CAUSE NOTICE BEFORE ADMISSION) IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (SPECIAL ORIGINAL JURISDICTION) WEDNESDAY, THE NINETEENTH DAY OF AUGUST, TWO THOUSAND AND TWENTY :PRESENT: THE HONOURABLE SRI JUSTICE M.GANGA RAO WRIT PETITION NO: 138 OF 2019 Between: Shaik Peer Basha, S/o. Late Jaffar, aged about 44 years, Occ.Business, R/o.H.No.2 41/542, Kompalla Pullanna Street, Proddutur Town, YSR Kadapa District ...Petitioner AND 1. The State of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration & Urban Development Department, State Secretariat, Velagapudi, Guntur District 2. The Proddutur Municipality, Represented by its Commissioner, Proddutur, YSR Kadapa District. 3. The Proddutur Municipality, Represented by Town Planning Officer/Supervisor, Proddutru, YSR Kadapa District 4. Doula, S/o.Dada Peer, Aged about 38 years, Occ: Goldsmith, R/o.23/540, Kompalla Pullanna Street, Proddutur Town, YSR Kadapa District ...Respondents WHEREAS the Petitioner above named through his Advocate Sri K.SRINIVAS presented this Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ or order or direction, more particularly, one in the nature of Writ of Mandamus, declaring the inaction on the part of the respondents 2 and 3 in not preventing the 4" respondent from making further constructions in his property and in not demolishing the existing illegal and unauthorized structures is highly illegal, arbitrary and unconstitutional being violative of Articles 14, 21 and 300-A of the Constitution of India and also violative of Principles of natural Justice and consequently direct the respondents 2 and 3 herein to prevent the 4" respondent from making further construction and demolish the existing illegal and unauthorized structures made by the 4" respondent in his property bearing H.No.23/540, situated at Kompalla Pullanna Street, Proddutur Town, YSR Kadapa District. AND WHEREAS the High Court upon perusing the petition and affidavit filed -- herein and upon hearing the arguments of Sri K.Srinivas, Advocate for the Petitioner and GP for Municipality for the Respondent No.1, directed issue of notice to the - Respondents herein to show cause as to why this WRIT PETITION should not be © admitted. You viz: 1. The Principal Secretary, Municipal Administration & Urban Development Department, State Secretariat, Velagapudi, Guntur District, State of Andhra Pradesh. 2. The Commissioner, Proddutur Municipality, Proddutur, YSR Kadapa District. 3. The Town Planning Officer/Supervisor, Proddutur Municipality, Proddutru, YSR Kadapa District 4. Doula, S/o.Dada Peer, R/o.23/540, Kompalla Pullanna Street, Proddutur Town, YSR Kadapa District are be and hereby directed to show cause either appearing in person or through an Advocate, as to why in the circumstances set out in the petition and the affidavit filed therewith (copy enclosed) this WRIT PETITION should not be admitted, on or before 09-09-2020, on which date the case stands posted for hearing. ~ IANO: 1 OF 2019 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents 2 and 3 herein to prevent the 4" respondent from making further constructions and demolish the existing illegal and unauthorized structures made by the 4" respondent in his property bearing H.No.23/540 situated at Kompalla Pullanna Street, Proddutur Town YSR Kadapa District, pending disposal of WP No. 138 of 2019, on the file of the High Court. The Court made the following: ORDER: "Notice before admission. Sri N.Ranga Reddy takes notice for 2"? and 3 respondents. Registry is directed to print the name of Sri N.Ranga Reddy for 2" and 3 respondents. The grievance of the petitioner is that the 4" respondent is making illegal construction without leaving any set backs by encroaching the Municipal drain for which he made a representation on 24.12.2018 to the respondents 2 and 3 to stop further illegal construction and demolish the illegal constructions, but so far they have not taken any action. Having considered the said submissions, this Court is prima facie satisfied that the petitioner has shown sufficient cause for granting an interim order. Accordingly, there shall be interim direction directing the respondents 2 and 3 to stop the 4' respondent from making further constructions unauthorizedly by encroaching drain in property bearing house No.23/540 situated at Kompalla Pullanna Street, Proddutur Town, Kadapa District. Post on 09.09.2020." An. SD/- A. SURYA PRAKASH RAO TRUE Copy) DEPUTY ae SECTION OFFICER To, 1. The Principal Secretary, Municipal Administration & Urban Development Department, State Secretariat, Velagapudi, Guntur District, State of Andhra Pradesh. The Commissioner, Proddutur Municipality, Proddutur, YSR Kadapa District. The Town Planning Officer/Supervisor, Proddutur Municipality, Proddutru, YSR Kadapa District 4. Doula, S/o.Dada Peer, R/o.23/540, Kompalla Pullanna Street, Proddutur Town, YSR Kadapa District (Addresses 1 to 4 by RPAD- along with a copy of petition and affidavit) 5. One CC to Sri. K.Srinivas, Advocate [OPUC] 6. Two CCs to GP for Municipality, High Court of Andhra Pradesh. [OUT] 7. One spare copy MM oN HIGH COURT MGRJ DATED: 19/08/2020 NOTE: POST ON 09-09-2020 NOTICE BEFORE ADMISSION WP.No.138 of 2019 INTERIM SUSPENSION oe Lr Ye af! Lesparcneo

Shaik Peer Basha vs The State Of Andhra Pradesh on 19 August, 2020

Andhra Pradesh High Court - Amravati

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 15"' DAY OP SEPTEMBER, 2009, BEFORE THE HON'BLE MR. JUSTICE H.N. NAQ>AMOIi'A1'lRj;AS':: _ O' 1' WRIT PETITION No. 2687312009 (KiLR-f:#s.T"' A BETWEEN : Sri. M RRISHNAPPA S/O LATE MUNISHAMAPPA-. _ AGED ABOUT 68 YEARS g : R/AT NO.486, POST OFFICE. ROAD 0- K.R.PURAM BANGALORE55G'{)031§$§__--.'_ ~ jg ig ,..PETmONER (By Sri. L NAR_ASTM'1=:AMURTi}ITT, ADV., POR Sri. S N ASWATHAPJARAYAN_;"ADV.) 'T 'v.STA.TAE.o§"3<ARNATAKA PREP _ ITS. SECRETARY ~. REVENTJE DEPARTMENT M.S.BIJ.IL]:}1NG BANGALORE -- 500001 I A 'THE OEPUTY COMMISSIONER * BANGALORE URBAN DISTRICT BANGALORE. Qmm 3 TAHSILDAR BANGALORE EAST TALUK BANGALORE. RESRONDEI§ITfS" I (Sri. R KUMAR, HCGP) THIS WRIT PETITION IS FILED UIIDER ARTICLES i2,5i~ '' AND 227 OF THE CONSTITUTIO-N OF» INDIA _ vm*H,. A PRAYER TO DIRECT THE SECOND RESPONDENT --AUTHORITY TO GRANT CERTIFIED"-CORY OF THE ORDER DT. 16.10.2001 PASSED IN C'.R_.NO:i23/20C1_V--G2p AND ETC. THIS WRIT ON FOR PRELIMINARY HEARING THI'S1.DAY;-THE. COURT PASSED THE FOLLOWING; I '- i ' " 7.0 III); __-u-q.m..j.----rjuu~m Sri. :'Kumar,VvieainetiI Government Pleader is directed to take "I1Oti<:e {Or Tespondesnts. I *2, In petition the petitioner has prayed for a writ Of manGarIi.a1S'difeefing' Second respondent to issue certified copy Of the ordef"cI.e,te'c'ipI6)i0.200I in GR. No. 123/2001-02. 0\\»~«"w 3. Second respondent vide endorsement dated 26.06.2007 stated that no such record is available in their office. 'Fherefore--"the question of issuing a writ of mandamus will not arise. Acc«o_rdingIy; '2 the writ petition is hereby rejected. 4. Learned Government Pleader is permitted to fiijeinerno of 00 appearance within three weeks. LRS/15092009 1 *4

Author: H N Das

M Krishnappa vs State Of Karnataka on 15 September, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 892 of 2009() 1. AJEESH NIRMALAN,AGED 36 YRS, ... Petitioner Vs 1. STATE OF KERALA REPRESENTED BY S.I.OF ... Respondent For Petitioner :SRI.C.S.MANU For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :11/03/2009 O R D E R V. RAMKUMAR, J. =============================== Bail Application No. 892 of 2009 =============================== DATED: 11.03.2009 O R D E R In this Petition filed under Sec. 438 Cr.P.C. the petitioner who is the 1st accused in Crime No.678 of 2008 of Thiruvalla Police Station for an offence punishable under Sections 498A, 323,324 and 506(ii) read with 34. 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 allegations levelled against the petitioner, the relative conduct of the parties, the nature of the legal injury and the other circumstances of the case, I am inclined to grant anticipatory bail to the petitioner. Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above case on his executing a bond for Rs. 10,000/- (Rupees ten thousand only) with two solvent sureties each for the like amount to the satisfaction to the said officer and subject to the following conditions: If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above. Dated this the 11th day of March, 2009 V.RAMKUMAR, JUDGE. sj 

Ajeesh Nirmalan vs State Of Kerala Represented By ... on 11 March, 2009

Kerala High Court

Chief Justice's Court Case :- SPECIAL APPEAL No. - 1043 of 2010 Petitioner :- Raj Veer Singh Respondent :- State Of U.P. & Ors. Petitioner Counsel :- Yogendra Sahai Saxena Respondent Counsel :- C.S.C. Hon'ble Ferdino Inacio Rebello,Chief Justice Hon'ble Amreshwar Pratap Sahi,J. Heard counsel for the parties. We find from the record that petitioner has annexed a document showing that he was paid salary from government grants being a sum of Rs. 23,876/- for the period from March 2007 to June 2007. It is no doubt that earlier to the approval to the appointment of the petitioner, the salary was being paid by the management. Subsequently, however, the School became on the grant-in-aid and it appears that the post of the petitioner was also included in the grant-in-aid and in these circumstances, the salary has been paid to the petitioner. The communication dated 24.6.2009 by the District Basic Education Officer to the management indicates that the management was called upon to submit the requisite papers with regard to the grievance made by the petitioner about his salary. All this indicates that the petitioner's salary was on an aided post and he would be entitled for salary. In the light of that, following orders are issued. The District Basic Education Officer, Muzaffarnagar, to consider the claim of the petitioner for leave salary for the period for which he was entitled to and thereafter within 6 weeks the salary, which has not been paid to pay the same according to law. The petitioner shall serve the said order on the said authority. Considering the above, the order of the learned single Judge is set aside and the Appeal is allowed to the aforesaid extent. Order Date :- 9.7.2010 Irshad

Raj Veer Singh vs State Of U.P. & Ors. on 9 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10484 of 2008 Md.Sadique Akhtar Anasari & Ors Versus The State Of Bihar & Anr ----------- 5 05.09.2011 No one appears on behalf of the petitioners to press this application when the case is called out. As a result, this application is dismissed for want of prosecution. Namita ( Rajendra Kumar Mishra, J.)

Md.Sadique Akhtar Anasari & Ors vs The State Of Bihar & Anr on 5 September, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA TEST SUIT No.2 of 2010 SHAURYA SUNIL-PLAINTIFF . Versus ANIL KUMAR SRIVASTAVA-DEFENDEN . ----------- Devendra/ (J. N. Singh, J.) 20. 29.04.2011 Learned counsel for the defendant prays for two weeks final time to file original documents along with list.

Shaurya Sunil-Plaintiff vs Anil Kumar Srivastava-Defenden on 29 April, 2011

Patna High Court - Orders

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FREE 27.2.9§".%ILL Vfi3$ésiT:; Ann nzascvzma THE a£ssLL5xTs;HEfiEIfix¢e néfiesif THE mm. g.V &Y' THIS MI3qEL@#s30@Sflr§n5f°fi3gfiAu is COMING on F92.'HEAa1a§..?31$ ;nA?,_3r3E; $auHTw"nELIv&aEn THE Fmnaawzas: 1 ' "" "= 'v* "' V &§h§§:mr rhia #§p§a;7 gfidé$ Sactian 30(1) of the v§*%ra.::xfIti&:2»=.:i:;5»-.i':c:aE'i;;yansaea{i$'ii;§§§ii Act (for short 'the Act') is'a;ia§t§&";g§inst tha arder dated 29~12-2005 gags-mgi the Cmmniaaicnez: of Workman .C'm}P&n$ ajfia-:1, Sub-Bivi 3.1'. on-I, Bangalore 1 for *Cmmiasi<}ne:'} in case No.WCA.r'NFCI{CR- V i§:ia§§ allawing the applicaticn filed by Raspamnftient Nc;~.1. herein and directing the %~/ .. --.-.--.----v V. rnrIl\l'11It1I\!'I -||\.I|I u\Iun\a \.ll nnnruninivn !"H\9Fl LLIUKI K}? KAKNAIAKA appeliants ta pay the compen5ation«L%§fi Es.3§£892f* with aimyle interest at l2%§fi;é[uf*u' 2. Eespfindent No.1 hefibinfvifiiafli Ffb§7f apglicatian befare the' Camis3icn@ri gaakifig campansatian mf Es.2,15,GQQfr_fpr fhe_injhria3 aaid to have been sdsfiaifiad bf §ifi;_ 3. Thfi c§5$gQfLthéi§§Qlimén£:ifi brief is as under: ...... _ Th&t~he.ififa§i§w§1myeé working as Mazdoo: in the ',ga§§#nxi"§fi;4 Central Warehousing '_C¢xpm$§fii9n, ifiahfignthpur Unit Ho.1, Bangalore iH§f§r»_shfi:t{i*¢orp¢2ati¢n'} and. he has been wéxtirmiififigtei since 1§Bfi continuausly. His i%:v--wazk%"¢gfi.i%hat of laading and unlaading, iiii§#£ki§g wand xafipacring, stacking of gaods, ai£_e1é£iifi§ and such ethgr incidental waxks fiigéixustea ta him by tbs Hanager at the Cmryatatien. In all there are 56 emplayeea {Kazdaaxs} marking at Unitwl cf Centxal & I wuniotwaunr urn |\r'\I\II.l"'IIl"'II\l-I IlI\IIl \u\lIJ!\l Iull I\FIl\I'l1'\lI"|I\l"\ l"II\'l1 VMJUKI U!' aaxspaxzsatian for exmleyment injuries su£fi§3:.éd_ by him: e:iuz::iI1§ the discharge of hia-3V. .§iii£i'a.§s§*'..___ . with than fiarparat iczn. "firm application w'.i{$"'--~._cofiAf:é§t.ed' itiy-..,,¢VVr5i1a:% ayp 93. Ian: --C orperati qr; a 'h ' «. that there is ma enrplayer and €L'E§l¢:g"'v89 hat?-r}a--e;1 :t:'hé and that applicant; :_ is not liable: t:§;::=:. The parties led evifiyanse ' fiznmniasioner. The: ='.'fam':@sianei:::__ by under appeal held __t.1".:a.t t}igfa§:e'~ exié1:*.s:V;;§3..ati<>nahi;: of employer and 'ICU é-z:p@1§;:isj,?a;Vre»'l1e«1§:t%::.gan the Carpnrati-an and the V apfi§1i,V£:an§;' éT'.'j t}s;é§:e:Ecxe, the Coxpoxzation is 3.'ia1é:ié t.g{"V.pé'_i}s' the compensaticn. Having regard nu-urn 1:-nun-1:1:-1 a nu xiiha Nnature caf permanent disablamant "~.__s€:.ffi3.3#aéti by the apylicant, the Cozzmissionez nu nu-ururuuu wag-u 'trfifirfizated the cotwansatian at R3.35,B92/- and dimcted the Ciarpezation to pay the said -:1:-u.-. -urn cw -uuu tn 1': -u fit/' -- W- -- -...--..-..,--......_ ..-._--. V._A_« . .-..-."-.............. .. ...u......n.,..... ....-..........m..u.m-m"n- niwrl \..vu'Iu ur--mum-A:AxA HIGHCOUR' ammznt ta-gather with interest at the rate 12% :;.:.a.. 4. Being aggrieved by 'aha $»a,:i.<i= i:'}'1:.:i% Scarjgntmatimn has presented' =..._thiS~ izzzteralia contamiinag thafit. ,[ff. 1_f;hNqi.} fiwzmisaicznez that theré of ar@las;*»z3: and enup3.oy5¢a__ anal ia ru::>t 'V l.é§?f§iVfV:"é?£ridence, thamrefarzrm, tit-.a._ " ta be aet aside. amfiri'-.::§3V____._q:f£ nzzatica sf this appeal, claimant appeared thrasugh his 3. éagfizozd ¢:§i.:,:as;'%'iV . AA ha?-yer heard both sides. Brazing the crmxrse sf argument, learned cmuzsaal fur the <:«:»rp:c:era:ti-on vehemently cmntandszi that the evidence can renew placed 5/ '-"-"-"" '-" "-'"""'""W'- -"-"- vvv-\I \-H" nnmvnlnnn l'lE|.7l""l LUUKI Ur KARNATAKA HIGH COUR' ragamfiing emylayer and smpiayee re1atisn3hi§; 't:l'1aerefe::>ze,- that cannot rczcsnatitute at law much 3.953 the suhsta_.r:_ti_al Via: iatw. 3%: is his ccntentimn 'r;h.;at1 rzc>° a?n;bis1:'é':.z;i::i;L;a¢1:'T1.'.: aguastiassn sf law is invc»li§e:i3u...V'in"Atfl::§:3 tharaicsra, the wpag; ii?$3.T1§;:;i':.{Y!&.jf'I13$;é1iIi':i!%I§2;r}7g£#¥i§. Hes aaxughtt tar: glaae sf this mrurt infijzha BEANAGER, !sF;£."W fi$%!£":a§«G%EEfV sagso m:»rz:z.;*:;r:;%___ .%§'.'§§{:;»r§€sTRArI¢;¢ wms, = 4' "'v,.f'.«::" spar. 5. RASER my mmas ré;:=4.;;.;5:~::a§ii.'i§;@§§_.993{3; mar 395 and the .~..cfie<:3Lv$§:',onLA'mf 't:Eia.Q_;;_fiasa High Court in the caae '*.g:fssis%s..,_'£*'2*$=:sz.*.;_ A?£!T.Fi'fl'r.F£Ii"?:' cs? zzamra 57.5., V/s raepsszzteci in 198? 3.".r.F1fl.I. EL'. $86. AA light sf tha abava dacisicens, What ' «.is '§zfa:quired ta be noticed is as ':0 whether finding of the Cexmissiranar regarding szwizzzéyer and exrrplcryee relaticsnahip involves substantial question of law as: net, as the /I g/ -a '~1|I1r1|ll nu-1 - -'ans: usruaul ma: I\l'I.l\l'Ir"Ill"ll\l'I lH\.?l! \.u\J\Jl\l V-J!' I\aP'|ICIVP'Kil"\I'\fi\ Hlflyfi 'E3 acceptance to shaw that the claimant erwluyee of Curporation, the reecozsziaassi an affixraativa ::aga.r2:§.. Therefore, the :'$&a.:i;,':_.'.'iT : i5'°€.A perverse. illegal and a§ixpf:c:;té,@i lagai evidaance. In __this vj_.éé2~r__ :3: t2i'e'«xf:§;tV1:f:9r, I hold that the ".L3.'._rVjg1,.i*§.:zI'f..'€f§$6. Vfiubatantial qtlastian 2:-f lam. V ' V ' :12. it that at the irmt.ancé'r. czf we " Efnicssn, a reference has hfleI't "§~.!!.d1B "V. Central Gc-verrnraant arm: the said matter is _ the Tribunal. It is alas the claimant that in the aaid V';:*Vajx:fe:.r #;:;r;«:.§"V,,.,éV. hazva scmght fax: xregularismtion tiugiyf employraentt. Fran this it is clear that the clairu-ant :13 not as. «an: pemment employee ca-f than uC a::x£';:-<:=za€:i.£2I1 and be along with ether ztmrabera of 'aha finish is fighting for his regularisation. & ... -u -a nu uu-1 - II\aI I \.a\.r\Ja\: VII I\rlI\I'CP'\lP\l\l'\ flllirl LKJUKI U!' 15 tax at-'ow that he was ernplcryed Cwzpmzaticn, either as zcegul-ax: emplcsyfeé a ataaual labourer. The Cor;a¢e.*:at:ion".§¢ii,fi:i'::,3;V"t'.'1;ga- AV crssnzzae cxf enquiry bafcre thé'1«'C¢§m*t:ia:si_é:iner«. gzmoduc-ad the attendanca acVqfi{ui.§itar;ha register, estc., wharei;;_... j;h§'...._.n#fné-- _o;fE the appli cant doea of the amplayaes tkzfi * The flsmmniaaistsngts: the murder undsr to the 9135.1 evi6;ent;; e placmd by the claimant IfVi£'.§ aacuments fiilad by the H-:1-twee not throw any light his aznplaynlant with R1 and x '$22, but same at the documents § @§veala that the gaetitioner baa met with an accident and taken treatzrwnt in this hospitala. The Ex. }?1-8 and W.-Er are the document, which xmvaals «&/ ..,.,..... u---u:--uv.r-1 an II\3'l : \..\.llJ!\l lull' RHNIYHFHNA HIGH 15 that the petitianer and otheif membeza have filed an a;3plica§:'§.on:AT:"': "'--~ ' ' befare the C31? .:"fC'.J."." regal arization. Hcrwwrar, in th,a___ . next 3m ::ag.tap1é:;, the (3e;:nzm.1.'3ai«aner has cc$tu;e= ts-._7f '4Shé'$f'J$2.VC.1.3J.8i<3*I'2 am under: "Thare,fnr4§'~V$:hé'1i:;,;:aaf:_ta.: 'divsczis aed above and '§n" zileading ; at parties gag do¢uméfit$'availabla, thrage wgaéz. gfierzxue z:'ée'l=a3_;i,c:»n aof eruyloyer a:r§§j1--¢ya_;s5'~% §§2va;:':a t::e_a-an the pei::I.t:i::m.-ax: E do not kmarw from fig@;:_ y§xi$g§ : But the facts reveals that that was working on the day of Kga;§§fi§fit 1.9. 2?-1-1999 and met with fifzcident when 3, heavy bundle was 35:23.1 hangad ever the right hand afi «@ ... ..1.,...., ......m. ur Mmmnm mun COURT or KARNATAKA HEGH coug. '£3 made: appeal da not indicate that the cf the fjotnzniaaicaner about the er'-'@lz>§"'aa zzelaticzxnship is and acceytable evidence. _ finding mf the A1.:"ha_.t' 36221216 relaticmship a.J:§d'~aanz;;loyee between the claimafit is net basefi an anyf evidence. Thezefisre, perverse and illggalvg """ :1 . . ., ; 15. Pa.z:uaf}5u1_ .015 ._ vthé'«...\~~'Lracords and the order .- v.u_z:deV_1*' a£1»:t'e« ...___f§I.=.&;$a ed by the C oxrmi 53 ions 1: 7'f§fiI1:1.f.'.f§.-, ai_§~a:'«.,.&éc':1¢w that there is absolutely no dm¢r.:mr:entarfi%';_ f-fifidence prociuced by the claimant ' 'ta aé't;a31:::i,,_:i. s 11 that he is an employee «sf the I £5115-.fipTTz::ir:5ati an. 5:: the nth-ar hand, the 3.-aarnsd ccmnsel far the claimant drew my attention to an :.1nma:c3:ad dsrzument, which :13 an agreement 4% ----w..-- an I\1"II\Il("Ill"'II\l"I :u\7I'l \.«\JU'l\l Null' l\I'\KI'I'\Il-\I\l'\ HIGH Caumisaianer regarding amplcyer -amy1¢féé relatianahip is highly' pervezae andf7ia: fi¢t % basefi an any legal avidenceyw-I%at§f§fiéf the' said finding is liable ta fie éeé és;a§,f?§#aj tha absence cf any efii§egca "tp' p§¢$§,,tfie emplayar-empiayea ra;atigné§ip;3th§fiapyeiiants cannat be held liabié fin pg? %§@§g5ation. In View af th@_tm§aw§ fi%d§u§3fi$n; S 399 no substance 3iQ %fi§"_g%§ugét@:q§W the learned swanai»fi9§fifh$fiR£3§fififi#h$wciaimant to ramand tha m$tt$§ §§ {fin§fifi§egfiiuaianer for fxeah gfiquiry' . .. _ : *fi§;R I; Tviaw at the abave, the gppaal da$a£fe$'§§ fié allmwed by setting aside the $g_4'Qrde: ¢f fiha Ccmmissiener. The application '» '§iié&.befcx@ tha Camissianar for aampansation *._V:a';:éb1e to he diamiaaed. fi¢¢ordingly, thg appeal ia allowed. Qtdex flated 29.12.2005 passad by the '@ uvv-ur 'urn u\r'Ir\IIr\lrll\l'l II"n\Jr1 \.'IJUI\I Lil' RHKIVHIHKH PTIUH COURT 2.1 rsamisamnex in 'iv:c.:u'H3=c!c1e.---13;1999 that . 't.3:gfg.:'e_ exists relatisnahip mf amg:-layer and * betwe I'-5'-III the appellant and V sat asitie . The applicatiltran applicant hefmta _ C01Af'I!L,'E_'.S5_§Vi.E3}{1Gu':$V"' is diam}. saga. 'me azacmnt in ias;..,v.'¢+»a4ifs:i§;~1:ec1 to be zaturned to ?:hé'j:;j,L;£91ppé_ll€a1'i§:. ' Sd/- Judge

Author: K.N.Keshavanarayana

The Regional Manager Central ... vs Sri Venkatesh @ Venkatappa on 1 October, 2008

Karnataka High Court

Court No. - 53 Case :- APPLICATION U/S 482 No. - 33795 of 2008 Petitioner :- Mohd. Mohiuddin And Others Respondent :- State Of U.P.And Another Petitioner Counsel :- Meraj Ahmad Khan,Moeezuddin Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J. 1. The learned counsel for the applicant Mr. Meraj Ahmad Khan and the learned counsel for the respondent No2. Mr. Sikandra Razai submitted that the mediation has succeeded and both the parties have settled their disputes and decided to close all the litigations including present one and are living separately. 2. The Apex Court has dealt with the consequence of a compromise in regard to non- compoundable offences in the case of B.S. Joshi and others vs. State of Haryana and another (2003) 4 SCC 675 and has held as follows: "If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. Thus, the High Curt on exercise of its inherent power can quash criminal proceedings or FIR or complaint and section 320 of the Code does not limit or affect the powers under section 482 of the Code." 3. The principles of law propounded in B. S. Joshi's case has been applied with approval in the case of Nikhil Merchant v. CBI and another (2008) 9 SCC 650. 4. In CBI Vs. Duncans Agro Industries Ltd.(1996) 5 SCC 591 the Apex Court upheld the order of the High Court quashing the criminal complaint after the civil action had been compromised between the parties. No doubt, Duncans Agro case (supra) was in regard to the offence under section 420 IPC, which was compoundable but the principles of quashment of the criminal proceeding on the basis of compromise was evolved. 5. When the parties have settled their disputes and decided to close the present case then it would be a futile exercise to proceed with the case. 6. The instant petition is allowed, consequently, the proceedings of criminal case no. 4150 of 2007 (State Vs. Mohiuddin and others) under sections 498A, 506 IPC and 3/4 of the Dowry Prohibition Act, P.S. Phoolpur, District Allahabad are quashed. Order Date :- 9.8.2010 MTA

Mohd. Mohiuddin And Others vs State Of U.P.And Another on 9 August, 2010

Allahabad High Court

Court No. - 41 Case :- CRIMINAL MISC. WRIT PETITION No. - 786 of 2010 Petitioner :- Nand Kishore Lala @ Nand Kishore Garg Respondent :- State Of U.P. & Others Petitioner Counsel :- Rajeev Gupta,Uma Nath Pandey Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J. Hon'ble Naheed Ara Moonis,J. Heard learned counsel for the petitioner and the learned A.G.A. appearing for  the State.  The relief sought in this petition is for quashing of the F.I.R. registered at case  crime no.89703000210 of 2010, under sections 332, 358, 504, 506 IPC, P.S  Dankaur, District Gautam Budh Nagar.  The Full Bench of this court in Ajit Singh @ Muraha Vs. State of U.P. & others  (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in  Satya Pal Vs. State of U.P. & others (2000 Cr.L.J. 569) that there can be no  interference with the investigation or order staying arrest unless cognizable  offence is not ex­facie discernible from the allegations contained in the F.I.R.  or there is any statutory restriction operating on the power of the Police to  investigate   a   case   as   laid   down   by   the   Apex   Court   in   various   decisions  including   State   of   Haryana   Vs.   Bhajan   Lal   &   others   (AIR   1992   SC   604)  attended with further elaboration that observations and directions contained in  Joginder Kumar's case (Joginder Kumar Vs. State of U.P. & others (1994) 4  SCC 260 contradict extension to the power of the High Court to stay arrest or  to quash an F.I.R. under article 226 and the same are intended to be observed  in   compliance   by   the   Police,   the   breach   whereof,   it   has   been   further  elaborated,   may   entail   action  by   way   of   departmental   proceeding  or   action  under the contempt of Court Act. The Full Bench has further held that it is not  permissible   to   appropriate   the   writ   jurisdiction   under   Article   226   of   the  constitution as an alternative to anticipatory bail which is not invocable in the  State of U.P. attended with further observation that what is not permissible to  do directly cannot be done indirectly.  The learned counsel for the petitioner has not brought forth anything cogent or  convincing to manifest that no cognizable offence is disclosed prima facie on  the allegations contained in the F.I.R. or that there was any statutory restriction  operating on the police to investigate the case. Having scanned the allegations contained in the F.I.R. the Court is of the view  that the allegations in the F.I.R. do disclose commission of cognizable offence  and/therefore no ground is made out warranting interference by this Court. The petition is accordingly dismissed. Order Date :- 19.1.2010 Mustaqeem.

