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IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42223 of 2010 BINDA PRASAD @ BINDA SINGH AWADHIYA Versus STATE OF BIHAR ----------- Md.S. ( Rakesh Kumar, J.) 3. 10.2.2011. Learned counsel for the petitioner submits that antecedent of the petitioner has been mentioned in the case diary itself. List the case under the heading 'For Admission' even in absence of antecedent report which was required to be sent by Superintendent of Police, Gopalganj.

Binda Prasad @ Binda Singh ... vs State Of Bihar on 10 February, 2011

Patna High Court - Orders

JUDGMENT B.K. Sharma, J. 1. This writ application has been filed assailing the legality and validity of the assessment order dated March 11, 1994 passed by the Superintendent of Taxes, Guwahati Unit-A for the period ending from July 1, 1993 to February 28, 1994 under the Assam General Sales Tax Act, 1993 against the petitioner. 2. According to the averment made in the writ petition the petitioner is connected in the business of purchase and sale of lottery tickets which are taxable under the said Act. The respondent No. 1 issued a notice dated November 30, 1993 requiring the petitioner to show cause against non-submission of monthly statement of turnover with payment of due taxes under the provisions of the said Act. The petitioner was directed to show cause in writing by appearing in person on December 4, 1993 as to why penal action should not be taken as per the provisions of the Act. According to the petitioner the notice was received by his representative as he was out of station and accordingly he could not appear on December 4, 1993. However, he appeared before respondent No. 1 on November 30, 1993 and ascertained in writing that he would file the pending returns with full payment of due taxes. He deposited taxes amounting to Rs. 7,200 for the period from July 1, 1993 to December 31, 1993 on January 4, 1994. 3 The Inspector of Taxes of the Guwahati Unit-A attached to respondent No. 1, visited the premises of the petitioner on March 10, 1994. According to the petitioner he was not present at that time, the representative of the petitioner was asked to produce the monthly/quarterly statement of turnover as proof of payment of taxes. Same was produced by the representative of the petitioner in respect of payment of tax up to the quarter ending December 31, 1993. It is the stand of the petitioner that it was stated before the Inspector of Taxes that the admitted taxes have been paid in full and the quarterly statement of return up to December 31, 1993 would be submitted on the following day, i.e., March 11, 1994. The Inspector of Taxes issued notice dated March 10, 1994 under Section 44(1) of the Act on the spot directing the petitioner to produce the other account, purchase voucher, sales memos and other documents for his verification then and there itself on the same date at 2.30 p.m. for the purpose of computation of the tax involved. However, the representative of the petitioner expressed his inability to produce the same in the absence of the petitioner. 4 It is the further stand in the petition that the petitioner submitted quarterly statement of turnover in the prescribed form for the quarter ending September 30, 1993 and December 31, 1993 on March 11, 1994. The statement of sales in respect of the said period was also submitted on the same date by letter dated March 11, 1994. The total sales and taxes paid as per the said return was Rs. 7,193. The respondent No. 1 passed an order of assessment dated March 11, 1994 determining the alleged total sale proceeds of the periods July 1, 1993 to February 28, 1994 at Rs. 10,00,000 which according to the petitioner would grossly showing "I" on mere estimate in consideration of the report dated March 10, 1994 as indicated in the assessment order. 5 It is the legality and validity of the said assessment order dated March 10, 1994 which is under challenge in this writ petition. I have heard Mr. G.K. Joshi, learned Senior Counsel appearing for the petitioner and Mr. B.J. Talukdar, learned State counsel. Mr. Joshi submits that on the very same day the impugned assessment order dated March 11, 1994 was passed by the Superintendent of Taxes, Guwahati Unit-A, the petitioner had submitted return sale statement. However, the said authority without taking into account the said return passed impugned order dated March 11, 1994. He further submits while passing the impugned order the said authority took into account the report submitted by the Inspector of Taxes dated March 10, 1994 estimating the monthly sale of the petitioner. Mr. B.J. Talukdar, learned State counsel, on the other hand, submits that there being statutory remedy by way of appeal against the order of assessment, writ petition is not maintainable. He further submits that there is nothing wrong on the assessment order dated March 11, 1994 as narrated in the writ petition. He further submits that the Superintendent of Taxes was within his competence and jurisdiction to take note of the report submitted by the Inspector of Taxes. 6. I have considered the rival submissions made by the learned Counsel for the parties and I have perused the materials on record. There is no dispute that on the date of passing the impugned order dated March 11, 1994 the petitioner submitted his returns of sale statement. However, same was not taken into consideration while passing the said order. The authority who passed the impugned assessment order on March 11, 1994 also took into account the purported report submitted by the Inspector of Taxes dated March 10, 1994 by which the monthly sale of the petitioner was purportedly estimated. However, the petitioner was not provided with any copy of the said report but the same was taken into account by the Superintendent of Taxes behind the back of the petitioner. Thus, on both count, i.e., (1) non-consideration of the returns submitted by the petitioner along with the sale statement and (2) consideration of the report of the Inspector of Taxes without furnishing the copy of the same to the petitioner, in my considered opinion, the impugned assessment order dated March 11, 1994 is not sustainable. 7. In such a situation this court is left with no option than to set aside the impugned assessment order dated March 11, 1994 and consequential action and payment of tax. The Superintendent of Taxes, Guwahati Unit-A to take fresh decision on the basis of the available materials on record by giving adequate opportunity to the petitioner in the matter. This shall be done within a period of 3 months from the date of furnishing the certified copy of this order by the petitioner to the said authority. 8. Writ petition stands allowed to the extent indicated above.

Author: B Sharma

K.K. Sarma vs Superintendent Of Taxes And Ors. on 29 July, 2004

Gauhati High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 2473 of 2009() 1. M.A.BABU,AD A3-3435,MG UNIVERSITY, ... Petitioner Vs 1. JOSEPH P.GEORGE,PULLATHIL HOUSE, ... Respondent 2. STATE OF KERALA REP.BY THE PUBLIC For Petitioner :SRI.M.J.THOMAS For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :03/08/2009 O R D E R THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2473 of 2009 -------------------------------------- Dated this the 3rd day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is challenging the concurrent finding entered by the courts below as to the due execution of a cheque for discharge of a legally enforceable debt/liability. Petitioner who faced trial in the court of learned Judicial First Class Magistrate-III, Kottayam in C.C.No.1352 of 2004 was convicted and sentenced to undergo simple imprisonment for two months. There was a direction for payment of compensation of Rs.40,000/- to respondent No.1 with a default sentence of imprisonment for one month. In Crl.Appeal No.629 of 2007 learned Sessions Judge confirmed conviction but modified sentence as fine of Rs.40,000/- with a default sentence of imprisonment for one month. According to respondent No.1, petitioner owed Rs.40,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 29.6.2004. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 and P5. Respondent No.1 gave evidence as PW1 and spoke to his case. Petitioner denied that he had any transaction with respondent No.1. Instead, he  Crl.R.P.No.2473/2009 2 had borrowed Rs.5,000/- from one Sunny Sebastian and given a signed blank cheque as security. That cheque was misused. It is contended that finding of the courts below regarding due execution of the cheque is not correct. 3. It is admitted that Ext.P1 contained the signature of petitioner and that cheque is drawn on the account maintained by him. It is true that he has a contention as to how else the cheque happened to be in the custody of respondent. Apart from the mere suggestion to respondent No.1 which he denied, there is no evidence on record to hold so. Petitioner did not reply to the statutory notice. Nothing is brought out to disbelieve the evidence of PW1. Petitioner has not rebutted the presumption under Section 139 of the Act. It is in these circumstances that courts below found in favour of due execution of the cheque. As such conviction does not require interference. 4. Considering the nature of offence and the amount involved I do not find reason to interfere with the sentence as modified by the appellate court or the default sentence provided. Learned counsel submitted that petitioner has been taken to custody in connection with another case and that he is not being released in view of the warrant pending in this case. Learned counsel requested that petitioner may be granted six months' time to deposit the fine since petitioner is in a financially difficult situation and is unable to raise the amount immediately. Considering the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 30.12.2009 to deposit fine. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 from this day to deposit fine in the trial court as  Crl.R.P.No.2473/2009 3 ordered by the appellate court. In case petitioner failed to comply, he shall appear in the trial court on 31.12.2009 to receive the default sentence as ordered by the appellate court. Warrant if any issued against the petitioner will stand recalled and will remain in abeyance till 31.12.2009. THOMAS P.JOSEPH, Judge. cks 

M.A.Babu vs Joseph P.George on 3 August, 2009

Kerala High Court

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3885 of 1987 -------------------------------------------------------------- THAKOR MANUBHAI BHIKHAJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3885 of 1987 MR PH PATHAK for Petitioner No. 1 GOVERNMENT PLEADER for Respondent No. 1-2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.H.WAGHELA Date of Order: 11/01/2002 ORAL ORDERNone present for the petitioner even as the matter was called out twice. Hence, dismissed for default. Interim relief stands vacated. Rule is discharged. Dt.11.1.2002[D.H.WAGHELA,J.]

Author: D.H.Waghela,

Special Civil Application No. ... vs Government Pleader For on 2 August, 2011

Gujarat High Court

JUDGMENT Dipak Kumar Sen, J. 1. This reference arises out of reassessments made on National Sound Studio (Private) Ltd., Calcutta, under Section 147 of the I.T. Act, 1961, in respect of assessment years 1962-63 and 1963-64, the relevant previous years being the financial years ending, respectively, on the 31st March, 1962, and 31st March, 1963. 2. The facts found and/or admitted in the proceedings are shortly as follows : 3. At the material time, the assessee, who had long discontinued its original business of production of films had let out its studio building without any plant or machinery on rental basis to several tenants. Such rental income accruing to the assessee in the assessment years 1962-63 and 1963-64 was assessed to income-tax under the head "Business". A succeeding ITO found later that the said rental should have been assessed under the head "Income from house properties." Accordingly, he decided to reopen the assessments under Section 147(b) of the I.T. Act, 1961, and recorded the following reasons for such reopening : "Perused records. The assessee took lease of a plot of land and erected building on it. At first the lease was taken for 15 years which expired in April, 1960. Thereafter, in August, 1960, the lease was renewed for a longer period. In the building constructed by the assessee, a studio was set up and the assessee started to do business as a studio owner and producer of motion pictures. The business of production of films was short lived but the assessee continued to do the business of a studio owner. After some time this business also closed down and the assessee let out the studio with its plant and machineries to one Sri M.D. Chatterjee on rental basis. In 1960, M.D. Chatterjee left the tenancy and the assessee sold out all its plant and machinery (assessment year 1961-62). Thus, in the assessment year 1961-62, assessee's business was fully dissolved. Thereafter, the assessee let out the building erected by him (from time to time more additions were made to the original building) to several tenants on monthly rent as the owner of the building. As decided in the case of Ballygunge Bank Ltd. v. CIT [1946] 14 ITR 409 (Cal) assessee's income from the building should have been assessed under the head ' Income from house properties '. But the assessment for the years 1962-63 to 1964-65, which have already been completed, have been made as if the assessee was still carrying on the business as a studio owner. The result of the assessment has been that the assessee had been under-assessed. The assessee, however, is not responsible for this under-assessment. Hence, it is necessary in this case to take action under Section 147(b) to assess the correct amount of income under the head 'House properties'. Issue notice under Section 148, calling for returns for the years 1962-63, 1963-64 and 1964-65." 4. At the hearing, the assessee challenged the legality of the initiation of the reassessment proceedings and contended that a mere change of opinion could not be a ground for taking such action. The ITO rejected the contentions of the assessee and effected reassessments. On appeal, the AAC upheld the order of the ITO. There was a further appeal by the assessee to the Tribunal. The assessee reiterated in this appeal that all, the facts were before the ITO at the time when the original assessments were made and that the reassessment proceedings were initiated on the basis of a mere change of opinion. The Tribunal held as follows : "It is now well-settled that resort can be had to Section 147(b) only if there is any information, from an extraneous source, which could reasonably lead the Income-tax Officer to believe that there has been escapement or underassessment of income. In the present case, the existence of any such information has not been brought to our notice. The decisions of the Appellate Assistant Commissioner and the Tribunal for the assessment year 1964-65 could very well have provided the basis for action under Section 147(b) but, unfortunately for the department, both these decisions were rendered late in point of time to the reopening of the impugned assessments. In the circumstances, we have no hesitation in holding that the proceedings under Section 147(b) for both the assessment years 1962-63 and 1963-64 are without any basis. The reassessments which have been made for these two years, i.e., the assessment years 1962-63 and 1963-1964, are accordingly cancelled." 5. At the instance of the CIT, West Bengal-I, Calcutta, the Tribunal under Section 256(1) of the I.T. Act, 1961, has referred the following questions as questions of law arise from its aforesaid order. 6. For the assessment year 1962-63 ; "Whether, on the facts and in the circumstances of the case, notice under Section 147(b) of the Income-tax Act, 1961, was validly issued for the assessment year 1962-63 ?" 7. For the assessment year 1963-64 : "Whether, on the facts and in the circumstances of the case, notice under Section 147(b) of the Income-tax Act, 1961, was validly issued for the assessment year 1963-64 ?" 8. Mr. Suhas Sen, learned counsel for the revenue, contended before us at the hearing that the order of the Tribunal was erroneous inasmuch as the Tribunal proceeded on the sole consideration that the information within the meaning of Section 147(b) did not reach the ITO from an extraneous source but was present in the material on record at the time of the original assessment. Mr. Sen submitted that the settled law was that information for the purpose of initiating a reassessment may be gathered also from existing materials. All that was necessary to be established was that the officer concerned had gathered such information on a further investigation into the existing materials. In support of his contentions Mr. Sen cited the following decisions: (a) Anandji Haridas and Co. (P.) Ltd. v. S.P. Kushare, STO . In this case, the appellants who were registered dealers in iron and steel material had discontinued to file returns of their turnover as required under the Central Provinces and Berar Sales Tax Act, 1947. Notices were issued to the appellant, inter alia, under Section 11A of the said Act, which was as follows (p. 332): "(1) If in consequence of any information which has come into his possession, the Commissioner is satisfied that any turnover of a dealer during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within three calendar years from the expiry of such period, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess or assess, as the case may be, the tax payable on any such turnover ; and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount..." 9. The appellant challenged the notices in proceedings under Article 226 of the Constitution and being unsuccessful before the High Court went up on a further appeal to the Supreme Court. The Supreme Court found that Section 11A of the said Act was in pari materia with Section 34(1) of the Indian I.T. Act, 1922, and held that by reason of the appellant's failure to submit returns along with proof of payment the turnovers in question had escaped assessment. The Supreme Court then went on to consider if any information had come to the possession of the assessing authorities whereby it could be satisfied about such escapement. The knowledge of the assessing authorities that the appellants had neither submitted their returns nor challans of payments was held by the Supreme Court to be sufficient information for the purposes of this section. It was contended on behalf of the appellant that "information" contemplated by the section should be received from an outside source and not something that could be gathered by the assessing authority from his own records. This contention was rejected by the Supreme Court and it was laid down as follows (p. 337): "In our judgment, the knowledge of the fact that the appellants had not submitted their quarterly returns as well as the treasury challans, constituted an information to the assessing authority from which it could be satisfied and in fact it was satisfied that the turnovers with which we are concerned in this, case had escaped assessment." (b) Kalyanji Mavji & Co. v. CIT . The facts in this case were that in the assessment year 1958-59, the assessee, a firm, had claimed, as in the two preceding years, deduction of interest paid on loans. On enquiry the ITO found that the amount obtained on such loan had been utilised for giving interest-free loans to the partners of the firm for clearing up their income-tax dues. It was held that the loan obtained was not for the business of the firm and the claim was disallowed. 10. Thereafter, notices were issued by the ITO under Section 34(1)(b) of the Indian I.T. Act, 1922, the assessment for the earlier year 1956-57 was reopened and the interest allowed as deduction was included in the total income. The reassessment was confirmed on appeal by the AAC. On further appeal, the Tribunal held that the belief of the ITO as to the escapement of the assessee's income in the year in question was not based on any fact except that it was derived from the materials already on record which were available at the original assessment. The appeal of the assessee was accordingly allowed. On a reference, this High Court upheld the contentions of the revenue and found that Section 34(1)(b) was applicable to the facts as the information on which the ITO proceeded was based on subsequent facts and also obtained from existing materials on more careful scrutiny. The matter went up finally before the Supreme Court: 11. The Supreme Court observed, inter alia, as follows (pp. 296, 297): "On a combined review of the decisions of this court the following tests and principles would apply to determine the applicability of Section 34(1)(b) to the following categories of cases :... (2) where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income-tax Officer. This is obviously based on the principle that taxpayer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority;... (4) where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law. 12. If these conditions are satisfied then the Income-tax Officer would have complete jurisdiction to reopen the original assessment. It is obvious that where the Income-tax Officer gets no subsequent information, but merely proceeds to reopen the original assessment without any fresh facts or materials or without any enquiry into the materials which form part of the original assessment, Section 34(1)(h) would have no application." The Supreme Court distinguished its earlier decision in Bankipur Club Ltd. v. CIT and held that the following facts had come into existence after the original assessment for the year 1956-57: (1) In the assessment year 1958-59, the ITO did not accept the assessee's plea that he should be allowed deduction for the interest paid; (2) The failure of the assessee to prove that the deduction claimed was in connection with the partnership business. The subsequent discovery that the deduction was wrongly claimed and disallowance of the deduction and the conduct of the assessee itself in not adducing any evidence or materials to prove its stand that the deduction was validly claimed constituted information on which the reopening under Section 34(1)(b) could be validly made. (c) Parkin v. Cattell [1971] 48 TC 462 (CA). This decision was cited for observations of Lord Denning made in the context of a corresponding section of the English statute as follows (p. 473): "If an inspector or the Board discover--(a) that any income which ought to have been assessed to tax at the standard rate or to surtax has not been assessed...the inspector or, as the case may be, the Board may make an assessment in the amount, or the further amount, which ought in his or their opinion to be charged." Lord Denning observed (p. 474): "The word 'discover' simply means 'find out'. That is what Lord President Normand said in Commissioners of Inland Revenue v. Mackinlay's Trustees [1938] 22 TC 305 (at page 312), witrTthe approval of Tucker L.J. in Commercial Structures Ltd. v. Briggs [1948] 30 TC 477 (at page 492); [1949] 17 ITR (Supp) 30 (CA). An Inspector of Taxes 'discovers' (that income has not been assessed when it ought to have been), not only when he finds out new facts which were not known to him or his predecessor, but also when he finds out that he or his predecessor drew a wrong inference from the facts which were then known to him and further, when he finds out that he or his predecessor got the law wrong and did not assess the income when it ought to have been. That appears in Cenlon Finance Co. Ltd. v. Ellwood [1962] AC 782; [1965] 58 ITR 255 (HL). I venture to quote what I said at page 799 : 'Every lawyer who, in his researches in the books, finds out that he was mistaken about the law, makes a discovery. So also does an Inspector of Taxes '." 13. Mr. Banerjee, learned advocate for the assessee, submitted on the other hand that the reasons as recorded by the ITO do not justify the reopening of the assessment inasmuch as such reasons do not disclose that there was any "information" which could lead the ITO to believe that any income had escaped assessment. All that the ITO discovered was that an item of income has been taxed under one head whereas according to him it should have been taxed under another head. From this, it did not follow that any income had escaped assessment. Mr. Banerjee submitted further that some information must reach the ITO subsequent to the original assessment before he could reopen the assessment. If the information is self-evident from existing materials it would not give jurisdiction to the ITO to reopen the assessment. A mistake if discovered may be rectified in proper proceedings but on a mere change of opinion an assessment could not be reopened. 14. Mr. Banerjee finally submitted that the Tribunal has found as a fact that the ITO did not come to be in possession of any information and this finding has not been challenged. 15. Mr. Banerjee cited the following decisions in support of his contentions : (a) CIT v. Dinesh Chandra H. Shah . The assessee in this case was assessed at Calcutta. In the return for the assessment year in question the assessee's share in the income of a firm at Madras had been disclosed and recorded in the proceedings but was not included in the computation of total income. Thereafter, a notice under Section 34(1)(b) of the Indian I.T. Act, 1922, was issued on the ground that this item had escaped assessment. The Supreme Court found that the ITO sought to justify the reopening of the assessment on a mere change of opinion and held that this could not be a valid ground for reopening the assessment. The question whether an inadvertent omission by the ITO could justify the reopening of an assessment on subsequent discovery of such omission was, however, left open. (b) Bankipur Club Ltd. v. CIT . The facts in this case were that the assessee, a members' club, had submitted "nil" returns for the assessment years 1956-57 to 1959-60. The ITO, while assessing, held that the asseasee was not liable to pay any tax in respect of amounts realised by it from its members. Subsequently, the assessments were reopened by notices under Section 34(1)(b) and it was held on reassessment that the amounts received from members of the club as guest charges were the income of the assessee and the same was brought to tax. The Supreme Court, however, found that the assessments had not been validly reopened. It was observed in its judgment as follows (p. 834): "This court has repeatedly ruled that the information referred to in Section 34(1)(b) must be what the Income-tax Officer receives after he makes the original order of assessment. It must come to his knowledge subsequent to the assessment sought to be reopened. In these cases it is submitted that all the facts were placed before the Income-tax Officer when he passed the original orders of assessment. The fact that the club had received certain amounts as guest charges from its members had been placed before the Income-tax Officer. It is not the case of the Income-tax Officer that he did not come to know all the relevant facts when he made the original orders of assessment. It is also not his case that at the time he made those orders he was not aware of the true legal position. It was for the Income-tax Officer to show that he had received some information subsequent to his passing the original orders of assessment. No such material was placed before the Tribunal. That being so, the Tribunal, in our opinion, was right in holding that the Income-tax Officer was incompetent to initiate proceedings under Section 34(1)(b). The High Court has given no reason to come to the conclusion that there was any subsequent information on the basis of which the Income-tax Officer could have reassessed the assessee under Section 34(1)(b)."' (c) ITO v. Lakhmani Mewal Das . This decision was cited for the following observations of the Supreme Court at page 446 of the report: "The expression 'reason to believe' does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The reason must be held in good faith. It cannot be merely a pretence. It is open to the court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section. To this limited extent, the action of the Income-tax Officer in starting proceedings in respect of income escaping assessment is open to challenge in a court of law." 16. Mr. Banerjee contended that the law laid down in Bankipur Club Ltd. had not been departed from by the Supreme Court in the subsequent case of Kalyanji Mavji & Co. [1976] 102 ITR 287, where the Supreme Court categorically approved the earlier decision. He submitted that in the instant case also all the facts were before the ITO when the original assessment was made and nothing new had been discovered by the subsequent ITO. 17. From the order of the Tribunal it appears that the Tribunal found that no information came from any extraneous source on which the ITO could base his belief that the income has escaped assessment and on that ground held that the reopening in the instant case was invalid. The reassessment was accordingly cancelled. This conclusion of the Tribunal appears to be erroneous. The law as laid down by the Supreme Court is that an ITO can obtain information from materials already on record and it is lawful for him to reopen assessments on the basis thereof. 18. The contention of Mr. Banerjee that it has been found as a fact, that the ITO had not come into possession of any information is not borne out by the order of the Tribunal. From para. 2 of the order of the Tribunal it appears that the Tribunal found that no information came into the possession of the ITO which could lead him to believe that there was any escapement or under-assessment of the income, and not that there was no information at all. In any event, the Tribunal did not base its order on this finding. 19. We are also unable to accept the contention of Mr. Banerjee that the information received by the ITO could not lead to his belief that there has been an escapement of income. The statute does not require that ITO should have incontrovertible proof in his hands showing that income must have escaped assessment before he can reopen the assessment. The Explanation 1 to Section 147 makes the position clear. Under the Explanation, it will be deemed that income chargeable to tax has escaped assessment where such income has been under-assessed or has been made the subject of excessive relief. Under the Act, income derived from the source "business" has to be computed after allowing various deductions which are not allowable where the income is derived from the source "house property". In the instant case the income arising from the letting out of a building has been admittedly assessed as income from business. This, in our view, constitutes sufficient reason to believe that in such a case income chargeable to tax has been under-assessed or had been made the subject of excessive relief. May be, at the final reassessment it can be demonstrated that, in fact, the actual income has neither been under-assessed nor has been made the subject of excessive relief but that is a matter with which we are not concerned while considering the validity of initiation of reassessment proceedings. 20. For the reasons given above we hold that the Tribunal's order is erroneous and that the reassessment proceedings cannot be held to be invalid on the ground relied on by the Tribunal. To such extent both the questions referred are answered in the affirmative and in favour of the revenue. We, however, make it clear that in view of the law, 'clearly laid down by the Supreme Court it will be necessary for the Tribunal to go into the question further and determine whether in the instant case any "information" came into the possession or the hands of the succeeding ITO from the materials on record as a result of (sic) sequent investigation or enquiry so as to justify his action in (sic) the same. The Tribunal will determine the matter as indicated above after giving the parties opportunity of being heard on this aspect. If necessary, the Tribunal will take further evidence. There will be no order as to costs. C.K. Banerji, J. 21. I agree.