Nand Kishore Lala @ Nand Kishore ... vs State Of U.P. & Others on 19 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CA/5642/2006 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR JOINING PARTY No. 5642 of 2006 ================================================= AMRISH N.PATEL - Petitioner(s) Versus TIMES OF INDIA & 14 - Respondent(s) ================================================= Appearance : MR MUKUL SINHA for Petitioner(s) : 1, None for Respondent(s) : 1,3 - 15. GOVERNMENT PLEADER for Respondent(s) : 2, ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 04/03/2010 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Having gone through the application and as the applicant is not represented, the same is disposed of. Special Civil Application No. 9686 of 2006 be listed after disposal of Special Leave to Appeal (Civil) No. 8519 of 2006 pending before the Hon'ble Supreme Court. The Civil Application stands disposed of. [S.J. MUKHOPADHAYA, CJ.] [AKIL KURESHI, J.] sundar/-

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

Amrish vs Times on 4 March, 2010

Gujarat High Court

[Section 597] [Complete Act]

Central Government Act

ORDER Dinesh Maheshwari V., J. 1. This miscellaneous petition under Section 482 of the Code of Criminal Procedure ('the Code' hereafter) has been submitted by the petitioner-convict Kayam Khan in the circumstances somewhat peculiar thus: The petitioner submitted a revision petition before this Court against the judgment and order dated 7-6-1993 passed by the Addl. Sessions Judge No. 2, Jodhpur in Criminal Appeal No. 62 1993 that was directed against the judgment and order dated 16-8-1986 passed by the Addl. Chief Judicial Magistrate No. 1, Jodhpur in Criminal Case No. 105/1983. It appears from the material placed on record that learned appellate Court sentenced the petitioner under Sections 279 and 304-A IPC for one year's rigorous imprisonment and as directed payment of Rs. 20,000/- as compensation to the legal representatives of the deceased Uttamaram who had died in the accident caused by rash and negligent driving of a truck by the petitioner on 22-8-1981. 2. The revision petition aforesaid being S.B. Criminal Revision Petition No. 173/ 1993 was heard and decided by this Court on 27-10- 2005. It appears that learned single Judge of this Court was satisfied that there was no ground to interfere with conviction of the petitioner; and a submission was made on behalf of the petitioner for extending him the benefit of probation. Thereupon, the learned single Judge was pleased to observe that the petitioner would be entitled to the benefit of probation provided he would pay compensation of Rs. 50,000/-instead of Rs. 20,000/- to the Legal Representatives of the deceased within three months from the date of order and the revision petition was accordingly disposed of. The order dated 27-10-2005 in its entirety reads thus.- 27-10-2005 HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Rakesh Calla, for the petitioner, Mr. Narendra Moolchandani, P.P. This revision petition is directed against the judgment dated 7-6-1993 passed by the learned Additional District and Sessions Judge, No. 2. Jodhpur convicting the petitioner Kayam Khan Under Sections 279 IPC and 304A IPC and sentencing one year's rigorous imprisonment and payment of Rs. 20,000/-as compensation in favour of the L.Rs. of deceased Uttamaram, who died in the accident caused by rash and negligent driving of truck No. RJI 1625, which was being driven by the petitioner Kayam Khan on 22-8-1981, the date of incident. Heard learned Counsel for the petitioner and perused the impugned orders and record of the case. I do not find any ground to interfere with the conviction of the petitioner under the aforesaid provisions. However, the learned Counsel submits that the petitioner deserves to be given the benefit of probation under the Probation of Offenders Act. Having considered the submission of the learned Counsel, the petitioner will be entitled to the benefit of probation provided, he pays a compensation of Rs. 50,000/-instead of Rs. 20,000/- to the L.Rs. of the deceased Uttamaram (within a period of three months from today) With these observations, the revision petition is disposed of. 3. The petitioner-convict has stated his predicament in this petition under Section 482 of the Code in the manner that he was required to make deposit of Rs. 50,000/-within three months from the date of the order but could not deposit for not receiving of the information of the order within time and has stated that he is still ready to deposit the said amount. The petitioner has pointed out that for default in deposit of the amount, the learned trial Court issued warrant and the petitioner was thereupon apprehended and produced before the trial Court on 24-4-2006 and he had been sent to jail and attachment has been issued for recovery of the compensation amount of Rs. 20,000/-. The petitioner has submitted that he had moved an application for obtaining certified copy of the order dated 27-10-2005 on 10-4-2006 but certified copy was not made available as the file was not traceable in the office. The petitioner had, therefore, submitted a typed copy of the order dated 27-10-2005 and made the submission that he is suffering imprisonment from 24-4-2006 although he is ready to deposit the amount of compensation which he could not earlier deposit for want of knowledge of the order dated 27-10-2005 within time; and has prayed for suitable orders to be passed in the interest of justice. 4. On this miscellaneous petition being placed before the Court on 5-6-2006 on defence side, a report was obtained from the office about the record of Criminal Revision Petition No. 173/1993; and the office reported that the said record was not traceable despite all efforts and such efforts were still continuing. Having regard to the circumstances of the case, filing of the certified copy of the order dated 27-10-2005 was dispensed with and the petition was directed to be registered and placed for orders on 7-6-2006 and learned Public Prosecutor was also requested to take instructions and to place photostat, if available, of the order dated 27-10-2005 on record. The matter was taken up on 8-6-2006 and learned Public Prosecutor has placed photostat of the certified copy of the order dated 27-10-2005 on record and quotation aforesaid has been taken wherefrom. 5. Having heard the learned Counsel for the petitioner and the learned Public Prosecutor, this Court is clearly of opinion that the prayer made by the petitioner deserves to be allowed in the larger interest of justice and for reaching to the objective of the order dated 27-10-2005; and if the time permitted for deposit of the compensation amount would not be enlarged, it would defeat the very purpose of the directions dated 27-10-2005 and the Legal Representatives of the deceased would stand deprived of the enhanced compensation awarded without any other purpose being achieved. 6. Under the scheme of the Code, ordinarily an order passed by the Court cannot be altered or reviewed except for correction of clerical or arithmetical error but in the present case, it is noticed that this Court by the order dated 27-10-2005 : (a) maintained the conviction of the petitioner; (b) accepted his prayer for extending benefit of probation but on the condition of his making payment to the Legal Representatives of the deceased an enhanced amount of compensation of rupees fifty thousand; and (c) required that the payment (of compensation) be made within three months. Parts (a) and (b) aforesaid of the order dated 27-10-2005 are clearly substantive in nature, they remain unexceptionable, and cannot be altered or modified. However, part (c) thereof, as put in parenthesis in the quotation supra, that is the time period for payment of the amount of compensation, is obviously directory in nature and the same is not the part of substantive order or direction. Such period has been stated for payment of the amount of compensation and not of deposit of fine. The amount of compensation is obviously meant for the benefit of the Legal Representative of the deceased and once this Court had passed the order, such amount of compensation could have been recovered under the process of law even if no time limit was fixed for making such payment; and this Court seems to have fixed the time in the interest of the said Legal Representatives of the deceased. The order passed by this Court cannot be construed to be an order of sentence of imprisonment in the event of default of payment of compensation nor it has been directed that in the event of default of payment within three months the substantive sentence of imprisonment would be resuscitated. On the overall construction of the order dated 27-10-2005, this Court is of opinion that the time limit provided therein could be relaxed that would serve larger interest of justice. 7. The petitioner has submitted that he did not timely receive the information about the order dated 27-10-2005 and hence could not make payment and has of course been apprehended but has yet offered to make payment of the enhanced amount of compensation. The original case file of the Criminal Revision Petition is not traceable but from the copy of the order dated 27-10-2005, it does appear that the petitioner was not present before the Court when the said order was passed. In the overall circumstances of the case, there is nothing to indicate that the petitioner deliberately avoided compliance of the order passed by this Court. 8. If the prayer of the petitioner of making payment now would be rejected and he would be required to undergo imprisonment, the net result would be to deprive the Legal Representatives of the deceased of substantial amount of enhanced compensation without any corresponding gain of anybody. Such result would be plain miscarriage of justice. Having regard to the peculiar facts and circumstances of the case, this Court is clearly of opinion that the directory part of the order dated 27-10-2005 deserves to be relaxed in the larger interest of justice. 9. In the aforesaid view of the matter, this miscellaneous petition under Section 482 of the Code is allowed; the directory part of the order dated 27-10-2005 is relaxed; and it is ordered that as soon as the petitioner gets deposited the amount of compensation of Rs. fifty thousand with the trial Court; and completes other requirements for release on probation, he may be set as liberty. It shall be required of the learned trial Court to inform the Legal Representatives of the deceased immediately of the orders passed by this Court and to ensure timely payment of amount of compensation to them, as and when the same is deposited.

Author: D M V.

Kayam Khan vs State Of Rajasthan on 12 June, 2006

Rajasthan High Court

[Complete Act]

Central Government Act

[Section 36(3)] [Section 36] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9562 of 2010(U) 1. A.BASHEER, AGED 63 YEARS, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, KOLLAM. ... Respondent 2. THE DISTRICT SUPPLY OFFICER,KOLLAM. 3. THE TALUK SUPPLY OFFICER,KARUNAGAPPALLY. 4. VISHNUDHATHAN, VILLAGE SECRETARY (DYFI), For Petitioner :SRI.T.M.ABDUL LATHEEF For Respondent : No Appearance The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :22/03/2010 O R D E R T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.9562 OF 2010 --------------------------------------- Dated this the 22nd day of March, 2010. J U D G M E N T The matter arises out of the Kerala Rationing Order. The petitioner is the licensee of ARD No.157 of Karunagappally Taluk. By Exhibit P1, the licence was suspended which, according to the petitioner, is without any justification. Now the 1st respondent has issued a show cause notice as per Exhibit P2 and Exhibit P3 is the copy of the charge memo. The said shop is now attached to another shop. 2. The petitioner has filed an explanation as per Exhibit P4. It is pointed out that even though on so many occasions the matter was posted, nothing materialized and finally it is posted to 24.03.2010 for a hearing. Exhibit P5 is a notice issued by the 2nd respondent in this regard. According to the petitioner, the action taken by the 3rd respondent is without any jurisdiction and the matter will have to be considered on merits. There will be a direction to the 1st respondent to take a final  W.P.(C) No.9562/2010 2 decision on Exhibit P4 after hearing the petitioner either on 24.03.2010 or on any adjourned day. The final orders will be passed within a period of one month. The petitioner will produce a copy of this judgment along with copy of the writ petition for compliance. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp 

A.Basheer vs The District Collector on 22 March, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 13970 of 2004(K) 1. BABU. A.K., CLERK, O.L.L. HIGHER ... Petitioner 2. M.V. PRABHAKARAN NAIR, 3. V.J. MATHEW, CLERK, ST.SEBASTIAN'S 4. MARTIN XAVIER, CLERK, 5. MARIAKUTTY. T.J., CLERK, 6. PHILIPOSE K.P., CLERK, ST.JOSEPH'S 7. JOHN CHACKO, CLERK, 8. ACHUTHANKUTTY P., CLERK, M.S.M. HIGHER 9. P. SIVADASAN, CLERK, DO. DO. 10. V.A. WILSON, CLERK, ST.GEORGE'S 11. THOMAS MATHEW, CLERK, 12. B. JAYARAJ, CLERK, S.V.N.S.S. HIGH Vs 1. STATE OF KERALA, REP. BY ITS ... Respondent 2. DIRECTOR OF PUBLIC INSTRUCTIONS 3. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 4. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 5. DEPUTY DIRECTOR OF EDUCATION, 6. DISTRICT EDUCATIONAL OFFICER, PALA. 7. DISTRICT EDUCATIONAL OFFICER, 8. DISTRICT EDUCATIONAL OFFICER, TIRUR, For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :22/12/2009 O R D E R ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.13970 of 2004 (K) --------------------------------- Dated, this the 22nd day of December, 2009 J U D G M E N T When the matter is taken up today, neither the counsel nor the petitioner was present. Though parties were called, even then, there was no representation. Therefore, this writ petition is dismissed for default. (ANTONY DOMINIC, JUDGE) jg 

Babu. A.K. vs State Of Kerala on 22 December, 2009

Kerala High Court

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Author: N.Ananda

Sri Fayaz Ahmad @ Fayaz S/O Khasim ... vs The State Of Karnataka on 26 November, 2010