Author: D K Sen

Commissioner Of Income-Tax vs National Sound Studio (P.) Ltd. on 4 April, 1978

Calcutta High Court

ORDER A.V. Savant, J. 1. Heard both the learned Counsel; Shri Jhangiani for the petitioners (original opponent in the trial Court) and Shri Chabria for respondent No. 1 Smt. Talpade (original disputant No. 2). None appears for respondent No. 2 Co-operative Housing Society (Original disputant No. 1) though served. 2. This petition of 1989 seeks to challenge the order dated 28th February, 1989 passed by the Co-operative Appellate Court by which Appeal No. 13 of 1989 filed by respondent No. 1 Smt. Talpade was allowed. In the result the order dated 31st October, 1988 passed by the Co-operative Court, Mumbai holding that the dispute lodged by opponents on 11th September, 1978 in the Co-operative Court was not maintainable in the Co-operative Court for want of jurisdiction was set aside. A few relevant facts may be stated for appreciating the short controversy as to whether the Co-operative Court will have jurisdiction to entertain the dispute in view of the provisions of section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short "Societies Act") and section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "Rent Act"). 3. The first respondent Smt. Talpade is a member of the second respondent Beach House Co-operative Housing Society. It is a tenant Co-partnership Society in which the first respondent owns a flat No. D-1. The first petitioner is a private limited company and the second petitioner is a partnership firm. The names of the two petitioners are more or less identically viz. (i) M/s. Southern Automatic Industries. Pvt/. Ltd. and (ii) Southern Automatic industries. A leave and license agreement was entered into on 1st April, 1972 between Smt. Talpade and the second petitioner firm for letting out the suit flat for an initial period of 11 months with an option to the licensees petitioner No. 2 to extend it for a further period of 11 months. It is the petitioner's case that although the agreement was termed as a leave and licence, the true intention between the parties was to create a lease. At any rate, the leave and licence agreement dated 1st April, 1972 was subsisting on 1st February, 1973 and by virtue of the amendment of the provisions of the Rent Act, namely, sections 5(4-A), 5(11)(bb) and section 15-A of the Rent Act, the second petitioner acquired the status of a "deemed tenant" under the Rent Act. 4. On 11th September, 1978 the respondent lodged dispute No. ABN -11-580/2295 of 1978 in the Co-operative Court, Mumbai. The relief prayed for was that the petitioners be ordered to quit, vacate and hand over vacant and peaceful possession of the suit flat and, secondly, the petitioner may be directed to pay to the first respondent a sum of Rs. 3,318/- being compensation and/or mesne profit for certain period. Since I am concerned with the question of jurisdiction, I will refer to the averments in the original disputeplaint at a later stage. Suffice it to say that the respondents categorically averred in the plaint that under a leave and licence agreement dated 1st April, 1972 the petitioners were in possession of the premises on leave and licence basis on a monthly compensation of Rs. 400/- p.m. for the use and occupation of the flat and Rs. 500/- p.m. towards the compensation for the use of furniture, fixtures and fittings and Rs. 100/- p.m. for the use of car parking space in the society premises. There are further averments that both the petitioners were in possession on 1st February, 1973 under a subsisting leave and licence agreement dated 1st April, 1972 and despite the request made by the first respondent the petitioners did not quit, vacate and hand over peaceful possesion. The first respondent has further alleged that both the petitioners were persistent defaulters in respect of payment of monthly compensation. It has further been alleged that for education of her children the first respondent was in reasonable and bona fide need of the flat. 5. Though the original dispute was filed only against the first petitioner company, later on second petitioner firm was added in the dispute. 6. On 6th December, 1978 written statement was filed wherein it was contended that the premises were given on leave and licence basis and in view of the amendment to the provisions of the Rent Act, occupants of the said flat-the petitioners were entitled to be treated as "deemed tenants". It was contended that initially the dispute was filed only against the first petitioner company and it was later on that the second petitioner firm was added as opponent No. 2. It was further contended that even prior to the leave and licence agreement dated 1st April, 1972 the premises were occupied by M/s. Bombay Spring Works (a predecessor company of the first petitioner company) under the leave and licence agreement dated 1st December, 1968. In para 9.4 of the written statement it was specifically contended that under the leave and licence agreement dated 1st April, 1972 the petitioners were in lawful possession of the suit premises and, therefore, were protected as "deemed tenant" and there was no question of renewal of the said agreement on the ground that it had expired on 28th February, 1973. It was, therefore, contended that dispute would not lie under section 91(1) of the Societies Act and could be agitated only under the Rent Act. 7. On the 11th September, 1998 following issues were framed: 1. Whether the disputant No. 2 is staying in Pune or having place of residence in Bombay? Whether such a residence is owned by the disputant No. 2.? 2. Whether there was an agreement for leave and licence dated 1st April, 1972 between the disputant No. 2 and the opponent No. 1 as alleged in para 3 of the dispute application? If so, whether the disputants are entitled to change their cause of action from opp. No. 1 to opp. 2 as amended. Whether such an amendment is permissible under law. 3. Whether there was a subsisting agreement between the disputant No. 2 and the opp. No. 2? If so what is the effect thereof? Whether the present dispute can be agitated in the form it has been agitated under section 91 of the M.C.S. Act or provisions under section 28 of the Bombay Rent Control Act is operative? 4. Whether the disputant Society has been charging non-occupation charges to the disputant No. 2 and hence whether the Disputant No. 1 is contend with collection of monies from members who have let out the premises without their permission. In such a situation whether there is a waiver and/or acquiescence. Hence whether the present dispute can be agitated under section 91 of the M.C.S. Act? 5. Whether the disputant No. 2 has given the premises in dispute to the opp No. 2 with a dominant consideration for money? 6. Do the opponent prove that the agreement dated 1st April., 1972 is a sham agreement? 7. Whether any furniture or fixtures have been given by the disp. No. 2 to the opp No. 2? If not what is the effect.? 8. Whether the disp. No. 2 is charged car parking charges by the disp.no. 1? If so, how much? Whether the disp. No. 2 is entitled to recover Rs. 100/-. from the opp-No. 1 or opponent No. 2 allegedly excessively? What is the effect thereof. 9. Do the opponents prove that they are protected tenants in the premises in dispute? 10. What amount of deposit has been collected by disp. No. 2? What has happened to the deposits? 11. Do the disputants No. 1 prove that the disp. No. 2 violated the bye-laws, tenancy regulations of the society by allowing opp. No. 1 and/or opp No. 2. to use and occupy the suit flat? 12. Does disp. No. 2 prove that the opponent No. 1 and/or opponent No. 2 failed and neglected to vacate, quit and hand over the quite possession of the suit flat on expiry of efflux of leave and licence agreement and/or after Advocate's notice dt. 21-6-78 of disp. No. 2? 13. Do the disp. No. 1 prove that disp., No. 2 sought help of disp. No. 1 for the recovery of the flat from the opp Nos. 1 and 2 for self occupation? 14. Do the disp. No. 1 society prove that disputants society interested to enforce its bye-laws and recover the possession of the suit flat from opponent Nos. 1 & 2? 15. Whether the Opponent No. 1 are the successors of opp. No. 2 by its conversion into private company Ltd. ? If the answer is "Yes", whether the opp. No. 2 are entitled to defend the suit? 16. Do the opponents prove that whether there is a discriminatory treatment meted out by the disp. No. 1 and that there is sinister motive in the present dispute? 17. Do the opponents prove in the eyes of the law the Southern Automatic Industries are different from Southern Automatic industries Pvt. Ltd. 18. Whether the opp.No. 1 and/or opp.No. 2 are entitled to defend the suit in view of the pleadings in the written statement? 19. Whether there is any policy of the disputant society lenuntiated in any of their records as alleged in the dispute application? 20. Whether the disputant No. 2 requires premises in dispute for her own occupation as alleged? 21. Whether the disputants are entitled to the reliefs sought? 22. What order? It is relevant to note that issue No. 3 specifically relates to the plea of jurisdiction. 8. On 28th September, 1988 the petitioners filed an application in the trial Court contending that in view of the fact that there was a subsisting agreement between the second petitioner and respondent No. 1, the dispute could not be agitated in its present form under section 91 of the Societies Act. Reliance was placed on a decision of the Apex Court pronounced on 19th September, 1988 in Hindustan Petroleum Corporation Ltd. and another v. Shyam Co-operative Housing Society & others, . It was, therefore, contended that the dispute under section 91 of the Societies Act was not maintainable and only the Court under section 28 of the Rent Act will have jurisdiction. It may be convenient to reproduce para 4 of the petitioner's application dated 28th September, 1988 which reads as under. "I say that in view of the judgment of the Supreme Court declared on 19/9/1988 in the matter of Hindustan Petroleum Corporation Ltd. v. Shyam Co-operative Housing Society and others. It is now settled that dispute under section 91 is not maintainable where the occupants are under subsisting Licence and only Court under the Rent Act u/s. 28 has jurisdiction. I say that the position has now been settled in law. I therefore, pray that the above dispute be ordered to be dismissed with costs as being without jurisdiction." 9. On 5th October, 1988, the first respondent filed a reply to the petitioners' application dated 28th September, 1988 She contended that she had a contract only with the second petitioner firm and not with the first petitioner and, therefore, the first petitioner cannot claim the protection under section 15-A of the Rent Act. The first respondent tried to rely on some evidence in the form of leave and licence agreement and subsequent developments to contend that the first petitioner company would not be entitled to claim protection of the amended provisions of the Rent Act. 10. The learned trial Judge by his order dated 31st October, 1988 upheld the petitioner's objection on the question of jurisdiction. It was held that in view of the ratio of the Apex Court judgment in the case of Hindustan Petroleum Corporation, (supra) the Co-operative Court will have no jurisdiction to entertain the dispute since the second petitioner firm was protected in view of the amendment to the provisions of the Rent Act. In the result, the petitioner's application dated 28th September, 1988 was allowed and it was held that the dispute filed by the respondents was not maintainable in the Co-operative Court for want of jurisdiction. 11. Against the said order dated 31st October, 1988, the second respondent society did not file any appeal. It was only the first respondent who filed Appeal No. 13 of 1989 in the Co-operative Appellate Court. By its judgment and order dated 28th February, 1989 the Appeal Court allowed the appeal and while setting aside the order dated 31st October, 1988 directed the trial Court to proceed further with the dispute in accordance with law. The Appeal Court did not specifically decide the issue of jurisdiction though the appeal was specifically on the point of jurisdiction alone. The Appeal Court expressed the view that "there were compelling reasons for the lower Court to record further evidence in order to come to the conclusion that either respondent No. 1 or respondent No. 2 (present petitioners) are successors in interest of the licensees who were the parties as such to the leave and licence agreement dated 1st April 1972". The Appeal Court, therefore, came to the conclusion that it was necessary to remand the matter to the trial Court to record further evidence. It was, in these circumstances, that the Appeal Court set aside the order passed by the trial Court and remanded the matter back. It is this order dated 28th February, 1989 that is challenged in the present petition before me. 12. Having heard both the learned Counsel at length, in my view, in the light of the ratio of the three decisions of the Apex Court, the order passed by the Appeal Court is clearly unsustainable in law and the order passed by the trial Court will have to be restored. The three decisions are : (i) O.N. Bhatnagar v. Smt Rukibai Narsindas and others, ; (ii) Hindustan Petroleum Corporation Ltd. and another v. Shyam Co-operative Housing Society & others, and (iii) Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and others, . My reasons for this conclusion are as under : 13. It is well settled by a catena of decisions that for deciding the question of jurisdiction one must look to the averments in the plaint as a whole and it is not permissible to look to the written statement. In this behalf I may refer to the Full Bench decision in Dattatraya Krishna Jangam v. Jairam Ganesh Gore, where it has been categorically held that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the relief claimed, if on a fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the Small Causes Court alone that will have jurisdiction to decide the suit. In Tejoomal Lakhmichand v. M.J. Talegaonkar , Bharucha, J., (as His Lordship then was) has categorically held that jurisdiction of the Court has to be decided upon the averments in the plaint. In Smt. Laxmibai Narayan Satesa v. Dattatraya Tukaram Jarande, again, this Court reiterated that jurisdiction of a Court must be determined only from the averments in the plaint and not on the basis of defences in the written statement or on the basis of issues raised and it is only the Court in which the suit has been filed which has jurisdiction to determine the same. 14. It is not necessary to burden the judgment with any more authorities since the position is now crystalised in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and others, . While considering the conflict between the provisions of section 91 of the Societies Act and section 28 of the Rent Act, the Apex Court has - clearly laid down that jurisdiction of the Court in which action is originated must be determined on the averments made in the plaint or the claim application and not on the defence taken by the adversary party. For example, if the plaintiff goes to the Court alleging that the defendant is a trespasser, the ordinary Court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy. If, however, the defendant succeeds in proving that he is a tenant in respect of the premises, the possession whereof is sought, Court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser. The Apex Court was dealing with a case where the claim was lodged by the society in the Co-operative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespasser. On facts, it was found that the appellant was a protected tenant under section 15-A of the Rent Act. In the circumstances, the Apex Court held that proceedings initiated under section 91(1) of the Societies Act could not succeed for the simple reason that the society had failed to prove the fact which constituted a foundation for jurisdiction. Observations to this effect are to be found in para 23 of the judgment at pages 1575-1576. 15. Bearing in mind the principle that the jurisdiction of Court in which the action is originated must be determined on the averments in the plaint or the claim application and not on the defence taken by adversary party, let me examine the averments made by the respondents in the plaint. I have briefly referred to them in para 4 earlier, but it is necessary to reproduce some of the averments at this juncture in the light of the law laid down by Apex Court. In para 3 of the plaint, the respondents categorically averred as under : "3. The Disputants say that by an agreement of leave and licence dated 1st April, 1972 made and entered into between the disputant No. 2 and the opponents hereinabove the disputant No. 2 at the request of the opponents granted permission to allow the opponents to use and occupy the suit premises on leave and licence basis on a monthly compensation of Rs. 400/- per month for use and occupation of the suit premises and Rs. 500/- towards the compensation for use of furnitures, fixtures, fittings and other amenities and a further sum of Rs. 100/- for the use of the car parking space in the Society premises. The said licence agreement commenced from 1st April. 1972, Under the said agreement an option was given to the opponents to extend the licence agreement by a further period of 11 months. The disputants say that the opponents expressed to the disputant No. 2 that the opponents had no desire to continue to use and occupy the said flat more than the period agreed upon. The opponents in the said agreement had agreed to return the furnitures, fixtures and fittings in the same good condition as they were then but with the reasonable wear and tear." 16. Thereafter in para 4 it was further categorically averred as under : "4. The disputants say that the said licence agreement expired on 20th February. 1973, however, with the option of one more term 20-2-73 to 19-1-74 of 11 months the said licence agreement came to an end on 31st January. 1974, Hence the said licence agreement came to an end by efflux of time on 31st January, 1974. The disputant No. 2 says that though the said licence agreement came to an end on 31st January 1974 the opponent No. 1 and/ or 2 did not quit, vacate or hand over the possession of the suit premises nor did they show any inclination to vacate the suit premises. The disputant No. 2 says that she called upon the opponents No. 1 and/or 2 on many occasions to quit, vacate and hand over quiet and peaceful possession of the suit premises alongwith the furnitures, fixtures and fittings as stated in the licence agreement but the opponents did not respond. The disputant No. 2 says that she informed the Opponents No. 1 and 2 that the said flat was required for her personal use and occupation as her children are educating in Bombay, but the opponents did not vacate the said flat. The Disputant No. 2 says that the opponents No. 1 and/or 2 are the persistent defaulters of payment of monthly compensation. The disputant No. 2 says that the opponent Nos. 1 and/or 2 are in the arrears of a sum of Rs. 3,318/- upto June, 1978 and the opponents have failed and neglected to pay." 17. The portions underlined by me will show that the respondents themselves approached the Co-operative Court with a clear case and categoric averment that the petitioners were in possession under a leave and licence agreement which was subsisting on 1st February, 1973. The initial agreement dated 1st April, 1972 itself was till 28th February, 1973. There is a further averment that the first respondent had called upon the petitioners to quit, vacate and hand over quiet and vacant possession on two grounds; (i) the petitioners were in arrears of payment of monthly compensation and (ii) the first respondent needed the premises bond fide for the purpose of education of her children. Para 4 seeks to make out two grounds of eviction under the Rent Act one of default in payment of rent under section 13(1)(a) and the other of reasonable and bona fide requirement under section 13(1)(g). That is not the end of the averments. 18. In para 5 of the plaint further categoric averments referring to the possession of the petitioners under the leave and licence agreement are as under : "5. The disputant No. 2 says that inspite of repeated demands made by her the opponent No. 1 and/or No. 2, failed and neglected to hand over, vacant and peaceful possession of the suit premises to her. The disputants say that the licence granted to the opponents No. 1 and/or 2 had expired on 31st January, 1974 by efflux of time. The disputants say that on the expiry of the said agreement, the opponents No. 1 and/or 2 were bound and liable to quit, vacate and hand over the vacant and peaceful possession of the suit premises but the opponents refused to hand over the same and continue to remain in occupation unlawfully and illegally. The disputant No. 2 therefore, finally through her Advocate's letter dated 24th June, 1978 called upon the opponents to quit, vacate and hand over quiet and peaceful possession of the suit premises. The said notice was received by the opponents Nos. 1 and/or 2 but failed and neglected to comply with the requirements of the said notice. In the said notice the disputant No. 2 expressed that the suit premises are required for her personal use and occupation and that her children are doing higher studies in Bombay. The disputant No. 2 therefore, addressed a letter dated 16th June, 1978 to the disputant No. 1 society, expressing her genuine need, intention, desire and wish to occupy the flat by herself and sought the help of the disputants No. 1 society to secure the vacant and peaceful possession of the suit premises." Here again the respondents have unequivocally admitted that both the petitioners were liable to vacate the premises on expiry of the leave and licence agreement and that they had continued to remain in possession unlawfully and illegally. It is reiterated that the notice to quit was issued demanding possession of the premises on the ground of bona fide personal requirement of the first respondent namely education of her children. It is true that consequent upon the amendment of the plaint, there is a reference to the difference in the legal status of the two petitioners namely the first petitioner company and the second petitioner firm. There is also a reference in the amended para f (a) to the Small. Causes Court Suit No. 2070 of 1978 filed by the Directors of the first petitioner company for declaration that they were the tenants in respect of the suit premises. In amended para 7{a) of the plaint, there is a reference to the second petitioner firm having illegally permitted the first petitioner company to occupy the premises without consent or knowledge of the respondents. 1 need not examine the merits of the said contentions at this stage. 19. As mentioned in para 12 above, in view of the three decisions of the Apex Court the controversy is no longer res integra. In O.N. Bhatnagar's case, (supra), the Apex Court has considered the apparent conflict between the provisions of section 91(1) of the Societies Act and section 28 of the Rent Act and it has been observed in para 8 of the judgment at pages 1100-1101 as under : "8. The two enactments deal with two distinct and separate fields and, therefore, the non obstante clause in section 91(1) of the Act and that in section 28 of the Rent Act operate on two different planes. The two legislations pertain to different topics of legislation. It will be noticed that section 28 of the Rent Act proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under that Act as to parties between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title, such as between the rightful owner and a trespasser or a licensee for such questions do not arise under the Act. The appellant having raised a plea in the nature of demurrer, the question of jurisdiction had to be determined with advertance to the allegations contained in the statement of claim made by the respondent No. 1 under section 91(1) of the Act and those allegations must be taken to be true. The respondent No. 1 unequivocally asserts that the parties stood in the relation of licensor Land licensee and that fact is clearly borne out by the terms of the agreement of leave and licence as between the parties. The burden was on the appellant to establish that he had the status of a "tenant" within the meaning of section 5(11) of the Rent Act, as it then stood, and that burden he has failed to discharge. If, therefore, plaintiff in the plaint does not admit a relationship which would attract any of the provisions of the Act on which the exclusive jurisdiction given in section 28 depends, the defendant cannot by his plea force the plaintiff to go to a forum whether (where?) on averments the claim does not lie." Thereafter in para 20 of the judgment the Apex Court has observed thus at page 1105: ".... It seems to us that the two Acts can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. But where the parties admittedly do not stand in the Rural relationship of landlord and tenant, as here, the dispute would be governed by section 91(1) of the Act. No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a nominal member, but in the very nature of things, his rights were inchoate. In view of these considerations, we are of the opinion that the proceedings under section 91(1) of the Act were not barred by the provisions of section 28 of the Rent Act." 20. In Hindustan Petroleum Corporation Ltd. and another v. Shyam Cooperative Housing Society & others, , the Apex Court reiterated the above position and held that if petitioner No. 1 Hindustan Petroleum Corporation Ltd. was clearly protected under section 15-A of the Rent Act, it was not necessary to deal with the contention as regards applicability of the provisions of section 91 of the Societies Act. The Apex Court clarified in para 14 of its judgment at page 724 that all aspects arising out of the submissions as to the jurisdiction of the Registrar under section 91(1) of the Act had already been considered by the Apex Court in O.N. Bhatnagar's case (supra) and the Court reiterated the principles laid down therein. In the result, the order passed by the Co-operative Court for eviction of the petitioner No. 1 Hindustan Petroleum Corporation Ltd. in proceedings initiated under section 91 of the Societies Act as also the said proceedings were quashed. 21. The matter is now set at rest beyond the pale of any controversy. In the last decision in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd., the Apex Court has considered its earlier decisions commencing with Deacan Merchants Cooperative Bank's v. Dalichand Jugraj Jain and ending with the decision in (Smt. Krishna Rajpal Bhatia's case) and reiterated that the Court had harmonised the said provisions and held that in matters covered by Rent Act, its provisions, rather than the provisions of the Societies Act, should apply. In Sanwarmal Kejriwal case the appellant sought protection of the Rent Act since he was a deemed tenant under section 15-A read with section 5(4-A) and section 5(11)(bb) of the Rent Act. Status of a tenant was conferred upon him by Legislature in view of the amendment of the Rent Act. Rights which do not flow from contracts but are conferred by law such as the Rent Act, must be determined by the machinery, if any, provided by law conferring the right. These observations are to be found in para 21 of the judgment at page 1575. 22. In para 22 of the judgment in Sanwarmal Kejriwal case the Apex Court considered the submissions on behalf of the Society that the appellant before it cannot seek protection against the society as his entry into the flat was in violation of the bye law. The Court rejected the contention in view of the amendment to the Rent Act and said that to hold otherwise would be to carve out an exception to section 15-A of the Rent Act to the effect that the said provisions would not apply to licensees in occupation of a flat owned by the tenant copartnership society. These observations are to be found in para 22 of the judgment at page 1575. 23. Then in para 23 (at pages 1575-76 of A.I.R.), the Apex Court concluded the discussion regarding the test for determining the jurisdiction of the Court in which the action was originated namely on the basis of the averments in the plaint or the claim application and not on the defence taken by the adversary party. Para 23 reads as under ; "23. But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party. For example, if the plaintiff goes to Court alleging that the defendant is a trespasser, the ordinary Court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy. If, however, the defendant succeeds in proving that he is a tenant in respect of premises, possession whereof is sought, the Court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser. Here also the claim was lodged by the society in the Co-operative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespasser. On facts it is now found that the appellant was and is protected tenant under section 15-A of the Rent Act. The proceedings initiated under section 91(1) of the Societies Act cannot in the circumstances succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction. If the society fails to prove that the appellant has no right to the occupation of the flat since he is a mere trespasser, the suit must obviously fail. That is why even in the case of Hindustan Petroleum Corpn. Ltd., this Court did not consider it necessary to deal with the contention based on section 91(1) of the Societies Act in detail and felt content by observing that the points stood covered by the decision in Bhatnagar's case." In the result the Apex Court set aside the judgment of this Court and directed that the claim of the society under section 91 of the Cooperative Society Act stood dismissed. 24. Relying upon the aforesaid judgments Shri Jhangiani the learned Counsel for the petitioners contended that the Appeal Court was in error in not deciding the issue and holding that the trial Court ought to have recorded further evidence. The trial Court on the basis of the judgment of Apex Court in Hindustan Petroleum Corporation's case had clearly recorded a finding that the Cooperative Court had no jurisdiction to entertain the suit. There was a subsisting agreement in favour of the second petitioner firm which was in possession of the flat on 1st February, 1973. I have already reproduced in paras 15 to 18 above the categoric averments in paras 3, 4 and 5 of the plaint. They leave no doubt whatsoever that the respondents approached the Co-operative Court with a clear case that the petitioners had continued in possession under a subsisting leave and licence agreement. The possession was demanded from both the petitioners on two grounds namely (i) arrears of payment of compensation and (ii) reasonable and bona fide requirement. Reading the plaint as a whole, it leaves no doubt whatsoever that the claim is under the provisions of the Rent Act by a landlord against a deemed tenant seeking eviction on the ground of arrears of payment of rent and reasonable and bona fide requirement. I am making these observations for the limited purpose of holding that the Cooperative Court has no jurisdiction as held by the trial Court. 25. As against this Shri Chabria the learned Counsel appearing on behalf of respondent No. 1 contended that, in the first place, issues having been framed, in view of provisions of Order XIV, Rule 2(1) of the Code of Civil Procedure, notwithstanding that the case may be disposed of on a preliminary issue, the Court should, subject to the provisions of sub-Rule (2) pronounce a judgment on all issues. Counsel contended that since the issues were settled as far back as on 11th September, 1981, the application dated 28th September, 1988 filed by the petitioners ought not to have been entertained. This submission over looks sub-Rule (2) of Rule 2 of Order XTV. Indeed, Order XIV, Rule 2 sub-rule (1) is itself subject to provisions of sub-rule (2). It would be convenient to reproduce Order XIV, Rule 2 as under : "Order 1XV, Rule 2 Court to pronounce judgment on all issues: (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of facts arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court; or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." A perusal of sub-rule (2) makes it clear that when issues of law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on issue of law only, it may try that issue first when that issue relates to (a) jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force. In such a case, the Court may postpone settlement of the other issues until after that issue has been determined. In my view, when a clear issue of jurisdiction arose on a bare reading of plaint, the learned trial Judge had no alternative but to consider the petitioner's application dated 28th September, 1988. On a plain reading of the provisions of Order XIV, Rule 2, the contention of Shri Chabria must be rejected. 26. It was then contended by Shri Chabria that for deciding the question of jurisdiction one must not only look at the plaint and averments made therein but, in the facts of the present case, one must also consider the documents annexed to the plaint such as the leave and licence agreement and the pleas in the written statement which reflect the true character of the two petitioners namely petitioner No. 1 company and petitioner No. 2 firm. In view of the law laid down by the Apex Court it is not possible for me to look either to the pleadings in the written statement or to the evidence on record merely because some evidence has been led. Such a course is clearly impermissible in law in view of the judgments which I have referred to above. 27. It was lastly contended by Shri Chabria that no prejudice would be caused to the petitioners if the entire trial is allowed to proceed in accordance with law viz. the matter to be decided by the trial Court; the appeal to be decided by the Appeal Court and then the issues permitted to be raised in a writ petition. At any rate, Counsel contended that I should adopt the same course which the Appeal Court adopted namely, decide nothing and remit the matter to the trial Court? This petition is pending in this Court since 1989. Plaint was lodged on 11th September, 1978. It is nearly 20 years later that I am hearing this petition. It would be most unfair to the litigants to dispose of this petition without deciding anything and directing the parties to undergo the ritual of a trial keeping all contentions on merits open at such a belated stage. As I said earlier, the law laid down by the Apex Court in the 3 decisions referred to above leaves no choice but to decide the question of jurisdiction on the basis of the averments made in the plaint read as a whole and in particular in paras 3, 4 and 5 thereof. In that view of the matter, the only conclusion to which one can reach is that the Co-operative Court will have no jurisdiction to entertain the dispute under section 91 of the Societies Act. In the circumstances, I accept the contentions raised by Shri Jhangiani. The contentions raised by Shri Chabria are, therefore, rejected. 28. In the view that I have taken, the petition succeeds. The impugned order passed by the Appellate Court on 28th February, 1989 is hereby quashed and set aside and the order passed by the Co-operative Court on 31st October, 1988 is hereby restored. The proceedings initiated by the respondents in the Co-operative Court under section 91 of the Societies Act are hereby quashed on the ground that the Co-operative Court has no jurisdiction to entertain the said proceedings. Rule is accordingly made absolute in terms of prayer (a). There will, however, be no order as to costs. 29. Issuance of certified copy expedited. 30. Petition allowed.

Author: A Savant

M/S. Southern Automatic ... vs Mrs. N.S. Talpade & Another on 29 August, 1998

Bombay High Court

Gujarat High Court Case Information System Print CR.MA/9844/2010 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9844 of 2010 ====================================== RANCHHODBHAI HARJIBHAI JETHVA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ====================================== Appearance : MR BM MANGUKIYA for Applicant(s) : 1 MS MANISHA L. SHAH APP for Respondent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 04/10/2010 ORAL ORDERThe present application has been filed by the applicant for grant of regular bail under section 439 of Code of Criminal Procedure, 1973, after the charge sheet is filed. The applicant is charged with having committed offence sections 489(B), (C) and section 34 of Indian Penal Code, for which, F.I.R. being I-C.R.No.119 of 2009 has been registered with Amreli Taluka Police Station. Learned advocate Mr.Mangukia for the applicant accused referred to the First Information Report and submitted that considering the nature of offence and the role attributed to the applicant and as now the charge sheet has been filed, present application may be allowed and the applicant may be released on bail. Learned Additional Public Prosecutor Ms.M.L.Shah resisted the application. Having heard Mr.Mangukia, learned advocate for the applicant and Ms.M.L.Shah, learned APP for State and having considered the nature of offence, role attributed to the applicant and the fact that as now the charge sheet has been filed, present application deserves to be allowed. Accordingly, present application stands allowed. The applicant is ordered to be released on regular bail in connection with F.I.R. being I-C.R.No.119 of 2009 registered with Amreli Taluka Police Station on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one solvent surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall: (a) not take undue advantage of his liberty or abuse his liberty. (b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner. (c) not act in any manner injurious to the interest of the prosecution. (d) maintain law and order and should cooperate the investigating officers. (e) mark his presence before concerned Police Station on 1st Monday of English calender month between 11:00 AM to 2:00 PM till the trial commences. (f) furnish the address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of the Court. (g) surrender his passport, if any, to the lower Court, within a week. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute to the aforesaid extent. Direct service permitted. (RAJESH H.SHUKLA, J.) Amit/-

Author: Rajesh H.Shukla,&Nbsp;

Ranchhodbhai vs State on 4 October, 2010

Gujarat High Court

In the Central Information Commission  at New Delhi File No: CIC/AD/C/2011/000209 Date  of Hearing :  June 10, 2011 Date of Decision :  June 10, 2011 Parties: Applicant Ms.Pushpinder kaur M/s.Amba Shree Films (India) 150 Tagore Nagar Basti Sheikh Road Jalandhar 144 002 The Applicant's representative  was heard through audio conferencing Respondents O/o the Director Doordarshan Kendra Jalandhar Represented by : Shri Daljit Singh, PIO & Sr. Director Information Commissioner :   Mrs. Annapurna Dixit ___________________________________________________________________ In the Central Information Commission  at New Delhi File No: CIC/AD/C/2011/000209 ORDER Background 1. The Applicant filed an RTI application dt.12.8.10 with the PIO, DDK, Jalandhar seeking the following  information: i) Photocopy of agreement of 41 films (Names of the film provided) which was telecast on   DDK, Jalandhar between April 2006 and June 2010. ii) Photocopy of the censor of those 41 films iii) Photocopy of agreements which shows that producer of the film has sold the telecasting   rights to the supplier to whom payment has being made by DDK, Jalandhar Shri Jyotinder Singh, CAPIO replied on 14.9.10 denying the information u/s 8(1)(d) of the RTI Act.  Being aggrieved with the reply, the Applicant filed a complaint dt.Nil before CIC. Decision 2. The Commission on review of the information sought and after hearing the submissions by both sides  directs the PIO to provide  copies of censor certificates for the 41 films mentioned by the Appellant in  his RTI Application as also the copies  of the agreements entered into by the suppliers and the DDK,  Jalandhar.   In the event of non­availability of certificate/agreement of any of those 41 films, the PIO  may   explain   the   reasons   for   its   non­availability.     As   for   the   agreements   reached   between   the  producers and the suppliers the same  are not maintained by the Public Authority, as per submission  of the Respondent.  Be that as it may, the information is denied by the Commission u/s  8(1)(d) of the  RTI Act while holding that the disclosure will harm the competitive position of a third party. 3. The information should reach the Appellant by 10.7.11 and the Appellant to submit a compliance  report to the Commission by 17.7.11.  With regard to point (iii), the Commission noted that the agreement is  between two private individuals and hence falls outside the ambit of the RTI Act.    4. The complaint is disposed of with the above directions. (Annapurna Dixit) Information Commissioner Authenticated true copy  (G.Subramanian) Deputy Registrar Cc: 1. Ms.Pushpinder  Kaur M/s.Amba Shree Films (India) 150 Tagore Nagar Basti Sheikh Road Jalandhar 144 002 2. The Public Information Officer O/o the Director Doordarshan Kendra Jalandhar 3. Officer in charge, NIC

Mr.Pushpinder Kaur vs Ministry Of Information And ... on 10 June, 2011

Central Information Commission

JUDGMENT S.D. Bajaj, J. 1. Criminal Misc. No. 4857-M of 1989 has been filed by M/s Laxmi Sales, Bazar No. 2, "Bhilwara, Rajasthan. a partnership concern and its three partners namely Laxmi Lal Ranka, Mohinder Lal Ranka and Bhagat Ram Somani for quashing the complaint Annexure P 1, summoning order Annexure P 2 and also subsequent proceedings taken therein on the ground of their being an abuse of the process of court. Similar request made in Criminal Revision No. 10 filed on 7th March, 1989 was declined by the learned Additional Sections Judge, Patiala, on 24th April, 1989, 2. It is asserted in the quashing petition that the dispute between the parties is of a civil nature arising of settlement of accounts, that on railing the complaint Annexure P. 1 no criminal offence is made out against the petitioners, that Sections 406 and 420 of the Indian Penal Cads are mutually exclusive and that the Criminal Court at Patiala does not have the jurisdiction to entertain and adjudicate upon the complaint because the agreement of dealership was signed at Bhilwara and no part of the cause of action arose at Patiala. 3. In reply it was asserted that the Revision filed against the summoning order having been dismissed by the learned Additional Sessions Judge, Patiala, second Revision under the garb of Section 482 of the Criminal Procedure Code petition does not lie. It was further asserted that the agreement of agency was finalised and accepted at Patiala, that the accounts were settled at Patiala, that cheques of payment due on settlement of accounts were payable by the bankers of the petitioners at Patiala and, therefore, the Criminal Court at Patiala has the jurisdiction, that the payment of cheques aforesaid having been stopped with dishonest intention of cheating the respondents and misappropriating the supplies admittedly made by the as respondents to the petitioners as their Agents, the dispute ceased to be of a civil nature and the petitioners could legitimately be proceeded against for it under Sections 406/420 read with Section 120B of the Indian Penal Code. Hence the quashing petition merits dismissal. 4. I have heard Shri R. K. Aggarwal, Advocate, for the petitioners, Shri Rajiv Atma Ram, Advocate, for the respondent and have carefully gone through the relevant records. 5. Relevant averments in the complaint Annexure P. I read :- "That a sum of Rs. 46,269.30 was due from the accused in the account of Bakeman's Home Products Pvt. Ltd; and a sum of Rs. 63,166.35 was due from the accused in the account of Rasan Detergents, which is a Division of Bakeman's Home Products Pvt. Ltd. The above said payments were due from the accused against the goods supplied by the complainant company from time to time and after adjustment of ail the payments made by them. That the complainant company's representatives Shri I. D. Sharma, Director Marketing and Sh. Charan Singh Dy. Sales Manager, visited the place of the accused on 21-9-1968 and after settling all the disputes and the accounts mutually and confirming the balance of Rs. 45,269.30 and Rs. 63,166.35 and on the request of the accused, Cheques No. 810608, dated 27-9-1988 for Rs. 45,269,20 and cheque No. 672747, dated 27-9-1988 for Rs. 63,166.88 were presented to their backers at Patiala. The information was also sent to the accused by the complainant company vide letter dated 24-9-1988. That the accused instead of honouring these cheques which were presented to their bankers at their request, informed the complainant company telegraphically by taking the excuse denied any settlement and asked for coming and settling the account again, la view of the telegram of the accused, the complainant company requested the accused vide telegram dated 3-10 1988 to honour the cheques in question keeping in view the settlement already made. That inspite of all this the accused in connivance with each other, intentionally and wilfully gave directions to their bankers for stopping the payment of the complainant company, resulting them heavy losses. The amount due from the accused have shown in the statements of accounts of the accused, which Lave been submitted with this complaint. That the acts of the accused amounts to Criminal breach of the trust and cheating along with hatching a conspiracy to defraud with the complainant company." To support these allegations it has been asserted in paragraphs 5 to 7 of the reply. "The correct position is that the petitioner from applied to the answering respondent to become their dealers for Bhilwara City for the respondents various products They came to Patiala and settled terms and conditions with the answering respondent at Patiala. There- after, they sent cheques/drafts for the security amount. On receipt of the security amount agreement forms were sent to the petitioners. The petitioners signed the agreement forms and seat them back for acceptance to Patiala. The answering respondent finalised the contract by singniag on the agreement form after its receipt from the petitioners. This was done at Patiala. Consequently, the contract was entered into at Patiala. Hence the courts at Patiala have got the jurisdiction to go into this matter. In pursuance of the contract the petitioners gave Co the answering respondents signed cheques to be used by the answering respondent as and when stock of goods was despatched to the petitioners. The practice being followed is chat whenever stocks are despatched by the answering respondent from Patiala, the amount of money due is collected by depositing one of the signed cheques lying with the answering respondent. This position was accepted by the petitioners and this practice was continuing since 1985. The petitioner never raised any objection against this. No prior approval was ever taken by the answering respondent for encashing a signed . cheque. As and when a demand for supply of stock was received from the petitioners, the goods would be despatched and a cheque encashed." 6. With reference to the observations, made in Jalpa Parshad Aggarwal v. State of Haryana and Anr., 1987 (2) R.C. R 427. Ktishan Kumar Bharadia v. The State of Haryana, 1989 (1) R. C. R 268. and G. Dharan arajan v. Jai Bhagwan, 1989 (l)Ch. L. R. 120. it has been asserted that the dispute being of civil nature in respect of amount found due on rendition of accounts, the complaint Annexure P. 1 as also the summoning order Annexure P. 2 . both, call for being, quashed. All these three authorities are clearly on distinguishable . facts. Facts and-circumstances obtaining in the present case are almost akin to the facts and circumstances obtaining in Ravinder Pal Singh Gautam v. M/s Punjab Tractors Lid, 1987 (1) R. C. R. 680. wherein my learned brother S. S Sodbi, J. observed "No exception can possibly be taken to the summoking order Annexure P.2 and the quashing petition merits rejection." Then again it was held by the Supreme Court in Rajan Kumar Mochananda v. State of Kurnataka, J.T. 1987 (4) S. C. 687., that the present revision under the garb of 482, Criminal Procedure Coda petition for quashing does not lie after dismissal of Criminal Revision No. 10 filed on 7th March, 1989, by the learned Additional Sessions Judge, Patiala. on 24th April, 1989. The petitioners having stopped payment of cheques issued to make payment for the supplies admittedly received have obviously deceived the respondents in the quashing petition and the complainants before the learned trial court Criminal mi-appropriation/breach of trust has also bees committed by them in. respect of goods supplied by respondents to them . Averments reproduced above from the complaint Annexure P 1, therefore, clearly bring out the commission of criminal offence by the accused-petitioners and as per guide lines embodied in State of West Bengal and Ors. v. Swapen Kumar Guha and Ors., A. I. R. 1982 S.C. 949, there is no ground for quashing the complaint. The relevant observations made by the Supreme Court therein read, "Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If ok a consideration of the relevent materials, the Court is satisfied that ass offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed far collecting materials for proving the offence." 7. Further more agrement of agency was accepted at Patiala, the bankers of the petitioners are at Patiala, the cheques issued were therefore payable at Patiala, and the payment of these cheques issued by the petitioners was withheld by the bankers at Patiala, therefore, the criminal court at Patiala has the jurisdiction. 8. Cheating is alleged to have been committed by the petitioners through their stopping the payment of cheques; while criminal misappropriation/criminal breach of trust is attributed to them in respect of the goods supplied. Plea of the two offences being mutually exclusive could be urged if both the offences were alleged to be the outcome of one single transaction. Then again the relief of quashing the complaint is not available even if either of the two offences is prima- facie made out against the petitioners on a mere reading the complaint; which of coarse is as has been held above, 9. For the reasons given above, Criminal Misc. No. 4857-M of 1989 is rendered to be wholly without merit and is consequently' dismissed. it shall not, however preclude the petitioners from availing themselves of the allegations made in the quashing petition as their defence in the complaint being adjudicated upon by the learned trial court.

Author: S Bajaj

Laxmi Sales And Ors. vs Bakeman'S Home Products Pvt. Ltd. on 14 September, 1990

Punjab-Haryana High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 7976 of 2007(Y) 1. P.J.PAULOSE, S/O.JOSEPH, AGED 51 YEARS, ... Petitioner 2. CARMEL EDUCATIONAL TRUST, REPRESENTED 3. CARAMEL ENGINEERING COLLEGE Vs 1. GRACY BABU THOMAS, ... Respondent 2. JOSE THOMAS, S/O.THOMAS AGED 49 YEARS, 3. FRUDDY BABU THOMAS, 4. JUDY BABU THOMAS, 5. RIJO THOMAS JOSE, 6. REENA JOSE THOMAS, 7. ANNA JOSE @ RAJI JOSE D/O.REENA JOSE, 8. LISSY POULOSE, W/O.P.J.PAULOSE, 9. ROSHINI PAUL JOSEPH, D/O.LISSY PAULOSE, 10. ROHINI PAUL JOSEPH D/O.LISSY PAULOSE, 11. INDIAN OVERSEAS BANK, INDU INTERNATIONAL For Petitioner :SRI.BABY ISSAC ILLICKAL For Respondent : No Appearance The Hon'ble MR. Justice K.P.BALACHANDRAN Dated :09/03/2007 O R D E R K.P.BALACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)NO.7976 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March 2007 JUDGMENT The plaintiffs in O.S.248/06 on the file of Sub Court, Pathanamthitta are the petitioners. Along with the suit they filed I.A.1622/2006 for an interim injunction. The court below ordered notice and posted the case to 27.1.2007. It is submitted that a petition to advance the hearing of the suit and the injunction petition was filed on 15.12.2006 and that was dismissed on 1.1.2007. Obviously when notice was ordered on injunction petition and the suit and the injunction petition are posted to 27.1.2007, the posting could not have been advanced. But the grievance of the petitioner is that on 27.1.2007 all counter petitioners entered appearance and filed counter but hearing of the injunction application was adjourned to 13.3.2007 along with the suit and though the petitioners moved I.A.137/07 on 9.2.2007 to advance the hearing of the injunction application that I.A. also was dismissed on 9.2.2007. 2. If, as is submitted by counsel for the petitioners, the respondents had entered appearance and filed counter there is  W.P.(C)NO.7976 OF 2007 2 no justification for the court below in refusing to advance hearing and have the injunction matter heard when it is submitted that the matter is urgent. The position would be different, if the submission made is not true to facts. 3. In the result, I direct the court below to advance hearing of I.A.1622/06 and to pass appropriate orders thereon within three weeks from the date on which a copy of this judgment is received by him provided the counter petitioners in the said I.A. have entered appearance and filed counter as is submitted by the counsel for the petitioners. The petitioners are at liberty to produce a copy of this judgment before the Sub Judge, Pathanamthitta to enable him to comply with the above directions at the earliest. This writ petition is disposed of with the above direction. K.P.BALACHANDRAN, JUDGE jes 

P.J.Paulose vs Gracy Babu Thomas on 9 March, 2007

Kerala High Court

JUDGMENT K. L. ROY J. - This is a reference under section 66(1) of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act). The assessment year concerned is 1953-54 for which the relevant accounting periods commenced on October 1, 1951, and ended on September 30, 1952. The original assessment for this year was completed by the Income-tax officer on November 30, 1953. In making the assessment, the Income-tax Officer accepted the assessees profit and loss account which showed a loss on sale of shares of Rs. 5,14,295. Subsequently, the Income-tax Officer had information that in consequence of an order under section 23A passed in respect of Messrs. Sahu Jain Ltd. of which the assessee was a shareholder, dividend deemed to have been distributed to the assessee had escaped assessment. The Income-tax Officer started reassessment proceedings under section 34 (1) (b) of the Act on February 7, 1958, to assess this deemed dividend income. In the meantime, the Income-tax Officer had completed the assessees assessment for the subsequent year 1954-55, and had disallowed the assessees claim for loss of Rs. 9,93,686 on the sale of shares for that year. In the course of that assessment proceedings the Income-tax Officer found that, (i) the loss claimed arose from the sale of shares of companies which were under the control of the Sahu Jain group, and (ii) that the purchases and sales of shares by the assessee-company were a part of the general rearrangement and transfer of shares originally held by the companies, from one to another with a view to shift the losses due to depreciation. The Income-tax Officer scrutinised the purchases and sales of the shares by the assessee and found that the shares were purchased from various companies controlled by this group and also from members of the Dalmia or the Jain families and that the shares have ultimately been sold to other companies of the group or to other members of the two families though some of the transactions were effected through share brokers. He also found that the assessee-company commenced business in October, 1949, and closed its accounts for the first year on September 30, 1950. During that year the assessee dealt in cement and purchased shares worth Rs. 7,000 which was shown as investment in its balance-sheet as on September 30, 1950. The share capital of the company as on that date was Rs. 50,000. The share capital was raised to Rs. 5,00,000 in July, 1952. In the second year of business the assessee took a loan of rupees two crores from Messrs. Dalmia Cement and Paper Marketing Co. Ltd. and this loan was utilised by the assessee to advance a similar sum to another allied company, namely, Ashoka Marketing Co. Ltd. During the accounting year ended September 30, 1951, the assessees total purchases of shares amounted to Rs. 43,97,932. There were no sales of shares in this year. During the accounting year ended September 30, 1952, that is the year under consideration, the purchases and sales of shares were over Rs. 46,00,000 and Rs. 40,00,000, respectively, while in the immediately succeeding year there were no purchases. The Income-tax Officer rejected the contention of the assessee that it was dealer in shares. He referred to the resolutions of the board of directors of the assessee-company dated May 4, 1951, May 26, 1951 and June 13, 1951, respectively, which, while approving the purchases and sales of shares, described such purchases and sales as those of investment. He also referred to the resolution passed by the assessees board of directors on August 27, 1952, the material portion of which is as follows : "Item 4. - Noted purchase of 4,00,000 ordinary shares in Rohtas Industries Ltd. at the rate of Rs. 7 per shares and 70,000 ordinary shares is shree Krishna Gyanoday Sugar Mills Ltd. at the rate of Rs. 5 per share in pursuance of the directors resolution dated 18th July, 1952. Resolved that these shares should be held as an investment as distinguished from the shares which till now had been acquired and held as stock-trade. Item 5. - Considering the financial position of the company resolved that the funds invested in Punjab National Bank Ltd. shall be liquidated." The Income-tax Officer further found that the word "investment" had been struck off in the minutes of the earlier meetings though such striking out was not initialled by the chairman of the board of directors. The Income-tax Officer, accordingly, held that these shares were being held by the assessee-company as investment and the transactions amounted to transfer of these shares from one company to another under the control of the Sabu Jain group due to some reasons other than the motive of trade and the resulting the claim for loss. The Income-tax Officer therefore disallowed the claim for loss for the assessment year 1954-55. In his order of reassessment under section 34 for the assessment year 1953-54, the Income-tax Officer examined some of the major transactions of purchases and sales of shares and found that both the ultimate sellers and purchasers of the shares were companies and persons over whom the Dalmia and the Sahu Jain group had direct or indirect control. Following his reasons for disallowed the claim for loss on sale of shares for the assessment year 1954-55, the Income-tax Officer disallowed the claim for loss of Rs. 5,14, 295 in this year and reduced the loss allowed in the original assessment to that extent. On appeal from the order of assessment, the Appellant Assistant Commissioner repelled the assessees contention that in a proceeding for reassessment the Income-tax Officer could not include any other item of escaped income except such income in respect of which the section 34 notice had been issued. He relied on the decision of the Punjab High Court in Commissioner of Income-tax v. Jagan Nath Maheshwary. The Appellant Assistant Commissioner also negatived the assessees contention that as its account showing the purchases and sales of these shares and the all other relevant data were produced before the Income-tax Officer at the time of the original assessment, the Income-tax Officers making the reassessment was not entitled to sit in judgment over the decision of his predecessor and hold that the loss was not a trading loss. The Appellant Assistant Commissioner found that certain facts were not brought to the notice of the Income-tax Officer at the time of the original assessment which only came to light at the time of the assessment for the subsequent year. He mentioned that the various resolutions of the board if directors of the assessee-company showing the these shares as investments, the sale vouchers of the assessee showing the sales of these shares as those of investments and the fact that the balance-sheet of the earlier years were not brought to the notice of the Income-tax Officer at the time of the original assessment. The Appellate Assistant Commissioner also rejected the further contention of the assessee that it was a dealer in shares. The Appellant Assistant Commissioner further found that at the time the resolution of August 27, 1952, was passed, the assessee had already incurred large losses on the sale of these shares. Accordingly, the Appellate Assistant Commissioner dismissed of the assessees appeal. On further appeal by the assessee to the Tribunal it was contended inter alia, (i) that action under section 34 having been taken to assess the deemed dividend from Messrs. Sahu Jain Ltd. it was open to the income-tax Officer to consider afresh the claim for losses on share dealing and to disallowed the same; (ii) that a successor Income-tax Officer could not sit in judgment on this predecessors order. On the merits it was contended that the frequency of the transactions and the financing of transactions by resort to borrowing would clearly indicate that the transactions were, in fact, dealings in shares. Further, the assessees articles of association permitted the assessee to deal in share. It was further contended that the word "investment" was inadvertently used in the earlier resolutions of the board of directors and that the resolution of August 27, 1952, correctly showed the position that the shares were held as stock-in-trade. It was further submitted that the magnitude and the volume of the transactions and the close intervals at which the purchases and sales were made clearly showed that these were trading transactions. The Tribunal negatived all the aforesaid contentions of the assessee. It held that as proceedings under section 34 had been validly initiated in this case to reassess the dividend income deemed to have been distributed by virtue of the order under section 23A, the Income-tax Officer was competent to include items other than those in respect of which notices had been issued and for this proposition it relied on the decision of the Punjab High Court in Jagan Naths case, referred to by the Appellate Assistant Commissioner. The Tribunal further observed that neither the order sheet nor the records of the original assessment showed that the minutes book or the sale vouchers were produced before the Income-tax Officer at the time of the original assessment. The Income-tax Officer had merely accepted the loss as per the assessees profit and loss account without making any investigation whatsoever. All that section 34(1) (b) required what that the Income-tax Officer must have in his possession information and in consequence of such information would be have reason to believe that income had escaped tax. Both these requirements had been satisfied in this to believe that income had escaped assessment. The Tribunal accordingly held that the proceedings under section 34(1) (b) initiated by the Income-tax Officer resulting in the assessment was legal and valid. The tribunal examined the minutes book of the meetings of the board and directors of the assessee-company and found that the resolutions dated May 26, 1952, and June 13, 1952, approved the purchases and sales of investments as detailed thereunder. The Tribunal further found that that words "of investment" had been struck out in the minutes book without anybody initialling the cutting. The Tribunal also examined the internal vouchers of the assessee-company for the sale of shares and found that in these vouchers the sales were described as those of investment. The Tribunal observed that in the past years the shares held by the assessee had been shown under the head "investment" in the respective balance-sheets. It was only in the balance-sheet for the year ending September 30, 1952, that the assessee had shown investment under two parts, namely, (i) investments held as stock-in-trade and, (ii) investments held as investments, and the Tribunal referred to the resolution of the board of directors dated August 27, 1952, and observed that it was only under that resolution and in pursuance thereof that the assessee had shown part of its investment in shares as its stock-in-trade. The Tribunal remarked that the loss claimed arose on the sale of shares purchased before August 27, 1952, and that the resolution approving these purchases specifically spoke of the purchases as on account of investment. The Tribunal further found that negotiations for the sale of the shares had been finalised on June 12, 1952, when the assessee was aware of its position regarding loss on the sale of these shares. The resolution of August 27, 1952, describing the shares, which had been acquired till then, as stock-in-trade was deliberately passed in order to prepare a case for the claim for the loss. The Tribunal agreed with the Appellate Assistant Commissioner that the purchase of the shares, on the sale of which the loss occurred, had been originally made as capital investment and it was only at the end of August, 1952, when the assessee had already incurred huge losses on the sale these shares, that the assessee thought of recording the resolution treating those shares as stock-in-trade. The Tribunal was not impressed with the assessees contention that the magnitude and frequency of the purchases and sales as also the short interval between transactions indicated that the purchases and sales were made under a scheme of profit-making. The Tribunal ultimately held that there was ample evidence on record to establish that the shares which were disposed of during the accounting period were acquired earlier as a measure of investment and that they were not purchased in the course of the assessees business as a dealer in shares. The Tribunal accordingly upheld the disallowance of the claim for loss by the authorities below. At the instance of the assessee the Tribunal referred the following two questions of law to this court : "(1) Whether, on the facts and in the circumstances of the case, the proceedings under section 34(1) (b) of the Indian Income-tax Act, 1922, were validity initiated and the assessment made pursuant to the said proceedings was legal and valid ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the loss of Rs. 5,14,295, on the sale of shares did not arise to the assessee from a share dealing business but was a loss on realisation of investment ?" Mr. D. Pal, learned counsel appearing for the assessee, drew our attention to the provisions of section 34(1) (b) as it stood at the relevant time and argued that the words "may proceed to assess or reassess such income" referred to the income which the Income-tax Officer had reason to believe to have escaped assessment. He did not dispute that the assessment was validly reopened under section 34(1) (b) in order to assess the deemed dividend income of the assessee consequent on the order under section 23A. His submission was that in such a proceeding for reassessment, the Income-tax Officer could not consider other items of income which had also, in his opinion, escaped assessment. If the Income-tax Officer had reason to believe that other items of income had also escaped assessment, he should have taken separate proceedings under section 34 to reassess such income. Mr. Pal argued that if a notice was issued under section 34(1) (a) in respect of an escarpment of income due to the omission or failure of the assessee to disclose such income and if in the course of the reassessment proceeding the Income-tax Officer came across other items which he considered had escaped assessment, though there had been no omission or failure on the part of the assessee to disclose such income, the Income-tax Officer would have no jurisdiction to reassess such income in the same proceedings. It was further argued that reassessment proceedings under section 34 had to be initiated within a certain time-limit and, if the Income-tax Officer proceeds to consider other items of escaped income for which he could not have initiated separate proceedings under section 34, the assessees substantial rights would be affected. He also submitted that the Punjab High Court in Jagan Nath Maheshwarys case, which has been relied on by the Tribunal, had not considered these aspects and the decision required reconsideration. It was next contended by Mr. Pal that, even if it be held that the proceeding under section 34(1) (b) was rightly initiated, there was no fresh information in the possession of the Income-tax Officer in consequence of which he could have any reason to believe that any income chargeable to tax had escaped assessment. At the time of the original assessment the assessee had produced its books of account before the Income-tax Officer and had furnished all information called for and on the scrutiny of such accounts and consideration of the information called for and on the scrutiny of such accounts and consideration of the information supplied, the Income-tax Officer had accepted the assessees claim for loss on the sale of the shares as a trading lose. The successor Income-tax Officer had taken a different view in his assessment order for the subsequent year 1954-55 and following that view had disallowed the loss as not being a trading loss in the reassessment proceedings for this year. A mere change of opinion on the part of the Income-tax Officer could not be said to be information must come from an external source. He referred us to the decision of the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax and submitted that "information" in section 34(1) (b) would include factual information or information as to the true and correct state of the law. Mr. Pal submitted that in this case the Income-tax Officer had no subsequent information either as to any new facts or any decision of an appellate authority or an appellate court, and his own opinion in the assessment proceedings for a subsequent year could not constitute such information. Mr. Pal referred to the decision of the Madhya Pradesh High Court in Ram Kishan Oil Mills v. Commissioner of Income-tax where it has been observed that if the predecessor of the Income-tax Officer did not apply his mind to a question and his successor did, that did not mean that the successor Income-tax Officer came into possession of information justifying the reopening of an assessment under section 34(1) (b). It was therefore submitted that the disallowances of the claim for loss in the reassessment proceeding was neither legal nor valid and the first question should be answered in favour of the assessee. Mr. Gouri Mitter, learned counsel appearing for the Commissioner, submitted that, apart from the Punjab High Court decision relied on by the Tribunal, there are two decisions of the Madras High Court which have held that once an assessment is reopened, any other item of income which had escaped could be brought to tax. He argued that the interpretation of the relevant words of section 34(1) (b) by the Punjab High Court was the only logical and grammatical construction that could be put on the words "such income". In Jagan Nath Maheshwarys case the Punjab High Court had observed that the word "such" occurring in section 34 had to be attributed to the last antecedent, namely, the escaped or the under-assessed income, profits and gains without in any way further linking it with a any particular escapement that was discovered in consequence of definite information. In Modern Theatres Ltd. v. Commissioner of Income-tax the Madras High Court at page 686 observed as follows : "In any event, it seems to us that when the assessment of an assessee is reopened under section 34(1) (a), the Income-tax Officer is not limited to any specific allegation of suppression mentioned in the notice. The entire assessment is liable to be reopened, and if on such re-examination it is seen that, they reasons of the failure of the assess to disclosed fully and truly all material facts, any other sums had also escaped assessment, it is within the jurisdiction of the Income-tax Officer to inclued them as well." Mr. Mitter further submitted that it was not correct to say that the Income-tax Officers finding that the assessees dealing in shares during the accounting year did not amount to normal trading activities was a mere change of opinion. The following facts which came to the knowledge of the Income-tax Officer during the assessment proceedings for 1954-55, were not disclosed at the time of the original assessment for 1953-54, namely, (1) that according to the minutes of the meeting of the board of directors, the shares were purchased as investments; (2) that the shares were shown as investment in the balance-sheet of the earlier years (3) that the shares were purchased with money borrowed from an allied concern not from banks; (4) that the sale vouchers of the assessee showed the sales as sales of investments; (5) that the shares were acquired from and ultimately went back to the members of the Dalmia or Jain families or to companies associated with them. The Tribunal, in this case, has observed that the additional information came into the Income-tax Officers possession in the course of the assessment for the subsequent year which led him to believe that income had escaped assessment. Mr. Mitter referred us to the following observations of the Madras High Court in Family of V. A.M. Sankaralinga Nadar v. Commissioner of Income-tax : "It is now well settled that an action under section 34 of the Act cannot be justified on the ground of a mere change of opinion regarding chargeability of income of the part of the reassessing officer different from his own previous opinion or from that of his predecessor in office. There can be no doubt to the soundness of this principle of law as otherwise the assessee might become the victim of the freaks of changes of opinion of the officers from time to time. But income which escapes assessment as a result of the lack of vigilance of the Income-tax Officer or due to inadvertence or negligence or the perfunctory performance of his duties which out due care and caution can well be within the ambit of section 34(1) (b) provided the requirements of that section are satisfied..... The assessment proceedings of the year 1951-52 relating to Muthumaniratnam gave sufficient information to the officer to engender the belief that the business income of the family, of the year 1950-51, had escaped assessment. In our opinion, section 34 of the Act was rightly invoked by the income-tax officer and the proceedings cannot be challenged as being in excess of his jurisdiction." Mr. Mitter pointed out that in the above case, the assessment proceedings and the subsequent year were held to have given sufficient information to the Income-tax Officer for his action under section 34. Mr. Mitter submitted that the contentions of Mr. Pal must fail and the first question must be answered against the assessee. The relevant provisions of section 34 as applicable to the assessment year under consideration are as follows : "34. (1) If - (a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly material facts necessary for his assessment for that year, income, profit or gains chargeable to income-tax have escaped assessment for that year, or have been sunder-assessed, or assessed at too low a rate have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the Income-tax Officer has in consequence information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at to a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed, he may in cases falling under clause (a) at any time eight years and in cases falling under clause (b) at any time within four years of the end of the year, serve on the assessee, or, if the assessee is a company, on the principal officer therefore, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub-section." An argument, similar to the one made before us by Mr. Pal, was also advanced before the Punjab High Court in Jagan Nath Maheshwarys case, namely, that "such income" referred not to the earlier escaped income but to that part of it only with respect to which the Income-tax Officer had definite information in consequence or which he had discovered the escapement. That High Court had no difficulty in repelling the argument. It held that either on the basis of grammar, logic or natural and reasonable construction, the word "such" as used in that content qualified "income, profits or gains" which had escaped assessment; it did not proceed further to qualify or particularise any portion of the escaped income, or extent of its discovery, or the or the nature of the information. We are in complete agreement with the view expressed by the learned judges of the Punjab High Court, particularly, with their observation at page 431 that : "In the grammatical, usage, and in its natural and ordinary sense, the word such is understood to refer to the last antecedent, unless the meaning of the sentence thereby be impaired..... The word such indicates somethings just before specified, or spoken of, that is proximately, and not merely previously. It particularises the immediately preceding antecedent, and not everything that has gone before." Nothing that has been said by Mr. Pal has persuaded us to accept the construction of the words "such income, profits or gains or recompute the loss or depreciation allowance" in section 34 contrary to what is warranted by the rules of English grammar. We also agree with the Tribunal that additional information came into the possession of the Income-tax Officer in the course of the assessment for the subsequent year which led him to believe that excessive loss had been allowed in the original assessment. What theses additional facts were had been enumerated by Mr. Mitter in his argument. The Tribunal specifically pointed out that the resolutions of the board of the directors approving the purchase of shares as investment and the relative sale vouchers showing the sales as sales of investment were not disclosed to the Income-tax Officer at the time of the original assessment. Even if such information came to the Income-tax Officer in the course of the assessment of a subsequent year, it would constitute information to justify the Income-tax Officers belief that income had escaped assessment or that excessive loss had been computed. The observation of the Madras High Court in Family of V. A.M. Sankaralinga Nadar quoted above supports this view. A recent decision of the Gujarat High Court in Kanji Ranchhod v. Commissioner of Income-tax was brought to our notice. In that case, the Income-tax Officer had initiated reassessment proceedings under section 34(1) (a) to assess a credit entry of Rs. 21,352 which the assessee had failed to disclose. During the course of reassessment proceedings, the Income-tax Officer found that the entry did not relate to a credit for the year of account and was not taxable in that year. He, however, found another cash credit of Rs. 13,300 which had also not been disclosed and included this amount in the reassessment. The Gujarat High Court held that, as the belief on the Income-tax Officer that income had escaped assessment was based on a particular non-disclosure and as it was subsequently found that no income had escaped assessment for such non-disclosure, the belief of the Income-tax Officer was based on no material and the entire proceedings under section 34 including the reassessment of Rs. 13,300 was invalid. As in the case before us there is no dispute that the reassessment proceedings were validly initiated under section 34(1) (b) to reassess the dividend deemed to have been distributed to the assessee in consequence of an order under section 23A the ratio of the aforesaid decision is not applicable and we need not consider it further. Thus both the contentions of Mr. Pal fail and the first question must be answered against the assessee. Mr. Pal next argued that the Tribunal was not justified in holding that the loses arising from the sale of shares was not a trading loss but was a loss on realisation of investment. He submitted that as this was a mind question of fact and law, this court could go into the merits of the Tribunals findings. Reference was made to the observation of the Supreme Court in G. Venkataswami Naidu & Co v. Commissioner of Income-tax as appearing in the head notes of the report, to the following effect : "If, however, such a finding of fact is based on an inference drawn from primary evidentiary facts proved in the case its correctness or validity is open to challenge in reference proceedings within narrow limits..... It may also be open to the party to challenge a conclusion of fact drawn by the Tribunal on the ground that it is not supported by any legal evidence; or that the impugned conclusion drawn from the relevant facts is not rationally possible; and if such a plea is established, the court may consider whether the conclusion is not perverse and should not, therefore, be set aside... Such conclusions can never be challenged on the ground that they are based on misappreciation of evidence." Mr. Pal submitted that during the accounting year, the assessee dealt in the shares of 8 companies. He referred to the transactions in respect of the shares of Messrs. Rohtas Industries Ltd. and pointed out that more than 1,76,000 such shares were purchased during the period 18th February, 1952, to 10th June, 1952, and that the entire lot were sold between the 28th June, 1952, and 30th September, 1952, resulting in a loss of Rs. 50,354 and submitted that the magnitude and frequency of the purchases and sales would show that the assessee was dealing in shares. All the shares were purchased and sold at the prevailing market rates and were effected through recognised share brokers. The fact that the assessee had to borrow a large sum of money to purchase the shares would be further fact that the assessee was permitted by its articles of association to deal in shares would, in the submission of the learned counsel, lead to the conclusion that the assessee was a dealer in shares. Mr. Pal referred us to the decision of the Supreme Court in Raja Bahadur Visheshwara Singh v. Commissioner of Income-tax, where it has been held that if, on the evidence which was before the Tribunal, i.e., the substantial nature of the transactions, the manner in which the books had been maintained, the magnitude of the share purchased and sold and the ratio between the purchases and sales and the holdings, the Tribunal came to the conclusion that there was material to support the finding that the assessee was dealing in shares as a business, it could not be interfere with by the High Court. A similar view had been taken by this court in Commissioner of Income-tax v. Produce Exchange Corporation Ltd. In Raja Bahadur Kamakhya Narain Singh of Ramgarh v. Commissioner of Income-tax, the Tribunal took into account : (i) the frequency with which the assessee purchased and sold shares; (ii) the shortness of the interval between the purchase and the sale in several cases. (iii) the largeness of the amount of money being reserved by the assessee for this activity; and (iv) the borrowing by the assessee of nearly five lakhs of rupees for purchase of shares, and held that the assessee was a dealer in shares. On a reference, the Patna High Court held that the Tribunal had material for coming to the conclusion that the assessee was a dealer in shares. It was contended by Mr. Pal that the Tribunal had laid under stress on the earlier resolution of the assessees board of directors which described the purchases and sales as those of investments. The earlier misdescription was rectified by the resolution of the 27th August, 1952, which showed that 4,00,000 ordinary shares in Rohtas Industries Ltd. and 70,000 ordinary shares of Shree Krishna Gyanoday Sugar Ltd. purchased were to be held as investment as distinguished from the shares purchases earlier which were as investment as distinguished from the shares purchased earlier which were held as stock-in-trade. The assessees balance-sheet as on 30th September, 1952, correctly showed shares worth Rs. 46,44,114 held as stock-in-trade while shares worth Rs. 31,50,000 were shown as held for investment. It was further submitted that from the mere fact that the assessees board of directors had described these shares as investment, it would not necessarily follow that the shares constituted the assessees investment. The true nature of the transaction could not be changed by a mere description. It was the substance and not the form of the transaction that had to be considered. For this proposition several decisions including that of the Supreme Court in Delhi Stock Exchange Association Ltd. v. Commissioner of Income-tax, was relied upon. Mr. Pal, however, wanted to argue in the alternative that assuming that these shares were acquired as investment, the loss arising from the sale of such shares would still be a revenue loss. But it is not permissible for Mr. Pal to advance this argument as it does not arise out of the questions referred to this court. Mr. Gouri Mitter submitted that the assessee was incorporated in 1949 with a share capital of Rs. 50,000. In the next year a substantial sum was borrowed from an allied company and shares were purchased and held as investment. In the year under reference also substantial purchases were made out of the original borrowing and the purchases were, according to the relevant resolutions of the board of directors of the assessee-company, shown as investment. When the time came for setting off the profits earned by the assessee, the resolution of the 27th August, 1952, was passed. As this resolution was contradictory to the previous resolution, the word "investments" was deleted. Even more important was the fact that when these shares were sold, in the internal sale vouchers of the assessee-company the sales were shown as sales investments. Mr. Mitter referred us to the order of the Tribunal and pointed out that the Tribunal not only relied on the earlier resolutions of the board of directors but also on the sale vouchers and the further fact that the shares had been shown as investment in the balance-sheet in the earlier years. He also referred to the finding of the Tribunal that the shares in respect of which the loss was claimed had all been purchased prior to the 27th August, 1952, and that the negotiations for the sale of these shares had been finalised on 12th June, 1952, when the assessee was fully aware of its position regarding the loss on the sale of these shares Mr. Mitter submitted that on these fact the Tribunal was justified in holding that the purchase of the shares, on the sale of which the loss occurred, had been originally made as capital investment and that it was only at the end of August, 1952, when the assessee had incurred huge losses, that the assessees board of directors changed the designation of these shares. The Tribunal had also considered the facts on which Mr. Pal had relied namely, the magnitude and frequency of these transactions, the short interval between the purchases and sales, the borrowing of funds for the purchase of shares, etc. and came to the conclusion that the loss claimed was not a loss arising from the assessees business as a dealer in shares. Such a finding could not be challenged as not being justified. Normally, the facts relied on by Mr. Pal, namely : (1) the volume and frequency of the purchases and sales, (2) that the shares were purchased and sold at market rates and through recognised share dealers, (3) borrowing of funds for financing the purchases, and (4) that the assessee was authorised by its articles of association to dealing in shares. If on these materials the Tribunal had come to the conclusion that in this case the loss suffered by the assessee was a trading loss, possibly this court could not interfere with such a finding. But none of these circumstances either singly or collectively are conclusive. The Supreme Court, in Ramnarain Sons (Pr.) Ltd. v. Commissioner of Income-tax had observed that neither the circumstances that the appellant-company borrowed money at interest to purchase the shares nor the fact that it was a dealer in shares and was authorised by its memorandum of association to deal in shares, was of any effect. Nor could the appellant-company by entering the shares of the mills in its statement of shares in which trading transactions were carried on alter the real character of the acquisition. On a consideration of the various resolutions of the assessees board of directors approving the purchases of these shares, the treatment of the shares as investment in earlier years, and the relevant sale vouchers, the Tribunal has held that the shares were acquired as investment and were not purchased in the course of the assessees business as a dealer in shares. The Tribunal had rejected the assessees contention that the shares constituted its stock-in-trade as shown in the balance-sheet for the relevant accounting year and which was in accordance with the resolution of its board of directors dated the 25th August, 1952, as it was of the opinion that the resolution of the 27th August, 1952, was deliberately passed to convert a capital loss into a trading loss. The Tribunal refused to accept the assessees explanation that the description of the shares as investments in the earlier resolution. The Tribunal has pointed out that even in the assessees own sale vouchers these shares had been shown as investments and no attempt has been made to rectify these vouchers. Even if the finding of the Tribunal is an inference drawn from primary facts found in this case, and this court is entitled to consider whether such a conclusion was not perverse and should, therefore, be set aside, could it be said that conclusion arrived at by the Tribunal was not supported by any legal evidence or that such a conclusion was not rationally possible ? Mr. Pal objected to the finding of the Income-tax Officer and of the Appellate Assistant Commissioner that the shares purchased were the shares of companies under the control of the Sahu Jain group and that ultimately the vendors and the purchasers were either the members of the Dalmia and Jain families or companies controlled by them. It was pointed out that the Panjab National Bank shares were purchased from Express Newspapers private Ltd. which had no connection with either the Dalmias or the Jains. Similarly, 10,000 of these shares were sold to Bharatiya Gyanapith which was a public charitable institution. Mr. Pal may very well be right in his contention but the Tribunal has not based its conclusion on the fact that the shares were the shares of controlled companies and that the ultimate vendors and purchasers were the members of the two families facts for drawing its conclusion, namely : (1) that the assessee had treated the shares as its investment in earlier years; (2) that even in the year of account, the resolutions of the assessee s board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments. (3) that the sale vouchers showed the sales as sales of investment; and (4) that the negotiations for the sale of these shares were completed in June and the assessee was aware of the loss arising from such sales and that the resolution of the 27th August, 1952, was an attempt by the assessee to convert a capital loss into trading loss. On these facts and in the circumstances, we are unable to say that the conclusion arrived at by the Tribunal was perverse in the sense that the conclusion has been arrived at on a view of the facts which could not reasonably be entertained. As the Supreme Court has pointed out in G. Venkataswami Naidus case such conclusion could never be challenged on the ground that they were based on misappreciation of evidence. In our opinion, therefore, the Tribunal was justified in holding that the loss of Rs. 5,14,295 on the sale of shares was a loss on realisation of investments. The second question also must be answered against the assessee. In the result, both the question referred are answered in the affirmative. The assessee is to pay the costs of the reference to the Commissioner. BANERJEE J. - I agree. Questions answered in the affirmative.