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.12.2008 Coram The Honourable Mr. JUSTICE K.MOHAN RAM Crl.O.P. No.20980 of 2008 G.Meena .... Petitioner -Vs.- 1. The Commissioner of Police (Sub-urban) St. Thomas Mount, Chennai 2. The Assistant Commissioner of Police, Madipakkam Range, Chennai 3. The Inspector of Police, Pallikaranai Police Station, Chennai  600 302 4. Smt. Vasanthi Rajendran, President of Kovilambakkam Village Panchayat 5.G.Meena (R-5 impleaded as per the order of this Court dated .....12.2008) .... Respondents Prayer:- Criminal Original Petition filed under Section 482 of the Criminal Procedure Code praying for a direction to direct to the first and second respondents to give police protection to the petitioner's life and property against the illegal activities of the accused person in the complaint given by the petitioner dated 18.06.2008 pending on the file of the third respondent. For Petitioner : Mr. K.Ashok Kumar, senior counsel, for, Mr. Abudu Kumar Rajaratnam For Respondents : Mr. Hasan Mohamed Jinnah, Government Advocate (Crl. Side), for R-1 to R-3. Mr. Doraswamy Naidu, for R-4 - - - O R D E R The facts which are necessary for the disposal of the above Criminal Original Petition are set-out below:- The petitioner claims that she has purchased 3 acres and 12 cents in Survey No.390/2 Sunnambu Kolathur Village in Tambaram Taluk under various registered sale deeds from various persons and after selling away an extent of 1.5 acres she has retained 1.62 acres for establishing a School in that area; she got approval from the CMDA in 1998; from the date of purchase the petitioner is in possession and enjoyment of the property; all revenue records stand in the petitioner's name and she is paying all necessary taxes and other charges to the concerned authorities. It is the case of the petitioner that at the instigation of one Rajendran, his wife-Vasanthi Rajendran, the fourth respondent herein, who was the President of Kovilambakkam Village Panchayat filed O.S.No.216 of 2001 for permanent injunction before the District Munsif Court, Alandur, against the Assistant Settlement Officer and Others to restrain the defendants from changing the classification of the said land in the revenue records and the same was dismissed as early as on 28.11.2005. 2. According to the petitioner since the following persons namely Devendran, K.Rajendran and Kabali claiming the said land to be classified as Government Annadheenam tried to interfere with the possession; hence she filed O.S.No.104 of 2005 against them before the District Munsif Court, Alandur, for permanent injunction restraining them from interfering with her peaceful possession and enjoyment of the said property and pending the suit she prayed for interim injunction in I.A.No.467 of 2005 and by an exparte order dated 24.02.2005 ad-interim injunction was granted and on service of notice the defendants entered appearance and filed their written statements and counter statements and interim injunction order was being extended from time to time and on 10.04.2006 the injunction was extended till the disposal of the suit and since the suit was ripe for trial the injunction petition was closed. It is the further case of the petitioner that thereafter the said Rajendran through his henchman-one Kumar filed a Public Interest Litigation (PIL) before this Court to direct the District Collector, Kancheepuram and Tahsildar to set-right the records relating to the property in Survey No.390/2 and the same was dismissed by this Court on 12.04.2007; on 03.04.2007 when the workers of the petitioner were doing fencing work in the above said property for establishing the School, the said Rajendran and his henchman trespassed into the property with deadly weapons and threatened the workers with dire consequences which forced the petitioner to lodge a complaint before the third respondent and the third respondent issued a receipt in CSR No.216 of 2007 but failed to take any action and later by virtue of an order passed by this Court under Section 482 Cr.P.C., a case in Crime No.1490 of 2008 has been registered by the third respondent for the offences under Sections 147, 148, 323, 383, 441, 463, 464, 120-B and 506 (ii) IPC against the said Rajendran, the fourth respondent herein, Devendran, Kabali and others; since there was frequent interference with the possession of the petitioner, the petitioner submitted a representation to the Revenue Divisional Officer, Chengalpet, for police protection for fencing the property and the Revenue Divisional Officer by his communication dated 27.05.2008 forwarded the representation to the second respondent herein for necessary action but no action has been taken to protect the petitioner's life and property at the hands of the accused persons in Crime No.1490 of 2008. Contending that the petitioner has no other remedy except to approach this Court under Section 482 Cr.P.C., the aforesaid relief is sought for. 3. While the petition was pending M.P.No.1 of 2008 has been filed by Kovilambakkam Panchayat, Represented by its President K.Rajendran, seeking to implead himself as a party respondent in the above Criminal Original Petition. In the affidavit filed in support of the impleading petition it is stated that the land bearing Sruvey No.390/2 measuring an extent of 3.12 acres is Annadheenam Poramboke land and out of that, an extent of 1.62 acres is in the continuous possession and enjoyment of the Kovilambakkam Panchayat and in the said land the Panchayat has constructed overhead water tank and pipeline in the year 1998, put up a hand bore pump and a 32 feet high light mast and also constructed bus-stop shelter and the villagers are using the same as playground which contains a tennis court to play tennis, etc. According to the Panchayat, the said land is under the custody and possession of the Panchayat and hence the Panchayat is a proper and necessary party for proper adjudication of the case. 4. The fourth respondent has filed a counter statement inter-alia contending as follows:- The petitioner has suppressed all the material facts which are against her i.e., granting of Ryotwari Patta expired in the year 1997; the petitioner filed O.S.No.264 of 1998 before the District Munsif Court, Alandur, against Kovilambakkam Panchayat and after the Panchayat filed counter affidavit and written statement, the petitioner withdrew the suit since she knew well that she cannot succeed in the suit and the suit was dismissed on 11.04.2001; the land in question is admittedly an 'Annadheenam Government Land'; the petitioner has purchased several acres of land and had developed a layout and named it as "Viduthalai Nagar" in an extent of 33 acres and the petitioner with an intention to grab the land in Survey No.390/2, had included the said land in the said layout by simply clubbing Survey No.390 with other survey numbers and got the approval sanctioned in L.P.DM.No.10/74 D.T.C.P. but the petitioner has no documents to prove her possession of an extent of 3.12 acres in Survey No.390/2; the petitioner is not the owner in possession of the said lands whereas the villagers of the Kolathur are actually in possession of the land; the petitioner has created bogus sale deeds and has cheated the Public by selling the plots in Survey No.390/2; the petitioner has no documents to prove her possession till 2003; therefore the allegation in the petition that revenue records are standing in her name are not correct; since the period of the fourth respondent as President of the Panchayat got expired, O.S.No.216 of 2001 was left for dismissal and hence the dismissal of the suit does not create any title or possession in favour of the petitioner; the suit in O.S.No.104 of 2005 on the file of the District Munsif Court, Alandur, was posted for trial on 29.09.2008, the villagers of Kolathur have filed O.S.No.500 of 2003 against the Revenue Divisional Officer and that the suit was also posted for trial on 15.09.2008; yet another suit in O.S.No.695 of 2007 has been filed by the residents of the Kolathur Village against the petitioner and the same is also pending; when the petitioner tried to take forcible possession of the said land with the help of rowdy elements and attempted to fence the property the villagers objected the same and hence the police officials came and prevented the illegal acts of the petitioner and the Villager Administrative Officer at the direction of the higher authorities removed the materials like granite stones, etc., and the same are lying in the Panchayat Office, but the petitioner has lodged a false complaint against the fourth respondent and others; suppressing the above real facts and in order to get police protection with a view to grab the land in Survey No.390/2 the above petition has been filed; an attempt is being made by the petitioner to take possession of the property without proving her title before the civil Court. It is further stated in the counter statement that in the said land a water head tank been constructed in 1998 by the Panchayat for providing water supply to the villagers through the pipelines laid through the land and a bus-shelter has been put up besides that the land is being used as a play ground with facility to play tennis, etc., 5. Heard the learned counsel on either side. 6. Learned senior counsel appearing for the petitioner submitted that admittedly a case in Crime No.1490 of 2008 has been registered on the file of the third respondent against the fourth respondent-Rajendran, Vasanthi Rajendran-the petitioner in MP.No.1 of 2008 who is impleaded as fifth respondent and others; on a representation made by the petitioner to the Revenue Divisional Officer, Chengalpet, the Revenue Divisional Officer, has sent a communication dated 28.05.2008 to the second respondent herein forwarding the representation but so far no action has been taken by the second respondent to provide police protection. He further submitted that the order dated 12.05.2008 passed by the Land Survey and Settlement Officer in rejecting the petition filed by one Devendran and to set-aside the order passed by the settlement officer and the proceedings of the Revenue Divisional Officer in rejecting the petition filed by Rajendran and the rejection of the Public Interest Litigation filed by K.Kumar-the henchman of Rajendran will all show that the petitioner is in possession of the land in question. 7. Learned senior counsel for the petitioner strenuously contended that since admittedly the learned District Munsif, Alandur, has granted an order of interim injunction in I.A.No.467 of 2005 as early as on 10.04.2006 and the same is still in force, respondents 1 to 3 are duty bound to provide police protection to the petitioner and to her property but since they have failed to discharge their statutory duties the petitioner is invoking the jurisdiction of this Court under Section 482 Cr.P.C., In support of his contentions the learned senior counsel relied upon the decisions of the Apex court reported in 2006 (5) SCC 539 (HOWRAH MILLS CO. LTD. v. MD.SHAMIN) and 1993 Law Weekly (Crl.) 357 (D.Muthukrishnan v. The Superintendent of Police, Chengai-MGR Dist. & Others). 8. Countering the said submissions the learned counsel for the fourth respondent submitted that the defendants in O.S.No.104 of 2005 on the file of the District Munsif Court, Alandur, have filed IASR No.11860 of 2008 in I.A.No.467 of 2005 to set-aside the order of interim injunction granted therein and the same is pending. He further submitted that the order of interim injunction granted in I.A.No.467 of 2005 is an exparte order of injunction and the same was not passed on merits after contest; the interim order was being extended from time to time and as the Court felt that the suit is ripe for trial I.A.No.467 of 2005 was closed by extending the interim injunction till the disposal of the suit; therefore when admittedly the order of interim injunction has not been passed by the District Munsif, Alandur, on merits relying solely on that order the petitioner is not entitled to seek police protection before this Court by invoking Section 482 Cr.P.C. He further submitted that the defendants in O.S.No.104 of 2005 namely Devendran, Rajendran and Kabali are not the respondents in the above Criminal Original Petition and without admitting but assuming that the petitioner can seek police protection under Section 482 Cr.P.C., on the basis of the interim injunction granted by the Civil Court; the petitioner can claim such relief at best only against the defendants in the suit but not against persons who are not parties to the suit. 9. Learned counsel for the fourth respondent further submitted that the fourth respondent is not the party in O.S.No.104 of 2005 and as such the interim injunction granted by the District Munsif court, Alandur, is not binding on her. He further submitted that the voluminous documents produced before this Court and the nature of pleadings on either side makes it abundantly clear that there is a dispute regarding the title to the property in question and the proper forum to adjudicate the title and possession is only the Civil Court and the same cannot be adjudicated before this Court in a petition filed under Section 482 Cr.P.C., He further submitted that the land in Survey No.390/2 is in the absolute possession of the Kovilambakkam Panchayat, the fifth respondent herein and admittedly there is no order of injunction against the Kovilambakkam Panchayat. He further submitted that if an Advocate commissioner is appointed he can very well note down the physical features of the properties and it can be easily proved that the Panchayat has put up a overhead tank for supply of water to the villagers through underground pipeline, a hand bore-pump, a bus shelter and a high light mast of 32 feet height have also been put up in the land in question and the land is being used as a playground. He further submitted that the intention of the petitioner in seeking police protection is to take possession of the property by using the order of police protection but such an attempt on the part of the petitioner should not be encouraged by this Court. He further submitted that the petitioner is trying to grab illegally the property belonging to the Panchayat and the villagers. 10. Learned counsel for the fifth respondent adopted the submissions made by the learned counsel for the fourth respondent. Learned Government Advocate (Crl. Side) was also heard. 11. I have carefully considered the said submissions made by the learned counsel on either side. 12. The facts narrated above and the extensive submissions made by the respective counsel makes it abundantly clear that there is a serious dispute involving title and possession to the land measuring an extent of 1.62 acres in Survey No.390/2; civil suits in O.S.Nos.216 of 2001 and 104 of 2005 on the file of the District Munsif Court, Alandur and O.S.No.500 of 2003 against the Revenue Divisional Officer, are pending; an order of interim injunction has been granted in I.A.No.467 of 2005 in O.S.No.104 of 2005 in favour of the petitioner and against the following persons namely Devendran, Rajendran and Kabali; the above petition has been filed mainly based on the interim injunction granted by the Civil Court. Admittedly in the above criminal original petition the defendants in O.S.No.104 of 2005 are not parties. Likewise neither the fourth respondent nor the fifth respondent are parties to O.S.No.104 of 2005. In such circumstances it is un-understandable as to how the petitioner can press into service the order of injunction granted in I.A.No.104 of 2005 for getting an order of police protection against the fourth and fifth respondents herein. 13. In this context it will be useful to refer to the decision of the Apex Court reported in (2006) 4 SCC 501 (P.R.Muralidharan and Others v. Swami Dharmananda Theertha Padar and others) wherein in paragraphs 12 and 17 to 19 it has been laid down as under:- 12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. ..... 17. A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. 18. In the case on hand, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order 9 Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. My learned Brother has rightly pointed out that the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. I fully agree with my learned Brother that the High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for. 19. A writ for police protection so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order. A careful reading of the above decision shows that a writ of mandamus directing the police authorities to give protection to the person can be issued when the Court is satisfied that there is a threat to his person and the authorities have failed to perform their duties. But when the pleadings themselves disclose that disputed questions are involved it is not open to this Court to grant relief for the first time to a person either allegedly to protect his right to property or his right to an office. It has also been laid down in the said decision that police protection cannot be extended to cases where rights have not been determined either finally by the civil court or at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order. (Underlining supplied) 14. In this case admittedly the interim injunction was passed exparte at an initial stage and thereafter though the respondents in the I.A. had filed their counter affidavit the I.A. was not taken up for final disposal. But admittedly the following order has been passed by the learned District Munsif, on 10.04.2006: Since suit is ripe for trial injunction is extended till the disposal of the suit. Hence petition closed. From the aforesaid order passed by the learned District Munsif, Alandur, it cannot be said that the rights of the parties at the interlocutory stage has been determined in an unambiguous manner. The order has not been passed on a consideration of the rival contentions and no finding on merits has been recorded regarding the possession of the petitioner. In such circumstances when the right of the petitioner to possession of the property has not been determined at the interlocutory stage in an unambiguous manner merely basing reliance on the said order of the learned District Munsif, Alandur, it is not open to the petitioner to seek police protection under Section 482 Cr.P.C., 15. In yet another decision of the Apex Court reported in (2007) 6 SCC 517 (Moran M. Baselios Marthoma Mathews II and others v. State of Kerala and Others) it has been laid down as under:- The High Court should not have gone into the rival contentions of the parties. The High Court committed a manifest error in going into the disputed questions of title as also the disputed questions in regard to the rights of a particular group to manage the Churches, in exercise of its jurisdiction, particularly, when such questions are pending consideration before competent civil courts. Such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject-matter for determination by a writ court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants. If the aforesaid principles laid down by the Hon 'ble Apex Court is applied to the facts of this case it can be stated without any hesitation or doubt that it is not open to this Court to adjudicate the disputed questions relating to title or possession of the property in question while exercising jurisdiction under Section 482 Cr.P.C. and the proper forum to decide such questions is the Civil Court and while admittedly several civil suits are pending for adjudication this Court is not inclined to invoke its jurisdiction under Section 482 Cr.P.C., 16. Learned senior counsel for the petitioner relied upon a decision of the Apex Court reported in (2006) 5 Supreme Court Cases 539 (referred to supra). At the outset, it has to be pointed out that the facts of that case are entirely different from the facts of the case on hand. That was the case where the appellants before the Apex Court had approached the High Court of Calcutta 'praying for the issue of a writ of mandamus directing the State and its police authorities to give the appellants the necessary protection in respect of the property of the first appellant, Howrah Mills Co. Ltd; the appellants pointed out that the Company was before the Board for Industrial and Financial Reconstruction (in short "BIFR") for its reconstruction and a proposal to sell away a portion of its land as a means to revive the industry, had been approved by BIFR, especially since the State of West Bengal had also agreed before it to such a course; the Company owned a vast extent of land out of which a portion was to be sold and the process for sale is at an advanced stage; meanwhile, attempts were being made to interfere with the possession of the appellants over the property and in spite of requests in that behalf, the police authorities were not rendering the necessary help to the appellants; the Company employed about six thousand workers and a revival of the Company, which was still working, would be for the benefit of such a workforce also and it was all the more reason for the respondents to give the necessary protection to the appellants to protect the property from unauthorised trespassers; there was also a prayer for affording protection for the purpose of repairing the compound wall of the property and for putting up a separate boundary wall protecting the portion to be alienated; the appellants offered that they would met the expenses for the affording of such protection'. The respondents 1 to 3 in that case contested the prayer of the appellants by disputing title and possession claimed by the appellants. While considering the aforesaid facts and contentions put forth by respondents 1 to 3 the Apex Court has observed in paragraphs 9 and 10 of the judgment which reads as follows:- "9. We do not see much force in the submission for counsel for Respondents 1 to 3 that since they are raising some claim over a fraction of the property, no relief can be granted to the appellants herein. At best, Respondents 1 to 3 herein are assignees of undivided shares from a co-owner, and prima facie, their right, if any, is to sue for partition. Prima facie, they are not entitled to enter the property or to interfere with the possession of the appellants. If the property is protected from trespassers meanwhile, it will only be to their advantage. Then they can work out their rights without obstruction. 10. It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the Sate to give necessary protection to the struggling industry to tide over the crises and protect its property from the interference by lawless elements and unauthorised persons." Therefore, it could be seen that the facts of that case are totally different from the case on hand. In that case before the Hon'ble Apex Court there was no necessity to adjudicate the disputed questions relating to title and possession to the property but on the contrary the facts in this case as stated above shows that title and possession to the property in Survey No.390/2 are being disputed. Hence in the considered view of this Court the decision will not be of any assistance to the petitioner. 17. Learned senior counsel for the petitioner relied upon a decision reported in 1993 Law Weekly (Crl.) 357 (referred to supra), wherein basing reliance on an order of interim injunction police protection was sought for and an objection was raised that since the order relied upon was only an interim order and the same had not been made absolute, the respondents therein should not be directed to render police protection but the said contention was rejected by the learned Judge holding that there is no difference between the interim order or the order made absolute by the Civil Court. Basing reliance on the aforesaid decision the learned senior counsel for the petitioner sought to repel the objections raised by the fourth and fifth respondents. But in the light of the law laid down by the Apex Court in the decision referred to supra and as pointed out above since the rights of the parties have not been determined in an unambiguous manner the said decision of the learned Judge of this Court, in the considered view of this Court, will not be of any assistance to the petitioner. Yet another important aspect which should be pointed out at this juncture is that in the very same decision the learned Judge in paragraph 4 has observed as under:- 4. ... The learned District Munsif has also failed to order police protection. Otherwise there is no need at all for the petitioner to file the present application. Public will lose confidence in judiciary if such applications are not disposed of urgently. Learned District Munsif, Poonamallee shall not keep such applications in future without passing any orders. In the circumstances, the petition is allowed. The aforesaid observation of the learned Judge makes it abundantly clear that had the District Munsif disposed of the application filed before him seeking police protection the learned Judge would not have exercised his jurisdiction under Section 482 Cr.P.C. It has to be pointed out that admittedly the petitioner herein had not filed any application under Section 151 C.P.C., before the learned District Munsif, Alandur, seeking police protection to give effect to the order of interim injunction granted in I.A.No.467 of 2005. 18. In this context it is pertinent to point out that though this Court in the decision reported in 1969 Crl.L.J. 206 (Mad.) (Chelpark Company Ltd. v. Commissioner of Police) has laid down that to secure ends of justice, the High Court in its inherent powers can direct the police officer to do his duty where he has failed to do but it is pertinent to point out that the facts of that case are totally different from the facts of this case on hand. In Chelpark case, petitions were filed under Section 561-A Cr.P.C. against the respondents, the Commissioner of Police, Madras and the Assistant Commissioner of Police (Law and Order) Southern Range, Madras praying for a direction to the respondents to do their duty and evict the labourers (27 persons) from the factory premises of the petitioner at the close of working hours. By way of abundant caution in case it was felt that the Criminal Miscellaneous Petition could not afford an adequate remedy, the petitioner also filed a writ petition for the issue of Writ of Mandamus. 19. In Chelpark case, twenty seven employees of the company assembled inside the factory and refused to carry out their duties at the instigation of the Union representing the said twenty seven persons and commenced what is called stay-in-strike. The said employees also obstructed a lorry laden with packing cases consigned to the petitioner from entering the factory and the lorry had to return with the packing cases. Further, seven female employees were prevented from leaving the factory and were gheraoed for nearly 2 = hours and it was further alleged that some of the striking workmen surrounded the petitioner's Accountant and abused him in an attempt to intimidate him. In spite of the complaint being lodged with the police, no action was taken. Hence, the petitioner filed a suit before the City Civil Court, Madras, for an injunction (a) restraining the striking workmen from obstructing the petitioner's lawful discharge of duties and preventing its loyal workers from carrying on their duties (b) restraining the said persons from interfering with the petitioner's business, and (c ) for a direction to the said twenty-seven persons to leave the petitioner's factory premises after the working hours. Pending suit, on the application filed by the petitioner, the Court granted an interim injunction restraining the striking workmen from collecting themselves in the premises after the working hours. The bailiff of the City Civil Court went to the petitioner's factory premises and in the presence of the Police Constables sought to serve the order of interim injunction on the striking workmen, but they refused to receive the order and hence, the bailiff affixed a copy of the notice on the notice board of the factory. The striking workmen, even after the order of interim injunction was brought to their notice, refused to leave the factory premises after the working hours. In such circumstances, the petitioner approached the police authorities to give assistance in evicting the striking workmen from the factory premises. But no assistance was rendered and hence, the above petitions were filed. 20. In the aforesaid factual background and considering the law on the subject, the learned Judge in paragraphs 38 to 41 of the Judgment has laid down as under:- 38....... It is further contended that the matter is sub judice as the petitioner has gone to a Civil Court and the matter is pending before it. The pendency of the suit cannot be a bar for taking action by the police if cognizable offences are disclosed or a breach of the peace is likely to occur. In this case, the order of injunction was passed against the striking workmen from collecting within the factory premises after working hours. The police should have given effect to the order of injunction by dispersing the striking workmen against whom the said order was passed. It is, therefore, not necessary for the police to consider whether any alternative remedy is available to the petitioner or any dispute is pending before any Court. They are only concerned to see whether the incidents complained of disclosed a cognizable offences were committed or likely to be committed. If the police had come to the conclusion that the striking workmen had committed a cognizable offence, it was their statutory duty to take appropriate action. 39. It appears that in this case the respondents have been under the impression that the striking workmen remaining in the factory premises after working hours does not disclose a cognizable offence. If they had known that a cognizable offence was committed, they would have certainly taken necessary action. As I have now found that the striking workmen had committed the offence of criminal trespass and they formed themselves into an unlawful assembly by remaining after working hours in the factory premises, the respondents would take necessary appropriate action. The respondents have got various measures in giving relief to the petitioner. They can direct the striking workmen squatting within the factory premises after working hours to disperse and remove them from the premises of the factory. As already stated, under Section 127 Criminal Procedure Code the officer-in-charge of a Police Station may command any unlawful assembly likely to cause disturbance of the public peace , to disperse. In this case, if the petitioner and the willing workmen had resisted the striking workmen remaining after working hours in the factory, it would have resulted in a breach of the peace. This is a fit case where the respondents can take action under Section 127(1) Criminal Procedure Code. They may arrest the striking workmen as cognizable offences are disclosed and investigate and file charge sheets, if there is a prima facie case. It is a matter for the police in this case to decide what they should do and what course they should adopt in order to give an effective relief to the petitioner. 40. It is no doubt true that the capital and labour should contribute equally for its development and progress and the rights and interest of both the employer and employees should be protected. But, if they transgress the bounds of law and create an atmosphere likely to affect law and order, which are the foundations of the civilised society, the police should not lag behind to do its statutory duty of taking appropriate action contemplated by law. Otherwise, there will be chaos and confusion in the country affecting the normal avocations of people. The powers and duties of the police are directed, not to the interest of the police, but to the protection and welfare of the public. 41. As I have found in this case that the striking workmen remaining after working hours in the factory premises committed the offence of criminal trespass and formed themselves into an unlawful assembly, the respondents are directed, to disperse and remove such of those persons who remain in the said premises after working hours, if necessary with the assistance of their subordinates, and take such appropriate action as they may think fit in the circumstances of the case. Crl.M.P.No.2250 of 1967 is allowed. A careful reading of the above decision makes it abundantly clear that no disputed questions were involved and the right to property or possession of it was not sought to be adjudicated in that case. Adjudication of issues relating to possession or title to the factory premises was not involved. But the only issue, that too a legal issue, which came up for consideration was the right of the striking workmen to remain inside the factory premises after the working hours and whether their refusal to leave the factory premises after the working hours will tantamount to trespass and the other alleged acts amount to cognizable offences or not. Only in such circumstances, after holding that their act will amount to criminal trespass and unlawful Assembly police protection was granted and therefore, the law laid down in that decision cannot be applied to the facts of this case which as pointed above are totally different, where disputed questions of fact relating to possession and title to the property in question are involved. 21. It has to be pointed out that the High Court in exercising its extraordinary powers under Section 482 Cr.P.C., will take into consideration the gravity of the injustice brought to its notice and non-availability of an effective remedy otherwise. The power under Section 482 Cr.P.C., will be used sparingly in deserving cases. Hence it has to be seen as to whether the petitioner has got an alternative effective remedy or not. 22. In this context it will be useful to refer to a decision of the Division Bench of this Court reported in 1993 (1) MLJ 274 (Sri-la-Sri Sivasubramanyanada Swami v Sri-la Sri Arunachalasamy) wherein the Division Bench of this Court in paragraphs 22 and 23 has laid down as under:- 22. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When there is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, we do not see why the provisions of Sec. 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under O.39, Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Sec. 151 and pray for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in exercise of the inherent powers under Sec. 151, can direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-cooperation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of this Court in Century Flour Mills Ltd. v. Suppiah (1975) 2 M.L.J. 54, when there is a violation of an order of injunction granted by the civil court, or when something has been done in disobedience of such an order of injunction, it is the duty of the court as a matter of judicial Policy to undo the wrong done in disobedience of the court's order and the power to enforce the order of injunction by ordering police aid is available under Sec. 151 of the Code. 23. In view of the above position of law, it has to be held that in appropriate cases, directions under Sec. 151 of the Civil Procedure Code can be issued by the civil courts to the police authorities to extend their aid and assistance in the execution of decrees and orders or to render aid to aggrieved parties for the due and proper implementation of the order of temporary injunction or a decree for permanent injunction granted by civil courts. 23. In yet another decision reported in 1996-1-L.W. 52 (The Coimbatore Pioneer Mills Ltd v. Chandra Textiles Ltd.), His Lordship Mr. Justice M.Srinivasan, as His Lordship then was, has observed as under:- 6. ... Further, police aid cannot be granted simultaneously with an order of injunction. Only if the court is satisfied that the order of injunction passed by it is not obeyed by the other party and the party, who has secured the order, is not in a position to enjoy the benefits of the order because of the conduct of the other party and police interference is absolutely necessary, the court can grant an order of police aid. ... 24. In the Division Bench judgment referred to above it has been laid down that, in appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-cooperation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. Therefore, when an effective and alternative remedy is available to the petitioner to approach the Civil Court under Section 151 CPC and seek police protection by satisfying the Court that she is not in a position to have the full benefit of the order granted in her favour because of the obstructions or non-cooperation of the defendants, it is not open to the petitioner to approach this Court under Section 482 Cr.P.C. If a petition is filed under Section 151 CPC before the Civil Court, then it will be open to the civil court to consider the objections raised by the other side and the Court can also appoint an Advocate Commissioner to find out the physical features of the properties and decide as to whether the police protection should be provided or not. Such a detailed enquiry or adjudication of the disputed questions of fact cannot be gone into by this Court while exercising jurisdiction under Section 482 Cr.P.C., Therefore this Court is not inclined to direct respondents 1 to 3 to provide police protection to the property of the petitioner. K.MOHAN RAM, J., srk 25. For the aforesaid reasons, the above criminal original petition fails and the same is dismissed. But however it is open to the petitioner to make a representation to the first respondent seeking police protection to her life and security and if such a representation is received the first respondent shall cause a proper enquiry to be made within ten days of the receipt of such representation and if such enquiry reveals the necessity to provide police protection to the petitioner's life and liberty then it should be provided. 08.12.2008 Index : Yes / No Web : Yes / No srk 1. The Commissioner of Police (Sub-urban), St. Thomas Mount, Chennai 2. The Assistant Commissioner of Police, Madipakkam Range, Chennai 3. The Inspector of Police, Pallikaranai Police Station, Chennai  600 302 Pre-Delivery Order in Crl.O.P. No.20980 of 2008

G.Meena vs The Commissioner Of Police ... on 8 December, 2008

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 33890 of 2010(I) 1. YADHU KRISHNAN, ROOM NO. H 5, ... Petitioner Vs 1. THE MAHATMA GANDHI UNIVERSITY ... Respondent 2. THE CONTROLLER OF EXAMINATIONS, For Petitioner :SRI.S.R.SREEJITH For Respondent : No Appearance The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :10/11/2010 O R D E R T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.33890 Of 2010 I ----------------------------------------------------- DATED THIS THE 10th DAY OF NOVEMBER, 2010 J U D G M E N T The petitioner had undergone his B.Tech (Mechanical Engineering) Degree from the MG University during the year 2006- 2010. He appeared for the supplementary examination for the paper Machine Tools (D) of the 4th Semester held in April, 2010. In the examination, he has not secured the minimum marks for the said paper. Therefore, he has applied for revaluation of the same, vide Exhibit P1. Exhibit P2 is the Demand Draft evidencing payment of fee for revaluation. Seeking for a revaluation within a time frame, this Writ Petition has been filed. 2. Heard the learned Standing Counsel for the University. There will be a direction to the University to process the application for revaluation submitted by the petitioner and communicate the results within a period of eight weeks from today, if the application and the payment are in order. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn 

Yadhu Krishnan vs The Mahatma Gandhi University on 10 November, 2010

Kerala High Court

JUDGMENT A.P. Sahi, J. 1. Heard Sri Manu Saxena, learned Counsel for the petitioner and learned Standing Counsel on behalf of the respondents. 2. The petitioner's father died in harness on 8.4.1984, when the petitioner was still a minor. The petitioner's mother did not opt for compassionate appointment at that time for reasons stated in para 4 of the writ petition, which states that since she was illiterate and could barely read or write, therefore, no claim was made by her. 3. The petitioner has admittedly, attained the age of 18 years. After 14 years of the death of the father, in 1998, a representation was moved requesting the respondents to provide the appointment to the petitioner on compassionate basis. 4. The respondents have rejected the request of the petitioner on the ground that representation for appointment could not be entertained, as it was time barred in terms of the G.O. dated 13.6.1998. It has been further stated that the petitioner's request for relaxation of the applicability of the rule to entertain the petitioner's application was also rejected. 5. Learned Counsel for the petitioner has contended that the said order rejecting the request of the petitioner for relaxation of the time to entertain the application has not been served upon him till the date. 6. Learned Counsel for the respondents has stated that the said order was served on the petitioner as reported by Police Station Syana, district Bulandshahr. 7. A perusal of the facts narrated herein above, indicates that the petitioner has admittedly put forward his claim after 14 years. Learned Counsel for the petitioner has relied on two decisions of the Court. The first decision is in the case of Manoj Kumar Saxena v. District Magistrate, Bareilly and Ors., 2000 (2) ESC 967 (All). The second decision is in the case of Pushpendra Singh v. Regional Manager, U.P.S.R.T.C. Aligarh and Anr., 2000 (1) ESC 448 (All). 8. A perusal of the said judgments would clearly indicate that a reference has been made to the decision of the apex Court in this regard, and while considering the claim for relaxation, the authority concerned, has to take into consideration the various factors that may be required to be gone into, while judging financial status of the family. One such factor is, as explained in a Division Bench judgment cited on behalf of the petitioner, that the family is still continuing to face the financial crises. 9. In view of the aforesaid facts and circumstances of the case, it is evident that the aforesaid consideration should also have been met by the respondents. 10. In view of this, it shall be open to the petitioner to approach the respondent No. 1, with a request explaining the financial status of the family and in case such a request is made, the same shall be considered sympathetically by the respondent No. 1 is accordance with law. 11. The writ petition is accordingly disposed of. 12. No order as to cost.

Author: A Sahi

Dharmendra Singh vs State Of U.P. And Ors. on 15 April, 2005

Allahabad High Court

Year Total Trading of Demands made Balance Qty on Veneers as Plywood which no demad has been made Sq Mtrs Sq.Mtrs Sq Mtrs 1997-98 63,283.86 54,914.84 8,369.02 1998-99 76,025.51 32,157.66 43,867.83 ------------ ------------- ------------ 1,39,309.37 87,072.50 52,236.87 ------------ ------------- ------------ ORDER S.S. Sekhon, Member (T) 1. All these stay applications are disposed of by this common order, since the issues involved are inter related. 2. Certain enquiries were caused by the officers of Anti Evasion and Show Cause Notices were issued to M/s Durian Industries Ltd and Palghar Plywood Product Pvt Ltd and other appellants herein who are dealers and employees of the firm and other persons concerned. 3. After hearing both sides, the Commissioner has dropped the charges as regards under valuation, clubbing and or eligibility to the Notification No. 1/93. However, the Commissioner has confirmed the duty demand in both these proceedings on the ground of clandestine removals. On considering that the demand of clandestine removal has been arrived at, as in the case of M/s Durian Industries Ltd, on the following findings: "Therefore, a proper recourse -- for Durian Industries -- would have been to produce other corroborative documentary evidences for the transactions of "Veneer" as shown in the trading bills which according to the department are documents merely prepared to paper over the (clandestine) transactions in respect of Decorative plywood. Instead, the notices have tried to mis-lead in make believing that the transaction of repress plywood were in order which was not the charge at all. The plea of the notice to refute the charge of clandestine removal is not acceptable as they have not come with the actual clearance documents co-relate the clearance of the so called veneer." And this finding when considered with other conclusions and findings arrived at by the Ld Commissioner in the very same order, and after considering the submissions of the Ld Advocate for the appellants that the Show Cause Notices have been issued without concurrence/approval of the Chief Commissioner, as was required, especially in the case of M/s Phalgar Plywood Product Pvt Ltd and also the fact that M/s Durian Industries Ltd, who have been alleged to have cleared clandestinely the goods from their factory and have been found to have received the entire quantity of clandestinely removed goods from M/s Phalgar Plywood Product Pvt Ltd and on presents of the trading account submitted by them which indicates that they have traded in the following quantities- Apart from production and manufacture of goods, it would be apparent from these quantities, that the demands are not made on all the quantities of "veneer" traded by them as per their records. When the department admits that "veneers" are being traded. It is not understood why the entire quantities shown as trading goods should not be accepted and the charges of clandestine removal need not be upheld at this prima facie stage. It is found that the appellant manufacturers have made out a good case for full waiver of duty and stay their recovery pending final disposal of the appeals. More so, when no quantity of such clandestinely removed decorative plywood has been seized and is the subject matter of these proceedings. The penalties have been imposed on various appellants herein which are also required to be ordered to be waived and recovery thereof stayed pending disposal of the appeals. 4. For the goods seized in the other set of cases, no notice appears to have been given to the persons from those premises those goods were seized. Prima facie the proceedings of confiscation and durability arrived at therefore are required to be not upheld at this stage and the matter will have to be heard in details. 5. The alternate plea for early hearing of the appeals made is also granted and the matters listed for hearing on 4.10.2004.

Radheshyam Kanoria And Ors. vs Commissioner Of Central Excise on 23 July, 2004

Customs, Excise and Gold Tribunal - Mumbai

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10821 of 2010 1. Bharat Das S/O Ram Yatan Das R/O Village + P.O.- Naudiha, P.S. Khizarsarai, In The District Of Gaya Versus 1. The State Of Bihar Through The Principal Secretary Panchayati Raj Department, Government Of Bihar, Patna 2. The District Magistrate Cum Collector, Gaya 3. The District Panchayat Raj Officer, Gaya 4. The Sub-Divisional Magistrate Cum Sub-Divisional Officer Nimchak Bathani Sub-Division At Khizarsarai, In The District Of Gaya 5. The Block Development Officer Khizarsarai, In The District Of Gaya 6. The Circle Officer, Khizarsarai, In The District Of Gaya 7. The Nodal Officer Cum Circle Inspector Khizarsarai In The District Of Gaya 8. The Gram Kachahari, Naudiha, Through Its Sarpanch Under Khizarsarai Block In The District Of Gaya 9. The Sarpanch, Gram Kachahari Naudiha Under Khizarsarai Block, In The District Of Gaya 10. Mewalal Das S/O Ram Lagan Das R/O Vill.- Naudiha, P.O. Naudiha, P.S. Khizarsarai, In The District Of Gaya ----------- The writ application stands allowed conditionally. P. Kumar ( Navin Sinha, J.) 3. 11.11.2011 Heard learned counsel for the petitioner and the State. The writ application was filed on 13.7.2010 after serving two copies in the office of the Advocate General. Despite a passage of nearly one and a half year no counter affidavit has been filed by the respondents. The Court is not inclined to accede to the prayer for adjournment for that purpose so belatedly. The respondents have had more than reasonable time from the date of filing of the writ application to assist this Court in dispensation of justice, a constitutional obligation under Chapter-4 of 2 the Constitution, by filing a counter affidavit. The petitioner is aggrieved by the order dated 11.5.2010 of the Anchal Adhikari, Khizarsarai cancelling his own earlier order dated 20.4.2010 appointing the petitioner as Sachiv, Gram Katchery after cancelling the appointment of Shree Mewalal Das. The ground mentioned in the impugned order is that the Anchal Adhikari had no authority to issue such an order. Learned counsel for the petitioner submits that in pursuance of the orders of this Court in C.W.J.C. No. 11063 of 2008 preferred by the petitioner against wrong denial of appointment, the matter was enquired into and on 28.2.2010 the Anchal Adhikari- cum-Block Development Officer concluded that the petitioner had higher marks than Shree Mewalal Das and was therefore entitled to appointment leading to the order dated 20.4.2010. Under the Bihar Gram Katchery Secretary (Employment, Service Condition and Duty) Rules, 2007 the Block Development Officer as the Nodal authority was statutorily empowered to examine eligibility for appointment, verification of documents and to issue appointment orders. Counsel for the State submits that the Anchal Adhikari has opined that he was not 3 competent to issue the appointment order and even according to the petitioner it was the Block Development Officer who alone could do so. To examine the matter substantively the Court finds that his eligibility was examined at a point of time when the Anchal Adhikari de facto possessed the power of the Block Development Officer. Applying the principles of de facto exercise of power on the date that he was held validly entitled to appointment i.e., 28.2.2010, the power was exercised by the Anchal Adhikari in duality in that of the Block Development Officer. Once the statutory authority came to the conclusion about the validity of his claim for appointment, other matters become procedural. In absence of any counter affidavit and the lack of information available whether Shree Mewalal Das finally accepted the order dated 20.4.2010 of his termination or whether he questioned the same successfully or unsuccessfully, the order dated 11.5.2010 with regard to the petitioner is set aside subject to that condition.

Bharat Das vs The State Of Bihar & Ors on 11 November, 2011

Patna High Court - Orders

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No.18305-M of 2008 (O&M) Date of decision : 02-02-2009 Indra Devi ....Petitioner VERSUS Himanshu @ Heena & another ....Respondents CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Anju Arora, Advocate, for the petitioner. Mr. Praveen Hans, Advocate, for respondent No.1. Mr. Pankaj Mehta, Advocate, for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. (Oral) (KANWALJIT SINGH AHLUWALIA) 2-2-2009 JUDGE manju In the present case, Himanshu @ Heena had instituted a petition u/s 125 Cr.P.C. against her father Satish Kumar and mother Smt. Indra Devi. Satish Kumar and Smt. Indra Devi now have been divorced. It is stated that Satish Kumar was plying a taxi whereas Indra Devi was posted as a teacher and was earning salary of Rs.15,000/-. On a petition for maintenance filed, Sub Divisional Judicial Magistrate, Hansi directed that mother Indra Devi should pay Rs.2500/- p.m. as maintenance. Father was also directed to pay Rs.1500/- p.m. as maintenance. Aggrieved against the order, Smt. Indra Devi had filed a revision in the Court of Addl. Sessions Judge, Hisar. Then minor daughter Himanshu @ Heena also filed revision against the order. The Court of Addl. Sessions Judge, Hisar upheld the maintenance awarded by the Court of Sub Divisional Judicial Magistrate, Hansi. The present petition bearing Crl. Misc. No.M-18305 of 2008 was filed for quashing the order of the Sub Divisional Judicial Magistrate and the order of Addl. Sessions Judge, Hisar, to say that Rs.2500/- should not have been awarded as a maintenance and in alternative same is Crl. Misc. No.18305-M of 2008 (O&M) -2- excessive. During pendency of the proceedings, Himanshu @ Heena has attained majority. She is now aged about 18 years and few days. Himanshu @ Heena has been brought by her grand mother Smt. Vidhywanti. On last date of hearing before the Coordinate Bench, an effort was made to resolve the dispute once for all. Indra Devi had offered to pay a lump-sum amount of Rs.2 lacs but it was not agreed and Rs.4 lacs were demanded. Today Indra Devi petitioner, Himanshu @ Heena unmarried daughter and her grand mother Vidhywanti are present in Court. It has been submitted by the counsel for Himanshu @ Heena that since she is to be married, they have agreed to accept the offer of Rs.2 lacs. Counsel for the petitioner has stated that they are ready and willing to deposit Rs.2 lacs in the FDR and Himanshu @ Heena will be entitled to interest to be earned on the FDR each month till her marriage is to be solemnized. It has been further submitted that on the occasion of the marriage, the FDR be encashed and spent for the marriage of Himanshu @ Heena. A compromise arrived to this effect has been placed on record. The same has been signed by Himanshu @ Heena who has become major and her grand mother Vidhyawanti. They have been identified by their counsel Mr. Parveen Hans, Advocate, on the deed of compromise. Indra Devi, another signatory to the agreement, has been identified by Ms. Anju Arora, Advocate, Accordingly, present petition is disposed off with the direction that petitioner will deposit Rs.2,00,000/- in the State Bank of India, Hansi, on 18-2-2009 and Himanshu @ Heena will be present at the bank along with necessary documents for identification and opening of the Crl. Misc. No.18305-M of 2008 (O&M) -3- account. The amount shall be kept in the Fixed Deposit Receipt and the interest accrue thereupon shall be disbursed to Himanshu @ Heena every month and the amount of Rs.2,00,000/- shall be paid to Himanshu @ Heena at the time of her marriage with the consent of petitioner Indra Devi. Copy of this order along with photocopy of the Fixed Deposit Receipt duly attested by the Manager, State Bank of India, Hansi, along with application will be placed before the trial Court, who after verifying the same, shall consign the proceedings to the records.

Indra Devi vs Himanshu @ Heena & Another on 2 February, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print OLR/28/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD OFFICIAL LIQUDATOR REPORT No. 28 of 2011 In COMPANY PETITION No. 88 of 1996 ========================================================= O L OF M/S MRINAL DYEING & MANUFACTURING CO LTD - Applicant(s) Versus MANISH CHEMICALS - Respondent(s) ========================================================= Appearance : OFFICIAL LIQUIDATOR for Applicant(s) : 1,MR HIREN MODI for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 30/03/2011 ORAL ORDERLearned Advocate Mr. Hiren Modi appears for the Official Liquidator. Upon hearing learned Advocate Mr. Hiren Modi who states that the draft of Conveyance Deed at Annexure 'C' was vetted and approved by the learned Advocate on behalf of the Official Liquidator and considering what is stated in Paragraphs 3 to 7 of this Official Liquidator Report, I deem it just and proper to grant the prayer in terms of Paragraphs 8.A) and B). With the aforesaid direction, this Official Liquidator Report stands disposed of. Sd/- (Anant S. Dave, J.) Caroline     Top

Author: Anant S. Dave,&Nbsp;

O vs Manish on 30 March, 2011

Gujarat High Court

JUDGMENT 1. This is an appeal from an order of remand passed by the District Judge of Tipperah, dated the 6th January 1908. It Appears that on the 6th September, 1906, the date fixed for the hearing of the suit before the Subordinate Judge the plaintiff appeared and stated that a compromise had been agreed upon with the defendants. On the defendants' denial that any compromise had been made the plaintiff asked the Court to take evidence that the defendants had really compromised the case. The lower Court was of opinion that Section 375 of the Code did not justify this procedure. The plaintiffs being under the impression that the case would be compromised had not brought their witnesses, and the Subordinate Judge dismissed the suit. On appeal by the plaintiffs to the District Judge that learned officer remanded the suit to the first Court that it might proceed to take evidence as to whether the compromise was really made or not between the parties; and if so made, to give effect to it having regard to the provisions of the Code of Civil Procedure. He also further directed that if the lower Court found that no compromise had been effected, the lower Court should hear the case on the merits, opportunity being given to produce witnesses. 2. There was a cross-appeal by the defendants before the District Judge on the ground that the suit had been undervalued. The learned District Judge says: "I am of opinion that as between the parties this decision of the Subordinate Judge is final and not open to appeal. The Subordinate Judge's Court must be considered to be the Court in which the plaint is filed. I, therefore, decide this issue against the cross-appellants". 3. On behalf of the appellant before us it has been contended that the learned District Judge was in error in remanding the case for the purpose of enquiring whether there really had or had not been a compromise, as alleged by the plaintiffs; and it has been urged that Section 375 of the former Code contemplates a lawful written agreement or compromise whereas in the present case there was no completed contract as contemplated by the provisions of Section 375 and hence that section has no application to the present case. With regard to Section 375, we find that there is nothing in the section which lays down that an agreement or compromise as mentioned in the section should be written. It appears to us that this section covers agreements of compromise either written or verbal. The terms of the petition of the plaintiff informing the Court of the compromise have been placed before us and it has been argued that they show that the compromise had not been completed. We think, however, that they are reconcilable both with the contention of the defence that the contract was not intended to be complete till the apasnama was filed, and also with that of the plaintiff that the contract wets completed and the provision for an apasnama was only a subsidiary arrangement for carrying out the completed contract. The petition itself is not conclusive and the matter should be cleared up by further evidence. We think that under the circumstances the learned Judge was right in directing the first Court to proceed to take evidence on the question of compromise. 4. The next point that has been urged the undervaluation of the suit. Section 12 of the Court Fees Act governs the decision of this question. Clause ii provides that whenever any such suit comes before a Court of Appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided and the provisions of Section 10, paragraph ii shall apply." 5. The District Judge appears not to have considered the question in the light of this clause and we are, therefore, of opinion that he should deal with it. He should consider whether the point has or has not been wrongly decided by the Subordinate Judge to the detriment of the revenue. 6. Under these circumstances the case is remanded to the District Judge for the decision of the last point mentioned above. Thereafter the case should be sent back to the first Court for the decision of the point or points for which the lower appellate Court remanded the case. 7. We make no order as to costs in this appeal.

Gajendra Chandra Burma vs Bindubashini And Anr. on 24 May, 1909

Calcutta High Court

PETITIONER: BIHAR SCHOOL EXAMINATION BOARD Vs. RESPONDENT: SUBHAS CHANDRA SINHA, & ORS. DATE OF JUDGMENT: 10/03/1970 BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAY, A.N. DUA, I.D. CITATION: 1970 AIR 1269 1970 SCR (3) 963 1970 SCC (1) 648 CITATOR INFO : R 1978 SC 851 (58,69) ACT: Natural Justice-Evidence of unfair means at examination at a particular centre apparent-Cancellation of examination at the centre Whether notice to examinees necessary. Bihar School Examination Board Act (Bihar Act 7 of 1952) s. 9 (3) Scope of. HEADNOTE: Candidates at the Secondary School Examination held in March 1969, appeared at various centers. The results at all centres were published in July 1969, except those at a particular centre. The tabulators at that centre reported that the percentage of marks and of successful candidates was unusually high (80% or more). The matter was referred to tile Unfair Means Committee of the Board. A comparison of the answer books at that centre showed such a remarkable agreement in the answers, that it was obvious that unfair means were adopted and that the students had assistance from an outside source. The Chairman passed an order on August 30, 1969, cancelling the examination at the centre and allowing the examinees at the centre to reappear at the Supplementary Examination in September The action of the Chairman was placed before the Board and was- approved. The respondents, who were the examinees at that centre, moved the High Court under Art. 226 and the High Court quashed the order of" the Board and ordered publication of the results of that centre., In appeal to this Court, HELD:(1) There was enough material for the Chairman and the Board for taking action without any' complaint from anybody of the Use of unfair means. [966 E-F] (2) There was no reason for withholding the publication of results, of other centres which were not under suspension. [966 F] (3) Under s. 9(3) of the Bihar School Examination Board Act. in an emergency, the powers of the Chairman are co-terminus with those of the Board and be can take action himself and later report it to the Board. Therefore, the order of the Chairman in the present case was not incompetent. [966 C-F; 967 A] (4) The essence of an examination is that the worth of every is appraised without any assistance from an outside source. If at a centre the whole body of students received assistance and managed to source success at a high percentage, when at other centres, the average was only 50%, the University or the Board could cancel the examination as a whole; and if there was -sufficient material on which it could be demonstrated that the Authority was right in its conclusion that the examination as a whole was vitiated then academic standards require that the Authority's appreciation of the -problem must be respected. To make such a decision depend upon a full-fledged judicial inquiry would hold up the functioning of such autonomous bodies as Universities and School Boards. [967 G-H; 968 E-H] 964 In the present case, no principle of natural justice was violated and there was no need to give the examinees an opportunity to contest the conclusion, because, the evidence was plain and transparent, and the Board had not charged- anyone with unfair means so that he could claim to defend himself. Therefore, the order of the High Court must be set aside and the respondents-candidates allowed to sit for the next examination. 1969 B-D] Board of High School Intermediate Examination, U.P. Allahabad v. Ghanshyam Das Gupta and Ors. [1962] Supp. 3 S.C.R. 36, explained.. JUDGMENT: V.P.S. Appeal allowed. 97 0 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2620 of 1969. Appeal by special leave from the judgment and order dated December 8, 1969 of the Patna High Court in C.W.J.C. No. 1040 of 1969. Sarjoo Prasad, Roy Paras Nath, S. K. Bisaria and S. S. Jahar, for the appellant. S. N. Prasad, for the,respondents. The Judgment of the Court was delivered by Hidayatullah, C.J., This is an appeal against the judgment and order of the High Court of Patna, December 8, 1969 in Civil Writ Jurisdiction Case No. 1040 of 1969. It is brought to this Court by special leave. The appellant is the Bihar School Examination Board through its Chairman. The respondents are 36 students of S.S.H.E. school, Jagdishpur and H. E. School Malaur, District Shahabad. They had moved the High Court under Art. 226 of the Constitution against the order of the Board cancelling annual Secondary School Examination of 1969 in relation to Hanswadih centre in Shalibad District. They had also asked that a mandamus be issued to the Board to publish the results of the students who appeared at this centre. The High Court has quashed the order of cancellation and directed the Board to publish the results. Candidates at the Secondary School Examination held in March, 1969 appeared at various centres including Hanswadih Centre. The results were published in July 1969 but the results of examinees at Hanswadih centre were not released. On July 22, 1969 it was reported in a local Hindi daily newspaper that the results of this centre and others were under consideration. On August 30, 1969 a communique from the Board appeared in the newspaper Searchlight that the examinations of all subjects held at the Secondary School Examination of. 1969 at Hanswadih centre were cancelled and the reason was that unfair means were practiced on a large scale at this Centre. Examinees were, however, allowed to appear at the supplementary Secondary School Examination to be held in September, 1969. 96 5 The respondents challenged the order of the Board on many grounds. The main grounds were that there was no complaint of use of unfair means; that no opportunity had been given to the examinees to show cause before passing the order of cancellation against them; that as the Supplementary Examination was to be held within 10 days of the communique there was no time for the students to prepare for the examination; that the cancellation ought to have been announced before, publishing the results of other centres and lastly that the order passed by the Chairman and not by the Board, was not a valid order under the Bihar School Examination Board Regulations. From the record of the case and the return which has been filed by the Board the following facts appear The Tabulators of the Hanswadih centres' reported that the percentage of successful examinees was as high as 80% whereas the average at the Arrah, Dalippur centres was only 50%. They were therefore asked to prepare percentage subject wise. All the Tabulators submitted these precentages. The matter was referred to the Unfair Means Committee of the Board. The Committee in its turn asked the Moderators to look into all the answer books where the percentage was 80% or more. They reported unfair means on a mass scale. The Chairman then passed an order on August 30, 1969 cancelling the examination in all subjects at the Hanswadih Centre allowing the examinees to reappear at the Supplementary Examination in September, 1969 without payment of fresh fees. The Head Masters of the three schools concerned were also informed by registered letters. The action of the Chairman was placed before the Board at its meeting on September 9, 1969 and was approved. It was stated in the return that a complaint was received from one Satnarain Singh of Jagdishpur, who, however, wrote a letter that he had made no such complaint. The High Court gave a finding that the high percentages did give rise to a suspicion that unfair means were practised and that the Board was justified in investigating the case. It was, however, held that the examinees were not given a chance to show cause and the materials on which the Chairman of the Board passed his order were not disclosed to the examinees. The Board had therefore failed to act according to the principles of natural justice and the order of the Chairman and/or the Board could not, therefore, be sustained. The High Court relied upon Board of High School & Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta and others(1) and Ajit Singh and others v. Ranchi University(2). It commented upon the short interval bet- (1) [1962] Supp. 3 S.C R. 36. (2) A.I.R. 1964 Patna 291. 96 6 ween the communique and the Supplementary Examination and held that the communique should have been issued before the results had been published. The High Court also considered the competence of the Chairman to pass the order under the Regulations but did not decide it as it reached the conclusion that the principles of natural justice were violated and the orders of the Chairman and/or the Board were, therefore unsustainable. The order of the Board was quashed and the publication of the results of the Hanswadih Centre was ordered. This Court granted special leave and directed stay of the operation of the order of the High Court. We heard this appeal on February 25, 1970. Since the next examination at which the respondents can appear is scheduled to be held in March, we did not wish to delay the decision of the appeal. We accordingly passed an order allowing the appeal and set aside the order of the High Court but stated that we would give our detailed reasons later. We now proceed to do so. All the arguments which were presented in the High Court were repeated before us by the learned counsel for the respondents We find it convenient to consider some of them before taking up the point on which the High Court has cancelled the order of the Board and directed the publication of the results. The argument that no one had complained about the exami nation need not detain us. The Tabulators sent their remarks oil which investigation was made. The Unfair Means Committee and the Moderators gave their opinion. These were sufficient for taking action. There was no need to wait for a complaint, not was a complaint really necessary. The results were withheld so that inquiries could be completed.' In the meantime the results of the other centres which were not under suspicion could be declared because in their case there was no reason to withhold publication. The contention that the Board alone and not the Chairman could, cancel the examinations need not detain us. Under S. 6(2) of the Bihar School Examinations Board Act, the Board considers, moderates, determines and publishes the results of examinations. It also admits candidates to examinations, disqualifies them for any reason which it considers to be adequate. Under -s. 9(3) of the Act in an emergency the powers of the Chairman are co-terminus with those of the Board and he can take action himself and later report it to the Board. In this case action was taken by the Chairman and he reported it to the Board which fully endorsed it. Therefore the cancellation of the examina- tions at Hanswadih Centre must be treated as an order of the Board and cannot, therefore, be challenged on the ground that it was incompetently made. This brings us to the crux of the problem. The High Court interfered on the ground that natural justice and fair play were not observed in this case. This was repeated to us by the respondents in the appeal. A mention of fair play does not come very well from the respondents who were grossly guilty of breach of fair play themselves at the examinations. Apart from the reports of the experts, the results speak for themselves. At the other centres the average of successful candidates was 50%. At this centre the examinations had the following percentage 1. Mother Indian Language94 2. English70 3. Social Studies95 4. Everyday Science90 5. Elementary Mathematics100 6. Economics & Civics92 7. Elementary Physiology and Hygiene96 8. Geography....99 9. History88 10. Physics70 11. Chemistry100 12. Advance Mathematics99 13. Sanskrit100 These figures speak for themselves. However, to satisfy ourselves we ordered that some answer books be brought for our inspection and many such were produced. A comparison of the answer books showed such a remarkable agreement in the answers that no doubt was left in our minds that the students had assistance from an- outside source. Therefore the conclusion that unfair means were...adopted stands completely vindicated. This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them -at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases ? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination 9 68 was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go. Reliance was placed upon Ghanshyam Das Gupta's case(1), to which we referred earlier. There the examination results of three candidates were cancelled, and this Court held that they should have received an opportunity of explaining their conduct. It was also said that even, if the inquiry involved a large number of persons, the Committee should frame proper regulations for the conduct of such inquiries but not deny the opportunity. We do not think that that case has any application. Surely it was not intended that where the examination as a whole was vitiated, say by leakage of papers or by destruction of some of the answer books or by discovery of unfair means practised on a vast scale that an inquiry would be made giving a, chance to every. one appearing at that examination to have his say? What the Court intended to lay down was that if any particular person was to be proceeded against, he must have a proper chance to defend himself and this did not obviate the necessity of giving an opportunity even though the number of persons proceeded against was large. The Court was then not considering the right of an examining body to cancel its own examination when it was satisfied that the examination was not properly conducted or that in the conduct of the examination the majority of the examinees had not conducted themselves as they should have. To make such decisions depend upon a full-fledged judicial inquiry would hold up the functioning of such autonomous bodies as Universities and School Board. While we do not wish to whittle down the requirements of natural justice and fair play in cases where such requirement may be said to arise, we do not want that this Court should be understood as having, stated that an inquiry with a right to representation must always precede in every case, however different. The universities are responsible for their standards and the conduct of examinations. The. essence of the examinations is that the worth of every person is appraised without any assistance from an outside source. If at a centre the whole body of students receive assistance and manage to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the university or the Board must do something in the matter. It cannot hold a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. If [1] [1962] Supp. 3SC.R. 36. there is sufficient material on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled then academic standards require that the university's appreciation of the problem must be respected. It would not do for the Court to say that he should have examined all the candidates or even their representatives with - a view to ascertaining whether they had received assistance or not. To do this would encourage indiscipline if not also perjury. We are satisfied that no principle of natural justice was violated in this case. The Board through its Chairman and later itself reached the right conclusion that the examinations at this Centre had been vitiated by practising unfair means on a mass scale and the Board-had every right to cancel the examination and order that a fresh examination be held. There was no need to give the examinees an opportunity of contesting this conclusion because the evidence in the case was perfectly plain and transparent. We therefore set aside the order of the High Court and ordered dismissal of the writ petition but made no order as to costs.

Author: M Hidayatullah

Bihar School Examination Board vs Subhas Chandra Sinha, & Ors on 10 March, 1970

Supreme Court of India

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/C/2010/001279/11122 Complaint No. CIC/SG/C/2010/001279 Relevant FactsComplainant : Mr. Rajesh Singh, Jaipur Golden Hospital, Employees union(Regd) C-7/7, Sector-8 Rohini, Delhi-110085. Respondent : Mr. Dayal Singh RTI application filed on : 26/05/2010 PIO replied : Not Replied. First appeal filed on : 14/07/2010 Complaint received on : 20/10/2010 Complaint notice sent on : 25/10/2010 Information Sought: emerging from the Complaint. Public Information Officer & Asst. Labour Commissioner Government of NCT of Delhi, District North-West Labour, Welfare Centre Nimri Colony, Ashok Vihar, Delhi-110052. The complainant has sought information regarding whether the management has provided any information with respect to the total cost of construction incurred by the management with respect to the building under reference and a copy of the same. Reply of Public Information Officer (PIO): Not replied. Ground for First Appeal: No information received from the PIO. Ground of the Second Appeal: No information received from the PIO or the First Appellate Authority (FAA). Submission received from the PIO Office: (After the complaint notice sent on 25/10/2010) The applicant has filed an application regarding whether Labour Welfare Cess has been deposited by the management of M/S Jaipur Golden Hospital, Rohini, Delhi. The filed application was transferred to this District North West office on 15.04.10. The information was sent to the applicant vide the office letter No. ALC /North West/RTI/235/Lab/2010/2269 on 17.05.2010 along with the photocopies of form No. 1 filed by the employer under the BOCW Cess Act, 1996 and pay order/Draft for Rs 10,35,000/-(Copies enclosed).Then the applicant filed the 1st Appeal and the notice for appearance was issued vide office letter no.DLC/North West /RTI-235/Appeal-16/Lab/2010/3882.Then Second notice for appearance was issued vide offer letter no. DLC/North West/RTI-235/Appeal-16/Lab/2010/4371.It is pertinent to mention here that the assessment of cess amount for any construction work as defined under the law is made only after the submission Form-I on completion of construction work by the employers. In this case the estimated period of completion/construction is May, 2011, and therefore. No action is required at this stage under the cess act. Relevant Facts emerging during Hearing: The following were present Complainant: Mr. Mahinder Kumar representing Mr. Rajesh Singh, Respondent: Mr. Dayal Singh, Public Information Officer & Asst. Labour Commissioner; The Complainant admits that he has received the information. He states that the information shows that the department is not acting as per the law. The respondent states that the actions of the department are as per the law. Since the information has been provided to the Appellant the Commission has no further role in this. Decision: The Complain is disposed. The information has been provided. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 25 January 2011 (In any correspondence on this decision, mention the complete decision number.)(SM)

Mr.Rajesh Singh vs Government Of Nct Of Delhi on 25 January, 2011

Central Information Commission

A 3 { 'K.h_azi_ Abu y|5ay_eem, AItha7ffV__Adead by his L.Rs. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6?" DAY OF DECEMBER, 20; BEFORE THE HON'E5LE MR. JUSTICE A.N.vEAIuGOPA-EA.:TQOWDIA E' 1' WRIT PETITION No.52/2O10»_'fGé4§C»§C:j BETWEEN: The Town Panchayath, Gubbh Tumkur District, -_ Represented by its Chief Off_i'ce'r~,..* D.Rangaswamy. A 2 A '- . A y PETITIONER (By Sri M.Sj\{aVlj§av,::";£'xd':d'E) """ , . 1. Kha2;i...AAbu saée'd'-fr _ Aged about 63,yea'rs. 2. Khafzi Abua"S.a_:VIehaE', Aged about 61-y.ea__rs. "Aged ,§1'bQU'f "55_i..yea rs, ~.A'iE..Vare sO.'n.s'Of Late Khazi Abdul Khuddus. a) rmohaseena W/O. late Althaff, Aged about 43 years. b) Sumaiah, D/o.L,ate Althaff, Aged about 25 years. C) Kazi Amzad, D/o. late Althaff, Aged about 22 years. d) Salma Banu, D/o. Late Althaff; Aged about 18 years. ' 3 All are residents of poor "house Ac-olony,"._v Bombay Building Road, 9"' Cross, Tumkur. 5. Reshma, Aged about 32 years.__ V 6. Macithivarfi A Aged abeut"~3_G'l.y_e'ars,_: ' Re5l3ondL°._ht5T S: & 6 ar._é'*Cf* '. it Resic_li.n.g _a't..yG'u'bb_i..To.wn_,' I *1 RESPONDENTS(By Sri Hll\l,Shas'h'idVh'ara.,lietrééitesvy & Co., Advs. for R1 to R3, R4_(a) and RS;._}_ R4(b){c)(:l) are"'3.e"rved)v _ V"i"T.hiLi:'writ.__petition is filed under Articles 226 and 227 l'V..o'f,th'e.Co.,nstitutic-.n of India, praying to call for the records andrquas-h:"'t.h_e .o'rd"er passed by learned Civil Judge (Sr.Dn.) 81 'JMAFC, Gubbi, on I.A.NO.3l in O.S.NO.6/2008 dated 2 7.112005 under Annexure ~ K. n .--_.j'his" petition coming on for preliminary hearing in 'B' ' "grou_p this day, the Court made the following:~ amendment shall not relate back to the date of filing of the suit, but shall be effective from the date I.A.31 was--«filed, so that, the bar of limitation raised by the defentlant,:'--c,:avvn be made an issue, tried and the suit decided. 8. It is settled position of law ,thAaft,u'--at:4.t'he4't»ime«ref.' allowing or refusing to amend the p'i'a_i_rtt, it ies"'V'njot_opel;1 to the Court to decide the merit, 'whi'ch_can"onlVj/'be gone into and decided at the timebf decisiovn~.of._the_ suit. A party is entitled to plead and prgye .hisiieai,gse./\.,,,,Tiéeaefendant shall have the oppo:,rt'u'n,ity of"--.filling";ad'd.iti'on'a!««Vwritten statement. Consider~ing.,',\Vth.e .':atnen*d.Ved' pleaaing and the additional written vlstatementflfe,anfiessupes. arise for consideration, the same will heye~.toV' beKrai':..eld, including the one relating to 'bar_of.,lirnitavtion,""the__.arnendment being effective only from V7__thé,e"datev._l';A,V'3.i"was filed in the Court i.e., on 14.9.2009. proposed amendment does not totally alter gfrarlnving of the suit. The proposed amendment would enable" the Court to adjudicate the real question in Vl"eV.c.ontroversy between the parties and would avoid K multiplicity of proceedings. The Trial Court in exercise of the discretion vested in it, has permitted the amendment. The Trial Court has not acted irrationally or ili'eVg'a:l'l'yr'in allowing I.A.31. However, it ought to condition that, the amendment shalibe,efi§,ecti',yé--'I.o_nl'y.fiéom the date the aifiiblication was filed. ' In the said View of the noV"'i'nte'rrFerenEce in the matter of allowing of'ca:.l._led'~--for. petition stands disposed of making it relief prayed vide I.A.31 shai'l"hVge--effectlgve~':fro~rn"'-i4..§3..:',0O9 and shall not relate baciiéll dé*te§,,,"or.'j,fiiir.:ig"tor the suit. The respondents shall'fincorpoifitel the proposed amendment, if not alread'y._incorwporatedlfin the plaint, within a period 2 weeks' from tod'ay..__Q_n,a copy of the amended plaint being fAurn.i5¢r-ed=.tomthe learned counsel appearing for the 3 weeks there from, additional written --Vstate4rneht "shall be filed. The Trial Court shall raise 'igadd'iiti_ona'l issues, if any, including the one relating to bar -ff;oi'-Zlimiitation within a period of 2 weeks from the date the additional written statement is filed by the defendant. The /.