Ashoka Viniyoga Ltd. vs Commissioner Of Income-Tax. on 1 June, 1967

Calcutta High Court

CASE NO.: Appeal (civil) 6198 of 2000 PETITIONER: Chinthamani Ammal RESPONDENT: Nandagopal Gounder and Anr DATE OF JUDGMENT: 20/02/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G E M E N T S.B. SINHA,J. This appeal is directed against a judgment and decree dated 31.07.1998 passed by a learned Single Judge of the High Court of Judicature at Madras in Second Appeal No. 1899 of 1985 whereby and whereunder an appeal under Section 100 of the Code of Civil Procedure preferred by the respondents herein from a judgment and decree dated 11.09.1985 passed by the Subordinate Judge, Arni, North Arcot District in Appeal Suit No. 68 of 1984 was allowed, in turn, allowing an appeal from a judgment and decree dated 27.07.1984 passed by the Court of the Principal District Munsif, Arni in Original Suit No. 1301 of 1979. Plaintiffs in the suit are the respondents before us. The said suit was filed for declaration and injunction against the appellant herein. Kesava Gounder and Respondent No. 1 were brothers. They admittedly were members of a joint family. Kesava Gounder was suffering from small pox. He died in 1943. Immediately prior to his death, he allegedly expressed his intention to severe his status as a member of the joint family. The wife of the said Kesava Gounder (mother of the appellant herein) and the appellant were admittedly looked after by the respondents. However, the mother of the appellant left the family in or about 1945 and married another person. Appellant was not only brought up by Respondent No. 1, she was also given in marriage. She allegedly claimed a share in the property. Possession of the respondents was sought to be disturbed. Respondents filed a suit for declaration and injunction against her in the Court of Munsif. The principal issue which arose for consideration in the said suit was as to whether the said Kesava Gounder had expressed his intention to separate as a result whereof the joint family severed although no partition by meets and bounds took place. The contention of the respondents was that the property being a joint family property on the death of Kesava Gounder in 1943, they succeeded thereto by survivorship and had been enjoying the same ever since and only at a much later date the appellant made an attempt to disturb their possession. Appellant's husband had also filed a suit claiming a leasehold right in the said property. Both the suits were heard together. The Trial Court by its judgment and order dated 27.07.1984 opined that the said Kesava Gounder died in the year 1943 as a member of undivided joint family and, thus, the appellant had derived no right, title and interest in the said property by succession or otherwise. An appeal preferred thereagainst by the appellant, however, was allowed by the Subordinate Judge holding that the father of the appellant died as a divided member of the joint family as a result whereof she became entitled to claim half share. The second appeal preferred by the respondents herein from the said judgment and decree passed by the first appellate court has been allowed by reason of the impugned judgment. Mr. B. Sridhar, learned counsel appearing in support of the appellant, would submit that although the appellant at the time of her father's death was only three years old, the factum of separation was proved by DW-2 - her aunt, who in her deposition stated: "The father of this defendant while he was unwell became divided in status. At that prevailing situation out and out partition was not possible. The first plaintiff gave his word to take care of this defendant and her mother." The learned counsel would contend that in view of the decision of this Court in A. Raghavamma and another v. A. Chenchamma and another [AIR 1964 SC 136], the father of the appellant and Respondent No. 1 herein having separated themselves, she succeeded to the share of her father. The learned counsel appearing on behalf of the respondents, on the other hand, would support the judgment. Although, before us, the appellant has made a claim of deriving right, title and interest by way of succession to the interest of late Kesava Gounder, in the written statement filed by her before the learned Trial Judge, only a limited right was claimed, which, allegedly, culminated into an absolute title in terms of Section 14(1) of the Hindu Succession Act, 1956. The High Court in its judgment held that the property in suit being agricultural property, the Hindu Women's Right to Property Act, 1937 being not applicable in relation thereto in the year 1943, the mother of the appellant or for that matter, she herself could not have succeeded to her father's interest in the property which was a joint family property. It was further held that the plea that the said Kesava Gounder died as a divided member was put forth 36 years after his death, was wholly improbable. The legal position that the appellant herein could not claim any right, title and interest whether in terms of the provisions of the Hindu Women's Right to Property Act, 1937 or as a successor of the said Kesava Gounder, if the joint status was not severed, is not in dispute. The Hindu Women's Right to Property Act was not applicable in relation to agricultural land. The State of Madras made an amendment in that behalf in the year 1947 whereafter, only a widow became entitled to claim limited ownership in the share of her husband. The mother of the appellant i.e. wife of the said Kesava Gounder, thus, did not derive any right, title and interest in the property of her husband in the year 1943, when he expired. Furthermore, admittedly, she left the family and married another person in the year 1945 and thus the question of her deriving any benefit in terms of the 1947 amendment also did not arise. Before the learned Trial Judge, the parties adduced their respective evidences. The learned Trial Judge had an occasion to look to the demeanour of the witnesses. He came to the conclusion that the properties in suit had all along been held as a joint family property opining that the father of the appellant did not have any divided status as alleged or at all. The first Appellate Court reversed the said finding relying only on or on the basis of the statement made by DW-2 - the aunt of the appellant which has been noticed by us hereinbefore. The said statement by itself does not prove that the said Kesava Gounder made an unequivocal declaration that he intended to separate himself from his brother or the same was duly communicated to the other co-sharers. DW-2 did not say when such a declaration was made in presence of all coparceners. It was not stated that at the time of making such purported declaration, the respondents were present. If such a declaration had been made and the respondents herein accepted the same, ordinarily, not only the respondents would be asked to divide the property by partition by meets and bounds but also to look after the said property which fell in the share of the appellant. Allegedly, Respondent No. 1 was requested to look after his family and not their property. The property, admittedly, continued to be possessed as a joint property. It was never partitioned by meets and bounds. Appellant never paid any rent separately. No revenue record was prepared in her name. Even the husband of the appellant claimed the property as a lessee. When the properties continued to be possessed jointly by the owners thereof, a presumption in regard to the status of joint family both backward and forward must be raised as no evidence was brought on records to establish unequivocal declaration on the part of Kesava Gounder to separate himself from the joint family. If having regard to the nature of oral evidences adduced before it, the learned Trial Judge came to the conclusion that the appellant had failed to prove her case, the first Appellate Court, in our opinion, as has rightly been held by the High Court, could not have reversed the said finding without assigning sufficient and cogent reason therefor. In law there exists a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor. Furthermore, when the learned Trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first Appellate Court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW-2, the learned Judge did not consider any other materials brought on records by the parties. In Mandholal v. Official Assistance of Bombay [AIR 1950 Federal Court 21], it was observed: "It is true that a Judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment." [See also Madhusudan Das v. Narayanibai - AIR 1983 SC 114 : (1983) 1 SCC 35], In Smt. Rajbir Kaur and Another v. S. Chokesiri and Co. [(1989) 1 SCC 19], this Court observed: "48. Reference on the point could also usefully be made to A.L. Goodharts article in which, the learned author points out : "A judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion. It is obvious that, in almost all cases tried by a judge without a jury, an appellate court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him."(emphasis supplied) 49. The following is the statement of the same principle in "The Supreme Court Practice: " Great weight is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the Court of Appeal, and that court cannot excuse itself from the task of weighing conflicting evidence, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.(pp. 854-55) ... Not to have seen witnesses puts appellate judges in a permanent position of disadvantage against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage for example has failed to observe inconsistencies or indisputable fact or material probabilities [ibid. and Yuill (1945) p. 15; Watt v. Thomas] the higher court ought not take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case. ... (p. 855) ... But while the Court of Appeal is always reluctant to reject a finding by a judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it.... (p. 855) 50. A consideration of this aspect would be incomplete without a reference to the observations of B.K. Mukherjea, J., in Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain Singh which as a succinct statement of the rule, cannot indeed be bettered : "The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. 51. The area in which the question lies in the present case is the area of the perceptive functions of the trial Judge where the possibility of errors of inference does not play a significant role. The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which the well- known limitation on the powers of the appellate court to reappreciate the evidence falls. The appellate court, if it seeks to reverse those findings of fact, must give cogent reasons to demonstrate how the trial court fell into an obvious error. 52. With respect to the High Court, we think, that, what the High Court did was what perhaps even an appellate court, with full fledged appellate jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. Contention (c) would also require to be upheld." In Jagannath v. Arulappa and Another [(2005) 12 SCC 303], this Court while considering the scope of Section 96 of the Code of Civil Procedure opined that it would be wholly improper to allow first appeal without adverting to the specific findings of the Trial Court. In H.K.N. Swami v. Irshad Basith (Dead) By LRs. [(2005) 10 SCC 243], this Court opined that the appellate court is required to address all the issues and determine the appeal upon assignment of cogent reasons. In this view of the matter, it is not necessary for us to consider the submission of Mr. Sridhar in regard to the effect of the severance of the joint status, as adumbrated by this Court in A. Raghavamma (supra). For the reasons aforementioned, there is no merit in this appeal, which is accordingly dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.

Author: S Sinha

Chinthamani Ammal vs Nandagopal Gounder And Anr on 20 February, 2007

Supreme Court of India

Gujarat High Court Case Information System Print CA/2405/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 2405 of 2010 In SPECIAL CIVIL APPLICATION No. 9725 of 1999 ========================================================= VANKAR HARGOVINDBHAI DEVABHAI - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR RK MISHRA for Petitioner(s) : 1, MR RASHESH A RINDANI AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/03/2010 ORAL ORDER In view of the averments made in the application, the same is allowed in terms of paragraph Nos. 5(A) and 5(B). Application stands disposed of accordingly. Main Matter shall be listed for final hearing on 31.03.2010. (K.S.JHAVERI, J.) niru*     Top

Author: Ks Jhaveri,&Nbsp;

Vankar vs State on 5 March, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 14164 of 2004(J) 1. P.DIVAKARAN NAIR, S/O.PARAMESWARAN ... Petitioner 2. P.SARALAMMA, W/O.DIVAKARAN NAIR, Vs 1. THE DISTRICT COLLECTOR, ... Respondent 2. THE DEPUTY TAHSILDAR (RR) TALUK OFFICE, 3. THE VILLAGE OFFICER, NAGAROOR VILLAGE 4. THE BRANCH MANAGER, PUNJAB NATIONAL For Petitioner :SRI.SABU THOZHUPPADAN For Respondent : No Appearance The Hon'ble MR. Justice M.M.PAREED PILLAY(RETD.CHIEF JUSTICE) The Hon'ble MR. Justice M.R.HARIHARAN NAIR (RETD.JUDGE) Dated :11/12/2006 O R D E R M.M.PAREED PILLAY (RETD. CHIEF JUSTICE) & M.R.HARIHARAN NAIR (RETD. JUDGE) W.P.(C) No. 14164 OF 2004(J) ----------------------------------- Dated this the 11th day of December, 2006 A W A R D M.M.PAREED PILLAY (Rtd. Chief Justice) Counsel for the petitioner and Regional Manager of the 4th respondent- Bank are present. Mr.Aji Kumar who is the son of the petitioner is also present representing the petitioner. After discussions the parties have settled their dispute in the case, on the following terms: `a. The amount due to the Bank as on date is mutually agreed as Rs.9,33,000/- (Rupees Nine lakhs and thirty three thousand only). Out of this amount Rs.4,00,000/- (Rupees Four Lakhs only) will be paid by the petitioner to the 4th respondent on or before 21.12.2006 and the balance in 2 equal instalments payable on or before 15.1.2007 and 15.2.2007 respectively. b. Instalments due on 15.1.2007 and 15.2.2007 will attract interest at 5.5% per annum with effect from this date. c. In case any of the 3 payments afore-mentioned are defaulted, the 4th respondent will be free to proceed with the recovery proceedings already initiated. The case is compromised as stated above. M.M.PAREED PILLAY (RETD. CHIEF JUSTICE) M.R.HARIHARAN NAIR (RETD. JUDGE) jp  WPC 2  ? IN THE HIGH COURT OF KERALA AT ERNAKULAM +WP(C) No. 26274 of 2006(C) #1. MOHAMMED ISMAIL, ... Petitioner Vs $1. THE DISTRICT COLLECTOR, ... Respondent 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), 3. ING VYSYA BANK LTD., ! For Petitioner :SRI.JACOB SEBASTIAN ^ For Respondent : No Appearance *Coram The Hon'ble MR. Justice M.M.PAREED PILLAY(RETD.CHIEF JUSTICE) The Hon'ble MR. Justice M.R.HARIHARAN NAIR (RETD.JUDGE) % Dated :11/12/2006 : O R D E R M.M.PAREED PILLAY (RETD. CHIEF JUSTICE) & M.R.HARIHARAN NAIR (RETD. JUDGE) W.P.(C) No. 26274 OF 2006(C) --------------------------------------- Dated this the 11th day of December, 2006 A W A R D M.M.PAREED PILLAY (Rtd. Chief Justice) Parties have settled their dispute as per the following terms: a. The 3rd Respondent bank agrees to accept a sum of Rs.2,80,000/- (Rupees Two lakhs and eighty thousand only) in full and final settlement of the dues. b. Out of the said amount, a sum of Rs.1,00,000/- (Rupees One lakh only) will be paid by the petitioner on or before 31.12.2006 and the balance of Rs.1,80,000/-(Rupees One lakh eighty thousand only) will be paid in two equal instalments on or before 31st January 2007 and 28 February 2007 respectively. On payment of last of the above instalments, the Bank agrees to withdraw the criminal proceedings initiated against the petitioner in respect of dishonored cheque. c. As regards the claim raised against the petitioner and Mohammed Abdu Rahman as per notice issued by the Bank's Advocate on 5th October 2006, the Bank agrees that the claim will not be pursued any further after the  WP(C) NO.26274/2006/C 2 payment of the last aforesaid instalment. The post dated cheques in the hands of the Bank will also be returned to the petitioner after the payment of the last instalment mentioned above. WP(C) is disposed of as per the settlement. M.M.PAREED PILLAY (RETD. CHIEF JUSTICE) M.R.HARIHARAN NAIR (RETD. JUDGE) jp 

P.Divakaran Nair vs The District Collector on 11 December, 2006

Kerala High Court

JUDGMENT 1. We think the Magistrate was right in convicting the accused under Section 323 of the Indian Penal Code. 2. There is no provision in the Railways Act for ejecting passengers except in certain circumstances, such as are specified in Section 120. Section 122 of the Railways Act of 1890 is not applicable to this case. The term "railway" as defined in Section 3, Clause (4), excludes railway carriage. The term "rolling stock" as defined in Section 3, Clause (10), includes it. There is no provision corresponding to Section 3, Sub-clause (10), in the old Acts of 1854 and 1879. Section 68 prohibits (raveling with-out a pass or ticket, but so to travel without intent to defraud is not a criminal offence. Here there is a distinct finding that there was no fraudulent intent. Section 113 provides that a person so travelling shall be liable to pay on demand by any railway servant an excess charge. This section corresponds to Sections 31 and 32 of Act IV of 1879. It is to be noticed that there was no provision in the Act of 1879 for payment of an excess charge, which is somewhat in the nature of a penalty. Taking that provision in connection with the fact that travelling in a railway carriage without a ticket, but without fraudulent intent, has not been made punishable, we think that the Magistrate has taken an entirely correct view of the law. Pratab Daji v. Bombay Broda v. and Central India Railway Co. 1 B. 52 : 1 Ind. Dec. (N.S.) 34 was a civil case which arose out of a claim for damages for wrongful detention and removal of a passenger. It was decided under the old Act, which has since been amended and altered. The expression railway" in Section 122, as already stated, does not include a railway carriage. In addition to the definitions, a comparison of Section 120 and Section 122 leads to the same conclusion. Railway servants are public servants. They are to act within the four corners of their statutory powers. It was held in Butter v. Manchester Sheffield and Lincolnshire Railway Co. (1888) 21 Q.B.D. : 07 : 60 L.T. 89 : 57 L.T.Q.B. 564 : 36 W.B. 726 : 52 J.P. 611 by Lord Esher, M.R., that no one had any right to lay hands forcibly on a passenger in the absence of some legal authority to do so. Lindley, L.J., and Lopes, L.J., agreed in that view and held that the Company's servants were not justified, in the absence of any by law or regulation, in laying hands on a passenger. 3. The main and primary purpose of Sections 68 and 69 of the Indian Railways Act is to prevent persons from travelling in fraud of the Company without having paid the necessary fare, and that the obligation to show the ticket, when required, is subsidiary only to such primary purpose. Travelling without a ticket is not a criminal offence, as has been repeatedly held in this Court. It is the frequent practice of ticket-checkers to take money and issue tickets to passengers, who may have got into a train in a hurry, without tickets, as appears from the evidence. In this case the complainant was perfectly willing and offered to pay the fare together with any excess that might be chargeable. Under the circumstances, it would be absurd to hold that, the ticket-checkers concerned were legally justified in committing the acts charged against them. The least that can be said about the acts complained of is that they were extremely high-handed. The complaint was that the accused had abused the complainant and got him out by force and kicked him and given him a beating, that he was kept confined the whole night and was released the next day. The learned Magistrate has found the two accused guilty under Section 323 of the Indian Penal Code, and gave them his benefit of his doubt as regards the charge under Section 312. The learned Magistrate has also found that the injuries on the person of the complainant were caused by voluntary blows and that those blows were given by the accused with their fists. It is clear that the accused used more force than was necessary for the purpose of removal. The learned Sessions Judge says that, although it is not a case of trespass as defined in the Penal Code, it is at least a civil trespass, and that the owners are entitled to use their common law rights. This is due to his having overlooked the position of a Railway Company and its servants. He has overlooked the fact that they as such cannot, in a case like this, claim common law rights. Where is there again a "common law right" to inflict blows on a man with fists if he refuses to move? 4. Ticket collectors and checkers are expected to conduct themselves with restraint and self-control. We are disposed to think that they have been leniently dealt with in this case, and refuse the reference. The judgment of the Magistrate, we may add, is characterized by great ability and care.