Author: A.N.Venugopala Gowda

The Town Panchayath vs Khazi Abu Saeed S/O Late Khazi ... on 6 December, 2010

Karnataka High Court

"21.06 2106.90 Pan Masala Note 3 to Chapter 21 of the Tariff used to read as under. 3. In this Chapter "Pan Masala" means any preparation containing betel nuts and any one or more of the following ingredients, namely, lime, katha (Catechu), and tobacco whether or not containing any other ingredients such as cardamom, copra, menthol." 5.2 Note 3 to Chapter 21 was amended by the Fourth Schedule to the Finance Act, 2000 as under: "3. In this Chapter, "Pan Masala" means any preparation containing betel-nuts and any one or more of the following betel-nuts and any one or more of the following ingredients, namely:- (i) lime; and (ii) kattha (catechu) but not tobacco, whether or not containing any other ingredients, such as cardamom, copra and menthol;" 5.3 Further the following Note 6 was inserted in Chapter 24 of the Central Excise Tariff:- "6. In this Chapter 24, "Pan Masala containing tobacco", commonly known as 'gutkha' or by any other name, means any preparation containing betel-nuts and tobacco and any one or more of the following ingredients, namely:- (i) lime; and (ii) kattha (catechu) whether or not containing any other ingredients, such as cardamom copra and menthol;" 5.4 In Chapter 24, sub-Heading No. 2404.40 was also substituted as under: "--Chewing tobacco and preparation containing chewing tobacco; Pan Masala containing tobacco; 2404.41--Chewing tobacco and preparation containing chewing tobacco 2404.49--Pan Masala containing tobacco." JUDGMENT V.K. Agrawal, Member (T) 1. The issue involved in this Appeal, filed by M/s. Kothari Products Ltd., is whether the Tariff Values fixed under Notification No. 16/98-Central Excise (NT) dated 2.6.1998 are applicable to Pan Masala Manufactured by them. 2. Shri B.L. Narasimhan, learned Advocate, submitted that the Appellants commenced manufacture of Pan Masala not containing tobacco from 15.3.2001 and containing more than 85% betel nut by weight; that Heading 21.06 of the Schedule to the Central Excise Tariff covers Pan Masala; that as per Note 3 to Chapter 21, Pan Masala means any preparation containing betel-nuts and any one or more of the ingredients, namely (1, lime and katha (catechu), but not tobacco, whether or not containing any other ingredients, such as cardamom, copra and methanol; that sub-heading 2404.49 covers "Pan Masala containing Tobacco" that Notification No. 16/98-CE (NT) dated 2.6.1998 fixed tariff values in respect of pan Masala falling under Heading 21.06; that they paid the duty on Pan Masala manufactured by them not containing Tobacco in terms of Notification No. 16/98-(NT); that the Commissioner under the impugned Order has confirmed the demand of duty and imposed penalty holding that Notification No. 16/98-CE (NT) is not applicable to Pan Masala manufactured by them since it is not containing tobacco and the goods are liable to be assessed under Section 4 of the Central Excise Act. 3.1 The learned Advocate, further, submitted that as the Pan Masala manufactured by the Appellant does not contain any tobacco, it falls under Heading 21.06 of the Tariff; that the product impugned is squarely covered by the first para of the Notification; that the entire case of the Revenue is based on Para 2 of the Notification which reads as under:- "This Notification shall not be applicable to goods containing not more than 10% betel nut by weight and not containing tobacco in any proportion." 3.2 He mentioned that according to Revenue, Para 2 of the Notification excludes two categories of Products, viz. (1) Goods containing not more than 10% betel nut by weight; and (2) Goods not containing tobacco in any proportion; that according to Revenue, since their product does not contain tobacco in any proportion, the same is excluded from the purview of the Notification. The learned Advocate contended that this interpretation of Notification is ex facie erroneous and contrary to the express language of the Notification; that Para 2 of the Notification seeks to exclude the products if two conditions are cumulatively satisfied viz., (1) that the product should not contain more than 10% betel-nut by weight and (2) it should not contain tobacco in any proportion; that unless both these conditions are cumulatively satisfied, the exclusion clause would not apply; that this is evident from the expression "and" used in para 2 of the Notification; that admittedly the impugned Pan Masala contains more than 85% betel nut by weight; that hence the first condition of Para 2 is not satisfied and consequently Para 2 has no application to the present case; that the Revenue's interpretation would make the entire Notification redundant and otiose and the Notification would not apply to any category of pan Masala. He relied upon the decision in the case of Swarup Fibre Industries Ltd. v. Commissioner of Central Excise, 1990 (48) ECC 69 (T) : 1990 (48) ELT 118 (T) wherein it has been held that "It is a well settled proposition of law that words in a statute should be so construed as to give them a meaning and make them work and not as to render them nugatory." He finally submitted that the main Para of the Notification applies only to Pan Masala not containing tobacco as the Notification covers Pan Masala falling under Heading No. 21.06; that when that is the only product covered by the Notification. Para 2 of the Notification cannot be interpreted to exclude that product itself out of the Notification; that the Revenue's interpretation amounts to stating that while the main para of the Notification fixed tariff value for Pan Masala not containing tobacco, by virtue of Para 2, the Notification is not applicable to Pan Masala not containing tobacco; that the correct interpretation of Para 2 would be that it seeks to exclude those Pan Masala not containing tobacco in which the betel nut content is less than 10%; that this interpretation would make the Notification workable and not redundant. 4. Countering the arguments, Shri Vikas Kumar, learned Senior Departmental Representative, submitted that the tariff values fixed by the Notification No. 16/98 (NT) are not applicable to goods containing not more than 10% betel nut by weight and not containing tobacco in any proportion; that as admittedly the goods in question does not contain any tobacco, they are excluded from the purview of the Notification; that all the conditions specified in the Notification are to be complied before the Tariff values fixed thereunder can be applied to any Pan Masala; that the interpretation placed by the learned Advocate would make the words "and not containing tobacco in any proportion" in Para 2 of the Notification redundant and of no effect which is impermissible. 5.1 We have considered the submissions of both the sides. Notification No. 16/98-CE (NT) dated 2.6.1998 fixes tariff value in respect of the goods, specified in the Table annexed to Notification and falling under sub-heading No. 2106.00 of the Tariff. Para 2 of Notification makes it inapplicable to goods containing not more than 10% betelnut by weight and not containing tobacco in any proportion. It has been emphasized by the learned Advocate that Tariff values have been fixed in respect of goods falling under Heading 21.06 which covers Pan Masala and as per Note 3 to Chapter 21, Pan Masala should not contain tobacco and if Para 2 of Notification is interpreted to mean that tariff values will not apply to Pan Masala not containing tobacco in any proportion", the entire Notification would become redundant and otiose. The submissions no doubt, has force. But perusal of the show cause notice reveals that the Schedule to the Central Excise Tariff was amended by the Finance Act, 2001. Prior to the Amendment heading 21.06 used to read as under: 6. It is thus apparent that before amendment Pan Masala falling under Heading No. 21.06, as per Note 3 to Chapter 21 may contain tobacco. Pan Masala containing tobacco was made to fall under sub-Heading No. 2404.49 by making amendment in the Schedule to the Central Excise Tariff by Section 134(a) of the Finance Act, 2001 read with Fourth Schedule. Notification No. 13/97-C E (NT) has been issued on 2.6.98 when Pan Masala falling under Heading 21.06 may contain tobacco. In this background, the interpretation of Para 2 of the said Notification has to be considered. Para 2 makes the notification non-applicable "to goods containing not more than 10% betel nut by weight and not containing tobacco in any proportion" It is thus apparent that the Government has fixed the tariff values only in respect of Pan Masala containing betel nut more than 10% by weight and containing tobacco in any proportion. It appears, as nothing has been brought on record, that Notification No. 16/98-CE (NT) was not amended with the changes made out in Chapters 21 and 24 of the Schedule to the Notification. As admittedly the products manufactured by the Appellants do not contain in any tobacco in any proportion, Notification No. 16/98-CE (NT) dated 2.6.98 is not applicable to the impugned products. We accordingly uphold the demand of Central Excise duty as confirmed in the impugned Order. However, we are of the view that this is not a fit case warranting imposition of any penalty, particularly when the goods had been removed after filing declarations with the Revenue and under the cover of duty paying documents. We thus set aside the entire penalty imposed on the Appellants. 7. The Appeal is disposed of in the above terms.

Kothari Products Ltd. vs Commissioner Of Central Excise on 12 March, 2003

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.91 of 1981 SMT. SUDAMA DEVI Versus SMT. SARASWATI DEVI & ORS. ----------- Sanjeev/- (Mungeshwar Sahoo,J.) 15. 21.01.2011. The learned senior counsel, Mr. S. S. Dwivedi appearing on behalf of the appellant submitted that respondent No.1, Saraswati Devi, respondent No.3, Rajkishori Devi and respondent No.5, Durga Prasad had died and, therefore, he will be filing appropriate application within one week. The office is directed to place the said applications if filed within said period under the heading for Orders on Petition on 31.01.2011.

Smt. Sudama Devi vs on 21 January, 2011

Patna High Court - Orders

1 S.B.CRIMINAL MISC. BAIL APPLICATION NO.5022/2009 Bhupesh Mehta Vs. The State of Rajasthan DATE OF ORDER : 4th December 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Sandeep Mehta,for the petitioner. Mr.Mahipal Bishnoi,Public Prosecutor for State. Mr.Pradeep Shah for the complainant .... The petitioner, accused of offences under Sections 323, 307, 325, 341 IPC and Section 3(i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has moved this application for bail under Section 439 Cr.P.C. The accusations in the present case are based on a report made by the complainant Pradeep Salvi on 30.05.2009 that at about 2:30 p.m., he saw the petitioner and another person raising construction at his plot whereupon he raised the queries but he was abused in the name of caste and then, the petitioner gave him beating with an iron rod whereby his leg bone was fractured and he received other injuries too. The facts of the case make out that the said injured Pradeep Salvi was hospitalised for the injuries sustained and then, was shifted to Ahmedabad where he expired on 18.06.2009. After investigation, the charge-sheet has, however, been filed in the matter against the petitioner for the offences aforesaid and not relating to the death of the 2 complainant. The charge-sheet also mentions that there had been six other cases registered against the petitioner in the past. It was, however, stated before the learned Sessons Judge that the petitioner had been involved in two other criminal cases. It has been pointed out during the course of submissions that the petitioner is not a previous convict and no case is pending against him. It has also been pointed out that there has been a cross-case in this matter registered at No.189/2009 on the complaint as made by the father of the petitioner for the offences under Sections 323, 380, 384, 427, 447, 452, 455, 120B IPC against the said deceased Pradeep Salvi and another Shri Vinod Salvi who has since been arrested in the said case and prima facie, it is apparent that it were the complainant with other accused person who attempted to trespass into the property of the petitioner and then, caused substantial damage to the property. It is also submitted that as per injury report of the complainant, he received four injuries by blunt weapon and two of them are shown to be of bony injuries on left hand and left leg but in the histopathologcal report, the cause of death has been stated as asphyxia; and such injuries are not alleged to be the cause of death. 3 It is submitted that there being the cross-case and the alleged injuries being not the cause of death, in the totality of circumstances, the petitioner deserves to be enlarged on bail. The learned Public Prosecutor and the learned counsel for the complainant have vehemently opposed the bail plea of the petitioner with the submissions that the petitioner has criminal antecedents and had caused grievous injuries that led to hospitalisation and ultimate death of the injured Pradeep Salvi. The facts have been noticed in this case that prima facie, the injuries said to have been inflicted by the petitioner are not alleged to be the cause of death that has been stated to be respiratory failure and then, there had been a cross-case levelling accusations of the complainant with another person having intruded into the property of the petitioner and having caused damage to the property. Before the learned Sessions Judge, it was suggested that the petitioner was involved in two other criminal cases; but it has specifically been pointed out on behalf of the petitioner that he had been discharged in other cases and such facts could not be refuted by the prosecution. During the course of consideration of this matter, case diary pertaining to FIR No.189/2009 was also obtained by the 4 Public Prosecutor and perusal of same has left too many things of dissatisfaction with the Court particularly when it is noticed that the investigation in the said FIR has been taken up in an inexplicable leisurely manner. However, presently the matter being considered on the bail plea of the petitioner, the other aspects are left for consideration later. After having examined the challan papers pertaining to this case and so also the case diary pertaining to the cross- case, without comments on merits, this Court finds it a fit case for grant of bail to the petitioner. Accordingly, this bail application under Sec. 439 Cr.P.C. is allowed and it is directed that the petitioner Bhupesh Mehta s/o Bansi Lal Menta be released on bail in relation to FIR No.183/2009 Police Station, Pratap Nagar, Udaipur provided he executes a personal bond in the sum of Rs.10,000/- with two sound and solvent sureties in the sum of Rs.5,000/- each to the satisfaction of learned Trial Court for their appearance before that court on each and every date of hearing and whenever and wherever called upon to do so till the completion of trial. Several shortcomings and lacunae on the part of the investigating agency have been noticed by this Court during the course of submissions in this case like making of incorrect 5 suggestions about pendency of criminal cases against the petitioner without stating complete and correct facts and then, of not taking up investigation in the cross-case with reasonable expedition and of unnecessary delay. Such shortcomings on the part of investigating agency are not appreciated; and it shall be required of the concerned authorities to take appropriate action in the matter. After forwarding the order, this matter be placed to-be- mentioned on 11.12.2009 and it shall be required of the learned Public Prosecutor to inform the Court about the action taken in the matter. (DINESH MAHESHWARI),J. MK

Bhupesh Mehta vs State on 4 December, 2009

Rajasthan High Court - Jodhpur

TAX CASE No.27 oF 1995 Reference against the statement of case drawn on 28th March, 1995 by Income Tax Appellate Tribunal, Patna Bench, Patna in R.A.No. 10 (Pat) of 1995. HOTEL CHANAKYA (P) LTD.------------------------------(Appellant) Versus DY.COMMISSIONER OF INCOME TAX---------------------(Respondents ---- For the Assessee : Sri A.K.Rastogi, Advocate For the Revenue : Mr.S.K.sharan **** P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA Prasad & This case has come up for our consideration on Sinha, JJ. reference being made by the Patna Bench of Income Tax Tribunal. The reference made is as follows : "Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the appellant's hotel building can not be treated as plant within the meaning of sections 32 and 43(3) of the I.T.Act, 1961? Mr. A.K.Rastogi appears on behalf of the assessee whereas revenue is represented by Mr. S.K.Sharan. It is common ground that identical reference was made to this Court and same has been answered in the case of Commissioner of Income-Tax V. Lawly Enterprises (P) Ltd., reported in 225, I.T.R, 154. After having heard the learned counsel for the 2 parties, we answer the reference in same terms as that of Commissioner of Income-Tax V. Lawly Enterprises (P) Ltd. (supra). Reference is disposed of accordingly. Let a copy of our opinion be forwarded to the Patna Bench of Income Tax Tribunal. ( Chandramauli Kumar Prasad,J.) Patna High Court 3rd July, 2008 Manish/-

Author: Shailesh Kumar Sinha

Hotel Chanakya (P) Ltd vs Dy.Commissioner Of Income Tax on 3 July, 2008

Patna High Court

ORDER P.G. Chacko, Member (J) 1. These 41 appeals filed by the Department are against the common order dated 16-2-1999 passed by the Commissioner (Appeals) in appeals filed by different assessees against orders of adjudication passed by the jurisdictional Assistant Commissioners of Central Excise. Since a common issue is involved, all these appeals are being disposed of by a common order. 2. The respondents in these appeals were engaged in the manufacture of steel ingots falling under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985 and were availing the facility of Modvat credit on inputs under Rule 57A of the Central Excise Rules during the respective periods of dispute. They took Modvat credit of the duty paid on the defective/rejected ingots received as inputs for the manufacture of alloy/non-alloy steel ingots (final products). They did so without filing D-3 declaration with the jurisdictional Central Excise Range Officers as required under Trade Notice No. 20/CE/93, dated 29-10-1993 of the Commissioner of Central Excise, Chandigarh, which had been issued under Rule 233 of the Central Excise Rules. The jurisdictional Assistant Commissioners by their respective orders of adjudication disallowed the credit so taken, on the ground of non-fulfilment of the requirements of the said Trade Notice. The aggrieved assessees went in appeal before the Commissioner (Appeals) and the latter passed the impugned order, following the Tribunal's decision in the case of CCE, Chandigarh v. Didar Steel Complex (P) Ltd. [1997 (96) E.L.T. 691 (T)] and holding that benefit of Modvat credit under Rule 57A ibid could not be disallowed on the ground of non-observance of instructions contained in the aforesaid Trade Notice which had no statutory force. The Commissioner (Appeals), however, upheld the penalties imposed by the adjudicating authorities. 3. In the instant appeals against the order of the Commissioner (Appeals), the Department has principally contended that the lower appellate authority, while considering the Trade Notice, failed to take note of the Honourable Supreme Court's ruling in the case of Indian Aluminium Co. Ltd. v. Thane Municipal Corporation [1991 (55) E.L.T. 454 (S.C.)] to the effect that non-observance of even a procedural condition was not to be condoned if likely to facilitate commission of fraud and introduce administrative inconvenience. The Department's further contention is that the Trade Notice issued under Rule 233 is also a part of the Central Excise Rules and therefore the Supreme Court's ruling squarely covers the instant case of non-fulfilment of the requirements of the Trade Notice. The ld. DR Shri A.K. Jain reiterates the grounds of appeals and submits that the Trade Notice was issued by the Commissioner of Central Excise, Chandigarh in exercise of his powers under Rule 233 in order to obviate any chance of commission of fraud and of introduction of administrative inconvenience in matters relating to availment, by assessees, of the Modvat benefit on the particular inputs. According to him, in such circumstances, non-compliance with the conditions laid down under the Trade Notice should be visited with penal consequences, apart from denial of Modvat credit as per the ruling of the Honourable Supreme Court in the case of Indian Aluminum Co. Ltd. (supra). The ld. DR has gone a step further and made the proposition that any instructions issued under Rule 233 would 'merge' with the Rules and would therefore have the same force of law as the Rules themselves have. The ld. DR has also relied on the decision of the Tribunal's Larger Bench as contained in Final Order No. A/136-42/2000-NB, dated 21-2-2000 [2000 (117) E.L.T. 571 (T)] in the case of CCE v. Avis Electronics Pvt. Ltd. and Ors., wherein the Tribunal held that when a particular thing was directed to be performed in a manner prescribed by Rules it should be performed in that manner itself and not otherwise. The reliance placed by the ld. DR on this decision of the Tribunal appears to be based on a premise that the provisions of the Trade Notice are as good as Central Excise Rules. The ld. DR has further contended that, in the case of Didar Steel Complex (supra) relied on by the lower appellate authority, the Hon'ble Supreme Court's ruling in the case of Indian Aluminum Co. Ltd. (supra) was not considered and therefore the ratio of Didar Steel Complex should not be followed. The ld. DR has therefore prayed for setting aside the order of the Commissioner (Appeals). 4. Some of the respondents, who are not present, have requested for a decision on merits while the other respondents are represented by Counsel. Ld. Counsel have opposed the submissions of the DR by submitting that the issue involved in the instant appeals is squarely covered in favour of the assessees by the decision of the Tribunal in the case of Didar Steel Complex (supra) followed by the decision of the Tribunal in the case of CCE v. J.S. Khalsa Steels Pvt. Ltd. as per Final Order No. A/1011/99-NB (DB), dated 1-11-1999. Ld. Counsel have also pointed out that, to the best of their knowledge, the Department has not appealed against the Tribunal's decision in the case of Didar Steel Complex and that their (Department's) reference application in the said case was rejected by the Tribunal as per the order reported in 1997 (96) E.L.T. 691 (T). Counsel have also pointed out that the subject Trade Notice stipulated certain conditions which were in vogue when the proforma credit scheme (precursor of the Modvat scheme) was in force and that such conditions were done away with under the Modvat scheme. Counsel have, therefore, argued that the Department wanted to introduce the abandoned conditions into the Modvat scheme by way of the Trade Notice, which, according to the Counsel, was beyond the powers of the Central Excise Commissioner under Rule 233 of the Central Excise Rules. The said Rule 233 only provides for supplemental instructions which can not in any way affect the substantive rights of the assessees under the Modvat rules, according to the ld. Counsel. Counsel have therefore prayed for dismissal of the Department's appeals. 5. I have carefully examined the impugned order and connected records of the case. I have also considered the rival submissions on facts and the case law cited. 6. I note that, in the instant cases, it is admitted position that the respondents took Modvat credit on defective/rejected steel ingots, that such inputs were received in their factory and remelted by them and that they manufactured their final products viz. alloy/non-alloy steel ingots out of such remelted goods inasmuch as the lower appellate authority's findings of facts to this effect are not disputed in the appeals before me. There is, again, no dispute that the defective/rejected ingots were eligible inputs for Modvat credit under Rule 57A. The only dispute is with regard to procedural requirements stipulated by the Chandigarh Central Excise Commissioner in the subject Trade Notice. This aspect of the matter has already been considered by the Tribunal (Single Member Bench) in the case of Didar Steel Complex Pvt. Ltd. (supra), which has been followed in a similar case by the Tribunal (Two Member Bench) in the case of C.C.E v. J.S. Khalsa Steel Pvt. Ltd (supra). I would follow the ratio laid down by the Tribunal in Didar Steel Complex Pvt. Ltd. as followed in J.S. Khalsa Steel Pvt. Ltd. 7. The Honourable Supreme Court's ruling in the case of Indian Aluminum Co. Ltd. cited by the ld. DR has been considered. That ruling is applicable to a situation where there is a possibility of fraud or administrative inconvenience being occasioned by the assessees' conduct in the context of availment of Modvat credit. It is noted that there is no iota of challenge in the instant case against the bona fides of the conduct of the parties in availment of Modvat credit. Neither any fraud nor any act prejudicial to administrative convenience has been alleged by the Department in the present appeals, nor could I find any allegation to that effect in the show cause notices issued to the various parties, nor any finding to that effect in any of the orders of adjudication of the Assistant Commissioners. I am, therefore, unable to apply the Hon'ble Supreme Court's ruling cited by the ld. DR to the facts of the present cases. The submission of the ld. DR that the instructions contained in the Trade Notice are as good as Rules is also not acceptable since the settled position of law on the point is to the contrary. 8. The ld. DR has, further, drawn my attention to Rule 173H of the Central Excise Rules wherein certain conditions to be fulfilled by the assessees to the satisfaction of the Commissioner has been laid down. He has, further, referred to Rule 173A which says that the provisions of Chapter VII-A (which includes Rule 173H) would prevail over Rules in other Chapters of the Central Excise Rules in case of any conflict between the two. The tenor of the ld. DR's submission is that the conditions stipulated under Rule 173H should also be read into Modvat rules. I am unable to accept this proposition for reasons already discussed. 9. In view of the above observations and findings, I do not see any reason to interfere with the order of the Commissioner (Appeals). The Department's appeals are devoid of merit and are therefore rejected.

Commissioner Of C. Ex. vs Addi Alloys (P) Ltd. on 24 March, 2000

Customs, Excise and Gold Tribunal - Delhi

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/2008/00766/SG/1008 Complaint No. CIC/OK/C/2008/00766/SG Complainant : Mr. Madan Pal H.No. 20/2, Railway Road, Samey Pur New Delhi-110042 Respondent : The Public Information Officer, S.D.M Office Complex, Najafgarh, New Delhi-110043 Facts arising from the Complaint: Mr. Madan Lal had filed a RTI application with the PIO, S.D.M Office Complex, Najafgarh, New Delhi on 14/03/2008 asking for certain information. Since no reply was received within the mandated time of 30 days, he had filed a complaint under Section 18 to the Commission. The Commission issued a notice to the PIO asking him to supply the information and sought an explanation for not furnishing the information within the mandated time. The PIO has informed the Commission that the information has been sent to the complainant on 01/01/2009. Decision: Complaint Disposed Off. The PIO has also given an explanation for the delay. The Commission condones the delay and warns the PIO to ensure that information is given to applicants with in 30 days as mandated under Section 7 (1) of the RTI act. Notice of this decision be given free of cost to the parties. Shailesh Gandhi Information Commissioner January 12, 2009

Mr. Madan Pal vs S.D.M on 12 January, 2009

Central Information Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 4023 of 2007() 1. NATARAJA AIYER, DY.MANAGER (REFINERY ... Petitioner Vs 1. CENTRAL BUREAU OF INVESTIGATION, ... Respondent 2. STATE OF KERALA REPRESENTED BY For Petitioner :SRI.S.GOPAKUMARAN NAIR For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :13/11/2007 O R D E R V. RAMKUMAR, J. ```````````````````````````````````````````````````` Crl. R.P. Nos. 4023 and 4024 OF 2007 ```````````````````````````````````````````````````` Dated this the 13th day of November, 2007 O R D E R The common petitioner in these two revision petitions is the first accused(Nataraja Aiyer) in C.C.No.3/2001 on the file of the Special Judge(SPE/CBI)-II, Ernakulam. He challenges the common order dated 29.10.2007 passed by the Special Judge (SPE/CBI)-II, Ernakulam in Crl.M.P.Nos.894/07 and 895/07 in C.C.No.3/2001. 2. The case was investigated by the CBI which filed the final report originally against 8 accused persons. Three among the 8 accused persons were made approvers of whom one died and two survived. The court below took cognizance of the offences against the surviving 5 accused persons and registered the case as C.C.No.3/2001. 3. The case of the prosecution can be summarised as follows:- The first accused(revision petitioner) was the Deputy Manager, Refinery Co-ordination in-charge of South Tanker berth at Ernakulam during the period from January to May, 2000. He  Crl.R.P.Nos.4023&4024/07 : 2 : entered into a criminal conspiracy with the other accused for the purpose of committing theft and misappropriation of high speed diesel oil discharged from the tanker ships to the IOC, BPC, HPC, etc. In prosecution of the common object of the said criminal conspiracy, A1, A2 and A5 during the intervening night of 22/23.4.2000, 15/16.5.2000 and 28/29.5.2000 dishonestly diverted high speed diesel oil from south tanker berth to the IOC jetty and illegally loaded 1,10,000 litres high speed diesel oil in a Dolphin barge owned by A2 and A5 and conveyed the same to Bava Enterprises, a petrol pump owned by A3 and A4 and located at Thoppumpady. The accused thus made wrongful gain to themselves and caused wrongful loss to the oil companies. The accused have thereby committed an offence under section 13(1) (c) of the Prevention of Corruption Act, 1988 and punishable under sections 13(2) of the Prevention of Corruption Act, 1988 and sections 409 and 411 read with section 120B IPC. 4. On the side of the prosecution 52 witnesses were examined. After the close of the prosecution evidence, the accused were questioned under section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them  Crl.R.P.Nos.4023&4024/07 : 3 : in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The case was thereafter posted for defence evidence. On the side of the revision petitioner he cited 3 witnesses. The first witness E.K.Venugopal is a retired Senior Refinery Co-ordinator of Indian Oil Corporation, Ambalamugal. In fact, he was prosecution charge witness No.55 who was given up by the prosecution. He was cited to speak about the discharge programme and co-ordination work carried out by the IOC at the tanker jetty. The 2nd witness was the Superintendent of Central Excise and Customs(Petroleum Wing), Ernakulam. He was cited to speak about the statements in AR-3A Forms submitted by various oil companies specifying the particulars of oil receipt. The 3rd witness was one C.M.Chandrakanthan, Chief Terminal Manager, Indian Oil Corporation, Trichy to speak about the role of Port Co-ordinator at the tanker jetty and also about the enquiry conducted by the IOC with respect to the alleged incident. The petition filed by the revision petitioner before the court below to summon the aforesaid 3 witnesses was Crl.M.P.No.895/07. The revision petitioner had also filed Crl.M.P.No.894/07 seeking to summon two documents.  Crl.R.P.Nos.4023&4024/07 : 4 : The first document was AR-3A Forms submitted by the respective oil companies specifying the particulars of oil receipt during the period from January to October 2000. It was to prove those Forms that the second witness was cited. The other document which was sought to be summoned was the file maintained by the CJM, Ernakulam as C1-3307/01 in RC 7/A/2000 of CBI and in the custody of the Sheristadar of the CJM Court, Ernakulam to prove the mode of recording the 164 statements of the approvers. According to the revision petitioner, sufficient safeguards were not taken before the 164 statements of those approvers were recorded and the Magistrate who recorded the 164 statements when examined before court was not able to confirm or deny whether the statements were recorded consecutively after giving them sufficient time for reflection. 5. The aforesaid applications filed by the revision petitioner were opposed by the CBI and the court below as per the common order dated 29.10.2007 permitted examination of the 3rd witness only but refused examination of the first two defence witnesses. The court below also dismissed Crl.M.P.No.894/07 for summoning the aforesaid two documents. It is the said common  Crl.R.P.Nos.4023&4024/07 : 5 : order which assailed in these revisions. 6. I heard Advocate Sri.S.Gopakumaran Nair, the learned counsel appearing for the revision petitioner and Advocate Sri.S.Sreekumar, the learned standing counsel for the CBI. 7. Sri.S.Sreekumar, the learned standing counsel appearing for the CBI, made the following submissions before me in support of the impugned order:- The purpose of examining the two other witnesses and summoning the said documents was only to protract the trial of the case. The prosecution has already examined witnesses to speak about the discharge programme and co-ordination work carried on by the IOC at the tanker jetty and the examination of the first defence witness will only lead to duplication of evidence. The AR- 3A Forms submitted by the respective oil companies giving particulars of oil supply is also unnecessary. The administration file maintained by the CJM, Ernakulam with regard to the procedure followed by the Magistrate while recording the 164 statements of the approvers also cannot be summoned since the Magistrate has already testified before court. There is also the presumption under section 80 of the Evidence Act with regard to  Crl.R.P.Nos.4023&4024/07 : 6 : the same. 8. After hearing both sides and after perusing the impugned order, I do not think that the examination of the three witnesses cited by the revision petitioner is totally irrelevant to the fact in issue before the court below. The revision petitioner has a contention that he was in charge of the refinery co-ordination of the discharge operations of IOC only and that he had no role to play in the discharge of high speed diesel oil to BPC, HPC, etc. It was this aspect of the matter that is sought to be proved by the first defence witness. The second witness cited is for proving AR- 3A Forms and according to the revision petitioner, none of the oil companies had complained of short delivery of high speed diesel oil and this is sought to be proved by the second witness for whose examination the first set of documents made mention of in Crl.M.P.No.894/07 is to be necessarily summoned. The second document, namely the file pertaining to the 164 examination of the approvers, also can be pressed into service by the revision petitioner to substantiate his contention that the approvers were not given sufficient time for reflection. The question as to whether they were given time for reflection and if not, what is the probative  Crl.R.P.Nos.4023&4024/07 : 7 : value of their statement, etc. are matters for the trial court to consider after the trial is over. At any rate, there is no justification to shut out evidence as proposed by the revision petitioner. Accordingly, Crl.M.P.No.894/07 will stand allowed in toto and Crl.M.P.No.895/07 will stand allowed in respect of defence witness Nos.1 and 2. I am told that the 3rd witness cited by the revision petitioner is scheduled for examination today and he shall be examined without undue delay. I am also told that the first and second witnesses cited by the revision petitioner are both local witnesses easily available for examination. Those two witnesses shall be summoned and examined without unnecessary delay. The defence evidence of the revision petitioner shall be concluded within three weeks of commencement of the examination of the first defence witness. In the result, these revisions are allowed as above. (V. RAMKUMAR, JUDGE) aks 

Nataraja Aiyer vs Central Bureau Of Investigation on 13 November, 2007

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/6392/2008 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 6392 of 2008 IN CRIMINAL APPEAL No. 1888 of 2005 =============================================== MEHULKUMAR VISHNUBHAI BAROT. Versus STATE OF GUJARAT. =============================================== Appearance : MR RJ GOSWAMI with MR SS SAIYED for the Applicant. MR KT DAVE, APP, for the Opponent. =============================================== CORAM : HONOURABLE MR.JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J.C.UPADHYAYA Date : 01/07/2008 ORAL ORDER1. The applicant has applied, by this application, for deletion/modification of condition 4(b) imposed by this Court by order dated 1st May, 2006, passed in Criminal Misc. Application No.4539 of 2006 in Criminal Appeal No.1888 of 2005, which required the applicant not to leave State of Gujarat without prior permission of this Court. 2. The above relief is sought on the ground that the applicant has got a job with M/s Newstoday Private Limited, Television Division, and is required to work at Ramoji Film City, Hyderabad. In support of the application, the applicant has produced requisite documents. We are also shown a xerox copy of the Articles of Agreement entered into between the employer and the applicant. We are, therefore, inclined to entertain this application, but we also propose to add some other condition. 3. Condition 4(b) imposed by this Court by order dated 1st May, 2006, passed in Criminal Misc. Application No.4539 of 2006 in Criminal Appeal No.1888 of 2005 stands deleted, but a further condition is imposed on the applicant not to leave India without prior permission of this Court and to surrender his passport, if any, to the Registry of this Court within a period of one week from today. Rule is made absolute accordingly. 4. Direct service is permitted. [ A. L. DAVE, J. ] [ J. C. UPADHYAYA J. ] gt     Top

Author: A.L.Dave,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;

Appearance : vs Unknown on 1 July, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl MC No. 2218 of 2007() 1. ASHOK KUMAR, S/O SADANANDAN, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent For Petitioner :SRI.SIJU KAMALASANAN For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :11/07/2007 O R D E R R. BASANT, J. ------------------------------------------------- Crl.M.C. NO.2218 OF 2007 ------------------------------------------------- Dated this the 11th day of July, 2007 ORDER (R. BASANT, JUDGE) Nan/ //true copy// P.S. To Judge  Crl.M.C. NO. 2218 OF 2007 -: 3 :-  Aggrieved by an order passed by the learned Magistrate under Sec.451 of the Cr.P.C., the petitioner had come to this Court. By order dated 6/6/07, this Court had directed that the vehicle in question be released to the petitioner subject to conditions. Condition No.2 obliges the petitioner to make a cash deposit of Rs.25,000/- and also to offer bank guarantee for the balance amount. This was directed to be done within a period of one month from 6/6/07. 2. The petitioner contended before the learned Magistrate that he is entitled to get release of the vehicle and that he need deposit the amount and produce the bank guarantee only within one month from the date of the order. The learned Magistrate, according to me, has rightly turned down the said prayer and rejected the said application by  Crl.M.C. NO. 2218 OF 2007 -: 2 :- Annexure-3 order. The petitioner has come before this Court again. 3. What is the present grievance? A period of one month having already elapsed from 6/6/07 and the petitioner having not complied with the direction, there can be no surviving dispute as to whether the condition has been complied with or not. Admittedly, it has not been complied with. The learned counsel for the petitioner, in these circumstances, only prays that the petitioner may be granted time of one month more from this date to make cash deposit and make the bank guarantee available before the court. In the facts and circumstances of this case, I am satisfied that a lenient view can be taken and such extension of time can be granted to the petitioner. 4. In the result, this petition is allowed. The petitioner shall have time of one month more from this date to comply with the direction issued on 6/6/07. Sd/-