Mohammed Hosain vs Farley on 22 September, 1916

Calcutta High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Con Case(C) No. 1346 of 2006(S) 1. S.RAMAKRISHNAN, DEPUTY TAHSILDAR ... Petitioner Vs 1. NIVEDITHA P.HARAN, ... Respondent For Petitioner :SMT.I.SHEELA DEVI For Respondent :GOVERNMENT PLEADER The Hon'ble the Chief Justice MR.H.L.DATTU The Hon'ble MR. Justice K.T.SANKARAN Dated :26/06/2007 O R D E R H.L.Dattu,C.J. & K.T.Sankaran,J. ---------------------------------------------------- Cont.Case (C).No.1346 of 2006-S ---------------------------------------------------- Dated, this the 26th day of June, 2007 JUDGMENT H.L.Dattu,C.J. This Court while disposing of O.P.No.14198 of 1996 dated 29.07.2005 had directed the respondents to reconsider the representation - Exhibit P2 - in the light of the observations made in the course of the order. 2. After the disposal of the Original Petition, the respondents, after reconsidering the representation (Exhibit P2) filed by the petitioner, has passed an order dated 16.06.2006. 3. As we have already stated, the direction that was issued was to reconsider the representation (Exhibit P2) and that has been done and an order has been issued. If for any reason the petitioner is aggrieved, necessarily the petitioner has to question the same before this Court. In that view of the matter, we do not intend to take cognizance of the contempt petition filed by the complainant. Therefore, the contempt petition requires to be rejected and it is rejected. Ordered accordingly. H.L.Dattu Chief Justice K.T.Sankaran Judge vku/-

S.Ramakrishnan vs Niveditha P.Haran on 26 June, 2007

Kerala High Court

Central Information Commission 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110 066 Website: www.cic.gov.in Decision No.4179/IC(A)/2009 F. No.CIC/MA/A/2009/000475 Dated, the 15th July, 2009 Name of the Appellant: Shri. Lalji Singh Name of the Public Authority: National Textile Corporation Ltd. i Facts: 1. Both the parties were heard on 15/7/2009. 2. The appellant has grievances regarding non-payment of certain dues on account of a contractual work awarded to the company with which he is associated. In this context, he has made several representation, mainly in the nature of redressal of his grievances. The respondent has replied but the appellant is not satisfied. 3. During the hearing, the appellant alleged that the requested information, mainly the reasons for non-payment of the withheld amount has not been given to him. In his response, the CPIO stated that the appellant did not complete the job assigned to hi and left the work undone, which had to be got done through separate arrangements. The CPIO submitted a point-wise response to all the points raised in the appeal petition, a copy of which was also handed over to the appellant. Decision: 4. The details of information asked for and the reply given by the respondent were discussed. As agreed, the appellant would examine the responses. If he is still not satisfied, he would specify the required information and re-submit the list of required information within seven days. He may also inspect the records so as to specify the required information. The CPIO should examine the appellant's application afresh and furnish a point-wise response within one month from the date of receipt of application from the appellant. i "If you don't ask, you don't get." - Mahatma Gandhi 1 5. As the matter pertains to redressal of grievances of the appellant, the CPIO should make a sincere effort to do the needful as per the rules. If any financial claim as made by the appellant is to be denied, the grounds for doing so should be clearly indicated so that the appellant would be able to seek legal relief in the matter. 6. The appeal is thus disposed of. Sd/- (Prof. M.M. Ansari) Central Information Commissioner ii Authenticated true copy: (M.C. Sharma) Assistant Registrar Name & address of Parties: 1. Shri. Lalji Singh, 6/13 Versova View Co-op. Hsg. Society, Four Bunglows, Andheri (W), Mumbai- 400 053. 2. Sh. A.W. Desai, CPIO, National Textile Corporation Ltd., NTC House, 15 N.M. Marg, Ballard Estate, Mumbai - 400 001. 3. Sh. S.D. Aphale, Appellate Authority, NTC Ltd., Western Region, Apollo House, 382 N.M. Joshi Marg, Chinchpokli, Mumbai - 400 011. ii "All men by nature desire to know." - Aristotle 2

Shri. Lalji Singh vs National Textile Corporation ... on 15 July, 2009

Central Information Commission

PETITIONER: MAKESHWAR NATH SRIVASTAVA Vs. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT02/03/1971 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. (CJ) VAIDYIALINGAM, C.A. CITATION: 1971 AIR 1106 1971 SCR (3) 863 1971 SCC (1) 662 CITATOR INFO : RF 1980 SC 326 (16) D 1983 SC 990 (5,13) ACT: Police Act 5 of 1861 Rules under s. 46 of Act embodied in Bihar and Orissa Police Manual 1930-Order by Inspector- General under s. 7 of Act-Appellate powers of Government under r. 851(b)-Revisional Powers under s. 853-Power of Superintendence under s. 3-Scope of. HEADNOTE: At the relevant time the appellant was in the service of the State of Bihar as officiating Inspector of police. After a departmental inquiry against him the report of the enquiry officer was submitted to the Inspector General of Police with the recommendation that the appellant should be given exemplary punishment. Under s. 7 of the Police Act, 1861 the Inspector General had power to impose in suitable cases penalty of dismissal, suspension and reduction. The Inspector General exonerated the appellant, from the charges laid against him but on the basis of certain adverse remarks in the confidential character roll of the appellant he passed an order reverting the appellant to the substantive rank of sub-inspector of police for a period of one year. These adverse remarks had never been notified to the appellant nor was,any opportunity to explain them ever offered to him before the order of reversion was passed. In appeal the State Government set aside the order of reversion passed by the Inspector General on the ground that no opportunity had been given to the appellant to explain the adverse remarks, but the Government instead passed an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer by whom the appellant had been found guilty. On further appeal to the Governor having been dismissed by the Government the appellant filed a writ petition in the High Court. The High Court allowed the writ petition but directed that the appellant's appeal should go back to the government for disposal according to law. The Government thereupon served notices on the appellant to show cause why he should not be dismissed from service. The notice was issued oh the strength of rr. 851(b) and 853 of the Bihar and Orissa Police Manual, 1930. The appellant thereupon gave his reply. About a year after the High Court's order quashing the Government's order of dismissal, the Government issued an order reinstating the appellant but at the same time suspending him from service. This was followed by an order dismissing the appellant from service. The appellant once more filed a petition in the High Court which was dismissed in liming. By special leave the present appeal, was filed. The question for consideration was, whether it was competent for the Government, in an appeal filed by the appellant against the order of reversion passed by the Inspect(* General of Police to set aside the findings of that officer by which he exonerated the appellant from charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer. HELD:(1) The Act itself confers on the Inspector- General power to impose in suitable cases the penalty of dismissal, suspension and reduc -L1100Sup.Cl/71 864 tion,subject to the provisions of Art. 311 and the rules made under the Act. The power of superintendence conferred, on the State Government by s.3 must, therefore, be read in the light of the provisions of S. 7 under which the legislature has conferred specified powers to the officers mentioned therein. Further, an appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also the department, if aggrieved by an order passed by the Inspector-General, there would also be no question of the Government exercising its general power of superintendence under s. 3 of the Act. The exercise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it. [867 D- 869 A] (ii)Under r. 851(b) the only question before the Government was whether the order of revision- should be sustained or not. There was no other matter by way of an appeal before the Government by the department or by anyone else being aggrieved against the order of the Inspector-General by which he held that the charges against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power, under r. 851 (b) such an order as it' thought fit in the appeal filed by the appellant i.e., either upholding the order of reversion or setting it aside. In the absence of any other appeal, the Government could not sit in judgment over the findings of the Inspector General given by him under the power conferred on him by s. 7 of the Act [868 E-G] (iii)The order of the Govertunent could not also be defended under r. 853. Assuming that under r. 853 the Government could suo moto revise the order of the Inspector- General, on appeal having been filed before it, it could not so act. The fact that the power of revision is conferred on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appeuate authority felt that the order was so unjust or unreasonable that it should act under its revisional power. That wae not the case of the Government in the present case. [869 D E] [whether the order of the Government could be defended under r. 853A could not be considered because the existence of the rule was not proved.] JUDGMENT: CIBVIL APPELLATE JURISDICTION: Civil Appeal No. 23 of 1967. Appeal by special leave from the judgment and order dated October 9, 1963 of the Patna High Court in M.J.C. No. 824 of 1963. S. N. Prasad and R. B. Datar, for the appellant. B. P. Jha, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Shelat, J,-This appeal, by special leave, is against the judgment of the High Court of Pitna dismissing in limine the writ petition Med by the appellant challenging the order of his dismissal from service passed by the Government of Bihar. The appellant was first appointed as a stenographer, Sub- Inspector of Police in 1940 in the Police Service of the State. After the requisite training in the Police Training College at Hazaribagh, he was posted as a-Sub-Inspector in 1950 in Champaran District. In 1954, he was promoted to officiate as an Inspector of Police. In June 1955, he worked in Saharsa District as an- officiating Inspector of Police. In July 1955, he received a notice to show cause why disciplinary proceedings should not be taken against him in a matter relatng to certain cloth recovered- at Katihar Police Station in a Police Case under ss. 379 and 414 of the Penal Code. The appellant submitted his reply denying any misapropriation by him. On September 26, 1955, he was served with a charge sheet heet alleging misappropriation and connivance by him of misappropriation by two constables named therein . This was followd by an enquiry held by the Deputy Superintendent of Railway police at Samastipur.The appellant alleged that the enquiry was held at partially behind his back and was, therefore, bad.' In April 1956, the Deputy Superintendent of Police submitted his findings to the Superintendent of Railway Police, Samastipur holding that the charges against the appellant had been established. These findings were than submitted to the Inspector General of Police with a recommendation that the appellant should be awarded exemplary punishment. In September 1957, the Inspector-General served a second show cause notice on the appellant to show cause why he should not be dismissed. The appellant submitted his reply and also appeared in person. By his order dated September 30, 1958, the Inspector-General exonerated the appellant from the said charges. But on the basis of certain adverse remarks in the confidential character roll of the appellant, he passed an order reverting the appellant to his substantive rank of Sub- Inspector of Police for a period of one year. This order clearly was one of penalty. Admittedly, there was no charge against the appellant founded on the said adverse remarks. The adverse remarks on the basis of which the order of reversion was passed were, as the said order itself pointed out, never notified to the appellant. Nor was--any opportunity to explain those remarks ever afforded to the appellant before the order of reversion was passed. Aggrieved by the said order the appellant filed an appeal before the Government. On November 7, 1959, the Government set aside the order of reversion passed by the Inspector- General. That was the relief prayed for by the appellant in his said appeal. The order was set aside on the ground that no opportunity had been given to the appellant to explain the said adverse remarks, 866 and that therefore, it was legally unsustainable. But the Govern-, ment passed instead an order of dismissal disagreeing with the findings of the Inspector-General and agreeing with the findings given by the enquiry officer, by whom the appellant had been found guilty. On a further appeal to the Governor having been dismissed by the Government, the. appellant filed a writ petition in the High Court. On January 18, 1962, the High Court allowed the writ petition setting aside the Government's order of dismissal, but directed that the appellant's appeal should go back to the Government for disposal according to law.', The Government thereupon served a notice on the appellant to show cause why he should not be dismissed from service. That notice was issued on, the strength of rr. 851 (b) and 853-A of the Bihar & Orissa Manual, 1930. The appellant thereupon gave his reply and requested for a personal hearing. The request for personal hearing was rejected. About a year after the High Court's order quashing the Government's order of dismissal, the Government issued an order dated March 5, 1963 reinstating the appellant, but at the same time suspending him from service. On June. 15, 1963, the Government passed the order dismissing the appellant from service. Hence, the appellant filed once more the present petition which the High Court dismissed in limine. The question is whether it was competent for the Government, in an appeal filed by the appellant against the said order of reversion passed by the Inspector-General Police, to set aside the findings of that officer by which he exonerated the appellant from the said charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer. The appellant was governed by the Police Act, 5 of 1861. Sec. 2 of the Act deals with the constitution of the police force and provides that the entire police establishment under a State Government shall, for the purposes of the Act, be deemed to be one police force, and shall be constituted is such manner as shall from the to time be ordered by the State Government. Sec. 3 provides that "The superintendence of the police throughout a general police district shall vest in and, shall be exercised by the State Government to which such district is subordinate." Under s. 4, the admistration of the police throughout a general police district is vested in the Inspector-General of Police, and in such Deputy Inspectors-General of Police and Assistant InspectorsGeneral as the State Government shall deem fit. Sec. 7 runs as follows "Subject to the provisions of article 3 1 1 of the Constitution, and to such rules as the State Government may 867 from time to time make under this Act, the InspectorGeneral, Deputy Inspectors-General, Assistant inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the sub-ordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments- to any police officer of the subordinate rank who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely." The section then sets out the punishments which the said officers can impose, namely, fine, confinement to quarters, deprivation of good-conduct pay and removal from any office of distinction or special emolument. It is clear that the Act itself confers on the Inspector- General power to impose in suitable cases the penalty of dismissal, suspension and reduction, subject of course, to the provisions of Art. 311 and the rules made under the Act. The power of superintendence conferred on the State Government by S. 3 must, therefore, be read in the light of the provisions of S., 7 under which the Legislature has conferred specific powers to the officers mentioned therein. Therefore, the State Government cannot interfere with, under the purported exercise of the general power of superintendence under s. 3 with an order passed by any one of the officers mentioned in S. 7 in exercise of the power conferred on them by that section, unless there is some provision which authorises or envisages such interference. Under S. 46(2), the State Government has been given the power to make rules from time to time by notification in the official gazette consistent with the Act, Inter alia : It would seem that in pursuance of the rule making power under S. 46 (2) rules have been made which are to be found in the Bihar & Orissa Police Manual, 1930. The Manual has not been produced before us. But we find r. 851 set out by the High Court 868 in its judgment in the first writ, petition filed by the appellant, reported in Makeshwar Nath vs. Bihar(1). The rule so set out reads 'as follows : Under this rule an appeal would lie before the Government against the order of the Inspector-General reverting the appellant to his substantive post of Sub-Inspector for one year. Such an appeal was in fact filed by the appellant. But no appeal was filed by the department against the order of the Inspector-General exonerating the appellant of the charges of misappropriation and connivance of misappropriation by the two constables. Under r. 851 (b), therefore, the only question before the Government was whether the order of reversion should be sustained or not. There was no other matter by way of an appeal before the Government by the department or by any one else being aggrieved against the order of the Inspector-General by which he held that the charges. against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power under r. 851 (b) such an order as it thought fit in the appeal filed by the appellant, i.e. either upholding the order of reversion or setting it aside. In the absence, of any other appeal, the Government could not sit in judgment over the findings of the Inspector-General given by him under the power conferred upon him by S. 7 of the Act. An appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also by the department, if aggrieved by an order passed by the Inspector-General, there would also be no question of the Government exercising, its general power of superintendence under S. 3 of the Act. The (1) A.I.R. 1962 Pat. 276. exercise of such a power is ordinarily possible when there is no provision for an appear unless there are other provisions providing for it. The order of dismissal passed by the Government in the appeal filed by the appellant therefore, was not sustainable. We are, however, informed by counsel that the Government of Bihar has framed two rules, r. 853 and r. 853-A. Rule 853, a copy, of which has been furnished to us, provides "Memorials and Revision.-No petition or memorial which is a representation against an order passed in a disciplinary case shall be submitted to any authority other than the authority which under the rule for the time being in force is empowered to enter am the appeal. No memorial or revision was filed either by the appellant or any one else before the Government, which was the appellate authority which could-entertain such a memorial or revision. Assuming that under r. 853 the Government could suo moto revise the order of the Inspector- General, an appeal having been filed before I it, it could not so act. The fact that the power of revision is con feared on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appellate authority felt that the order was so unjust or unreasonable that it shold act under its revisional power. That was not the case of the Government before us. Nor did the Government say so in the impugned order. Therefore, there was no occasion for the Government to revise the order passed by the Inspector- General exonerating the appellant of the charges preferred against him. In its order, dated January 31, 1963, the Government, no doubt, has referred to rr. 8 5 1 (b) and 8 5 3 A as being the rules under which it purported to act for the purpose of making the impugned order of dismissal. Rule 851 (b), as already pointed out, however, confers no such power. As regards r. 853-A, it is neither set out in the impugned order, nor in the statement of case of the respondent-State. We called for its production, or even its copy but counsel for the State expressed his inability to produce the same. Further, counsel for the appellant told us that even if r.853 A had been framed, it cannot operate because so far it has, not been published in the official gazette as required by S. 46(2). Counsel for the State was not in a position to throw any light whether the said rule has been framed or not and if framed whether it was notified in the Gazette. In these circumstance he could not rely upon that rule to sustain the order of dismissal passed by the Government. We have, therefore, to go upon r. 851 (b), which clearly does not empower the Government to pass an order such as the one impugned by the appellant on the ground 870 of its revisional power or any such similar power under s. 3 of the Act. In the absence of any other provision of law or any rule conferring on the- State Government the, power to pass an order of dismissal in exercise of its revisional power or power of general superintendence, the general principle must prevail, namely, that an appellate authority in an appeal by an aggrieved party may either dismiss his appeal or allow it either wholly or partly and uphold or set aside or modify the order challenged in such appeal. It cannot surely impose on such an appellant a higher penalty and condemn him to a position worse than the one he would be in if he had not hazarded to file an appeal. Since under r. 851 (b) an appeal to the Government has been provided for and the Government had under that rule the appellate authority to dispose of appeals filed before it against the original order passed by the Ins-pector-General, it could not resort to any general power of superintendence except in cases where there is a provision conferring such a power in addition to its appellate authority and in the manner envisaged by such a provision. In our view, the High Court was not right in dismissing the appellant's writ petition. The appeal has, therefore, to be allowed and the order of the State Government quashed as being without jurisdiction. The consequence is as if the appellant was never dismissed, and continued to remain in the, police force to which he was attached. The respondent- State will pay to the appellant the costs both of this appeal and also of the writ petition filed by him in the High Court. G.C. Appeal allowed.

Author: Shelat

Makhanlal Waza & Ors vs State Of Jammu & Kashmir & Ors on 2 March, 1971

Supreme Court of India

JUDGMENT R.J. Kochar, J. 1. The petitioner union is aggrieved by the judgment and order dated January 8, 1993 passed by the Industrial Court, Thane in Complaint ULP No. 213 of 1984. The complaint was filed by the petitioner union against the respondents alleging unfair labour practice under Item 6 of Schedule II and also Items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971. The nub of the complaint filed by the petitioner can be very briefly stated. The petitioner had sought relief against the action of the company resorting to suspension of work w.e.f. June 1, 1984 and subsequently effecting lock-out w.e.f. June 18, 1984. According to the petitioner union, the aforesaid notice of suspension of work and lock-out which commenced on June 18, 1984 was an unfair labour practice as contemplated under Item 6 of Schedule II of the MRTU and PULP Act, 1971 (hereinafter referred to as the Act). It also amounted to an unfair labour practice under Items 9 and 10 of Schedule IV of the Act. The petitioner union sought declaration from the Industrial Court to that effect and also sought consequential reliefs of full wages for the entire period of suspension of work and lock-out w.e.f. June 1, 1984 to February 18, 1985. It is an admitted position that the lock-out was lifted on and from February 18, 1985. 2. The respondents appeared before the Industrial Court and filed their written statement to contest the complaint of unfair labour practice. According to the respondents, there was no case made out against them in respect of the alleged unfair labour practice. The respondents contended that they had lawfully resorted to the action of suspension of work and lock-out w.e.f. June 18, 1984. According to the respondents, the lock-out was strictly in accordance with law as provided under Section 24(2) and Section 25(2) of the Act. The respondents had further stated that the lock-out was under the aforesaid provisions strictly in accordance with law and there is no question of lock-out being illegal or being unfair labour practice. The respondents have pointed out in their notice the reasons for such extreme step of lock-out. According to the respondent company, there was no illegality indulged in by it in resorting to the lock-out w.e.f. June 18, 1984 by notice dated June 1, 1984. It is clarified that on June 1, 1984, the respondent company had displayed the notice. Once notice was for suspension of work of production with immediate effect while the other notice was proposing and continuing the lock-out w. e.f. June 18, 1984. The respondents have stoutly defended their action of lock-out being in accordance with law in respect of compliance with all the rules and regulations and prescribed format of a lock-out notice. 3. During the pendency of the complaint there were certain interlocutory proceedings which were initiated by the parties. There were certain orders passed by this Court also. As I am disposing of the writ petition against the final judgment and order of the Industrial Court, I am avoiding to mention in detail the contents of the aforesaid interlocutory proceedings. 4. On the basis of the pleadings, the Industrial Court framed six points for determination. The petitioner union adduced oral evidence. The respondent company did not adduce any oral evidence. Both the parties, however, adduced and relied upon documentary evidence in support of their contentions. The Industrial Court answered all the issues against the petitioner union and held that the petitioner union had not proved that the respondents had effected a lock-out which could have been termed as illegal. It further held that the union had failed to prove that the respondents had committed breach of the service conditions by not paying wages on the stipulated dates. It also held against the union that it had not proved that the respondents had committed breach of the settlement dated August 14, 1991. Consequently, the Industrial Court held that the workers were not entitled to full wages during the period from June 1, 1984 to February 17, 1985. The Industrial Court refused to give any declaration as sought for by the petitioner. The petitioner union is aggrieved by the aforesaid judgment and order of the Industrial Court and has approached this Court under Article 226 of the Constitution of India to challenge the legality and validity of the aforesaid judgment and order of the Industrial Court. 5. I have heard both the learned counsel for their respective parties at length. I have been taken closely through the entire proceedings including the oral evidence on record. 6. Shri Deshmukh, the learned counsel for the Petitioner-Union has strenuously and vehemently submitted that the Notice dated June 1, 1984 for suspension of work forthwith and to propose and continue lock-out w.e.f. June 18, 1984 amounted to an unfair labour practice under Item 6 of Schedule II of the Act. He further submitted that the said act on the part of the Respondent-company also amounted to an unfair labour practice within the meaning of Items 9, 10 of Schedule IV of the Act. According to the learned counsel, assuming the legality of lock- out to be held against his clients the lock-out which was proposed and continued till February 18, 1985 had no justification of any nature. The employees were ready and willing to work in accordance with the contract of service or the agreement but they were prevented from working by the Respondent Company, and therefore, it amounted to an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. He also made a passing submission that the aforesaid act of the Respondent-company amounted to an act of force or violence under Item 10 of Schedule IV of the Act as the employees were perforce kept out of employment. 7. The main thrust of the submissions of Shri Deshmukh was on the point that the notice of lock-out issued by the Respondent- company as contemplated under Section 24(2) of the Act was not strictly in accordance with the law. Shri Deshmukh pointed out that though the Respondent company had purportedly issued the notice of lock-out it was not in the prescribed form. According to the learned counsel, what he contemplated by the prescribed form was not the exact format of the notice but that it did not comply with the crucial requirement in the annexure to the notice of lock-out which is mandatory for the employer to comply with. In the annexure of the lock-out notice the Respondent company did not give true and genuine reasons for the lock-out. He stressed the point that the notice did not disclose the true reasons at all and the reasons mentioned in the notice did not exist at all and further they had no relation with the consequences of lock- out as suggested in the notice. Shri Deshmukh very vehemently argued that the notice of lock-out mandatorily required the employer to state true and genuine reasons which actually and factually existed and had consequent and close effect and relation with the proposal of lock-out. According to the learned counsel, the law never required giving of untrue, false and nonexistent reasons to be given in the notice of lock-out. He further stressed that every reason which is given in the notice of lock-out must invariably and unmistakenly be a pointer to the consequence of lock-out. In the submission of Shri Deshmukh if the reasons given in the notice of lock-out did not exist or were irrelevant and irrational in that case the proposed and continued lock-out doubtlessly amounted to an unfair labour practice within the meaning of Item 6 of Schedule II read with Sections 24(2) and 25(2) of the Act. Shri Deshmukh further attacked the action of the respondent company to vindicate his submission that the Respondent company did not adduce any oral evidence in support of its notice of lock-out to prove the factual existence and genuineness of the reasons mentioned in the notice of lock-out. The learned counsel submitted that when the notice of lock-out was under challenge the whole burden was on the Respondent company to have adduced oral evidence to prove the reasons recorded in the notice of lock-out. The Respondent company having failed to examine any witness to prove its notice of lock-out and the reasons stated therein has miserably failed to prove the reasons mentioned in the notice of lock-out. Shri Deshmukh in fact drew my attention to an affidavit in reply to the application for interim relief filed by the Union wherein it is clearly stated that the company would lead oral evidence in support of the reasons mentioned in the notice of lock-out. It was therefore well known to the Company that it had to prove the reasons in the notice by adducing oral evidence, it has not done so. He therefore concluded that there was not an iota of evidence in support of the reasons in the lock-out notice. Shri Deshmukh tried to draw support from the observations made in the judgment of the Supreme Court that when serious allegations are made they must be proved by the maker of such allegations. 8. The learned counsel pointed out that the notice of lock-out contained several allegations such as acts of violence, loss of production, go-slow etc. All these allegations required oral evidence. These allegations being of very serious nature entailing serious consequences, the company ought to have examined witnesses to swear on oath to prove the truthfulness of the said allegations. Shri Deshmukh therefore submitted that the notice of lock-out suffers from serious illegality and infirmity for want of true, genuine, relevant and rational reasons to be stated in the lock-out notice. There was no compliance with the mandatory provision of Section 24(2)(a) of the Act. 9. Shri Deshmukh further submitted that assuming the legality of the lock-out notice it was for the Industrial Court to have seriously considered the justifiability of the lock-out to be continued under Item 9 of Schedule IV of the Act. According to the learned counsel, the employees were ready and willing to work under the service contract but the Respondent Company prevented them from working, and therefore, Item 9 of Schedule IV of the Act had clear application to the facts of the present case. Shri Deshmukh has pointed out that the employees were ready and willing to give an undertaking of peaceful and normal work in accordance with the rules and regulations, and therefore, thereafter the continuance of lock-out was not at all justified and it was for the Respondent company to have implemented the service contract or the agreement to allow the employees to work. Shri Deshmukh further submitted that though the question of justifiability of the lock-out could not be decided under Item 6 of Schedule II of the Act, that crucial element can be decided under Item 9 of Schedule IV of the Act as the action of the Respondent Company in not allowing the employees to work amounted to breach of the service contract or the agreement and there was absolutely no reason or justification for the Respondent Company to have prevented the employees from joining their normal duties. Shri Deshmukh further pointed out that the respondent company had not even paid wages for the period of notice of lock-out and had abruptly suspended the work with effect from June 1, 1984. Shri Deshmukh submitted that since the employees were entitled to wages for the entire period from June 1, 1984 to June 17, 1984 which have not been paid by the Respondent company, the lock-out was deemed to be illegal. Finally Shri Deshmukh concluded that the Industrial Court has not applied its mind to the facts and the law in the complaint before him. The learned member of the Industrial Court has erroneously decided the issues and committed a gross error of law warranting interference of this Court under Article 226 of the Constitution of India. Shri Deshmukh therefore prayed that the impugned judgment and order of the Industrial Court be quashed and set aside and the Respondent Company be directed to pay full wages from June 1, 1984 to February 17, 1985. The lock-out was lifted from February 18, 1985. 10. Shri P.K. Rele, the learned senior advocate for the Respondent Company countered all the submissions made by Shri Deshmukh. The learned counsel at the outset submitted that not only under Item 6 of Schedule II of the Act but even under Item 9 of Schedule IV of the Act the justifiability of the lock-out cannot be gone into by the Industrial Court and never by this Court under the extraordinary jurisdiction under Article 226 of the Constitution of India. Shri Rele also strenuously submitted that the learned Member of the Industrial Court has consequently decided the complaint on the basis of the material on record and has given cogent reasons for his conclusions and this Court therefore should refrain from exercising its Writ Jurisdiction to interfere with the impugned judgment and order of the Industrial Court which did not suffer from any illegality or infirmity. According to Shri Rele there was no miscarriage of justice in the situation. As far as the question of justifiability under Item 9 of Schedule IV of the Act is concerned Shri Rele submitted that there is no application of the said item in the present case. The said item contemplates any breach of or failure on the part of the employer to implement the award, settlement or agreement. There is no question of deciding justifiability of the failure or breach on the part of the employer. If once it is established that the employer had failed to implement the award, settlement or agreement the element of mens rea did not enter and therefore, there was no question of probing into the justifiability ofthe actof the employer. Shri Rele pointed out that if under Item 6 justifiability of the lock-out cannot be gone into, it certainly cannot be gone into under any other item. Shri Rele further submitted that the lock-out notice was strictly in compliance with the provisions of the law and if the lock-out is held to be legal there is no failure on the part of the Respondent-Company to implement the award, settlement or agreement. If the lock-out notice is legal the employees are not entitled to get any wages for the period of legal lock-out, by invoking the back door entry of Item 9 of Schedule IV of the Act as is contended by the Union. 11. Shri Rele further submitted that we must confine ourselves to the pleadings of the Union in the complaint. There was no dispute about the existence of the lock-out notice which was not only displayed on the notice board but even a copy was forwarded to the Union and the other authorities. Shri Rele submitted that the situation in the factory was explosive and there was no other alternative left with the company but to suspend the operations till normalcy was restored by the employees. According to the learned counsel, it was not at all necessary for the company to have examined any witness to prove the notice of lock-out, as it was an admitted fact. He further pointed out that the company had stated exhaustively the reasons for which it was compelled to suspend the operations abruptly and to declare lock-out. The learned counsel submitted that sufficiency or otherwise of the reasons cannot be gone into by the Industrial Court or by this Court. If in the discretion of the employer real and genuine reasons existed to take a decision of lock-out no further enquiry is permissible. From the pleadings in the complaint Shri Rele pointed out that the Union did not plead or aver that the reasons stated in the notice of lock-out were either false or non-existent. There was no such case made out in the complaint by the Union. In fact the Union did not specifically deny the existence or other-wise of the reasons given in the notice of lock-out. Shri Rele pointed out that the Union on the contrary contended that for the reasons stated in the lock-out notice there were other remedies available to the Respondent Company and that it ought not to have resorted to the extreme step of lock-out. In respect to the arguments of the availability of the other alternative remedies, Shri Rele pointed out that the Respondent Company did avail of the statutory remedy of filing a complaint of unfair labour practices against the Union and employees to direct them to cease their unfair labour practices. The Industrial Court in Complaint ULP No. 146 of 1984 had passed appropriate ad interim orders in favour of the company on May 1, 1984 and also in another Complaint ULP No. 198 of 1983 on July 21, 1983 filed earlier. Inspite of the Orders passed by the Industrial Court in the aforesaid complaints the Union and the employees were not deterred from continuing their unfair labour practices, says the learned counsel. It was therefore left with no other alternative but to declare suspension of work to be followed by lock-out. 12. Shri Rele further pointed out that in the lock-out notice specific names were mentioned specifically and their illegal and unfair labour practices were alleged against them. The notice of lock-out gave particulars of allegations against the named persons. Shri Rele pointed out that the notice of lock-out referred to Shri Amin, an Office Bearer of the Union. He was examined before the Industrial Court as a witness of the Union but he did not say that the reasons mentioned in the notice of lock-out did not exist. Neither he nor other witnesses who were named in the notice of lock-out denied the allegations made against them. The instances alleged against them were as good as charges levelled against them, but they did not say a word in respect of those incidents. According to Shri Rele, therefore the existence or otherwise of the reasons stated in the notice of lock-out was not denied by the Union in the complaint and even in the oral evidence adduced by the Union before the Court. In such circumstances, says Shri Rele, that it was not necessary for the Respondent company to have examined any witness to prove the notice of lock-out and the reasons stated therein. Neither the union nor any of its witnesses have said on oath that the reasons stated in the notice of lock-out were false or were non-existent. 13. In respect of the submissions of Shri Deshmukh that the Respondent Company wanted to humiliate the employees by requiring them to give an undertaking before lifting of the lock-out, Shri Rele countered the allegation of Shri Deshmukh by saying that in fact it was the Union that had offered an undertaking and the company never asked for such undertaking from the employees or the Union. The Respondent Company only waited for the Union and the employees to restore normalcy to be assured that after lifting of the lock-out ' real and genuine normalcy and peace would be restored. Shri Rele pointed out that in fact the Respondent Company had settled all the disputes at all its centres in the country. The settlement arrived at with the Union on October 18, 1985 significantly assures the company that the Union and the employees would make good loss of production without any compensation, Shri Rele points out that this itself is an enough and clear indication that the Union and the employees had accepted the fault which resulted into the lock-out. 14. Shri Rele has pointedly and specifically drawn my attention to the reasoned judgment of the Division Bench of our High Court [P.S. pATANKAR & S.A. bOBDE, JJ] in the case of Modistone Ltd. v. Modistone Employees Union and Ors., 2001-I-LLJ-1598. Para 27 of the Judgment crystallized the jurisdiction of the Industrial Court in respect of the dispute of lock-out under Item 6 of Schedule II of the Act. Shri Rele finally concluded that there is no illegality or infirmity in the impugned judgment and order of the Industrial Court to warrant any interference by this Court under its extra ordinary writ jurisdiction. 15. I have considered the case of the Union as reflected in the pleadings and the other material on record. It is not possible for me to accept the submissions of Shri Deshmukh, the learned counsel for the Petitioner-union that the lock-out notice was not in compliance with Section 24(2) of the Act for want of real, genuine and truthful reasons in existence. While Shri Deshmukh is right theoretically when he makes a proposition of law that the lock-out notice must contain reasons which are genuine, true and which are actually in existence and which have direct relation or nexus with the step of lock-out resorted to by the employer. There must exist the causal connection between the events alleged in the notice and the consequence of lock-out. In the present case Shri Deshmukh is riot right that no such reasons ever existed before the lock-out notice was issued. Shri Deshmukh is further right in theory that if reasons are not in existence or are irrelevant and irrational the proposed and continued lock-out would be hit by Item 6 of Schedule II of the Act. In the present case however, it cannot be said that no reasons ever existed and it cannot be said that the reasons which are stated in the notice of lock-out were non-existent, irrelevant, irrational or were false. I have carefully gone through the lock-out notice and the statement of reasons annexed thereto. By no stretch of imagination it can be said that the reasons stated in the said notice can be said to be either non-existent, irrelevant, irrational or false or concocted or fabricated. The notice has specifically given all the particulars in respect of time, place and the persons named. The notice contains 29 reasons as instances of go-slow, periodical work stoppage and refusal to obey lawful orders of superiors, and frequent and repeated indulgence in such activities to throw the working out of gear and to cause abrupt interruption in the smooth working of the factory. The notice specifies that from April 3, 1984 almost everyday, the workmen were resorting to periodic concerted cessation of work during working hours. The notice also mentions that there was constant disturbance and obstructions of work and that the workmen had created an industrial unrest and disturbance by resorting to beating drums, hooting, booing or singing songs in groups in the loudest possible tones and that the managers were threatened with dire consequences on the telephone etc. I am refraining from reproducing all the instances set out by the Respondent Company in the aforesaid notice of lock-out. The notice runs into 18 pages giving not less than 29 reasons for its action of lock-out. It has not left any vagueness in the notice and the allegations. It has given all the particulars as stated by me earlier. It has named the office bearers of the union and the names of the employees with specific allegations against them. In the last paragraph of the notice the management expressed that the manufacturing activities would be resumed only after it was reasonably and satisfactorily assured that the workmen would not indulge in acts of violence, coercion, indiscipline and work peacefully and discharge their duties diligently in accordance with the current settlements and rules and regulations of the Company. I am not able to hold and conclude that no reasons mentioned in the notice of lock-out ever existed before the notice was issued. 16. The Petitioner Union approached the Industrial Court under Item 6 of Schedule II of the Act to challenge the said notice of lock-out as an unfair labour practice. It is very significant to note that in the complaint the Petitioner Union did not even whisper that such reasons never existed before the lock-out notice was issued. The Union did not even say that the reasons stated in the notice were false, irrelevant, irrational or not genuine. The Union did not deny the fact of notice and also the contents thereof. A mere stray sentence in the complaint could not take the Union's case to hold that the reasons stated therein were non-existent and were false. It is further pertinent to note that in the notice of lock-out the company has named not only the incidents specifically but has also given the details and has connected the persons with the incidents. It was for the Union to have not only pleaded that the incidents and the reasons were non-existent and were false, it was further for the Union to have proved that the reasons stated in the notice were non-existent and were false. The witnesses who were examined on behalf of the Union were also named in the notice of lock-out but they did not even merely deny the allegations made against them and the allegations made in the whole notice of lock-out. Since the Union had challenged the notice of lock-out as an unfair labour practice it was the primary burden of the Union to have atleast prima facie proved through their witnesses that the reasons stated in the notice were non-existent and were false. The Union has neither pleaded nor proved the allegations that the reasons given in the notice of lock-out were non-existent, irrelevant, irrational or false as submitted by Shri Deshmukh. In the absence of such specific pleadings in my opinion it was not necessary and required by the company to examine any witnesses to prove the contents of the notice of lock-out as they were not specifically denied warranting any rebuttal on behalf of the Respondent Company. The Union has not discharged its primary burden to challenge the legality and validity of the notice of lock-out. It, therefore, cannot be said that the reasons stated by the Respondent Company in the notice of lock-out were wholly non-existent and were absolutely false or untrue. We must always remember that the trial or adjudication under the labour laws is not a criminal trial or a session trial where the charges must be proved to the hilt. Under the labour laws there must be preponderance of probability as is the case in the civil litigation. We have to take broad common sense view of the situation objectively on the basis of material placed by the parties. From the notice we cannot say that the situation narrated by the company was totally false. It was for the company to have taken stock of overall situation and to take appropriate decision. We cannot sit in appeal over the subjective discretion of the company supported by the objective material on record. From the entire material on record one cannot escape to draw an inference that the overall situation in the company had become explosive. There was industrial unrest and disturbance in the company. There appears to be several anti-production activities resorted to by the workmen at different points of time and at different stages of working. There appears to be the absolute loss of normalcy and industrial peace in the factory. To be precise, the situation in the establishment had become abnormal and had lost the healthy normalcy required in the smooth working of any establishment. There is no necessity to find out arithmetical or mathematical accuracy in the statements made by the company in the lock-out notice. Want of vagueness certainly assures me of the fact that the contents in the notice were generally and broadly in existence and there is nothing to doubt the factual averments made in the notice of lock-out. Even the Union has not undertaken the exercise to prove that the contents of the notice were substantially untrue and were largely non- existent. I am therefore, not able to agree with the submissions of Shri Deshmukh that the notice of lock-out was in contravention of Section 24(2) of the Act for want of true, genuine, relevant and rational reasons in existence. Having held that the Respondent Company has stated reasons exhaustively in the notice of lock-out and having found that there is nothing to show that such reasons were non-existent it cannot be said that the lock- out notice dated June 1, 1984 to effect lock-out from June 18, 1984 was illegal under the provisions of the Act. I have reached the limit of my jurisdiction to confirm the order of the Industrial Court that the lock-out notice, was legal. Neither the Industrial Court nor this Court can step in the region of justifiability of the lock-out resorted to by the Respondent Company as it is a forbidden area under the law. 17. It is not possible for me to agree with the submission of Shri Deshmukh that the Respondent Company had taken the extreme step of declaring a lock-out for the reasons stated therein. It is pertinent to note that before resorting to the lock-out the Respondent Company has approached the Industrial Court for restraining orders against the Union to desist from indulging into the acts of unfair labour practices, some of which are stated in the notice of lock-out. The Respondent Company had first filed a complaint of unfair labour practice against the Union (Complaint ULP No. 198 of 1983) and had obtained an order of restraint against the Union on July 21, 1983. According to the Company it was in vain as there was no obedience of the said orders. It further appears that the respondent again approached the Industrial Court by filing another Complaint (Complaint ULP No. 146 of 1984) to prevent the employees from indulging into the acts of unfair labour practices alleged in the said complaint and which are also reflected in the notice of lock-out. The Industrial Court was pleased to pass ad interim order on May 1, 1984 against the Union and the employees but that also proved to be futile. There was no obedience of the said orders. There appears to be third order passed by the Industrial Court in review on January 19, 1985. Having failed in its legal alternative remedies the Respondent Company was finally compelled to issue the notice for suspension of work with immediate effect and lock-out to be commenced and continued from and after June 18, 1984. It therefore cannot be said that the Respondent Company had resorted to the extreme step of lock-out abruptly without availing of the alternative remedies under the law to desist the union and the employees from creating industrial disturbance in the forms and the nature complained of in the complaints in accordance with the provisions of the law. It is therefore clear that before issuing the lock-out notice the company approached the Industrial Court to see that the union/employees were restrained from engaging in the unfair labour practices and thereafter helplessly declaring lock-out as it was not possible for the company to run the industry. Its decision was legitimate and legal and also fully justified in a way. Whether the reasons recorded in the notice of lock-out were sufficient or not also cannot be gone into in a complaint of unfair labour practice either under Item 6 of Schedule II of the Act or even under Items 9 and 10 of Schedule IV of the Act. 18. As far as the submissions of Shri Deshmukh that the question of justifiability of the lock-out can be gone into under Item 9 of Schedule IV of the Act is concerned, it is not possible for me to agree with the said proposition of law. The Item 9 reads as under: "9. Failure to implement award, settlement or agreement." It clearly indicates an act of straight and simple failure on the part of the employer to implement the award, settlement or agreement. The complainant, employee or the union has to plead and prove that the employer had failed to implement the award, settlement or agreement. Whatever may be the reasons, if the employer has engaged in the said unfair labour practice a declaration to that effect will have to follow. There is hardly any scope to probe into the justifiability of the act of such unfair labour practice. If the lock-out is legal and in accordance with the provisions of the law the employer in a complaint of unfair labour practice under the MRTU & PULP Act cannot be called upon to pay wages for the period of the legal lock-out. The doctrine of apportionment of blame and justifiability or otherwise of a lockout or a strike can be gone into in adjudication under the Industrial Disputes Act, 1947 and not in a complaint of unfair labour practices under the MRTU & PULP Act, 1971. There is, therefore, no scope left for the Industrial Court in a complaint of unfair labour practice to record its finding in respect of justifiability of the lock-out under Item 9 of Schedule IV of the Act and decide whether the employer had committed that unfair labour practice and whether the employees were entitled to any wages for the legal lock-out period on the ground that though it was legal, it was not justified. I am fortified in my view by the decision of the Division Bench of our High Court in the case of Modistone Ltd. (supra). The Division Bench has succinctly dealt with the point which is a complete answer to the submissions of Shri Deshmukh in the context of lock-out. Para 21 of the said Judgment reads as under 2001-I-LLJ-1598 at pp. 1609 & 1610: "21. The M.R.T.U. and P.U.L.P. Act is essentially meant for prevention of unfair labour practice. The statement of objects shows that it is for declaring certain strikes and lock-outs as illegal, to define and provide for prevention of certain unfair labour practices. If a lock-out is imposed not complying with the provisions of Section 24(2), then it can be called as illegal in nature. If it is shown by the union that it is illegal in nature, under Rule 23 of the M.R.T.U. andP.U.L.P. Rules, 1975 notice of lock-out is required to be given in Form "J". The notice is required to be accompanied by an annexure containing the statement of reasons. Thus, it is the non-compliance with the requirement of the above Clause (a) that makes the lock-out illegal. Under the above Clause (a), lock-out will be illegal if it is: (i) Commenced or continued without giving notice in the prescribed form; and (ii) or within 14 days of the giving of such notice. The statement of reasons is required to be annexed to the Notice so as to bring to the notice of the employees their actions to change their stand. The reasons are, thus, integral part of the notice. It is therefore clear that the requirement of giving reasons is a requirement of Rule 23 which prescribes that a notice of lock-out should be in Form 'J'. It is settled law that Rules form part of the statute vide G. O. C. in C and Anr. v. Dr. Subhash Chandra Yadav and Anr., . It must therefore follow that a lock-out, in order that it is legal, must be based on reasons which are relevant. Therefore, it is necessary that the reasons should not be irrelevant i.e. not relating to the industrial relationship or germane to the employer-employee relationship or non-existent or sham reasons. If the employees are able to prove this, then the company can be said to be guilty of unfair labour practice as it is acting illegally. Even if this is prima facie shown, the employees are entitled to get interim relief of a direction to the company to withdraw such unfair labour practice. However, sufficiency or insufficiency or adequacy or inadequacy of reasons cannot be gone into for consideration of unfair labour practice. The learned counsel for the company is right in submitting that Item 9 of Schedule IV cannot be interpreted in a wide manner, as sought to be done by the learned single Judge. This would result into anomalous situation. While justifiability and underlying reasons could be examined in a lock-out, no such examination would be possible in a strike as Schedule IV applies only to unfair labour practice on the part of the employer, though the weapons of strike-lock-out are said to be antithesis of each other. Therefore, while considering Item 9 of Schedule IV i.e. failure to implement award, settlement or agreement, the Industrial Court has no jurisdiction to go into the justifiability of the lock-out. The word "Agreement" is already interpreted by the Apex Court to include the violation of any legal provision and hence, implied them in the service contract. Thus, if it is shown that the employer wanted to close down without following necessary legal requirements, then mere is violation of the implied term of the contract and Item 9 of Schedule IV is attracted. But the said Item 9 is not wide to include every refusal to give work by the employer to amount to a breach of law. It cannot also be considered as a residuary item or to interpret it in such a manner to make it omnibus to cover every refusal or denial on the part of the employer to give work. It is not possible to accept the contention on behalf of the Union that it is sufficient to point out that the employees are ready to work and the employer is not prepared to give work and wages for attracting Item 9 of Schedule IV. It is also not possible to accept the submission that the lock-out must be both legal and justified as otherwise Item 9 of Schedule IV is attracted or that the company must establish legality and justifiability for denying the work for getting out of the clutches of Item 9, It is not possible for us to accept the said broad interpretation suggested by the Union and accepted by the learned single Judge. It is to be seen that Schedule IV only deals with unfair labour practice by the employer and not by the employees or their Union. If the employees go on illegal strike, it is not possible for the employer to force them to work. If the strike is illegal or unjustifiable, he can refuse wages. There is a parallel between Item 6 of Schedule II and Item III of Schedule III in that respect. The cases cited above would show that whenever the Court found that the Company has acted illegally or violated any provisions of law or given reason which is not existent or not germane or irrelevant to employer-employee relationship, it was held that Item 9 of Schedule IV was attracted." The Division Bench has crystallized the jurisdiction of the Industrial Court in respect of the lock-out in paragraph 29 of the said judgment which reads as under at p. 1612: "29. In the result, we hold that while deciding a complaint under the, provisions of the MRTU & PULP Act, the Industrial Court: (a) Can decide whether the lock-out is legal -or illegal i.e. whether it is in accordance with the provisions of the MRTU & PULP Act, 1971; (b) can decide whether the reasons stated in the notice of lock- out are non-existent or sham or irrelevant i. e. not germane to the employer-employee relationship or not relating to the industrial relationship; (c) However, it cannot go into the question of sufficiency or adequacy of the reasons; (d) the Industrial Court cannot go into the question whether the lock-out is justified. This question can only be agitated before the appropriate Court under the provisions of the Industrial Disputes Act, 1947." 19. There were complaints of unfair labour practices filed by the Petitioner Union and the Respondent Company against each other. Both the sides have withdrawn the complaints unconditionally. I do not see any unusual or abnormal elements in the withdrawal of the complaints by both the sides against each other even unconditionally when both the sides have buried the hatchet of dispute by arriving at a settlement on October 18, 1985. It is not necessary for me to consider the point of undertaking given by the employees before lifting of the lock-out. Similarly not much significance can be attached to the statement in the settlement that the employees would make good the loss of production without any compensation. There is no escape from a conclusion that the lockout step was caused by the Union and the employees on account of their agitations. Every trade union agitation and activity must be kept within control and limits so as not to cause irreparable damage or loss to the industry and the employment finally. The greater sufferer in this process of trade union agitation has always been the labour. In a situation which is an aftermath of agitation I do not find anything wrong or unusual or abnormal on the part of the employer to seek a renewal of assurances from the employees that they would restore the normalcy. It is a kind of affirmation or reaffirmation. I do not subscribe to a view that every undertaking taken or given amounts to humiliation or insult to the working class. If the employees and the trade unions have resorted to illegal and unjustified activities and unfair labour tactics to disrupt the industrial peace which finally results in damage to the industry and harm to the employees, the give and take of the undertaking acts as formation of basis to restore normalcy to build renewed mutual confidence. On the basis of such undertaking both the sides come together to shake hand. It is a ground of goodwill on which the spirit of mutual industrial relations are again setup to foster. At the same time if the employees have mentioned in the settlement assuring the employer that they would make good the loss of production that does not necessarily mean that they have accepted the entire blame and that they had surrendered to the employer. Such interpretation of the term undertaking causes more harm to the industrial relations and the mutual confidence. The industrial laws are to be interpreted not from the angle of class struggle but from the spirit of class harmony. In the unjustified and unreasonable struggle between the capital and the labour both suffer but the final and great sufferer is the society. There is neither complete victory nor complete defeat for either, "undertaking" or assurance by the employees or the union to restore normalcy is an agreement for peace and not a treaty of surrender. Neither can survive without the other. And the society wants both of them equally dearly. 20. Even the Supreme Court has accepted the statement made on behalf of the Respondent Company to lift the lock-out on receipt of an undertaking from the employees. The Supreme Court has recorded the settlement in its order dated February 12, 1985 in Petition for Special Leave to Appeal (Civil) No. 2383 of 1985. The Supreme Court has approved the form of undertaking required to be given by the employees as a condition to lift the lock-out. The undertaking reads as under: "Upon resumption of work I undertake to perform my duties sincerely and diligently, and to give and continue to give agreed output and productivity as per current Settlement, observe normal discipline and comply with the rules and regulations of the Company. I also undertake not to violate the ad-interim Orders dated July 21, 1983 and May 1, 1984 passed by the Industrial Court, Thane, in Complaint Nos. ULP/198 of 1983 and ULP/146 of 1984 respectively." From the aforesaid undertaking I do not find that the Respondent Company has in anyway treated the employees to humiliate them or in the sense of their surrender. It is only an assurance to rebuild the gap created on account of the agitations. Even the Supreme Court has not found any form of humiliation in the said undertaking. Neither such undertaking nor any statements made in the settlement need be considered as either admission or confession of any wrong or guilt on the part of the employees. It is only a plank to renew the broken relationship. It is only a new bridge of mutual relationship. It is needless to emphasize that the undertaking acts as a bridge to reach each other. 21. Last but the least is the point of wages to be paid to the employees by the Respondent Company for the period from June 1, 1984 to June 17, 1984. The Respondent company has suspended the operation of the establishment with immediate effect from June 1, 1984. In another notice of the same date the Respondent Company has proposed lockout to be commenced and continued from June 18, 1984. This lock-out with effect from June 18, 1984 has been held to be legal and not an unfair labour practice as alleged by the Petitioner Union. The employees however have been factually locked out with effect from June 1, 1984 on the basis of the notice for suspension of work with immediate effect. The employees were ready and willing to work but they were prevented from joining their duties on and from June 1, 1984. The notice for suspension of work is nothing but a lock-out as defined under the Industrial Disputes Act, 1947. Section 2(1) of the Industrial Disputes Act defines lock-out as under: "Lock-out" means the temporary closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him." The notice of suspension of work dated June 1, 1984 therefore amounts to a lock-out. This lock-out commenced and continued from June 1, 1984 till the lock-out notice gave effect to the proposed lock-out from June 18, 1984 is illegal. The law requires that the employer must give notice of 14 days before effecting the lock- out. In the present case the Respondent Company has effected lock-out by calling it suspension of work without such notice as the suspension of work began with immediate effect from June 1, 1984. The lock-out from June 18, 1984 was preceded by a notice dated June 1, 1984 which was called by the Respondent Company as suspension of work. In this notice period the Respondent Company is liable to pay full wages to the employees. If the lock-out period had commenced from June 18, 1984 without preceding the suspension of work from June 1, 1984 in that case the Respondent employer would not have become liable to pay wages for the notice period of 14 days as the employees would have worked and earned their wages during this lock-out notice period. In the present case the notice period is merged in the period of suspension of work from June 1, 1984. In these circumstances the Respondent company is certainly liable to pay full wages to the employees from June 1, 1984 to June 17, 1984 both the days inclusive. In fact the Respondent Company ought to have paid to the employees the wages for the aforesaid period on the next pay day in the month of July 1984. In my opinion the Respondent Company has illegally withheld the lawful wages of the employees for such a long period and without any justification. It is an admitted position that till this date the respondent company has not paid to the employees the wages for the aforesaid period, and this is totally illegal, improper and unjustified act on the part of the Respondent Company. I, therefore, direct the Respondent Company to pay to the employees the unpaid wages for the period from June 1, 1984 to June 17, 1984 inclusive of both the days within a period of four weeks from today with interest at the rate of 24% p. a. The Respondent Company will be liable to pay interest at the rate of 24% p.a. till such payment is made. 22. In the aforesaid circumstances I do not find any illegality, impropriety or infirmity in the impugned Judgment and order of the Industrial Court. There is neither perversity in the order nor does it cause miscarriage of justice. The Writ Petition is disposed of as above. No order as to costs.