Ashok Kumar vs State Of Kerala on 11 July, 2007

Kerala High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 7th January, 2011 % Judgment Pronounced on: 4th March, 2011 + W.P.(C) 8004/2010 Federation of Indian Airlines & Ors. ..... Petitioners Through: Mr.Mukul Rohtagi and Mr. N.K. Kaul, Sr. Advocates with Mr.Buddy A. Ranganathan, Mr.Bhuvan Mishra, and Mr. Samar Kachwha, Advocates. versus Union of India & Ors. ..... Respondents Through Mr. Gopal Subramanium, Solicitor General and Mr.A.S. Chandhiok, ASG with Ms.Anjana Gosain and Mr.Sandeep Bajaj, Advocates and Mr. Alok Shekhar, Director for Respondent Nos.1,2,3 and 8 Mr. Sudhir Chandra, Sr. Advocate with Mr. Atul Sharma, Mr. Ravi Varma, Mr.Akhil Sibal, Mr. Abhishek Sharma and Mr. Sarojananda Jha, Advocates for Respondent Nos.4 and 6. Dr. A.M. Singhvi, Sr. Advocate with Mr. Ankur Chawla, Mr. Ashish Jha and Ms. Pallavi Langar, Advocates for Respondent Nos. 5 and 7. Mr. Ram Jethmalani, Sr. Advocate with Mr. Ankur Chawla, Mr. Ashish Jha, Ms. Pallavi Langar and Mr.Karan Kalia, Advocates for Respondent No.9. W.P.(C) 8004/2010 Page 1 of 96 Mr. Rajiv Nayar, Sr. Advocate with Mr. Gaurav Duggal, Ms. Niti Sudhakar and Ms. Monali Dutta, Advocates for Respondent Nos. 10 and 11. Mr. R.K. Mehta with Mr. Virender Mehta, Mr.P.K. Ray and Mr. Kunal Mehta, Advocates for Respondent No.12. Mr. Rajiv Nayar, Sr. Advocate with Mr. Amit Mahajan and Mr. Shashi Shekhar, Advocates for Respondent No.13. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Invoking the inherent jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners have prayed for declaring the circulars AIC No: 7/2007 dated 28.9.2007, AIC No: 15/2008 dated 31.12.2008, AIC No: 6/2009 dated 30.6.2009, AIC No:13/2009 dated 31.12.2009, AIC No:3/2010 dated 2.6.2010 and the Regulations, namely, Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2007 (for short „2007 Regulations‟) as ultra vires the provisions of The Aircraft Act, 1934 (for short „the 1934 Act‟), The W.P.(C) 8004/2010 Page 2 of 96 Aircraft Rules, 1937 (for short „the 1937 Rules‟) and The Airports Authority of India Act, 1994 (for short „the 1994 Act‟) and also ultra vires Articles 14 and 19(1)(g) of the Constitution of India and further to issue a writ of certiorari for quashment of the same. THE FACTUAL EXPOSITION AND THE STAND OF THE PETITIONERS 2. The petitioner No.1, Federation of Indian Airlines, is a society registered under the Societies Registration Act, 1860 comprising all the airline carriers which include the other writ petitioners. It is involved in promoting and diffusing useful knowledge on the aviation industry in India and represents the aviation industry before the concerned authorities for the purpose of resolving the issues and challenges faced by the said industry. The petitioner Nos.2, 4, 6, 8, 10 and 12 are companies incorporated under the Companies Act, 1956 and are engaged in the business of providing scheduled air transport services. As an integral part of their business, they operate airlines under the brand names SpiceJet, IndiGo, GoAir, Jet Airways (including Jet Konnect), Jet Lite, Kingfisher (include Kingfisher Red), etc. The petitioner Nos.3, 5, 7, 9, 11 and 13 are shareholders and / or directors of their respective companies. 3. As set forth, the business of running the airlines consists, inter alia, of owning and / or operating airplanes and provision of ground handling W.P.(C) 8004/2010 Page 3 of 96 facilities in relation thereto all of which are undertaken by the personnel dedicated for the said purpose. Though there are outsourced personnel engaged by various airlines for the same purpose, yet the choice of whether to outsource and to whom had been left to the option of the concerned airlines. 4. The airlines, like the petitioners, are involved in providing self-ground handling service and even if they are undertaking ground handling services through third parties, each airline has the right to conduct self-ground handling services. Ground handling constitutes an integral and inalienable part of any airlines‟ business and it is one of the main and unique, selling proposition of the airlines differentiating the services provided by one particular airline from their competitors. The ground handling services are aimed at providing a hassle free experience to the passengers and are akin to providing hospitality services. Some of the airlines provide self-ground handling services themselves while some airlines sub-contract the same to the airports or a handling agent or to another airline. The said exercise is carried out by an airline after careful consideration of numerous factors including the capability and competency of the agency to provide ground handling services, the cost impact, the suitability of the business model and the reputation and standard maintained in the industry. The purpose of the said agents are monitored by the airlines by strict service level agreements W.P.(C) 8004/2010 Page 4 of 96 bearing, amongst others, financial implications in case of failure to meet the agreed standards of service. 5. It is the experience of the petitioners that undertaking ground handling services themselves have enabled them to maintain the quality, cost and efficiency, level of performance and also helped in providing comfort and satisfaction to the passengers. The decision to undertake the ground handling services, which includes ramp handling and traffic handling, by themselves or to outsource is a business decision intrinsic to their business model and the airlines have the liberty to do so. The ramp handling includes cabin services like cleaning the plane, replenishing the supplies and consumables, etc. and traffic handling services include guiding the aircraft into and out of the parking position, refilling of fresh water tanks, air conditioning, luggage handling by belt loaders and baggage carts, passenger stairs (used instead of aerobridges or air stairs), wheel chair lifts, providing check-in counter services, gate arrival and departure services and airline lounges, etc. In this regard, reference has been made to the circular AIC No:3/2010 dated 2.6.2010 issued by the Director General of Civil Aviation laying down the specific components of the ground handling operations. It is contended that as per the said circular, the private airlines are given permission only to be involved in ground handling activities where passenger interface is required. W.P.(C) 8004/2010 Page 5 of 96 6. As set forth in the petition, if the said circular is given effect to, the airline operators can only undertake very negligible activities and many activities intrinsically connected with the business cannot be undertaken by the operators. It is averred that since the inception of civil aviation in India, the majority of the member airlines of the petitioner No.1 have been providing self-ground handling services or sub-contracting it to an airport or handling agent or another airline who can satisfy the specific tailor-made requirements of an individual airline. The ground handling services have the statutory recognition, as is noticed from the notification issued by the Director General of Civil Aviation („DGCA‟) while granting permit to operate scheduled passengers air transport services. 7. It is put forth that the aforesaid requirement is one of the pre- conditions for the grant of a licence and regard being had to the same, the petitioners have invested huge amounts of money in employing people on its rolls and creating the necessary and highly capital-intensive infrastructure to undertake the ground handling services efficiently to cater to the airlines operations. 8. As set forth, on 18.10.2007, the Airports Authority of India („AAI‟) notified its 2007 Regulations. Prior to that, a circular dated 28.9.2007 was issued by DGCA for the airports of Delhi, Mumbai, Hyderabad, Bangalore, W.P.(C) 8004/2010 Page 6 of 96 Chennai and Kolkata though the airports at Delhi, Mumbai, Hyderabad and Bangalore are not managed by the AAI. It is contended that the 2007 Regulations ex facie cannot apply to such airports. A reference has been made to an order dated 21.8.2009 issued by the Bureau of Civil Aviation Security („BCAS‟) vide AVSEC order No.3/09 stipulating, inter alia, to the effect that several security functions mentioned therein would have to be carried out by the airline security personnel themselves and not by any ground handling agency. The DGCA by the circular dated 2.6.2010 extended the last date for the airline operators to conduct self-ground handling to 31.12.2010. 9. It is averred that the said circular dated 2.6.2010 prevents / prohibits the airlines to provide ground handling services where there is no passenger interface. It is contended that the said circular could not have been issued by the said authority in the absence of an amendment of the ground handling Regulations 2007 as there is a complete dichotomy between the circular and the 2007 Regulations in the field. 10. The impugned circulars and Regulations have been assailed on the ground that the said circulars / Regulations run counter to Rule 92 of the 1937 Rules. It is contended that the DGCA has no authority to issue the impugned circulars and that the said circulars have been issued in utter disregard of the provisions of the 1934 Act, the 1994 Act and the Rules and W.P.(C) 8004/2010 Page 7 of 96 Regulations made thereunder. It is further contended that the circulars have been issued without any application of mind, as an incurable dichotomy exists between the Regulations and the circulars. It is urged that the circulars are absolutely arbitrary, unreasonable, discriminatory and, hence, offend Article 14 of the Constitution of India; that the circulars / regulations violate the individual airlines‟ and their shareholders‟ fundamental right to practise any profession or to carry on any occupation, trade or business as enshrined under Article 19(1)(g) of the Constitution of India and do not meet the test of reasonableness enshrined under Article 19(6) of the Constitution of India; that the circulars do not in any way remotely suggest for enhancement of security; and that the applicability of the circulars / Regulations is immensely vague and the same are also not in accord with the Acts and the Regulations. 11. It is contended that while the circulars / Regulations permit ground handling facilities to either an airport operator or the National Aviation Company Ltd. or their joint venture, similar facility is denied to the airline operators as a result of which the discrimination gets writ large, inviting the frown of Article 14 of the Constitution of India and that the circulars / Regulations admit to endow the National Aviation Co. Ltd. with an unprecedented and unwarranted benefit at the cost of the petitioners despite the fact that the National Aviation Company Ltd. is a competitor of the W.P.(C) 8004/2010 Page 8 of 96 petitioners in the airline business and, hence, such conferment of benefit is completely unjustified and arbitrary. It is further contended that the impugned circulars / Regulations virtually make it impossible for the petitioners to undertake their licensed activities at the six airports out of many as a consequence of which they would have to abandon their own operations in the said six airports and eventually only restrict their operation to the remaining airports resulting in tremendous and immensurable decrease in their business activity. 12. It is urged that the plea of security is a subterfuge to paralyze the operational aspects of the petitioners inasmuch as at various sensitive airports, the petitioners are legally permitted to carry out the ground handling facilities and further private players have been allowed to carry out the ground handling facilities; and that the segregation of ground handling into those involving passenger interface and not involving passenger interface is wholly unreasonable and unworkable as both have to be operated in complete harmony and coordination, but the said aspect has not been taken into consideration by the authorities issuing the circulars and, therefore, the new policy, if implemented, would result in retrenchment of ground service personnel, idling of assets and would further put the reputation and goodwill of the airlines in jeopardy since such a service is an insegregable facet of running of the business. W.P.(C) 8004/2010 Page 9 of 96 13. It is contended that the circulars and Regulations have made a maladroit effort to overturn the level playing field that is required to be maintained between the National Aviation Company Ltd. and the private airlines and such an activity is contrary to any commercial policy. It is contended that in the international field, in many an airport in United States of America, United Kingdom and Australia, the airline operators are permitted to provide self-ground handling service in both ramp and terminal side operations but the same has been denied to the private airline operators as per the impugned circulars in the garb of security though it is basically incorrect. It is put forth that the circulars fundamentally transgress the basic facet of Rule 92 of the 1937 Rules as it totally demolishes the concept of competitive environment which is impermissible in the face of the said Rule. It is urged that as a result of the issuance of the notifications, the airlines would be compelled to avail of the services either from the National Aviation Company Ltd. or the airport operator who would, in turn, demand monopolistic charges as there is no provision for any kind of checks and balances. 14. It is advocated that the circulars in actuality do not achieve any significant enhancement of security inasmuch as the airlines had been involved in the ground handling business for a number of years and have acquired considerable expertise and there are immense protective guidelines W.P.(C) 8004/2010 Page 10 of 96 with regard to the ground handling facility carried out by the petitioners and their staff have been trained in the said regard and at no point of time it has been pointed out that there has been any security lapse. It is put forth that if the circulars have been issued to protect the security in the country, then there is no justification to restrict it to six airports in the metropolitan cities since security threat is more grave at some other airports and thus, the whole intention of the circular is to oust the petitioners from operating the ground handling facility. It is averred that the basic purpose of the circular is to give more mileage to the airport operators / owners in the guise of security and, hence, it is basically a cavil between the commercial interest of the petitioners and that of the private operators which smacks of total arbitrariness; that the airlines are responsible for the security of their equipment including aircraft, etc. and, therefore, it is extremely unreasonable to expect, on one hand, the airline operators to be responsible for the security of their own equipment and on the other, prevent them from undertaking ground handling services which also ensures the security of their equipment and thereby an anomalous situation has been introduced betraying all norms of rationality and reasonability. 15. It is further stated that the security aspect in respect of the ground handling services is subject to the control of BCAS clearances and, hence, the same cannot be a ground to deprive the petitioners of the said business W.P.(C) 8004/2010 Page 11 of 96 facility which is an inseparable facet of their business. It is contended that the ramp handling as well as passenger handling are an inalienable part of an airlines‟ operations and cost effect and are also connected with on-time performance, efficient turnaround time and utilization of the aircraft which are dependent on factors like time, security, efficiency and effective handling of passengers and their baggage at the airport and the same cannot be and should not be handed over to a third party. It is asserted that if any loss or damage is caused to the luggage, the individual airline operators will still be held liable, whereas, by virtue of operation of the impugned circulars, they are not permitted to conduct the ground handling facility and such a situation would be contrary to the Carriage by Air Act, 1972 and various rules framed thereunder. It is contended that the private owners or the proposed independent ground handling operators would require to recruit the same staff who are now working on behalf of the airline operators and thereby the security scenario would not improve but there would only be a diversion of business interest. THE STANCE IN OPPOGUNATION BY THE RESPONDENT NOS. 1 AND 2 16. A counter affidavit has been filed by the respondent Nos.1 and 2 contending, inter alia, that prior to 2007, ground handling at Indian airports was done under the 2000 Regulations and all scheduled airlines were W.P.(C) 8004/2010 Page 12 of 96 permitted to undertake ground handling services. At a later stage, ground handling of flights at the Indian airports became a matter of grave concern against the backdrop of international terrorism which witnessed hijacking of Indian Airline passengers, carrying shoe bombs, liquid explosives, etc. The respondents thought it prudent to consider the practice adopted in several other countries for civil aviation safety and security by restricting ground handling services to only the airport authority and the national carrier and their subsidiaries excluding all private agencies and self-handling airlines. Apart from the aspect of safety, certain other aspects, namely, minimum equipment which lies in the operational area, optimal utilization of equipment and personnel deployed, ground flight safety and minimum number of people operating equipment on the airside and a choice of world class operators for airlines at affordable prices in a competitive environment were also kept in view. It is put forth that Delhi and Mumbai airports have been restructured through joint ventures entered into by the airport authority and regard being had to the factum of restructuring, the concerned authorities were of the view that ground handling services, being an important element of service standards to be complied by the airport operators as laid down in Schedule 3 of the Operation Management and Development Agreement (OMDA) signed with the JVCs, should be a restricted activity and self-handling of flights by all airlines except Air India should not be allowed. The ground handling policy was reviewed by the W.P.(C) 8004/2010 Page 13 of 96 Cabinet Committee on Security (CCS) in its meeting held on 1.2.2007 wherein, the issues of security and aviation safety, achieving world class ground handling services, clarity on ground handling, etc. were approved. The ground handling policy allowed the entities to undertake ground handling services at all metropolitan airports located at Delhi, Mumbai, Chennai, Kolkata, Bangalore and Hyderabad. The policy was notified by the Regulation of 2007 on 18.10.2007 in respect of AAI airports and by the DGCA vide AIC dated 28.9.2007 for other airports. The policy came into effect from the date of its notification, except to the extent of the exit of non- entitled entities, which was scheduled for 1.1.2009. 17. It is asseverated that a representation was received from the airlines through the petitioner No.1 on 6.11.2008 raising certain issues and regard being had to the concern shown, time was extended till 30.6.2009. During the said period, the respondent No.1 undertook an exercise to consult other stakeholders, including the airlines and airport operators, in order to understand and accordingly redress the concerns. The petitioner No.1 made another representation to the respondents on 5.6.2009 almost at the end of the extended time period fixed for the exit of non-entitled entities and after examination of the said representation, time was extended by another six months, i.e., upto 31.12.2009. In order to finalize the views on the issues raised by the airlines and the petitioner No.1, the answering respondents W.P.(C) 8004/2010 Page 14 of 96 collected the details of the number of employees engaged in ground handling activities working directly on the rolls of the individual domestic airlines (excluding Air India) and outsourced / sub-contracted through the other agencies and the details of the equipment employed for ground handling by these airlines at all the six major airports. The manpower employed by the various airlines in the six metropolitan airports has been brought on record as Annexure R-1/5. It is put forth that the total number of 15,954 persons were employed by the five domestic airlines excluding Air India at the six metro airports out of which 6210 were direct employees on the rolls of these airlines and the rest are outsourced to other sub-contractors. With regard to the assertions made in the petition pertaining to business facilities and interest, it is averred that the airlines would require some additional time for phasing out the ground handling equipments and also to create a proper exit policy for the manpower employed by them and accordingly, certain amendments in the Regulations issued in the year 2007 were proposed which was considered by the CCS in its meeting held on 14.12.2009 and it was approved in the last Regulations, namely, the 2007 Regulations. It was decided that no further time would be given beyond 31.12.2010 and all necessary steps should be taken to implement the approved ground handling policy by that date. Thereafter, no further representation on the ground handling policy was received by the respondents. In pursuance of the above decision, the DGCA issued the AIC No.3/2010 dated 2.6.2010 in succession W.P.(C) 8004/2010 Page 15 of 96 to the AIC 07/2007 dated 28.9.2007 and amendment to the 2007 Regulations was issued on 2.12.2010. The BCAS vide its AVSEC order No.05/2009 dated 29.10.2009 had made the airlines responsible for certain activities relating to security, like the security of the aircrafts, security of catering items, etc. which otherwise are part of the ground handling activities. It is put forth that BCAS would be required to amend the AVSEC order No.03/2009 dated 21.8.2009 in order to bring it in tune with the decision of the CCS. 18. It is the stand in the return that the powers of the respondent No.2 emanate from Section 5A of the 1934 Act read with clause (m) of sub- section 2 of Section 5 and by no figment of imagination it can be said that the power does not vest with the said authority. Reference has been made to Rules 90 and 92 of the 1937 Rules to justify the action taken by the authorities. Reliance has been placed on Section 42 of the 1994 Act as the source of power. It is urged that a policy decision has been taken by the Government keeping in view the security and safety of the aircraft operators at the airports and in order to achieve economies of scale for proper utilization of resources and thereby to provide world class standardized services in ground handling operations and the said power which vests with the Government does not run counter to any Act or Rules and is not arbitrary. It is contended that the ground handling policy has been in force W.P.(C) 8004/2010 Page 16 of 96 since the year 2007 but not given effect to because of the representations submitted by the petitioners from time to time. It is put forth that except the domestic carriers, most of the other airlines are already carrying out their ground handling operations through the designated ground handling agencies as is evident from the information available in Annexure R-1/1. The ground handling services are an important element of the service standards to be complied by the airport operators as laid down in Schedule 3 of the OMDA signed by the JVCs at Delhi and Mumbai airports (Annexure R-1/2) and the airport operators are expected to enter into agreements with the selected ground handling agencies in order to ensure the prescribed services standards. The airlines would still have the right of choice from the selected ground handling concessionaries as the said circular and regulations allow for a minimum of two ground handling agencies in addition to the national carrier (Air India). That apart, the domestic airline operators are still permitted to do self-handling at the non-metro airports. The main spirit of the circulars and regulations is to extend better and uniform services with adequate safety and security and the policy has been amended to allow the airlines to carry out the ground handling functions in relation to passenger interface. It is pleaded that extensions were granted to the petitioners from time to time to allow the airlines adequate time to create a proper exit policy for the manpower employed by them but no effective steps have been taken to redress the problems. W.P.(C) 8004/2010 Page 17 of 96 19. It is contended that Rule 92 has been totally misunderstood and misinterpreted by the petitioners. As per the said Rule, the airlines operators have been allowed to engage the services of any ground handling service provider at the airport without any restriction, subject to permission and security clearance by the Central Government to provide such services. The circular that has been brought into force permits three entities, namely, Aviation Company of India Limited or its subsidiary or joint venture to handle the ground handling operations at all the airports. The airlines can avail the ground handling services from any of the above entities under separate contract in respect of their outsourced agent. That apart, they have not been denied their right to carry on their trade or business, but reasonable restrictions on such activities is necessary in view of the present security situation in India and the world over. Therefore, there is no violation of Articles 14, 19(1)(g) & 19(6) of the Constitution of India. The Regulations in no way transgress the 1937 Rules as the same has been issued on the basis of power vested under the Rules read with the provisions contained in the 1994 Act. It is set forth that there is no discrimination since the respondent No.1 is concerned with the safety and security of the airports and regard being had to certain aspects, the ground handling service has been taken away from the airline operators and the same, being a matter of policy having a purpose, is not arbitrary or unreasonable. Justification has been W.P.(C) 8004/2010 Page 18 of 96 given about the volume of air traffic, the issue of aviation and safety in metro airports. Emphasis has been laid on the circular AVSEC order No.05/2009 dated 29.10.2009 whereby the BCAS has made the airlines responsible for certain activities pertaining to security. THE STAND POINT OF THE RESPONDENT NO.3 20. A return has been filed by the respondent No.3, namely, AAI stating, inter alia, that the respondent has selected certain bidders subject to obtaining of security clearance from BCAS, Department of Central Government. It is put forth that licence for northern region has been granted to the consortium comprising M/s. Thai Airport Ground Services Bangkok, Thailand, M/s. Star Consortium Aviation Services Pvt. Ltd., Kolkata and M/s. Skyline Mercantile Pvt. Ltd., Kolkata. The lead member is M/s Thai Airport Ground Services, Bangkok. It is also averred that the licence for western region has been granted to the consortium comprising M/s National Aviation Services, WLL Kuwait, M/s National Aviation Services India Pvt. Ltd., Mumbai and M/s DJ Aviation Services Pvt. Ltd., Mumbai. The lead member is M/s National Aviation Services, WLL Kuwait. It is put forth that the licence for southern region has been granted to the consortium between M/s Bhadra International India Ltd. and M/s NOVIA International Consulting Aps Denmark. The lead member is M/s NOVIA International Consulting Aps. Denmark. It is also put forth that the licence for Chennai W.P.(C) 8004/2010 Page 19 of 96 and Kolkata airports has been granted to the consortium between M/s Bhadra International India Ltd. and M/s NOVIA International Consulting Aps Denmark. The lead member is M/s. NOVIA International Consulting Aps. Denmark. 21. It is set forth that the ground handling services are a very sensitive part of an activity of airlines and keeping in view the security factor and to streamline the ground handling service, the Regulations and the circulars have been brought into force. The airline operator, in terms of the 2007 Regulations, can undertake ramp handling and traffic handling as mentioned in Regulation 2(e)(i) and (ii) through their bonafide whole time employees at all airports other than the six airports and, hence, it cannot be said that they would be out of business. That apart, only a division of services has been created keeping the national security in view. The threat perception cannot be totally marginalized to foster the business interest of the petitioners and, therefore, framing of a comprehensive policy was the warrant and the same has been accordingly done. The airlines have been permitted to handle till the interface of passengers and, thereafter, it has to be done by the agency chosen, as per the Legislation, Regulations and circulars, by the competent authority. In terms of Rule 92 of the 1937 Rules, the Central Government has the power to ensure security and safety while granting ground handling services. The 1994 Act confers immense powers on the respondent and W.P.(C) 8004/2010 Page 20 of 96 accordingly, the Regulations have been framed and the circulars have been issued and there is no transgression of the Act or the Rules. The policy decision taken by the authorities has a rationale and the restrictions imposed are reasonable for the reason that the CCS which is the highest executive authority on national security has approved the said policy and in any case, there cannot be any compromise with the security of the nation. The airline operators, who were carrying out the ground handling services, were outsourcing the same and a review was done and the policy was amended and the policy, by no stretch of imagination, can be said to be arbitrary or capricious. THE POSITION ASSERTED BY THE PRIVATE RESPONDENTS 22. Affidavits have been filed by the private respondents supporting the stand of the Union of India and the statutory authorities. It is also asserted in certain replies that, internationally, ground handling services are considered to be an extremely specialized state of the art services undertaken at airports which are carried on by trained manpower with requisite expertise to operate the equipments. Various examples have been given about the position at other international airports. A stand has also been taken that the writ petition deserves to be thrown overboard on the ground of delay and laches inasmuch as the 2007 Regulations is challenged in the year 2010 and that too, after making series of representations to abide by the same. Immense W.P.(C) 8004/2010 Page 21 of 96 emphasis has been laid on the decision taken by BCAS under Ministry of Civil Aviation to highlight that, on the basis of security, the decision has been taken and, therefore, the spacious plea that security has been used as an excuse to safeguard the commercial interest of the private respondents is absolutely erroneous. A similar stand has been taken in the Bombay High Court by Gulf Air Employees Association and others against the Government of India and others challenging the circular dated 28.9.2007 to the extent that restricting ground handling services by excluding self- handling is illegal but the said challenge did not find favour with the Bombay High Court which dismissed the writ petition vide order dated 21.4.2009 stating, inter alia, that the petitioners therein had no locus standi to challenge a policy decision of the Government and if any workman related issue is in dispute, it is open for the affected party to raise a dispute before the appropriate legal forum. Consequent to the privatization of airports, the responsibility of management, maintenance and operations lies with the airport operator, and various authorities have prescribed stringent quality parameters which the airport operators have to mandatorily adhere to and, hence, a holistic scheme has been brought out which cannot be said to be arbitrary or unreasonable. THE STANCE IN THE REJOINDER 23. A rejoinder affidavit has been filed by the petitioner No.1 to the W.P.(C) 8004/2010 Page 22 of 96 counter affidavit filed on behalf of the respondent Nos.4 to 7, 9, 10, 11 and 13. Apart from stating what has been set forth in the writ petition, it is contended that the airport operators, as have stated earlier, would absorb the airline employees. The equipment and security clearance would remain the same and, thus, there would only be a change of employer. But in actuality, there is no change in the security status. The consequence of the aforesaid arrangement would create a monopoly in favour of the airport operators and eventually, a multiple ground handling agency would create chaos and anarchy. The outsourcing by the airline operators on certain aspects does not confer a right on the policy makers to create a monopoly in favour of the private respondents. 24. It is further stated that the stand in the return that there is an adjudicatory method about the charges by the Airport Economic Regulatory Authority is not a justifiable reason for all airlines to necessarily undertake ground handling services through the nominated service providers. There is no reason why the airline operators should be made to abandon their freedom to contract on their own with a service provider of their choice or to have their own employees. If the arrangement is introduced, the petitioners who have invested as airline operators would be required to pay to the service providers despite the infrastructure having been created by them. It is put forth that the 2007 Regulations still hold the field which completely W.P.(C) 8004/2010 Page 23 of 96 bars the airlines from undertaking self-handling of any sort at Chennai and Kolkata airports and, thus, an incurable anomaly has been brought into existence. Reliance has been placed on the BCAS circulars to highlight that the same permits the airline operators to undertake ground handling activities even through a ground handling agency. But the DGCA circulars seek to prevent the airline operators from undertaking ground handling activities themselves. 25. It is also urged that the circular dated 2.6.2010 enables the cargo airlines to do self-ground handling activities while the passenger airlines are not permitted to carry out the same which tantamounts to discrimination. The contradictions in the circulars issued by the various authorities have been pointed out. Emphasis has been laid on how security is not the main reason but a subterfuge inasmuch as there is a complete contradiction between the security requirements and the ground handling circulars / regulations. The stance that the circulars / regulations have been issued to streamline the ground handling operations is far from being true and the same really requires to be keenly studied and deeply scrutinized to avoid any kind of anomaly. 26. It is set forth that the petitioners, as on today, are fully equipped with specialists and professionals; that they have the potential and the power to optimize ground handling operations as a consequence of which they are low W.P.(C) 8004/2010 Page 24 of 96 cost carriers and are able to offer low fares; and that there is no justification to deprive the airline operators of self-ground handling. The exclusion of the airline operators from self-ground handling invites the frown of Article 14 of the Constitution of India being totally arbitrary. 27. It is contended that the impugned circulars and regulations have been issued under Section 5A of the 1934 Act and not under any other provision as the power does not flow from any other enactment, provisions or rules. The outsourcing of ground handling staff cannot be utilized against the petitioners as they maintain the security standards and further it is an inseparable part of their own business model which results in smooth operation of the airlines. The writ petition is not hit by the doctrine of delay and laches as the impugned circular was issued in September 2007 and the petitioners were consistently representing before the governmental authorities as a result of which the implementation was deferred till 2.6.2010 when the DGCA came out with the modified circular and, therefore, the challenge is within a reasonable period of time. 28. Before we proceed to record the submissions of the learned counsel for the parties, we think it appropriate to refer to the series of circulars issued by the authorities and the Regulations that have been framed to govern the field. W.P.(C) 8004/2010 Page 25 of 96 THE SERIES OF CIRCULARS THAT HAVE COME INTO THE FIELD OF OPERATION 29. The circular dated 19.2.2007 issued by the Bureau of Civil Aviation provides for instructions on deployment of ground handling agencies at the airports. It finds mention therein that the Bureau has found a number of ground handling agencies which are working at the airports in the country without prior security clearance and background checks and in view of the current surcharged security environment in the country and threat to civil aviation from terrorist outfits, induction of private ground handling agencies into the airports without proper background checks, security clearance from the appropriate authority and authorization by the AAI/Airport Operator may lead to serious security and legal problems. In the said circular, certain instructions have been given which we think it apposite to reproduce: "(i) No ground handling agency shall be allowed to work at the airport in future by the Airport Operator, Aircraft Operator or any other agency which has legitimate functions at the airport, unless prior security clearance is obtained from the BCAS. (ii) As per the Ground Handling Regulations 2000 dated 17.1.2000, the AAI/Airport Operator may issue a license only after security clearance from the BCAS to such ground handling agencies on prescribed terms and conditions and eligibility criteria for ground handling agencies and the number of such agencies to be appointed at each airport shall be determined keeping in view the safety, security, demand, available infrastructure, land and other relevant considerations to be laid W.P.(C) 8004/2010 Page 26 of 96 down by the AAI in accordance with the Section 5 of the AAI Ground Handling Regulations (2000). (iii) Aircraft operator shall enter into contract with the ground handling agencies only after prior security clearance to these entities from the BCAS and approval from the AAI/Airport Operator. (iv) In case AAI/Airport Operator or Aircraft Operator intend to appoint a new ground handling agency, the details of such agency is required to be sent to BCAS alongwith the profile of such company at least 3 months in advance so that the background check of the ground handling agency can be done by the BCAS through IB and local police. (v) Background (i) Airports Authority of India (ii) Air India or Indian Airlines; and (i) Airports Authority of India (ii) The two national carriers Air India & Indian Airlines "i) Access control to the aircraft. ii) Aircraft security search / security check during normal as well as bomb threat situation. check in respect of the ground handling agencies working in the airports is necessary. Therefore, AAI/Aircraft Operator shall send the details of the each existing ground handling company, already engaged by them for ground handling functions alongwith the company profile and address, telephone numbers etc. of Board of directors and management so that the necessary action could be taken by the BCAS to get the antecedents verified of such agencies. In case any company comes to adverse notice, the same shall not be allowed to work at the airport and shall be liable to be removed from the airport. (vi) Security related functions as specified by the BCAS in the National Civil Aviation Security Programme and amended from time to time shall not be entrusted to the ground handling agencies by the AAI Airport and Aircraft Operators. (vii) Airport Entry Permits to employees of the ground handling agencies shall not be issued by the BCAS unless they have completed the BCAS prescribed Aviation Security Awareness programme, their background check has been completed and there is no adverse report against them." W.P.(C) 8004/2010 Page 27 of 96 30. The DGCA on 28.9.2007 issued a circular being Sl. No.7/2007 for grant of permission for providing ground handling services at airports other than those belonging to the AAI. Clause 1.1 of the said circular defines "ground handling" to mean: (i) Ramp handling, which includes the activities specified in Annexure A; (ii) Traffic handling, which includes the activities as specified in Annexure B; and (iii) Any other activities specified by the Central Government to be a part of either ramp handling or traffic handling. 31. Clauses 1.2, 1.3, 1.4 and Clause 2(A) on which emphasis has been laid are required to be reproduced. They read as under: 34. By Circular No. AIC Sl.No.15/2008 issued by the Joint Director General of Civil Aviation on 31.12.2008, the grant of permission for providing ground handling services at airports other than those belonging to the AAI has been amended. The amended clause provides that the policy shall come into force with immediate effect. The airline operators or any other ground handling service providers not covered by the said policy shall not be allowed to undertake self-handling or third party handling with effect from 01 July, 2009 or till further orders, whichever is earlier. 35. Circulars to the similar effect being Circular No. AIC Sl. No. 06/2009 and Circular No. AIC Sl. No. 13/2009 were issued on 30.6.2009 and 31.12.2009 restricting self-ground handling or third party handling by airline operators not covered by the policy with effect from 1.1.2010 and 1.1.2011 W.P.(C) 8004/2010 Page 31 of 96 respectively. 36. The DGCA on 2.6.2010 issued a circular being AIC Sl. No.3/2010 for grant of permission for providing ground handling services at airports other than those belonging to the AAI amending its earlier circular dated 28.9.2007 on the same issue. An additional clause (C) is added to para 2 and para 7 has been amended. The additional provision is reproduced hereunder: 37. The amended para 7 is reproduced as under: THE RELEVANT REGULATIONS 38. The Airports Authority of India vide notification dated 17.1.2000, in exercise of the powers conferred by Section 42 of the 1994 Act with the previous approval of the Central Government, framed a set of Regulations, namely, the Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2000. The Regulations 3 to 5 being relevant are reproduced below: 39. On 18.10.2007, in exercise of power conferred under Section 42 of the 1994 Act, a set of Regulations, namely, Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations 2007 was issued in supersession of the 2000 Regulations. Regulation 1(3) provides that the Regulations shall apply to all airports and civil enclaves managed by the Airports Authority of India. In the dictionary, clauses 2(b), 2(e), 2(f) and 2(i) have been laid emphasis upon and, hence, they are reproduced below: 40. Regulation 3 deals with ground handling services at the airports and Regulation 4 deals with restrictions on entry into airports. To have a complete picture, Regulation 3 is reproduced below: 41. Schedule I to the Regulations deals with Ramp Handling, Aircraft Servicing, Aircraft Cleaning, Loading / Unloading, Cargo Handling Services and Security. Schedule II deals with Traffic Handling whereunder Terminal Services, Flight Operations, Surface Transport and Representational Services find mention. SUBMISSIONS: 42. Mr. Mukul Rohtagi and Mr. N.K. Kaul, learned senior counsel appearing for the petitioners, have advanced the following proponements: W.P.(C) 8004/2010 Page 36 of 96 (a) The 2007 circular, which is purported to have been issued under Section 5A of the 1934 Act, travels beyond the provision and clearly contravenes the statutory mandate as Section 5A is made applicable to a limited sphere but the authority concerned has travelled beyond the said sphere / arena as a consequence of which it is sensitively susceptible. A circular for direction can be issued in respect of any of the matters specified in clauses (aa), (b), (c), (e), (f), (g), (ga), (gb), (gc), (h), (i), (m) and (qq) of sub-section (2) of Section 5 and all of them must pertain to the satisfaction of interest relating to the security of India or for securing the safety of aircraft operation and both the exercise of the power and the satisfaction qua security have to be specified in reading in juxtaposition but the same not being the case at hand, the circular is unsustainable. (b) The circular No.7/2007 issued by the DGCA is in transgression of Rule 92 of the 1937 Rules inasmuch as there is no power under Rule 92 by which the said authority is entitled to prohibit the airlines from conducting self-ground handling. (c) The circulars / regulations are violative of Article 19(1)(g) of the Constitution of India as the airlines, by virtue of the same, have been deprived of doing the intrinsic part of their business of running an airline. The compulsion of having to undertake the ground handling activities under the aegis of the airport operators is an unreasonable W.P.(C) 8004/2010 Page 37 of 96 restriction on the rights of the petitioners to carry on a fundamental and intrinsic part of their business and wherever any unreasonable restriction is imposed, the same is to be declared ultra vires. (d) The 2007 Regulations make a differentiation between private airlines undertaking ground handling on one hand and private third party agency selected by private airport operators undertaking ground handling for private airlines on the other which is not an acceptable classification as there is no intelligible differentia and no rational nexus between the objects sought to be achieved and the result which is ultimately achieved. (e) The 2007 Regulations are absolutely arbitrary and discriminatory inasmuch as they do not take note of the consistent policy which was prevalent for long and recognized by the 2000 Regulations. The Regulations have failed to take note of the fact that ground handling is an activity which distinguishes performance and efficiency-wise one airline operator from the other and to destroy the said arrangement is wholly impermissible, more so, when the Regulations permit other competitors to do the ground handling as a consequence of which total commercial chaos is likely to be ushered in and further the same brings in an anomalous situation which creates a dent in the equality spectrum. The introduction of the 2007 Regulations is an anathema to the entire concept of privatization of airline industry and the exclusion W.P.(C) 8004/2010 Page 38 of 96 of the petitioners to handle the majority of air traffic in India is arbitrary and unreasonable. (f) The AAI Regulations 2000 allowed all the airlines to conduct self- (g) The Regulations and the circular project a picture of contradiction and disharmony inasmuch as the Regulations cover four airports whereas the circular covers six airports. That apart, the airports at Kolkata and Chennai, which are not managed by private airport owners, could not have been covered and same goes to show that there has been a total non-application of mind. The circular, as a policy, smacks of arbitrariness and unreasonableness as it creates a dent in the integral part of airline operation which includes ground handling facility and further does not take note of the fact that Rule 92 of the 1937 Rules is required to be read in conjunction with Rule 134. (h) The segregation of ground handling into those involving passenger interface and those not involving passenger interface is unreasonable and unworkable as both the activities have to be carried out in W.P.(C) 8004/2010 Page 39 of 96 complete harmony and coordination and if a discord and dissonance is brought in, an unworkable situation would crop up which is not conceived in law. (i) The 2000 Regulations permitted ground handling service and though the Regulations and circulars were introduced in the year 2007, yet they were not given effect to regard being had to their non-workability and practical difficulties and further, when the petitioners were brought into the fray of airline business by grant of a licence with conditions precedent incorporated therein that they have to carry on the ground handling services and made huge investment on that score, they had a legitimate expectation that they should be carrying on the business as a whole, but a bifurcation in a maladroit manner by the authorities nullifies their legitimate expectation which has the sanction of law. 43. Mr.Gopal Subramanium, learned Solicitor General appearing for the Union of India, has proponed the following contentions: (i) The regulations and the circulars do not transgress any of the provisions of the 1934 Act or the Rules framed thereunder and, in fact, are in accord with the provisions contained in Section 5A of the 1934 Act and Section 12A of the 1994 Act. The restrictive interpretation placed by the petitioners on Section 5A does not W.P.(C) 8004/2010 Page 40 of 96 commend acceptation and defeats the legislative intendment. (ii) The security aspect has been the paramount gravamen for making a uniform policy which is well controlled in view of the fact that it has become absolutely essential to have access to latest technologies and management techniques in the matter of security protocol. It is a matter of fact that Indian Aviation is a target of international terrorism which makes it imperative on the part of the authorities to take control of ground handling of flights because the said activity requires the presence of maximum number of personnel in sensitive areas of airports. (iii) The circular No.7/2007 was issued by the DGCA stipulating that the airports‟ ground handling facilities would be handled by the airport operator itself or its joint venture partner; subsidiary companies of the national carrier, i.e., Air India / Indian Airlines or their joint venture or third party handling provided that they are selected through competitive bidding and on revenue sharing basis and subject to security clearance by the Government of India and the said circular has been issued under Rule 133A of the 1937 Rules and there is no conflict / discord between the rule and the circular. (iv) The proponement that a monopoly has been created in favour of all the private operators is sans substratum since Regulation 3 of the 2007 Regulations clearly stipulates that the ground handling service at W.P.