Author: R Kochar

Blue Star Workers Union vs Blue Star Ltd. And Anr. on 3 May, 2002

Bombay High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20"' DAY OF OCTOBER 2010 BEFORE A V THE HON'BLE MR. JUSTICE ASHOK B. HINCH'IG:'E.R.I V WRIT PETITION Nc5,29831-833,:'2'O1'0'or 201.0 I AND WRIT PETITION NO.3O887/=.ZO1!'_.-)-A{L.B--R.ES-) 7 BETWEEN: 1. SRI M SANJEEVE GOWDA AGED ABOUT 46 YEARS, _ _ S/O LATE M.S.MALLEGOWDA., R/AT NO'-4569,, BEHIND V.T.TEMPLE, KOTE, _ CHANNAPATNA TOWN 1 ' RAMANAGARAM DISTRICT,» _ SMT. B.T.GHArIA'MAiI.I..31 ' ._ W/O M. SAN3iEEV='fE GOWDA, , I' AGED ABOUT 4S..,YEAT?~SI ' ' R/AT NO,' 1569,..E;.EI~IIN;D' 'I/_.'I'>..TEMPLE, KOTE, CHANNAPATi'JA_,TOW'P~!_, ' - RAMANAGARA.M SMT. ROORNIEMA,' . _ AGED ABOUT 36 YEARS, W/O,_Cf'«DEVARAJU, Si-IQ_P..NO. O6, IVLG.R'OAD,"CHr"..NNAPATNA TOWN, "w.,RAMAN,AG,A'RAM, EEISTRICT PETITIONERS 7r_(By Sri B TE:1'NDUE SHEKAR, ADVOCATE) A A V E ' .TH.E STATE OF KARNATAKA ,__""REP;. BY ITS SECRETARY, URBAN '=DE--'JELOPMENT, MULTISTORIED BUILDING, FAMBEDKAR VEEDHI, «~ BANGALORE-560001 2. THE COMMISSIONER, DIRECTORATE OF MUNICIPAL ADMINISTRATION, VISHWESWARIAIAH TOWER, AMBEDKAR VEEDHI, BANGALORE-560001 3. THE DEPUTY COMMISSIONER, RAMANAGARAM DISTRICT - RAMANAGARAM. I 4. THE CITY MUNICIPAL COUNCIL , CHAN NAPATNA, " _ RAMANAGARAM.DISTRICT, ' I. REPRESENTED BY ITS COMMISSIO_N'E.R RESPONDENTS(By Sri R.DEvDAS, AGAFOR R-_ Sri A I}, G;AIIIGATDARAPPA FOR C/R4) . : . - THESE WRIT"P'ETIT1G_NS 4.A.REIv..I=ILED.,UNDER ARTICLES 225 AND 227 OF THE CO'N_STjITUTION ,OEi,'E.I,N'--DIA "»PRAYING TO QUASH THE ORDER DT.17,..7_,.1O "RASS1ED,,_Es~./_ THE CO.MMISSIOENR DIRECTORATE OF MUNICIPAL ADMINO.STRATION,'»..THE R2 WHICH IS AT ANN-A, THE LETTER] DIRECTIONSI.ORDER«DT;-2';.7.I0 & 29.7.10 PASSED BY TEH DEPUTY COM'MISSIoNEI'<,I';I<.PROJEc:T--~ DIRECTORATE, RAMANAGARAM DIST. RAMANGARAM T'HE"R3. "--gt QUASH THE ORDERS DT.9.9.10, ISSUED BYTHE R4 ASPER ~.AN'N"-C TO G IN RESPECT OF THE SHOP NO.3, 4,; 8!. ,5 GODOWN '& SHED, SITUATED AT M.G.ROAD, EHANNAIéA«TNAfTO_wN, wH..I.C.H ARE DESCRIBED AT THE SCHEDULE OF 'w_RIT PETITION AND ETC. SETH-ESIE...W=RIT'PETITIONS COMING ON FOR PRL HG. THIS DAY, THE COURT MADETEE FOLLOWING: QRDER The-..petitioners' grievance is over the Canceliation of the of shop units. The petitioners were aliotted the shops auction conducted on 20.12.2007. 88}! 2. Sri Indu Shekar, the learned counsei for the petitioners submits that the impugned orders are without the author_i:t'y.V_of law and without jurisdiction. He complains of the vioiIatio~n_';o.f_VftE1e'*_ principies of natural justice. He submits Commissioner was directed to put theV=..,pet_itiQne'r=son"-notice this Court, by its order, dated i,2,s,o7.2.o*m, f'T..r,.¢,._pé:puty.fi Commissioner has not issued any notice to the' petitioriers. On the other hand, the respondent l\lo._.4;M.unic'iv.pga~i. Council has been putting the petitionerson noti~ce:,. jf ' 3. Sri Indu. petitioners have caused the their learned advocate. The reply at ali, so contends Sri Indu Shekar. i-Ale, furtheriv in respect of 51 persons, no lé:é1VSe..deedA:'wi.iiats--oeveVrVis""eXVecuted. However, those persons are allowedggto'table...i:An-opossession of the shop units belonging to the V7op°'*~v'responde_nt 'ii-le aiso complains of hostile discrimination. *4ifjiegs-ubmits"that the respondent No.4 is not doing anything to staggering rent arrears from 161 allottees. Sri A.V.Gangadharappa, the iearned counsel for the 'respondent No.4 submits that the impugned Annexures--A to C HBH. 4 are in the nature of inter office correspondence. Such communications cannot be the subject matter of challenge in the writ proceedings. He submits that only 5 persons took'. p.ait_V_in the open auction and those 5 persons are;"""ai-soq:_5the'=_ representatives, reiatives/shadows of the earlier~i--ail_ojttee:s iigwho 2 were allotted the shop units in the auction:-.Cohd'ugcted'---i4n'= As what has been done is not.___in V"compiia:fucej_:.vv_iVth_T§ requirements of the provisions of thue"Kxar'ngataVl'§a*iiiravnsparency in Public Procurement Act, officers have initiated the proceedings forgthei_c--anhceli.ati'o'n.' i.'fitii'e allotments of the shop units. Hgeilgfhevifreintais fetched in 2004 and fetchedliin the recurring loss is about Rs.70,000/~ , 5. i\'f'.~'.I.§3angadh_a_rappa, ailaying the misgivings raised bv"_the1"petit.ion.e*i*s'"--side submits that the respondent No.4 is bound 'to' 'act si'm'i«!.ari=v'in respect of the allottees whose cases are VV7__aki:1 to the "pVet'itioners' cases. He further submits that the .1 ..reSpo.nden.t No.4 has fairly offered to refund the entire premium ."-f'_~-arno.--un't:. H QBH. 6. Sri R.Devdas, the learned Additional Government Advocate also has a grievance over the petitioners'fl'a__cts,.of managing to get the shop units allotted at a rate;i'o'w.er--.'..than"«_ what was given in 2004. He submits that under.-Suefctiyofnii the said Act, the Government has the powefjr'°to':4.ca«l|4"fovryltwbieif records with a view to ensure transp_aren'cy in thepryocéurement process. Sri Devdas submits that">..t_he_Vpubiic:in'tere,st is of paramount importance in cases. .AVlBec.aus,e of the mistake, which may have beenVcomm'itted..,b.y_V s:on'ie,.'of§;t.ri'e officers, the interests of the réspo_n"dVen_t..:Vloca.5.....:body cannot be permitted to suffer, . 7. I do not «see in the submission urged on behalf of the petilt'ion:ers."regarding the violation of the principles off"natural,ijuis-tice,, The""'p'etitioners were indeed put on two notilc'-as," caused the reply to the notice through :i)*t.l':eir learned a.dvo:<_:a;te. The submission urged on behalf of the --i%.l,"p;eti_tio,ners that'1~the notice ought to have been given only by the 4'~i5e<pu'tyConumissioner also does not commend itself to me. It . suffice, if the functionary who is securing the eviction of Viwltheépetitioners, has issued the notice. 33%. 8. On my pointedly asking when the petitioners were put in possession, divergent answers were given. Sri Indts.Shge'i<ar submits that the petitioners took the possession _ 30.06.2008. Sri A.V.Gangadharappa subrnits t'hat"-th_e'V"date it making over possession to the petitioners 30.06.2008 or 05.05.2009, the pet'i'tiVonerSV. have i'b'eeinv«--.cari'ying--.t" on their business. They must have some.impr_oyge:ments to the shop units so as to 'éthefiiri requirements. Noticing the infirmities. in the allottees cannot be thrown. ijisalilllllthe more so, when they are their livelihood. It is nobody's case have committed any fraud. For the lapse on'"'thhe~.;j.art"».of'"'.the officials, the private parties c-anriotg lputito "u..nmitigVa'ted loss. "'9~.:\t'--et VVar*ldtjhetV'aspect of the matter which cannot be lost vl*T__sighVt of is4"tha'tVal'though the auction was conducted in December .1 "the cancellation proceedings are initiated 2'/2 years in _'}uly 2010. If the respondents were diligent in ' 'v..,gth'eVVVrna'tter, things would have been different. 9.314. 7 10. My perusal of the tender cum open auction Notification, dated 03.12.2007 reveals that it was open to a desirous party to submit its tender and take part in thepaiuction or to take part in the open auction without submitting"'itsf,te_n'éer.~~. Such being the tender notification, it cannot the petitioners are blameworthy. 11. My scrutiny of the rent -agreeineiit power is reserved to the Municipality'-to c,ancei--th0e':alloitment of the shop for the lapse on th'e_"fpart'_VAof,V--the~«..Qfti'cials in adhering to the transparency law, Furth.e.r,'_the.Karn.ataE{qa.V,*--i"ransparency in Public Procuren9iVe'tit:i,7,{§ct,'0;'f.i'9F§f9~tand vRules framed thereunder do not provizdelfor theev_ilct--io'ri«.'of the allottees on the higher officers noticing the,_:om.issio'nVi'h: adhering to the provisions of the for the above-mentioned reasons, the Vmimpugne.d"%can.ce'iiaiti'on proceedings are unjustified)unsupportable -4fjarid'v..unsusta,in1able. However, it is also trite in law that in {~-'.:Vexe'r0cise>_o'i? the power under Article 226 of the Constitution of ' léghis Court would not quash an order, merely because a ipaprty makes out a case in law; the public interest has to weigh REM 3 with the Court. In taking this view, I am fortified by the judgment of the Apex Court in the case of RAMNIKLAL N. BHUTTA v. STATE OF MAHARASHTRA, reported in SC 1236. 13. If the impugned orders areggqVuashe.d';"'then A consequence is that the petitioners wouldgcontiéit:.ue-.' rentals, which aggregate to Rs.13'.00_O/~Vi'0_r"afl the put-.i* together, whereas the prevaiiingl:"rate._ around Rs.70,000/- per month. Therefore'A--_th«e' pubiic interest demands that this Court shou'id.h.riotV the canceilation proceedings! petitioners' interests are aiso requiredttogbesafeguaa'd'ed:e'ftective|y and guardedly. my view, the ends of justice would be Hrueasonabie time to the petitioners to locate .a'it._ern'ati'v,e p.iVati'es, vacate the present premises and shift A the aite-rna_tive piaces. iEiA.i__4As"'ri.ghtiy pointed out by Sri Devdas, Section 18 of the Acttempowers the Government to cail for the records with a ivi--eVV"toi ensure the transparency. I do not propose to give any £58. 9 direction to the Government to cail for the records of the auction held on 20.12.2007. It is for the Government to take a decision whether to caii for the records and examine the whoie 16. Considering the facts and circumstances"-of this Court deems it fit and just to grant'ab'outé_one,yearj's:perio0.d. to the petitioners to vacate and hand ove'r__ti'..eA.vaca_n_.tA to the respondent No.4 subject 'to:"'the io*i..iQwi.n_"g and' conditions: i) The petitioners shaiir.vac-atieandi.%.han'dover the vacant possessiVon:o«f_ or 'befo re 01.1 1.201 1. thisVreg'ard,..,'n4tihé"'*petitioners' side has filed the merino"urnd'e_rtaki"ng.'iito vacate the premises on or tiefore 1.20011. The same is taken on record. The.petiti_oners are aiso at liberty to take out ail the objects iaid in their shops. zThne'Vr'espondent No.4 shaii refund the entire security 00 '*u__deposit/premium amount to the petitioners. It is it made ciear that the respondent No.4 siiali not retain any portion of the said amount or forfeit any amount. QB!-i. vi) vii) 10 The petitioners are directed to restore the shop units to the respondent No.4 in the same condition in which they took their possession. The petitioners shaii keep clearing the _ as and when they fall due tiiithey xracatesaihrj 'hyanci " it over the vacant possession the respon-de'nt"i\io_,_4'::;_A« The petitioners shaii also-i.i»;Veep'ci.ea riyngfthei and water charges in re4s'pe:ct,V_of th'e.:shopVf%units till they vacate the Vp--re:i'nises.;'~ " ' ' It is open to the peti:t.ione~rs:vto"ta_ke"'.p'a'rt in the tender process}: is going to initiate .Vfvo'ir.a-!.i:otti'nig::'the shop units afresh at the end of o'ne"yVea'i'_. other things remaining the ..«}gsame (ifn't'h.e:v_offg:=:rs made by the petitioners and the A _ otherpersons/applicants are for the same amount), x'i.--.;thVeéVu."_r--esposndent No.4 shaii accept the petitioners' offe rs} F15 H. 11 16. These petitions are accordingly disposed of. No order BS t0 COSECS. A bvr

Author: Ashok B.Hinchigeri

Sri M Sanjeeve Gowda vs The State Of Karnataka on 20 October, 2010

Karnataka High Court

Gujarat High Court Case Information System Print SCR.A/815/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 815 of 2010 ========================================================= PATEL BHUMIKABEN BHAGIRATHBHAI & 1 - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR JV JAPEE for Applicant(s) : 1 - 2. Mr Shivang Shukla, Addl.PP for respondent No.1 None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 11/05/2010 ORAL ORDER1. This petition under Article 226 read with Articles 14 and 21 of the Constitution of India is filed by the petitioners teachers serving at Primary Schools in Madhavgadh Primary School, Taluka Kheralu, Dist.Mehsana and at Vanharapura (Devpar) Primary School, Vijapur, District Mehsana. However, parents of petitioner No.1 are residing at Jepur, Taluka, Vijapur, District Mehsana and, therefore, the petitioners who are lawfully married couple as per the Hindu Religious rites and on 11.12.2008 they got married at Harsiddha Mata Temple, Himatnagar and the marriage was also registered at Himatnagar before Registrar of Marriages on the same day, apprehend threats to their lives from parents of petitioner No.1. This petition is filed with a prayer to issue appropriate direction to the respondent authorities to provide them safety and in case of danger to their lives, adequate measures in accordance with law. 2. Learned APP appearing for the respondents submits that upon enquiry from father of petitioner No.1 who has stated that he has no interest or contact with petitioner No.1 and has no animosity. 3. However, considering the facts and circumstances of the case and the marriage which has taken place between the petitioners on 11.12.2008, if any assistance or protection is sought for by them from respondents No.2 and 3, the same shall be provided in accordance with law. 4. With the above observation, this petition is disposed of. Direct service is permitted. [ANANT S. DAVE, J.] msp     Top

Author: Anant S. Dave,&Nbsp;

Patel vs State on 11 May, 2010

Gujarat High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2009/001664/4381 Appeal No. CIC/SG/A/2009/001664 Relevant FactsAppellant : Mrs. Pushpa Rani H. No. 680, Chirag Delhi, New Delhi-110017. Respondent : Mr. Maneesh Rastogi Suptdg. Engineer-I/SZ Municipal Corporation of Delhi O/o the Suptdg Engineer-I, South Zone, Green Park, New Delhi. RTI application filed on : 03/09/2008 PIO replied : 24/06/2009 First appeal filed on : 05/02/2009 First Appellate Authority order : Not Mentioned Second Appeal received on : 07/07/2009 Information Sought: emerging from the Appeal: The Appellant in her Application has sought status of her complaints which she had written to the several authorities on different dates. She had complained about a building in her neighbor which was in dangerous state and also affecting her building. Reply of the PIO: The PIO replied to the Appellant vide letter dated 17/09/2008 that the letters which she wrote to the Dy. Commissioner on 03/03/2004, 25/10/2004, 23/11/2004 & 14/02/2007 had been forwarded to the EE (MS-I) vide no. 95/RTI/EE-MS-II dated 04/09/2008 and the information related to the letters written to the ACP, SHO & DCP could be obtained from the concerned department of Delhi Police. He further wrote that the house in question was examined in the presence of the Appellant and the concerned JE, AE & EE (MS-II) and it was found that there was no imminent danger to the Appellant's house. However another letter was received from the Appellant which was again sent to the EE (Bldg.)-I, South Zone on 09/09/2008 for further action as per DMC act. The PIO again on letter dated 23/09/2008 stated the same. Ground of First Appeal: Non-receipt of information from the PIO within the stipulated time. First Appellate Authority ordered: Not ordered. Ground of the Second Appeal: Incomplete and unsatisfactory answer received from the PIO. Relevant Facts emerging during Hearing: The following were present Appellant: Mrs. Pushpa Rani Respondent: Mr. M.K.Singhla EE(Maintenance South-II) on behalf of PIO Mr. Maneesh Rastogi The Appellant has a building on which the building next to it is actually leaning as per photographs brought by her. The photographs appear to shows cracks in the upper part of her building and to any rational person this would appear a very dangerous and unsafe situation which could lead to loss of lives. The PIO has stated in the information provided that, "After examining the house no. 694 it is observed that there is no eminent danger to house no. 680" the PIO was asked if MCD had done any evaluation or calculation based on which this statement is made. The Appellant is also produced before the Commission file notings from the building department of the MCD in which it is stated, "in view of above works department be directed to taken action against this building before any mishappening occurred" this noting has been made on 19/09/2008. Nine months after this the respondent EE Mr. M.K.Singhla who states he is a civil engineer is stating before the Commission that there is no eminent danger to the Appellant's building. He also states he is willing to take this on affidavit. Decision: The Appeal is allowed. The Commission directs Mr. M.K.Singhla deemed PIO to file an affidavit stating that there is no eminent danger to the Appellant's building after inspecting the site and send it to the Appellant and a copy to the Commission before 20 August 2009. 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 07 August 2009 (In any correspondence on this decision, mention the complete decision number.) (GJ)

Mrs. Pushpa Rani vs Municipal Corporation Of Delhi on 7 August, 2009

Central Information Commission

ORDER T. Venkatadri, J. 1. This appeal arises out of an order passed by the Motor Accidents Claims Tribunal (District Judge), Chingleput, awarding compensation in a sum of Rs. 5,000 to the first respondent herein, whose son, a boy aged about 14, studying in VII Standard in the Municipal High School, Kancheepuram, died as a result of having been hit by a passanger bus, MDH 2265 owned by the second respondent-transport company. The appellant was also made a party in the claim petition of the first respondent, as the bus was insured with them. The Insurance Company has preferred this appeal canvassing the correctness of the decision of the Tribunal in awarding compensation to the first respondent. They have contended that there is no liability to pay compensation, as there was a breach of the conditions incorporated In the Insurance Policy. The Tribunal below has negatived the contention of the Insurance Company and directed the Insurance Company to pay the compensation amount. Therefore the question that arises for my consideration in this appeal is whether the Insurance Company is liable to pay compensation to the father of the deceased boy. It is, therefore, necessary to state some more facts. 2. The second respondent-transport company are the owners of the passenger bus MDH 2265, which has a seating capacity of 47 including the driver. On the fateful day, this bus was not in use or service, as it had been left with the Rural Bus Workshop for effecting repairs to the said bus. The repairs were carried out by one mechanic, Palaniswami by name. After the repairs, he took out the bus for a test drive, and it was during the course of the trial drive that the unfortunate accident occurred to the son of the claimant. It is in evidence that Palaniswami is not in possession of an effective driving licence authorising him to drive heavy vehicles. He has been given a licence only to drive motor cars (light motor vehicles). Under no stretch of imagination can he be said to possess a licence to drive heavy vehicles like an omnibus. Therefore learned Counsel for the appellant-Insurance Company contended before me that, when the bus was handed over to the workshop for repairs, the Insurance policy was suspended for the time being. He further contended that it was during that period of the suspension of the policy that Palaniswami, the mechanic who did not possess the requisite driving licence to drive a heavy vehicle, took out the bus in question and caused the accident to the son of the claimant. Learned Counsel therefore contended that the Insurance Company would not be liable to pay compensation either to the insured or the father of the deceased boy,, on account of the deliberate breach of the conditions of the policy. 3. It will be useful to refer, in this connection, to the relevant conditions in the Insurance Policy, under the head ' General Exemptions ': " The company shall not be liable under this policy in respect of (1) .... (2) .... (3) any accident, loss, damage and/or liability caused, sustained or incurred whilst the motor vehicle is (a) .... (b) being driven by any person other than a driver. Learned Counsel has contended that Palaniswami is not a driver of the bus, the further he does not possess a valid licence to drive heavy vehicles and that therefore the Insurance Company would not be liable to pay compensation to the father of the deceased boy. Palaniswami has himself admitted that he has no licence with. ' heavy' endorsement. The Tribunal has observed that it could not be said that Palaniswami was driving without a licence. I am unable to agree. A ' heavy motor vehicle ' has been defined in Section 2(9) of the Motor Vehicles Act as a. transport vehicle or omnibus the registered laden weight of which exceeds 8,200 kilograms; and Section 2(13) defines a 'light motor vehicle' as a transport vehicle or omnibus the registered laden weight of which does not exceed 3,000 kilograms. Merely looking at the definitions, one can safely say that an omnibus having a capacity for 47 passengers is certainly a heavy vehicle. Once I come to the conclusion that the bus in question is a heavy motor vehicle, I must also conclude that Palaniswami did not possess a licence to drive the bus in question which is a heavy vehicle. Therefore the appellant-Insurance Company is right in their contention that, when Palaniswami took the bus for a test drive, he did not possess the requisite licence for driving-it and that further the bus was driven by a person other than a driver. 4. In regard to the contention urged by learned Counsel for the appellant that in any event the policy was suspended for the time being when the bus was handed over for repairs, it is useful to refer to the passage in Halsbury's Laws of England, Third Edition, Vol. 22, page 234, paragraph 445: There may, however, be an alteration not affecting the identity of the subject-matter which amounts to an alteration of the risk if by reason of the alteration the risk as altered ceases to correspond with the risk as defined in the policy... . Unless the policy expressly so provides, the alteration of the risk does not avoid the policy, but merely suspends its operation during the continuance of the alteration. If the subject-matter is returned to the locality described or is again used in accordance with the: description, the policy re-attaches. In Robberts v. Anglo-Saxon Insurance Association Ltd. 137 L.T. 243 a vehicle was insured for commercial travelling. When it was used for carrying passengers and an accident: occurred, it was held that the insurers were not liable, as that Was not within the-risk described. The use of the vehicle for an unpermitted purpose does not, however, in the absence of a clear provision to that effect, give the insurers a right to avoid the policy altogether for all time and for all purposes. The result is merely to suspend the operation of the policy for the duration of the unpermitted use. As soon as the unpermitted use ceases and use for a permitted purpose is resumed, the-policy again attaches itself. It is usual in the business of motor insurance to provide a clause of suspension of policy under certain circumstances. All policies contain a number of general exceptions and the operation of any one of the exceptions entitles, the insurers to repudiate the liability under the policy. If we apply the above principles to the instant case, it is clear that the owner of the vehicle did not give his consent to Palaniswami to drive the vehicle. Nor did Palaniswami obtain the consent of the owner of the bus to take out the bus for the test drive. Further,, Palaniswami could not be called either the servant or the agent of the insured. He is after all an independent person who undertook to effect the repairs of this motor vehicle. Learned Counsel for the appellant brought to my notice the case of Hewitt v. Bonvin L.R. (1940) 1 K.B. 188. In that case, with the permission of his mother, a son took out his father's car. The son wanted the car for his own purposes in order to drive two girl friends home. On the way back, through the negligent driving of the son, the car was upset and a friend who had accompanied the party was killed. In an action by the administrator of the deceased friend against the father, the owner of the car, it was held by the Court of Appeal, that the son was not driving the car as his father's servant or agent or for his father's purposes and that therefore the father was not liable for his son's tortuous act. Applying the principle of that case to the facts of the present case, I feel that Palaniswami when he was driving the heavy motor vehicle was not either the servant or the agent of the owners of the motor vehicle. Palaniswami was not under their control and he was not given any directions at the time of the carrying out of the repairs. As observed by Du Parco, L.J. in the judgment just cited, it has long been settled law that where the owner of a carriage or other chattel confides it to another person who is not his servant or agent, he is not responsible, merely by reason of his ownership, for any damage which it may do in that other's hands. 5. In determining whether the relationship of master and servant exists, a number of questions may have to be considered like the nature of the task undertaken, the freedom of action given, the magnitude of the contract amount, the manner in which it is to be paid, the powers of dismissal and the circumstances in which the payment of the reward may be withheld. But a guiding and final test lies in the nature and degree of detailed control over the individual alleged to be in the relationship of servant. The question of control is of considerable importance, and the Courts have carried the doctrine of control to such an extent as to make the owners of cars who retain control of the vehicle liable for the torts of persons to whom the car has been loaned without any relation of master and servant existing. The owner of a vehicle is responsible for the negligent driving of such vehicle by his agent or servant, if he (owner) retains control. But the law has considerably extended the liability of the owner of the vehicle for the damage which may result from its negligent use. Whether or not the owner be liable depends upon whether in fact he has retained control. In this connection, it is useful to refer to the decision in Chowdhary v. Gillot (1947) 22 All E.R. 541 where the plaintiff took his motor car to the manufacturers for repairs and, after handing it over to the company's receptionist, he asked if he could have a lift to the nearest railway station. The manufacturers' servant was instructed to drive him to the station in the plaintiff's own car. An accident occurred, owing to the negligence of the driver of the company. In an action brought by the plaintiff for damages, it was held that having received the car for repairs, the company were, at the time of the accident, in possession of it as bailees and, so long as the bailment continued, the owner had no right to control the bailees' servants. It was therefore held that the company was liable for the driver's act of negligence. Similarly, in Lakshminarayan Ram Gopal & Son v. Hyderabad Government , their Lordships of the Supreme Court drew the distinction between master and servant and principal and agent thus: Generally, a servant is a person who not only receives instructions from his master but is subject to his master's right to control the manner in which he carries out those instructions. An agent receives his principal's instructions but is generally free to carry out those instructions, according to his own discretion. His Lordship Bhagwati, J., also extracted the following passage in Halsbury's Laws of England--Hailsham Edition--Vol. I, at page 193, Article 345, where the positions of an agent, a servant and independent contractor are thus distinguished: An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though ' bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. 6. On a review of the case-law on the subject, I am of opinion that Palaniswami the mechanic who undertook to repair the bus belonging to the second respondent-company is neither his servant nor his agent but an independent contractor. Therefore the second respondent-company had no control over him at the time of the accident, and therefore when the second respondent-company's bus which has been insured with the appellant-company was involved in an accident, the policy of insurance was suspended at that time and it was during the period of suspension of the policy that the vehicle was driven by a person other than the driver of the transport company who further did not possess a valid licence to drive that vehicle. In those circumstances, the appellant-Insurance Company is entitled to ask for a declaration that they are not liable for the risk, as the accident occurred during the period when the policy has been suspended. The claimant will be entitled to get compensation only from the owner of the bus-company, that is the second respondent herein. 7. In the result, the appeal is allowed. There will be no order as to costs.

Author: T Venkatadri

The Unique Motor And General ... vs M. Kannappa Naicker And Anr. on 23 December, 1965

Madras High Court

JUDGMENT P.S. Narayana, J. 1. This Court ordered notice before admission and the learned Counsel for the petitioner was also permitted to take out personal notices to the respondents and file proof of service. Though the respondents were served with notices, none represents on behalf of the respondents. 2. Sri. G. Ramesh, learned Counsel representing the revision petitioner, would submit that an application was filed under Order XXVI Rule 10-A of the Code of Civil Procedure (hereinafter referred to as the 'Code') praying for sending the original sale deed dated 17-09-2004, executed by the petitioner and the alleged mortgage deed dated 3-12-1997 marked as Ex.B-1 to the A.P. Forensic Lab for comparison and for opinion of the expert. 3. It is brought to the notice of this Court that the petitioner filed O.S.No. 815 of 2000, on the file of the Principal Junior Civil Judge, Cuddapah, which was instituted on the strength of a mortgage deed and an exparte decree was obtained. The revision petitioner moved a claim petition in the E.P praying for sending the sale deed and the mortgage deed, referred to supra, to the Forensic Lab for the purpose of comparison to have the opinion of the expert for proper adjudication of the matters in controversy. 4. The learned Counsel for the petitioner also pointed out that inasmuch as this application was filed in a claim proceeding and since claim proceeding may have to be decided just like a suit, definitely Order XXVI Rule 10-A of the Code is applicable and in the facts and circumstances of the case, instead of allowing the application, the trial Court erroneously dismissed the application without costs, and hence, the civil revision petition had been filed. 5. The learned Counsel also placed reliance on K. Venkarayappa v. Ellen Industries, Coimbatore and Ors., . 6. Order XXVI Rule 10-A of the Code reads as hereunder:- "Commission for scientific investigation:- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9." 7. The term or expression "suit" is not defined. Section 26 of the Code refers to the presentation of the plaint only. 8. In Hansraj Gupta and Ors. v. Dehra Dun Mussoorie Electric Tram Way Co. Ltd., AIR 1933 P.C. 63 it was held that the word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. 9. In N.K.R.M. Rajagopala Chettiar v. Hindu Religious Endowment Board, Madras and Ors., AIR 1934 Madras 103 (F.B.) the Full Bench of the Madras High Court held that the term 'suit' in C.P.C can mean only a proceeding instituted by the presentation of a plaint and a proceeding commenced by an application would fall within the term 'suit' only if, such a proceeding has been especially declared to be a suit by the specific provision of any special enactment. 10. In B. Narasappa v. B. Govindappa, the learned judge of this Court held that when once under Section 141 of the Code provisions are not applicable to execution, it is not open to invoke under Section 151 of the Code and appoint a Commissioner, which is not otherwise permissible under the provisions of the Code and it is not open to appoint a Commissioner in execution proceedings. 11. Order XXVI Rule 18-A of the Code was introduced by Amendment Act of 1976, which reads as hereunder:- "Application of Order to execution proceedings:- The provisions of this Order shall apply, so far as may be, to proceedings in execution of a decree or order." 12. In Natabar Behera v. Batakrishna Das, (D.B.) the Division Bench of Orissa High Court while dealing with scientific investigation of report of hand writing expert held that "Section 75 of the Code defines and limits the power of the Court to issue commission, the detailed provision of which has been set forth in Order XXVI. The said section was amended by Act 104 of 1976 and as a consequence of the said amendment, new Rules 10-A to 10-C have been inserted in Order XXVI of the Code. In Clause (e) to (g) of Section 75 which were inserted by the aforesaid amendment, the power of the Court to issue commission has been widened. Clause (e), so introduced empowers the Court to issue commission to hold a scientific, technical or expert investigation when it is needed for determination of any issue before the Court. Rule 10-A of Order XXVI provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. Scientific examination means ascertainment by observation and experiment critically tested, systematized and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialized skill based on study. It, therefore, comes within the scientific investigation and cannot be done by a layman without having the scientific knowledge and specialization on the subject. The handwriting experts for the purpose of comparison of the handwritings take enlarged photographs of the disputed and the admitted writings and examine the same by application of recognized principles and by critical tests, which in most cases cannot be conveniently conducted before the Court. Hence, the genuineness of the signatures in the rent receipts having been disputed, the Court has rightly issued a commission for investigation by an expert." 13. In the light of the clear language of Order XXVI Rule 18-A of the Code, there cannot be any serious doubt on the aspect of the maintainability of the application in execution proceedings. 14. Strong reliance was placed to explain the nature of a claim proceeding on the decision of this Court in K. Venkarayappa v. Ellen Industries, Coimbatore and Ors. (supra 1). This Court is not inclined to go into the question whether the claim proceeding in execution of mortgage decree can be maintained or not since the same may not be germane in the present context. 15. However, on a careful scrutiny of the reasons, which had been recorded in detail by the learned Judge at Paras 5,6 and 7, this Court is of the considered opinion that there are no bona fides on the part of the revision petitioner in moving the present application and hence the impugned order does not suffer from any illegality whatsoever. 16. Accordingly, the Civil Revision Petition shall stand dismissed as being devoid of merit at the stage of admission. No costs.