(C) 8004/2010 Page 41 of 96 airport can be carried out by AAI or it joint venture company or subsidiary companies of the national carrier, i.e., National Aviation Company India Ltd. or its joint ventures specialized in ground handling services. That apart, the Regulation also permits any other ground handling service provider selected through competitive bidding on revenue sharing basis subject to security clearance by the Central Government and observance of performance standards. On a careful reading of the language employed in the Regulations, it is clear as crystal that the airline operator is not totally prohibited to carry out the ground handling services if he satisfies the conditions enumerated therein. (v) The attack that the security measure is a subterfuge is totally without any substance since the Bureau of Civil Aviation Security, on 21.8.2009, has clearly stated that certain aircraft operations cannot be mixed with ground handling activities and there has to be a protocol. In this regard, the Cabinet, in its meeting held on 29.12.2009, has decided to bifurcate, to give certain privileges to the private airline operators in respect of ground handling services, into two parts. Keeping in view the security measures, the grievance of the petitioners centering around its commerce and commercial interest alone is unacceptable. The stand of the petitioners that their right under Article 19(1)(g) is affected is not correct as the restriction that W.P.(C) 8004/2010 Page 42 of 96 has been placed is a reasonable restriction as it pertains to the security of the country which is indubitably in the interest of the general public. The nature of activity or the business carried out by the petitioners has to be viewed in a substantive manner and the safety of the citizens can never be marginalized for the interest of individual airline operators and the safety measures for the collective at large cannot be marginalized for the sake of interest of the individual airline operators. (vi) The policy framed by the Respondent, Union of India, on an appropriate scrutiny, does withstand the scanning on the anvil of Article 14 of the Constitution of India as it does not smack of arbitrariness and is not unguided. The claim that there has been irrational classification between the airline operators and the airport operators, on one hand, and the cargo operators, on the other, has no legs to stand upon inasmuch as they are a class apart and there is an intelligible differentia between the two classes and, thus, the equality clause in its essential conceptuality does not get attracted. (vii) The dichotomy that has been highlighted by the petitioners that the Regulations cover four airports whereas the circulars cover six and that the Regulations could not have covered all the six in view of the language employed "managed by AAI" does not stand to reason in view of the language employed under Section 12A of the 1994 Act W.P.(C) 8004/2010 Page 43 of 96 which has to be interpreted on a broad canvass. 44. Dr.A.M. Singhvi, learned senior counsel appearing for the respondent Nos.5 and 7, has advanced the following submissions: (i) The interpretation placed by the learned counsel for the petitioners on Section 5A of the Act is totally unacceptable as an effort has been made to read the provision in a fragmented manner which is not permissible. The said provision has to be contextually and conceptually interpreted regard being had to the four facets, namely, textual language power, boundaries of the power, targets which are required to be addressed to and the proper exercise of power. (ii) The proponement by the petitioners to read „in any case‟ with the satisfaction of the security of India and with the clauses that have been enumerated earlier is a composite manner is impermissible. The term „in any case‟ has to be understood in a broader expanse and it can cover any matter where the security of India or safety of aircraft operator is a necessity and is not required to have nexus with the clauses (aa), (b), (c), (e), (f), (g), (ga), (gb), (gc), (h), (i), (m) and (qq) of sub-section (2) of Section 5. (iii) The interpretation placed on Rule 92 of the 1937 Rules is an adroitly artificial one inasmuch as what is provided in the said Rule is that an airline operator can engage, without any restriction, any of the ground W.P.(C) 8004/2010 Page 44 of 96 handling service provider permitted by the Central Government and the said Rule does not convey that the airline operator has the legal right to carry out self-ground handling service. The Regulations and the circulars harmoniously co-exist. The stand that the 2007 Regulations is vitiated by including certain airports which are managed by the AAI though they are not so managed does not improve the case of the petitioners as the circulars issued by the DGCA under Section 5A and the Regulations framed under the 1994 Act harmoniously co-exist, and as long as they lawfully co-exist the question of declaring any one of them ultra vires does not arise and further, any action taken under the same cannot be flawed. (iv) The 2007 Regulations and the circulars reinforce each other and there is no conflict. (v) The submission to claim a right of ground handling services is basically fallacious as the petitioners are confused between ground handling services and self-handling services. (vi) The stand that there could not have been a variation of the statutory licence is not tenable as the licence has to be governed and controlled by the subsequent circulars and Regulations. (vii) The claim based on the foundation of licence is speculative and lacks challenge as no right is created. That apart, if the terms and conditions of the licence are studied with deep ken, it is revealed that W.P.(C) 8004/2010 Page 45 of 96 it made a stipulation for minimum requirement for grant of permit to operate scheduled passengers, air transport services and the same can always be changed. Moreso, keeping in view that the privatization of airports not being in the horizon, the same was subject to change in policy, unless it is unreasonable, arbitrary or capricious. (viii) An airline operator who comes into the fray of business has to adjust himself with the system of corporate structuralism and cannot claim a vested right for self-ground handling service. 45. Dr. Singhvi, learned senior counsel appearing for the Respondent Nos. 5 and 7, to buttress his submissions, has placed reliance on the decisions rendered in Lalu Prasad Yadav v. State of Bihar, (2010) 5 SCC 1, Union of India v. Venkatesan S. & Anr., (2002) 5 SCC 285, Madhya Pradesh Ration Vikreta Sangh Society & Ors. v. State of Madhya Pradesh, (1981) 4 SCC 535, Sarkari Sasta Anaj Vikreta Sangh Tehsil Bemitra & Ors. v. State of Madhya Pradesh, (1981) 4 SCC 471, State of Orissa & Anr. v. Radheyshyam Meher & Ors., (1995) 1 SCC 652, Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board & Ors., (1991) 3 SCC 299, Association of Industrial Electricity Users v. State of A.P. & Ors., (2002) 3 SCC 711, M/s Bajaj Hindustan Ltd. v Sir Shadi Lal Enterprises Ltd. & Anr., (2011) 1 SCC 640 and an unreported decision in Dilip Ranadive & W.P.(C) 8004/2010 Page 46 of 96 Anr. v. Union of India & Ors., W.P. No. 516/2008 by the High Court of Bombay. 46. Mr. Sudhir Chandra, learned senior counsel appearing for the respondent Nos. 4 and 6, has submitted thus: (i) The circulars issued by the DGCA under Section 5A of the 1934 Act has a nexus with Section 2(gc) and, therefore, it cannot be said to be beyond the provisions mentioned in reference to Section 2 in Section 5A. (ii) Rule 92 of the 1937 Rules does not create a right. Quite apart from that, to appreciate the validity of the circulars, Sections 2(b), 2(d), 2(nn) and 12A of the 1994 Act have to be kept in view. (iii) The policy formulated by the Union of India has two aspects, namely, safety and security and, therefore, it cannot be termed as arbitrary. (iv) The incorporation of Kolkata and Chennai airports in the Regulations stands on a different footing and, hence, there is no incompatibility between the circulars and the Regulations. (v) The safety and security measures which have been provided by the expert body cannot be adjudged by the court in exercise of power of judicial review as there is no manageable judicial standard. 47. Mr.Rajiv Nayar, learned senior counsel appearing for the respondent Nos. 10, 11 and 13, submitted that the writ petition be thrown overboard on W.P.(C) 8004/2010 Page 47 of 96 the ground of delay and laches and acquiescence. It is contended by him that the petitioners have only asked for time from 2007 to get into the changed mode and in fact at their request, extension was granted thrice. After consuming time, they have challenged the circulars and the Regulations which is impermissible. It is urged by him that there has already been formalization of agreement as a result of which they have spent huge sums of money keeping in view that the right of self-ground handling services has been conferred on them. 48. Mr.Ram Jethmalani, learned senior counsel appearing for the respondent No.9, resisting the contentions canvassed by the learned counsel for the petitioners, submitted that the petitioners are absolutely unsure on what grounds they are assailing the Regulations or the circulars. The learned senior counsel has taken us through the pleadings to highlight that they suffered from vagueness and on the vagueness of pleadings, the constitutional validity of the Regulations or the circulars should not be dealt with. It is urged by him that in the present state of affairs in the country, the paramount concern is security and when the Regulations and the circulars have been issued on the foundation or edifice of security, the same cannot be brushed aside on the basis of individual financial interest of the petitioners. The challenge on the ground that the right to carry on business has been interfered with without justifiable reason does not merit consideration W.P.(C) 8004/2010 Page 48 of 96 inasmuch as their right to carry on business has not been affected and, in fact, the ground handling facilities have been regulated. The learned senior counsel would further submit that even the petitioners can enter into the fray by satisfying the conditions envisaged in the Regulations and the circulars but they intend to maintain their monopoly and carry on their outsourcing having scant regard for the security of the country. It is put forth by him that Section 5A of the 1934 Act, which has been amended, is the repository of power which authorizes the competent authority to issue circulars and the circulars being in consonance with the provision cannot be declared ultra vires. He has placed reliance on the decision rendered in Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304. 49. Mr.P.K.Ray, learned counsel appearing for the respondent No.12, while supporting the submissions made by the learned counsel for the other co-respondents, contended that the petitioners do not have unfettered right to carry on the ground handling service and if the data of employment is scrutinized, it is vivid that they really do not avail the manpower by direct employment but outsource them to a large extent and, hence, the submission that their rights are infringed is bereft of any substance. THE CORE ISSUES 50. Though we have enumerated the submissions in detail to appreciate the controversy in completeness, yet it is thought seemly to concretize the W.P.(C) 8004/2010 Page 49 of 96 core issues and dwell upon the same. In our considered opinion, the core issues that really emanate for consideration can be put into the following compartments: (a) Whether the writ petition is to be thrown overboard on the ground of delay and laches? (b) Whether the circulars issued by the DGCA in exercise of power under Section 5A of the 1934 Act are unsustainable being violative of the restrictions imposed in the provision itself and ultra vires Rule 92 of the 1937 Rules and further, as a policy decision, are unreasonable, capricious and arbitrary? (c) Whether the licences granted in favour of the petitioners being statutory, the terms and conditions incorporated therein could not have been curtailed by the respondents by way of bringing in such circulars or Regulations and whether the doctrine of legitimate expectation gets attracted to protect the rights of the petitioners as far as the ground handling services are concerned? (d) Whether there is a dichotomy between the circulars and the Regulations and, if so, which would prevail or can they, in the obtaining factual matrix, harmoniously co-exist? W.P.(C) 8004/2010 Page 50 of 96 (e) Whether the circulars and the Regulations suffer from the vice of discrimination inasmuch as the petitioners, the airline operators, the private respondents and the airport operators, have been put in different categories without any intelligible differentia or any object to achieve and hence, play foul of Article 14, or invite the frown of Article 19(1)(g) of the Constitution infringing the rights of the petitioners to carry on the business, or are the restriction imposed reasonable? (f) Whether the 2007 Regulations are in conflict with Rule 134 read with Schedule 11 of the 1937 Rules and, therefore, do not withstand scrutiny? 51. First we shall deal with the aspect of whether the writ petition is hit by the doctrine of delay and laches. It is submitted by Mr.Nayar, learned senior counsel, that though the circular was issued in the year 2007, yet the petitioners, instead of challenging the same, sought the intervention of the Union of India to keep it in abeyance and also for giving effect to the same and, therefore, the assail to the said circular in 2011 should not be entertained. In our considered opinion, after the circular came into force, a Regulation has been framed and that apart, when we have heard the parties at length, we are not inclined to throw the writ petition over board on the W.P.(C) 8004/2010 Page 51 of 96 ground of delay and laches. Accordingly, the aforesaid submission, being sans substance, stands repelled. 52. The next aspect that arises for consideration is whether the circulars could have been issued by the DGCA in exercise of power under Section 5A of the 1934 Act and also in transgression of Rule 92 of the 1937 Rules. That apart, it is to be tested whether the circulars, as policy decisions, are to be regarded as arbitrary and unreasonable. Section 5A was brought in the statute book and was substituted by Act 44 of 2007. The said provision, being differently interpreted by both the sides, is required to be reproduced in toto: 53. Sub-section 2 of Section 5 especially clauses (aa), (b), (c), (e), (f), (g), (ga), (gb), (gc)], (h), (i), (m) and (qq) which have been referred to in Section 5A being relevant are reproduced below: 54. It is submitted by the learned senior counsel for the petitioners that Section 5A of the 1934 Act has to be given a restricted interpretation and, in fact, the circulars had to be in accord with the sub-sections mentioned therein and further, the security aspect has to have nexus only with the postulates mandated in the aforesaid provisions and cannot travel beyond the said periphery. It is urged that mere compliance of the provisions alone would not suffice the security facet. In essentiality, it is propounded that both the aspects have to be read cumulatively and not in isolation. 55. The stipulations engrafted in Section 5A are to be contextually understood. The text and context have to go hand in hand. In this regard, we may refer with profit to certain decisions in the field. In Poppatlal Shah v. State of Madras, AIR 1953 SC 274, the Apex Court, while adverting to W.P.(C) 8004/2010 Page 54 of 96 the concept of construction of a provision, has opined that it is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. 56. In State of W.B. v. Union of India, AIR 1963 SC 1241, it has been ruled that it is the duty of the court to ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; the court must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. 57. In RBI v. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424, it has been opined that the interpretation is best which makes the textual interpretation match the contextual. Chinnappa Reddy, J., in his inimitable style, noted the signification of such an interpretation: 58. In Union of India v. Alok Kumar, (2010) 5 SCC 349, while dealing with the concept of contextual interpretation, their Lordships have opined thus: 59. Keeping in view the aforesaid pronouncements in the field, we are required to see whether the authority concerned is empowered to issue directions for the purpose of giving effect to the provisions of Section 5(2) only when security aspect is inherently involved. For the aforesaid interpretation, the learned senior counsel for the petitioners would lay emphasis on the words "in any case" to convey that the said words really have the character of condition precedent. 60. In the case of Lalu Prasad Yadav (supra), the term "in any case" came for interpretation and in that background, their Lordships construed the W.P.(C) 8004/2010 Page 56 of 96 said words to be of widest amplitude. The question that arose in the said case was with regard to the interpretation of Section 378 of the Code of Criminal Procedure wherein sub-section (1) of Section 378 Cr.P.C. has been used but there is a fetter in the said sub-section itself. In that context, their Lordships observed as follows: 61. While dealing with the issue whether the State of Bihar had the competence to file an appeal from the judgment passed by Special Judge, CBI, their Lordships, while interpreting Section 378(1) of the Cr.P.C., held as follows: 62. The said decision has been commended to us to highlight that „in any case‟ does not always mean in all cases. In the obtaining context, as we read the provision, the language employed in Section 5A is really of wide W.P.(C) 8004/2010 Page 57 of 96 amplitude. It deals with operation of aerodrome, surveillance, safeguarding civil aviation. What is argued on behalf of the petitioners is that in the interest of the security of India or for securing the safety of aircraft operations, Section 5A has to have insegregable nexus with one of the provisions contained in Section 5(2) of clauses (aa), (b), (c), (e), (f), (g), (ga), (gb), (gc)], (h), (i), (m) and (qq) and further the directions can be issued in respect of the same only if the security measure is involved. On a reading of the provision on the bedrock of contextual interpretation, the said submission does not deserve acceptation. We are inclined to think that the words „in any case‟ are to be construed to cover all categories of cases where the interest of security of India or securing the safety of aircraft operation is involved. The same cannot be restricted or constricted to the provisions of Section 5(2) which find mention therein. In this regard, we may also fruitfully refer to Section 4A of the Act which reads as under: 63. We have referred to the said provision as the same is of immense importance regard being had to the security facet. In this context and backdrop, if Section 5A is understood only in the light of sub-section (2), it would not only be unpurposive but also fundamentally defeat the essential W.P.(C) 8004/2010 Page 58 of 96 purpose. That is not the legislative intent. Quite apart from the above, the clauses which find mention in the provision should also not be narrowly constructed. Mr.Sudhir Chandra, learned counsel for the respondent Nos.4 and 6 has placed heavy reliance on clauses (b), (ga) and (gc) mainly on the words „regulations of aerodromes‟, „traffic control‟ and „safeguard of civil aviation‟. The said terms, as we perceive, have to be given wider connotation, for constricted understanding and application would tantamount to fragmented interpretation. Thus, the inevitable conclusion is that where the interest of security of India or safety of aircraft operation is concerned, the competent authority under Section 5A can issue directions and the impugned circulars meet the tests enshrined in Section 5A. That apart, the process of interpretation should adhere to the basic principle that it is the duty of the court to see the legislative intent and its purposeful implementation. The two principles - the test of intendment and the test of purpose cannot be marginalized. That apart, on a studied appreciation the circular deals with security which has nexus with broader context of the things that find mention in 2(b), 2(ga), 2(gc) and (m) of Section 5(2). Ergo, the submission that the same travels beyond the restrictions inherent in the provision stands repelled. 64. The next limb of the said submission is that the circulars run counter to Rule 92 of the 1937 Rules. In this regard, we think it appropriate to have W.P.(C) 8004/2010 Page 59 of 96 a survey of the relevant Rules. Rule 3 of the 1937 Rules deals with definitions and interpretation. Sub-rule (2) of Rule 3 deals with aerodrome. Sub-rule (3) of Rule 3 which has been brought into the Act on 22.9.2009 defines aerodrome operator. Sub-rules (2) and (3) of Rule 3 are as follows: 65. Part XI of the 1937 Rules deals with aerodromes. The said rules have been incorporated in the Rules on 2.11.2004. Rule 78 deals with licensing of aerodromes. Rule 79 provides for the qualifications of licensee. Rule 80 deals with the procedure for grant of licence. Rule 90 provides for entry into public aerodromes. Rule 92 deals with ground handling services. The said Rule, being relevant for the present purpose, is reproduced in entirety: 66. Relying on the aforesaid Rule 92, it is contended that an airline operator has an indefeasible right to provide the ground handling service itself or engage, without any restriction, any ground handling service provider to prevent unfair competitive environment. It is urged that by virtue of the circulars coming into force, the right to ground handling service by the airline operator is taken away and, therefore, the circulars run counter to Rule 92 despite Rule 92 being in the Rules. 67. The basic test is to determine whether a rule to have effect must have its source of power which is relatable to the rule making authority. Similarly, a notification must be in accord with the rules, as it cannot travel beyond it. In this context, we may refer with profit to the decision in General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR 1988 SC 876 wherein it has been held that before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. 68. In Additional District Magistrate (Rev.), Delhi Administration v. Shri Ram, AIR 2000 SC 2143, it has been held that it is a well recognized principle that conferment of rule making power by an Act does not enable W.P.(C) 8004/2010 Page 61 of 96 the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. 69. In B.K. Garad v. Nasik Merchants Co-op. Bank Ltd., AIR 1984 SC 192, it has been held that if there is any conflict between a statute and the subordinate legislation, the statute shall prevail over the subordinate legislation and if the subordinate legislation is not in conformity with the statute, the same has to be ignored. 70. In Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598, it has been laid down that although the State may delegate its power to an administrative authority, yet such a delegation cannot be made in relation to the matters contained in the rule-making power of the State. The matters which are outside the purview of the Rules only could be the subject-matter of delegation in favour of the authority. Their Lordships have further opined that a subordinate legislation must be framed strictly in consonance with the legislative intent. 71. In Dilip Kumar Ghosh v.Chairman, AIR 2005 SC 3485, their Lordships have expressed the view that it is well settled principle of law that circular cannot override the rules occupying the field and if there is a clash between the Rule and the circular, the circular has to be treated as non est. W.P.(C) 8004/2010 Page 62 of 96 72. In Punjab Water Supply and Sewerage Board v. Ranjodh Singh, AIR 2007 SC 1082, their Lordships have observed that a Scheme under Article 162 of the Constitution of India would not prevail over the statutory rule. Their Lordships have further clearly held that any departmental letter or executive instruction cannot prevail over the statutory rule. 73. The language employed in Rule 92, if appositely appreciated, refers to licensee which means the airport operators who can do the ground handling themselves. It further postulates that the airport operator has to ensure a competitive environment and the same can only be done by the airport operator and not by the airline operator. The said interpretation also gathers support if its date of introduction, i.e., 5.11.2004 is taken note of, for the simon pure reason that the rule was amended after the concept of privatization of the airport was introduced. 74. The submission of the petitioners is that an absolute right is inherent with the airline operator. The said argument is not acceptable as there is a distinction between an airport operator and an airline operator. In fact Rule 92 confers no right of self-handling on the airline operators like the petitioners. 75. The impugned circular, as is manifest, ensures a competitive environment. The said Rule also stipulates that such ground handling W.P.(C) 8004/2010 Page 63 of 96 service provider shall be subject to security clearance of the Central Government. Hence, the emphasis is on competitive environment and security clearance. The airport operator itself or by its joint venture partner, the subsidiary companies of the national carrier, i.e., National Aviation Company of India Ltd. or their joint ventures specialized in ground handling services or any other ground handling service providers selected through competitive bidding on revenue sharing basis by the airport operator subject to security clearance has been made eligible to undertake ground handling services at all metropolitan airports, namely, the airports at Delhi, Mumbai, Chennai, Kolkata, Bangalore and Hyderabad. On a scrutiny of the same, the circulars allow the airline operator to form a joint venture and compete to perform ground handling service. Thus, we are unable to accept the submission that the circulars run counter to Rule 92 of the 1937 Rules for there is a basic fallacy in that submission as the petitioner have conceived to have an indefeasible right to have been conferred on them for ground handling service which the language employed in the Rule does not so convey. 76. The next aspect that requires to be delved into is whether the circulars, as a policy decision, are arbitrary, unreasonable and nullify the legitimate expectation of the petitioners and, hence, invite the frown of Article 14 of the Constitution. In this context, we think it apt to refer to certain authorities W.P.(C) 8004/2010 Page 64 of 96 as to under what circumstances and on what grounds a policy decision can be assailed in a court of law and the role of a court in that regard. 77. In P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India, (1996) 5 SCC 268, it has been held that when the executive is satisfied that change in the policy is necessary in the public interest, it would be entitled to revise the policy and lay down the new policy. The court would prefer to allow free play to the Government to evolve the policy regard being had to the public policy. 78. In Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564, it has been held that it is obligatory for the Court to consider the relative merits of the different political theories or economic policies but the Court will not sit in appeal over the policy of Parliament in enacting a law. 79. In Premium Granties and another v. State of Tamil Nadu AIR 1994 SC 2233, while dealing with the power of the Court to interfere with the policy decision, the Apex Court has expressed that it is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. W.P.(C) 8004/2010 Page 65 of 96 80. In M.P. Oil Extraction and another v. State of M.P. and others (1997) 7 SCC 592, it has been held that in matters of policy decision, the scope of judicial review is limited and circumscribed. The Apex Court has further held thus: Union of India & Ors., (1990) 3 SCC 223 and held thus: 85. In State of U.P. and another v. Johri Mal, (2004) 4 SCC 714, while dealing with the limited scope of judicial review, the Apex Court has laid down the following guidelines - 86. In State of NCT of Delhi and another v. Sanjeev alias Bittoo, (2005) 5 SCC 181, it has been held that the power of judicial review can be exercised in respect of administrative action if the authority acts in total disregard of norms and exercises power which is in excess or abusive of discretionary power. If irrelevant considerations are taken into account, the same would become amenable to judicial review. 87. In Binny Ltd. and another v. V. Sadasivan and others, (2005) 6 SCC 657, it has been held that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and it is available against a body or person performing a public law function and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights W.P.(C) 8004/2010 Page 70 of 96 of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties 88. In State of Punjab and ors. v. Ram Lubhaya Bagga and others (1998) 4 SCC 117, the Apex Court has expressed the view that the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. 89. Their Lordships have further opined that it would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. 90. From the aforesaid pronouncement of law, it is clear as day that it is not within the domain of the Courts nor within the scope of judicial review to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether a better public policy could evolve. A policy is not to be struck down merely because a different policy could have been fairer, wiser or more logically acceptable. The Courts can only interfere if W.P.(C) 8004/2010 Page 71 of 96 the policy framed is absolutely capricious, not informed by reasons whatsoever, totally arbitrary and is found ipse dixit offending the basic requirement of Article 14 of the Constitution of India. 91. As the present policy lays emphasis on security to appreciate the steps taken for security, we think it apt to reproduce the order No.03/2009 dated 21.8.2009 issued by the Bureau of Civil Aviation Security in exercise of powers conferred by Section 5A of the Aircraft Act, 1934 read with para 4 of the DGCA Circular No.9/1/2002-IR dated 28.9.2007 and Regulations 6 and 7 of the 2007 Regulations. By virtue of the said order, the Commissioner of Security (BCAS), for the purpose of securing the safety of aircraft operations has directed certain activities pertaining to aircraft operations to be treated as Aircraft Operators Aviation Security Functions. They are: iii) Screening of registered / unaccompanied baggage, cargo, mail and company stores etc. iv) Surveillance of screened baggage till acceptance at check in counters. v) Security control of the checked baggage from the point it is taken into the charge of aircraft operator till loading into aircraft. vi) Passengers baggage reconciliation / identification. W.P.(C) 8004/2010 Page 72 of 96 vii) Security of baggage tag, boarding cards and flight documents. viii) Security of mishandled / unaccompanied / transit / transfer baggage. ix) Secondary checks at ladder point of aircraft. x) Security of catering items from pre-setting stage till loading into aircraft. xi) Security control of express cargo, courier bags, cargo, company stores, parcels, mail bags and escorting from city side up to aircraft. xii) Receiving carriage and retrieval of security removed articles. xiii) Any other security functions notified by the Commissioner from time to time." 92. Thereafter, the order provides as follows: 94. The next aspect which we shall advert to whether the circular as a policy decision destroys the legitimate expectation of the petitioners. The submission of the learned counsel for the petitioners is that when they came W.P.(C) 8004/2010 Page 75 of 96 into the business and were granted licence as airline operators, it was a mandatory requirement to have the self-ground handling service and, hence, now they cannot be deprived of the said benefit. In this context, we may note with profit what has been said in Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499: maker can sustain the change in policy by resort of Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change and whether the public interest overrides the substantive legitimate expectation of individuals will be for the decision- maker who has made the change in the policy. The choice of the policy is for the decision-maker and not for the court. 97. In Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381, it has been opined that a legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the "legitimate expectation. 98. From the aforesaid exposition of law, there can be no trace of doubt that though the doctrine of legitimate expectation has its relevance in administrative law, yet the same is subject to change of rule or a policy decision and the policy decision is required to be tested on Wednesbury principle. The present change of policy is neither unreasonable nor malafide to warrant interference by this Court in exercise of power of judicial reviw. 99. The next issue pertains to whether the circulars invite frown of Article 14 of the Constitution since there is no reasonable classification based on W.P.(C) 8004/2010 Page 78 of 96 any intelligible differentia and there is no rational nexus between the objects sought to be achieved. To substantiate the said submission, it has been urged with immense vehemence by the learned counsel for the petitioners that the airport authorities have been put in different categories and have been deprived of self-ground handling service whereas others have been extended the benefit. Elaborating the same, it is urged that the circulars permit the joint venture company or the joint venture companies of National Aviation Company Ltd. and any other ground handling service provider selected through competitive bidding on revenue sharing basis but the petitioners have been deprived. On a perusal of the 2007 circular implementation of which has been deferred from time to time by various circulars defines ground handling to permit third party handling to the subsidiaries or their joint ventures of the Airports Authority of India or joint venture companies. Learned Solicitor General submitted that there is no embargo on the part of the petitioners to enter into a joint venture and carry out the ground handling services. It is his further proponement that ground handling service does not mean self-ground handling service by the airline operator. That apart, it is contended by learned Solicitor General that the petitioners are airline operators who were carrying on ground handling service stand on a different class altogether then the Airports Authority of India or it joint venture companies or any third party which are subsidiaries on the basis of revenue sharing with the Authority subject to satisfactory W.P.(C) 8004/2010 Page 79 of 96 observance of purpose of standards as may be mutually acceptable to the authorities and their companies. In essence, the contention is that to sustain the security there has been a restriction and the ground handling services has been given not to any airline operator but to the Airports Authority of India or its joint venture company or the subsidiary companies of National carrier that is the National Aviation Company Ltd. or its joint ventures specialized in ground handling service. In this context, we may usefully refer to the decision in Madhya Pradesh Ration Vikreta Sangh Society (supra), the question that arose before the Apex Court was whether the Madhya Pradesh Foodstuffs (Civil Supplies Public Distribution) Scheme, 1981 formulated by the State Government under sub-clause (d) of Clause (2) of the Madhya Pradesh Foodstuffs (Distribution) Control Order, 1960 introducing a new scheme for running of individual fair price shops by agents to be appointed under a Government scheme giving preference to cooperative societies in replacement of the earlier scheme of running such fair price shops through retail dealers appointed under clause 3 of the Order of 1960 was violative of Articles 14 and 19(1)(g) of the Constitution of India. In that context, their Lordships referred to the decision in R.D. Shetty v. International Airport Authority of India & Ors., AIR 1979 SC 1628 which has laid down the principle that if a governmental action disclosed arbitrariness, it would be liable to be invalidated as offending Article 14 of the Constitution, but taking into consideration the wider concept, their Lordships held as follows: W.P.(C) 8004/2010 Page 80 of 96 100. In this regard, it would not be out of place to refer to the concept of classification as laid down in the locus classicus, i.e., Ram Krishna Dalmia and Ors. v. Shri Justice S.R. Tendolkar and Ors., AIR 1958 SC 538, in the said decision the Apex Court laid down many a principle pertaining to class legislation and also the presumption of constitutionality. Looking at the role of a court while dealing with the presumption of constitutionality, the two principles which are relevant for the present purpose are reproduced below: 101. Judged on this score, we are inclined to think that while making the distinction, emphasis has been laid on a joint venture with Airports Authority of India or its subsidiary company with security concept added to it. In our considered opinion that is the condition precedent. It is uniformly applicable to all concerned. The petitioners are not debarred from constituting a joint venture company or carrying on the self-ground handling services by the mode provided. Thus, that satisfies the concept of intelligible differentia and it is well nigh impossible to accept the contention that there is a classification which does not reflect any intelligible differentia and destroys the equality clause enshrined under Article 14 of the Constitution of India. 102. The next limb of the said issue pertains to whether the 2007 circular violates Article 19(1)(g) of the Constitution as the said creates a bar to carry on the business. To bolster the said submission, learned counsel for the petitioners would submit that the ground handling service is an insegregable facet of the airline operation and the Union of India cannot take away many spheres of ground handling service and leave a few to the petitioners which W.P.(C) 8004/2010 Page 82 of 96 are trouble facing areas. Mr. Rohtagi and Mr. Kaul, learned senior counsel appearing for the petitioners would contend that a piquant situation has been ushered in since the interface at the airports would be carried on by the airline operators as a consequence of which the operations would face the wrath of the passengers whereas the other wings which would handle ground handling services would not face the same. This, according to them, creates a total dent in carrying out the business and, hence, it offends Article 19(1)(g) of the Constitution. Per contra, Mr.Gopal Subramanium, learned Solicitor General appearing on behalf of the Union of India submitted that the Article 19(1)(g) is not absolute and subject to Article 19(1)(6) of the Constitution the State can make any law imposing reasonable restrictions in the interests of general public. 103. In Madhya Pradesh Ration Vikreta Sangh Society (supra) while dealing with challenge to the scheme under Article 19(1)(g) the Apex court has opined thus: 104. In Bishambhar Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39, the Apex Court has held that: 106. In Deepak Theatre v. State of Punjab, 1992 Supp (1) SCC 684, their Lordships ruled that the Article 19(1)(g) of the Constitution accords fundamental rights to carry on any profession, occupation, trade or business, but would be subject to reasonable restrictions on the exercise of the said right imposed by a law, in the interest of the general public. 107. In Om Prakash v. State of U.P., (2004) 3 SCC 402, the Apex Court articulated that the term "reasonable restriction" as used in Article 19(6) is a highly flexible and relative term which draws its colour from the context. One of the sources to understand it is natural law and in the sense of ideal, just, fair, moral or conscionable to the facts and circumstances brought before the court. W.P.(C) 8004/2010 Page 85 of 96 108. In Reliance Energy Ltd. & Anr. v. Maharashtra State Road Development Corporation Ltd. & Ors., (2007) 8 SCC 1, their Lordships, after referring to the decision in I.R. Coelho v. State of T.N., (2007) 2 SCC 1, dwelled upon concepts like "opportunity", "level playing field", "globalization", commitment to the rule of law", "reasonableness" and "judicial review" and held as follows: 109. Keeping the aforesaid decisions in view, it is requisite to see whether the circular is hit by the aforesaid constitutional provision. On a careful W.P.(C) 8004/2010 Page 86 of 96 scrutiny, it is perceivable that the certain ground handling services have been taken away from the petitioners on the ground of security measures. We have already reproduced the security measures in the earlier part of our decision while relating to why such a policy decision was warranted. There can be no iota of doubt that the national security is in the interest of general public and public order. It cannot be said that the petitioners had an indefeasible right to do the entire ground handling service solely because they were granted security clearance by the Central Government. One is required to apply the test of immediate and direct impact, level playing field which is subject to public interest, the nature of restriction regard being had to the concept of excessive postulates or stipulation of conditions. In the case at hand the ground handling service has been bifurcated. The sphere of operation that has been restricted pertains to the field of security. The authorities have taken the stand of larger public interest. The level playing field has to succumb to the same. It is to be kept in mind that the concept of reasonable restriction strikes a balance between an individual right to carry on his business or trade or profession and the larger public interests on the other. The right of the petitioners to carry out the function of airline operators has not been taken away. What has been taken away is a part of ground handling service which is in the realm of security. Thus, we are unable to accept the submission that the restriction that has been imposed goes beyond the requirement of the interests of the general public and / or W.P.(C) 8004/2010 Page 87 of 96 excessive in nature. On the contrary, it satisfies the doctrine of balance which is a basic facet of Article 19(1)(g) of the Constitution of India. Therefore, we repel the challenge to the circular on this score. 110. The 2007 circular states that with the restructuring of certain airports and development of a few Greenfield airports in the private sector, it has become imperative for the Central Government to lay down the eligibility criteria for various agencies to undertake ground handling services at non- AAI airports. In the said circular reference has been made to all metropolitan airports located at Delhi, Mumbai, Chennai, Kolkata, Bangalore and Hyderabad. In the Regulations dated 18.10.2007 in paragraph 3, it has been mentioned that the said Regulations shall apply to all airports and civil enclaves managed by the AAI. Regulation (2)(b) defines authority to mean the Airports Authority of India constituted under sub-section (1) of Section 3 of the 1994 Act. Regulation 3 deals with ground handling service at airports. It postulates that a carrier may carry out ground handling services at metropolitan airports that is the airports located at Delhi, Mumbai, Chennai, Kolkata, Bangalore and Hyderabad. It is urged by Mr. Rohtagi, learned senior counsel for the petitioners that in Regulation 2 it is postulated that the Regulation shall apply to all airports managed by the AAI. It could not have included Chennai and Kolkata airports which are not managed by the AAI but by the private airport operators. Mr. Gopal W.P.(C) 8004/2010 Page 88 of 96 Subramanium, learned Solicitor General would contend if Section 12A of the 1994 Act is read in conjunction with Rule 133A it would be quite clear that the words "managed by" is of wide import and include all the six airports. Dr. Singhvi, learned senior counsel appearing on behalf of respondent Nos. 5 and 7, per contra, would contend that the circulars and the Regulations do not compete with each other as they cover different fields and, therefore, they can harmoniously exist and, hence, there is no necessity to delve into the issue whether two other airports which are not covered by the AAI would have any bearing on the lis. At this juncture, we may refer to the decision in Mr.Dilip Ranadive & Anr. (supra), wherein the High Court of Bombay has held thus: 111. We concur with the aforesaid view, for we perceive that in the 2007 Regulations, there is no mention that the 2007 circular has been superseded. That apart, the Regulation No.3 mentions six airports. Regulation 1(3) refers to that Regulations shall apply to all airports managed by the AAI. It can be stated with profit by abundant caution the Regulation includes the two airports which are not managed by the private airport operators and the same does not take away the impact of the circular. Thus, they can harmoniously co-exist. As we are inclined to think that they can harmoniously co-exist, there is no justification on our part to dwell upon the issue that has been urged by learned Solicitor General for Union of India that the words "managed by" need not be narrowly considered and has to be read with in conjunction with Section 12A of the 1994 Act and the Rule 133A of the 1937 Rules. 112. The next ground of attack, especially to the validity of 2007 Regulations, is that it is in conflict with Rule 134 read with Schedule XI of the Rules. Rule 134 reads as follows: 113. On a bare perusal of the said Rule, it is quite vivid that no one can operate any scheduled air transport from, to, in, or across India except with the permission of the Central Government, granted under and in accordance with and subject to the provisions contained in Schedule XI. It is also luculent that every operator operating any scheduled air transport service W.P.(C) 8004/2010 Page 91 of 96 shall render service in accordance with the conditions specified in the order passed by the Central Government including any condition relating to their due compliance. Schedule XI deals with grant of permission to operate scheduled air transport services. Clause 5 provides that every application for grant of permit is to be made to the Director General. There is prescription for the format and the fees. Clause 8 stipulates how the Director General shall consider the application for permit and any representation made in respect thereof. Sub-clause (2) of Clause 8 provides the guidelines for the disposal of the application. It reads as follows: 114. Clause 11 provides that the grant of permit shall not be construed as in any way absolving any person from the obligation of complying with the provisions of the Aircraft Act, 1934 or with the Rules made thereunder or with any other statutory provisions. The Director General of Civil Aviation vide Annexure P-7 dated 1.3.1994 has issued the guidelines for minimum requirements for grant of permit to operate schedule passenger air transport services. The introduction to the same reads as follows: 115. Rule 133A occurs in Part XIIA which deals with Regulatory Provisions. Rule 133 is the only Rule which occurs in the said part. It deals with directions by Director-General. Clause 3 of the Civil Aviation Requirements stipulates the eligibility requirements. Clause 3.2.6 reads as follows: 116. It is contended that the same is a condition precedent which has been provided in the Rule. The Schedule being a part of the Rule, the Regulation cannot travel beyond the said Rule. It is worth noting that the Regulation has been issued under Section 42 of the 1994 Act which authorizes the competent authority to make Regulations. Sub-section (2)(h) of Section 42 reads as follows: 117. As is manifest from the aforesaid provisions, Rule 134 does not vest any right on the airline operator for any ground handling service. The Civil Aviation requirements have been formulated by the Director General of Civil Aviation. Clause 3.2.6 shows that an airline operator must have ground handling facilities and staff for preparation of load and trim sheet, flight despatch and passenger / cargo handling and further postulates that the staff should have undergone the training and checks as specified by DGCA. The same is the minimum requirement for grant of permit. The DGCA who has been conferred the power under Section 42 has framed the Regulations. The Civil Aviation Requirements only laid down the condition for fixing the eligibility criteria. That did not vest any kind of inalienable right with the petitioners. The Regulations have given more emphasis on security impact. In any case, merely because an eligibility criteria has been fixed, that does not mean the same cannot be changed. The eligibility criteria for grant of permit of ground handling facilities were laid down. It is obligatory on the part of the airline operator to provide the ground handling facility, if the authority so directs. When the condition has been altered, that by no stretch of imagination, would vitiate the Regulations issued under Section 42 on the foundation that it violates Rule 134 of the Rules. We perceive no justification in such a stand. Therefore, we repel the aforesaid submission advanced by the learned counsel for the petitioners. W.P.(C) 8004/2010 Page 95 of 96 118. In view of our aforesaid premised reasons, we do not find any substance in any of the proponements that have been canvassed on behalf of the petitioners and consequently we perceive no merit in the writ petition and accordingly the writ petition and all the interim applications stand dismissed. There shall be no order as to costs. CHIEF JUSTICE MANMOHAN, J MARCH 4, 2011 dk W.P.(C) 8004/2010 Page 96 of 96

Author: Dipak Misra,Chief Justice

Federation Of Indian Airlines & ... vs Union Of India & Ors. on 4 March, 2011

Delhi High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.F.A. No. 47 of 2006 (O&M) State of Haryana and another ....Appellants Versus Jai Ram Rathee and another ....Respondents CORAM: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Lokesh Sinhal, Addl. A.G., Haryana. Mr. Raman Gaur, Advocate, for HUDA. ***** RAJESH BINDAL J For orders see detailed reasons recorded in a separate order of today passed in R.F.A. No. 1 of 2006, State of Haryana and another Vs. Jagbir Singh and others. (RAJESH BINDAL) JUDGE 10.2.2009 R.S.

State Of Haryana And Another vs Jai Ram Rathee And Another on 10 February, 2009

Punjab-Haryana High Court