Author: P Narayana

Theetla Vijayudu vs Gaddam Lakshmidevi And Ors. on 5 July, 2005

Andhra High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20219 of 2010 RAJAN PASWAN Versus STATE OF BIHAR ----------- AI ( Mandhata Singh, J.) 8 22.6.2011 As prayed for, list this case on 26.7.2011 on the top of the list, on which date both husband and wife shall be physically present in Court. Meanwhile interim protection granted to the petitioner by order dated 15.6.2010 shall continue.

Rajan Paswan vs State Of Bihar on 22 June, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 634 of 2007 ...                     Ghulam Pir Khan ...    ...        Petitioner ­V e r s u s­ The State of Jharkhand  ...    ...     Opposite Party ... CORAM: ­ HON'BLE MR. JUSTICE PRASHANT KUMAR. ...    For the Petitioner : ­ Mr. Ajay Sah, Advocate.    For the State  : ­ Mr. Shekhar Sinha, A.P.P.   ... 05/20.09.2011 After some argument, learned counsel for the petitioner seeks  permission to withdraw this application with liberty to raise all the  points at the appropriate stage. With the aforesaid liberty, this application is permitted to be  withdrawn.     (Prashant Kumar, J.) sunil/ 

Ghulam Pir Khan vs State Of Jharkhand on 20 September, 2011

Jharkhand High Court

ORDER Shri Jeet Ram Kait (Oral) 1. This is a departmental appeal filed by Commissioner of Central Excise, Coimbatore against the order in Appeal No. 189/98-(CBE) dated 24.12.98 on the ground that during the month of 2/97 the assessee availed credit of Rs 3,22,491/- on two Generating sets after filing necessary declaration but the assessee was not in possession of the duplicate copy of the invoice which was the proper document for the purpose of availing Modvat Credit. During the verification of the duty paid documents, it was noticed by the department that the assessee was not in possession of the duplicate copy of the invoices which were the proper documents for availing the credit. It was also noticed that credit was utilized towards payment of duty at the time of clearance of the goods manufactured by the assessee. It is the contention of the Revenue that as the duplicate copy of the invoices were not produced for verification, the total credit of Rs. 3,22,491/- availed was liable to be expunged. In the grounds of appeal, the appellant-Commissioner has pointed out that since duplicate copy of the invoice is lost and since no written intimation has been given by the manufacturer to the jurisdictional Supdt with a copy to the Jurisdictional AC, within 24 hours of the receipt of the goods, covered by such invoice, the assessee is not entitled to the benefit of Modvat Credit. The Commissioner (Appeals) in his order has allowed the Modvat Credit on the ground that substantive provisions of law have been compiled with. Revenue is aggrieved by this finding of the CCE(A) and hence this appeal. 2. Shri S. Kannan, learned DR pointed out that the larger bench in the case of Balmer Lawrie & Co. vs. CCE, Kanpur, reported in 2000 (116) ELT 364 (T) in para 20 has held that a distinction has to be made between a procedural condition of a technical nature and a substantive condition. The relevant portion of this para is reproduced below: "It is not only a procedural technical condition so as to hold that its violation by making endorsement on the invoice by not maintaining the relevant records as required under Rule 57G or Rule 57GG referred to above, is condonable under the law. A distinction has to be made between a procedural condition of a technical nature and a substantive condition. It is the non observance only of former which is condonable while that of later is not condonable as the same is likely to facilitate commission of fraud and introduce administrative inconvenience and misuse of the Modvat Credit" 3. He pointed out that since the lapses are of substantive nature, the said lapse cannot be condoned. He also relied upon the decision of bench, presided over by Hon'ble Mr. Justice K. Sreedhharan, in the case of CCE, New Delhi vs. AVIS Electronics Pvt. Ltd. reported in 2000 (117) ELT 571 (T) wherein it has been held that in regard to loss of duplicate copy of the invoice during the period subsequent to 20.5.1994 (date of insertion of Rule 57G (2A) of CE Rules, 1944), a combined reading of Rule 52A (3) and first proviso to Rule 57G (2) and Rule 57G(2A) makes it clear that a manufacturer could take credit only on the basis of duplicate copy has been lost in transit, he could take credit on the basis of the original copy of the invoice provided he satisfies the Assistant Commissioner about the loss of the duplicate copy. This was a mandatory requirement and not a mere technicality and the contrary view taken in the case reported in 1998 (98) ELT 164 (T) was not approved by the larger bench. The Tribunal also held that credit is not admissible in cases where the manufacturer did not even care to inform the Assistant Commissioner about the loss of the duplicate copy. In the present case, the learned DR pointed out that the respondents never informed the Assistant Commissioner about the loss of duplicate copy and never sought condonation by filing copy of the FIR or other corroborative documents to support the plea of loss of duplicate copy of invoice. The Tribunal also interpreted the meaning of the term "in transit" and held that Transit is from supplier of inputs to the office of the concerned excise officer it cannot mean during transportation only. The learned DR further relied upon the judgement of the larger bench presided over by the Hon'ble Mr Justice K. Sreedharan, President in the case of Grasim Industries Ltd. Vs. CCE, Indore reported in 2000 (117) ELT 551 (T) wherein it has been held that original invoice is not a valid document for taking credit in the absence of any proof of loss of duplicate copy of the invoice in transit. 4. Shri J. Sankararaman, learned Counsel appearing for the respondents on the other hand submitted that by virtue of Notification No, 14/96 CE (NT) dated 23.7.96 sub rule 3A was inserted under Rule 57S and the sub rule 3A states that notwithstanding anything contained in sub rule (3), a manufacturer can take credit of the capital goods received in the factory on the basis of original invoice if duplicate copy has been lost in transit, subject to satisfaction of the Assistant Commissioner. In support of his contention , he relied upon the judgement in the case of RP David & Ohters vs. Agricultural Income Tax Officer & Another reported in 1972 (86) ITR 699. By this judgement it was held that wherever a statute invests a discretionary power in a public officer, it is normally for exercise in favour of the person concerned unless there is some sound and relevant reason for denying the benefit of discretionary power. He submits that in the ligh of this judgement, the impugned order is required to be upheld and the appeal dismissed. He also relied upon the judgement of the Bombay High Court in the case of Bombay Goods Transport Association reported in 1995 (77) ELT 521 (Bombay) wherein it has been held that Modvat Credit can be allowed where the original gate pass is lost, based on documents which will prove the duty paid nature of the goods. He also submits that this judgement has not been considered by any of the Larger Bench throughout the country. He submits that therefore, the order or the CCE (A) is correct and should be confirmed and the departmental appeal dismissed. He also drew my attention to the Guide lines to be followed in respect of Notification No. 7/99 CE (NT) dated 9.2.99 for amendment to Rule 57G and 57T (Circular No 441/7/99-CX. Dated 23.2.1999) by which credit shall not be denied under sub-rule (6) of Rule 57T on the ground that documents specified under rule 57G not contain certain particulars and the Assistant Commissioner should satisfy himself that the duty due on the goods have been paid and the inputs have actually been used in the manufacture of the final products. He also relied upon the judgement of a Single Member Bench in the case of CCE, Kanpur vs. Standard Surfactants Ltd. Reported in 2001 (129) ELT 76 (Tri-Delhi) wherein it has been held that credit can be allowed on the basis of original copy of the invoice when duplicate copy has been lost and prior permission of the AC is not mandatory before availing Modvat Credit on original copy of the invoice. He further relied upon the Single Member judgement of the East Regional Bench, in the case of Bansal Mechanical Works Ltd. Vs. CCE, Calcutta-II reported in 1999 (35) RLT 839 (CEGAT) wherein it has been held that where duplicate copy has been lost in transit by employee of the appellants and not by transporter and credit taken on the basis of the original copy, before permission by Assistant Commissioner, credit is not deniable on both the grounds as the Rule does not provide for loss by transporter only and prior permission by Assistant Commissioner. He also relied upon the Single Member judgement of the North Regional Bench in the case of Sharanpur Engg Works vs., Meerut reported in 1998 (102) ELT 380 wherein it has been held that in terms of Rule 57G(2) Assistant Commissioner ought to have examined whether or not duplicate invoices had been lost in transit. Merely delay on the part of the appellants, in seeking relaxation if invoices otherwise were lost in transit cannot deprive the appellants to avail the benefit of Modvat credit. In the face of these case laws cited by him, he submits that the impugned order needs to be upheld. 5. In counter, the learned DR submits that in none of the judgements cited by the learned Counsel, the larger bench decisions have been considered and therefore, the larger bench decisions have to be followed in preference to the judgements rendered by Single Member. He also submitted that the facts in the case laws cited by the learned Counsel are distinguishable from the facts in the present case. 6. I have considered the submissions made by both the sides. I am of the considered view that if the duplicate copy of the invoice, which is a modvatable invoice, has been lost in transit, the assessee should have placed all the materials regarding loss of duplicate copy of the invoice and the fact of their taking the credit on the strength of the original copy before the Assistant Commissioner, without suppression of any material facts. This is a very important document just like a Cheque/DD on which the assessee can take credit, to discharge the duty liability. In this case, as rightly contended by the learned DR, the respondents have not even cared to inform the Assistant Commissioner that the duplicate copy meant for transport has been lost in transit. On the contrary they took the modvat credit and utilized the same for payment of duty without getting the permission of the learned Counsel for the respondent that discretionary power should have been exercised in favour of the assessee as held in the case of RP David & Others vs. Agricultural Income Tax Officer & Another (1972 (86) ITR 699, I am of the view that this plea could be appreciated if the respondents had applied to the Assistant Commissioner to exercise the discretionary power vested in him in favour of the assessee and also satisfied him by producing the various supporting documents. This has not been done. Therefore, I find that the facts in that case are distinguishable from the facts of the present case. The learned Counsel for the respondents also relied upon the judgement of the Hon'ble Bombay High Court in the case of Bombay Goods Transportation Association (supra) wherein it has been held by the Hon'ble High Court that Modvat Credit can be allowed where the original gate pass is lost, based on documents which will prove the duty paid nature of the goods. He, therefore urged that this judgement would apply to the facts of the present case. However, it was conceded by the learned Counsel that none of the larger bench has taken into consideration this judgement of the Bombay High Court. I also observe that in accordance with Sub rule 3A as inserted by Notification No. 14/96-CE (NT) dated 23.7.96 for the purpose of taking credit on original copy, in the event of loss of duplicate copy, satisfaction of the Assistant Commissioner is sine qua non. As already noted above, it is not the case of the assessee that they have satisfied the Assistant Commissioner in this regard by producing necessary supporting documents regarding loss of duplicate copy of the invoice and instead they chose to take credit suo motu on the strength of original copy. In this view of the matter, respectfully following the three larger bench judgements in the case of Balmer Lawarie & Co. vs. CCE, Kanpur reported in 2000 (116) ELT 364 (T), CCE vs. AVIS Electronics Pvt. Ltd reported in 2000 (117) ELT 571 (T) and Grasim Industries Ltd. Vs. CCE reported in 2000 (117) ELT 551 (T), the impugned order is set aside and the Revenue appeal is allowed. (Dictated and pronounced in open Court)

C.C.E. Coimbatore vs M/S. Solzer Spinners Ltd. on 20 April, 2001

Customs, Excise and Gold Tribunal - Tamil Nadu

JUDGMENT K.P. Balanarayana Marar, J. 1. The accused in Sessions Case 80 of 1991 before Second Additional Assistant Sessions Judge, Ernakulam is the appellant. He was convicted under Section 20(b) (i) of the Narcotic Drugs and Psychotropic Substances Act (Act for short) and sentenced to undergo rigorous imprisonment for a period of 11/i years. The prosecution case is that the accused was found possessing 7.6 grams of ganja for purpose of sale near Naval Base Ernakulam Gate at about 5 p.m. on 7-5-1991. The Sub Inspector of Police, Harbour Police Station found 7 small packets of ganja. The accused had no valid permit or licence to possess the article. The article was recovered from his possession and he was arrested. The accused and the contraband article were taken to the Police Station and crime was registered under Section 20(b) (i) of the Act. After trial the Assistant Sessions Judge found the accused guilty of the offence charged against him convicted him and awarded the sentence referred above. Hence the appeal. 2. Heard counsel for the appellant and public prosecutor. 3. The main contention advanced by learned counsel for the appellant is that inadmissible evidence was permitted to be adduced by the Assistant Sessions Judge. This plea is presumably raised in view of the statement of PW1 in cross-examination that before he was examined the policeman had read over to him the statement recorded under Section 161 of the Code. It was so stated by PW. 3 also. According to counsel, the statement can be used only for the purposes mentioned in Section 162 of the Code and not for any other purpose. Narration of the facts in the statement to the witnesses amounts to making use of the statement at the time of trial, according to counsel and that is prohibited by Section 162 of the Code. Reliance is placed on the decision of the Madhya Pradesh High Court in Ramvilas v. State of M. P., 1985 Cri LJ 1773. A Division Bench of the Madhya Pradesh High Court held that where the statement made by the witness to the police was narrated to him not when he was in the witness-box but shortly before entering the witness-box, the evidence of such witness would be inadmissible in view of Section 162 because the fact remains that it was narrated to him for the purpose of giving evidence at the trial. The Madhya Pradesh High Court has followed the Privy Council decision reported in AIR 1947 PC 75, Zahiruddin v. Emperor. But the matter is seen to have been considered at length by a Full Bench of the Gujarat High Court in Nathu v. State, . The following questions were referred to the Full Bench for a decision (at p 449 of Cri LJ). 1. Is the evidence of a witness whose statement recorded in the course of investigation under Chapter XII of the Criminal P. C. if read over to him before the witness steps into witness box becomes inadmissible or such as would be of no value whatsoever? 2. Does such contravention of Section 162(1) affect admissibility or probative value of the evidence of such a witness? 3. Docs reading over of such statement to a witness before he enters witness box amount to use of such statement contrary to Section 162(1)? 4. Since the questions referred are of general importance and needed a final and authoritative answer based on the correct interpretation of the prohibition against the use of police statement enacted in Section 162( 1) of the Code the Full Bench had surveyed all the decisions on that topic including the Privy Council decision in AIR 1947 PC 75. The Full Bench answered the questions in paragraph 27 of the judgment at p. 60 thus (at p. 45) of Cri LJ): "(1) The evidence of such witness does not become inadmissible; its probative value has to be judged in the circumstances of each case. No hard and fast rule can be laid down that in all such cases the evidence of such witness will be of no value whatsoever. (2) Reading over of the police statement to the witness before he enters the box does not amount to contravention of the prohibition contained in Section 162(1). But the fact of reading over of the statement may affect the probative value of the evidence of the witness. (3) Reading over of such a statement to the witness before he enters the box does not amount to use of such statement contrary to Section 162(1)." 5. I am in respectful agreement with the views expressed by the Gujarat High Court in the Full Bench decision aformentioned. As observed therein the user contemplated in Section 162 of the Code is actual user in Court proceedings and not user dehors the Court proceedings. The Court proceedings begin when the Court starts hearing a case and end when the Court stops the proceedings and adjourns them to some other day. The section docs not prevent user of a police statement outside the Court proceedings. That is manifested from the words "be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation." The prohibition is only for using such statements in proceedings before Court. It was for that reason that the Privy Council in Zahiruddin's case (AIR 1947 PC 75) (supra), held that evidence of the witness is inadmissible. In that case the evidence was rendered inadmissible for two reasons (1) he had previously given a signed statement to the police and (2) the statement was made use of by the witness while giving evidence to prompt his memory. The ratio of the decision of the Privy Council cannot therefore be extended to the present case. The result is that the testimonies of PWs. 1 and 3 do not become inadmissible for the reason that the police had read out the statement to them before they entered the witness box. There is thus no contravention of the prohibition contained in Section 162( 1) of the Code. The reading of the statement to the witnesses does not therefore amount to use of such a statement contrary to the provision contained in Section 162(1) of the Code. Still the reading over of the statement may affect the probative value of the evidence of the witness which the Court has to judge in the circumstances of each case. 6. In the light of the principles enunciated in the foregoing paragraphs the reading over of the statement to PWs. 1 and 3 does not make their evidence inadmissible. But the Court has to consider the evidence given by these witnesses carefully for deciding the probative value of such evidence in the light of the facts and circumstances of the case. 7. Both PWs. 1 and 3 were declared hostile by the Public Prosecutor and cross-examined. The Assistant Sessions Judge has relied on the testimony of these two witnesses only on some of the facts spoken to by them to find corroboration in the evidence of the police officers. The offence was detected by the Sub Inspector, PW8 on getting information that ganja was being sold at the Ernakulam gate of the Naval Base while PW8 along with PWs. 5 and 6 were in the course of investigation of other crimes, he along with the policemen went to that place, apprehended the accused, searched his body, found the contraband article, arrested him and produced him along with the contraband article to the police station. Before that, one of the police constables had brought PW4, a goldsmith to that place with a balance. The seven small packets recovered from the person of the accused were weighed and the weight ascertained. PW l is a nearby tea shop owner. Though he had not supported the prosecution in full he had seen the accused being restrained by the police and had also seen a bundle in the hand of the accused. PW3 also has been the accused being restrained by the police. He also has seen a bundle in the hand of the accused. This according to him happened near the Ernakulam Gate of the Naval Base. He was not in a position to say whether the bundle possessed by the accused contained ganja. The testimony of these two witnesses regarding the apprehension of the accused and the seizure of an article from him can therefore be relied upon. The recovery of the article has been spoken to by PW8, the Sub Inspector and PW4, the goldsmith who weighed the ganja recovered from the accused. The article on analysis was found to be ganja. The prosecution has therefore succeeded in proving that the accused was found possessing ganja and that it was intended for sale. 8. The conviction is assailed by the appellant on the ground that the mandatory provisions contained in the Act had not been complied with. In particular it is pointed out that the accused was not produced before a gazetted officer or a Magistrate as required under Section 50 of the Act. The accused was also not informed of his right to be searched in the presence of a Magistrate or Gazetted Officer under that section. Reliance was placed on the decision of the Supreme Court in Balbir Singh v. State of Punjab, . But it is spoken to by PW8 that the accused was asked whether he should be searched in the presence of a Gazetted Officer or a Magistrate to which he answered in the negative. This according to the appellant was not recorded in the mahazar prepared and was subsequently introduced by the witness at the time of examination. There is no reason to disbelive PW8 on this aspect. Even if it be that PW8 has not informed the accused of his right under Section 50 of the Act there is no violation of that section. The seizure took place from a public place and has therefore been made under Section 43 of the Act. This Court in the decision in Muhammed v. State of Kerala, (1995 (1) Ker LT 24): (1995 Cri LJ 1171), held that in the case of a seizure under Section 43 of the Act the empowered officer or the authorised officer has no obligation to inform the accused of his right under Section 50 of the Act whereas he shall be produced before a Gazetted Officer or a Magistrate only if a request comes from the accused. Appellant has no case that such a request was made by him to PW8. There has thus been no violation of Section 50 of the Act. 9. It is then contended that the article analysed by the analyst and the article seized from the accused are different. This contention is raised for the reason that the weight of the article seized was ascertained to be 7.600 grams whereas the weight of the article received by the analyst as per Ext. P4 is shown as 9.500 grams. According to counsel, that raises a doubt regarding the prosecution version and the identity of the article seized. The article was weighed from the place of seizure. PW4 has brought a balance for that purpose. There is every likelihood of some difference when the article is weighed by the analyst. The difference being only 2 grams and in view of the evidence tendered on the side of the prosecution, much cannot be made out from this difference in order to hold that the article analysed by the analyst is different from the article seized. The observation of the Court below that the difference does not assume much importance is therefore justified. 10. The prosecution has thus succeded in establishing the guilt of the accused. The Court below was therefore right in finding him guilty and in convicting him. The sentence awarded is also resonable. By this time appellant has already suffered the sentence. No interference is therefore called for. For the aforesaid reasons the conviction and sentence against the appellant are sustained and the appeal is dismissed.

Author: K B Marar

Ali vs State Of Kerala on 13 January, 1995

Kerala High Court

JUDGMENT 1. This writ petition challenges the constitutional validity of proviso to Section 148 of the IT Act, 1961 (for short, 'the Act') which makes limitation of 12 months for issuing notice under Section 143(2) of the Act, inapplicable to returns filed after 1st Oct., 1991 for reassessment/recomputation of tax if such reassessment/recomputation was otherwise within limitation. 2. Case of the petitioner is that it had filed its return for the asst. yr. 1989-90 declarmg nil income claiming exemption under Section 80P of the Act on 31st Oct., 1989, which was accepted. On 11th April, 1996, case of the petitioner for asst. yr. 1991-92 was reopened and a notice under Section 148 of the Act was issued to the petitioner in response to which return was filed. Thereafter, notice was issued under Section 143(2) of the Act, which was beyond 12 months from the end of the month in which return was filed and assessment was framed under Section 143/148 of the Act on 30th March, 1998. The same was set aside by the CIT(A) on the ground that notice under Section 143(2) of the Act was not within the period of limitation. Against the order passed by the CIT(A), the Revenue went in appeal before the Tribunal, which is pending. 3. Vide Finance Act, 2006, Section 148 has been amended w.e.f. lst Oct., 1991. The said provision before and after the amendment is as under: Before amendment 148. Issue of notice where income has escaped assessment.-(1) Before making the assessment, reassessment or recomputation under Section 147, the AO shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income to any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139: Aftermer amendment 148. Issue of notice where income has escaped assessment-(1) Before making the assessment, reassessment or recomputation under Section 147. the AO shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139: Provided that in a case- (a) where a return has been furnished during the period commencing on the lst day of October, 1991 and ending on the 30th day of September, 2005 in response to a notico served under this section, and (b) subsequently a notice has been served under Sub-section (2) of Section 143 after the expiry of twelve months specified in the proviso to Sub-section (2) of Section 143, as it stood immediately before the amendment of said sub-section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time-limit for makmg the assessment, reassessment or recomputation as specified in Sub-section (2) of Section 153, every such notice referred to in this clause shall be deemed to be a valid notice: Provided further that in a case- (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under Clause (ii) of Sub-section (2) of Section 143 after the expiry of twelve months specified in the proviso to Clause (ii) of Sub-section (2) of Section 143, but before the expiry of the time-limit for making the assessment, reassessment or recomputation as specified in Sub-section (2) of Section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation.-For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the lst day of October, 2005 in response to a notice served under this section. (2) The AO shall, before issuing any notice under this section, record his reasons for doing so. 4. It is submitted that normal period specified under Section 143(2) of issuing notice is 12 months but the same has been made inapplicable for the period during lst Oct., 1991 and 30th Sept., 2005 to returns filed after lst Oct., 1991 for reassessment/recomputation of tax if such reassessment/recomputation was otherwise within limitation. It is submitted that apart from vice of retrospectivity, the provision was discriminatory for selecting special period of limitation for the specified period, thereby creating a special class arbitrarily without there being any nexus of such classification with the object of the statute. 4.1 Learned Counsel for the petitioner has relied upon following judgments in support of his submissions: (1) K.T. Moopil Nair v. State of Kerala ; (2) S.K. Dutta, ITO v. Lawrence Singh Ingty ; (3) Anandji Haridas and Co. (P) Ltd. v. S.P. Kasture ; (4) State of Kerala v. Haji K. Haji K. Kutty Naha and Ors. etc. ; (5) Ayurveda Pharmacy and Anr. v. State of Tamil Nadu ; (6) Model Town Residents Association v. State of Punjab (2002) 132 PLR 88. 5. We have considered the submissions made on behalf of the petitioner and perused the decisions relied upon. 6. No doubt. Article 14 prohibits discnmination and if a provision is discnmmatory. the same will be liable to bc declared unconstitutional. However, we are unable to hold that the provision, in the present case, is violative of Article 14. The proviso is applicable to a defined class where return has been filed dunng 1st Oct., 1991 and 30th Sept., 2005 in response to notice served under Section 143(2) after expiry of 12 months but before expiry of time limit for making assessment, reassessment or recomputation under the Act. Thus, the said provision validates notices which were within the time for assessment, reassessment or recomputation, though beyond period of 12 months specified in Section 143(2). This appears to have been necessitated on account of period of 12 months specified under Section 143(2) of the Act being made applicable also to reassessment or recomputation on account of judicial pronouncements taking different views on the subject, which according to legislature, was not its intention. Such intention is sought to be clarified by the impugned amendment. Reference may be made to orders of the Tribunal in Asstt. CIT v. Smt. Jyoti Devi (2004) 84 TTJ (Jd) 689 and Raj Kumar Chawla v. ITO (2005) 92 TI'J (Del)(SB) 1245, Sharma and Co. v. Asstt. CIF (2004) 85 TTJ (Asr)1. 6.1 It will also be necessary to notice the legislative history of the relevant provisions. Section 143(2) of the Act was amended vide Direct Tax Laws (Second Amendment) Act, 1989 w.e.f 1st April, 1989 and thereafter by Finance Act, 1989 w.e.f 1st Nov., 1991. Amendments were also simultaneously made, inter alia, to the provisions of Sections 147 to 149 and 153. There were also further amendments by Finance Act, 2002 w.e.f 1st June, 2000. Question arose whether limitation specified under Section 143(2) for giving notice will control the limitation provided under Sections 147, 149 and 153. One interpretation was that only procedure under Section 143(2) was required to be followed for reassessment but the limitation having been separately provided for the said purpose, period specified under Section 143(2) was not to control the limitation for reassessment. Contrary view was expressed by certain judicial pronouncements by the Tribunal in some orders noticed above. The legislature with a view to remedy the situation, carried out amendment vide Finance Act, 2006 w.e.f. 1st Oct., 1991 upto 30th Sept., 2005, validating notice and assessment/reassessment/recomputation if the same were beyond the time specified under Section 143(2) but within the time specified under Section 153(2). 6.2 In National Agricultural Co-operative Marketing Federation of India Ltd. and Anr. v. Union of India and Ors. , the Hon'ble Supreme Court examined similar issue and held: A validating clause coupled with a substantive statutory change is therefore only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent. By the impugned amendment, the legislature has substituted the word 'of which occurred in Section 80P(2)(a)(iii) and which had been construed by this Court in 1998 as "belonging to", with the phrase "grown by". The clear effect of the substitution, in keeping with general principles relating to amendments, would be that Section 80P(2)(a)(iii) must be read as if the substituted phrase were included from the date that the section was introduced in the statute viz. 1st April, 1968. In making this change, the legislature does not "statutorily overrule" this Court's decision in Kerala State Co-operative Marketing Federation Ltd. , as has been contended by the appellant. Overruling assumes that a contrary decision is given on the same facts or law. Where the law, as in this case, has been changed and is no longer the same, there is no question of the legislature overruling this Court. As has been held in Ujagar Prints v. Union of India : A competent legislature can always validate a law which has been declared by Courts to be invalid, provided the infirmities and vitiating infractors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature-granting legislative competence-the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant. A somewhat similar situation arose in connection with Section 73 of the Bombay Municipal Boroughs Act, 1925 which allowed the municipality to levy 'a rate on buildings or lands or both situated within the municipal borough'. Rule 350A made under that Act provided for the rate on land at a percentage evaluation based upon capital. The rule was held to be ultra vires in Patel Gordhandas Hargovindas v. Municipal Commr. Ahmedabad , on the ground that the word 'rate' as was understood in the legislative practice of India and used in Section 73 did not allow for an impost as provided under Rule 350A. A Validation Act was passed subsequent to the decision in Patel Gordhandas Hargovindas (supra) redefining the word 'rate' in Section 73 itself. The constitutionality of the Validation Act was challenged. In dismissing the challenge, this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1971) 79 UR 136 (SC), held that the legislature could exercise its undoubted powers of redefining the word 'rate' in Section 73 to validate the assessments earlier made under Rule 350A. The Court held that when a legislature sets out to validate a tax declared by a Court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively (p. 140): It is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Once the circumstances are altered by legislation, it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Similarly in Krishnamurthi and Co. v. State of Madras , the Madras General Sales-tax Act, 1959 (as it stood) provided under Entry 47 for tax on 'lubricatmg oils, all kinds of mineral oils (not otherwise provided for in this Act), quenching oils and greases w.e.f. 1st April, 1964'. The question was whether this entry covered furnace oil. The Madras High Court construed the phrase and came to the conclusion that it did not. The legislature then enacted an Amendment Act in 1967. Entry 47 was amended-so as to expressly provide that furnace oil would be subjected to tax. The Act was made effective from 1964. The Act was challenged as being unreasonable since it retrospectively made the dealers liable for sales-tax which they had not passed on to others. The challenge was negatived and it was said that : (p. 197 of 31 STC and p. 2459 of AIR 1972): The object of such an enactment is to remove and rectify the defect in phraseology or lacuna of other nature and also to validate the proceedings, including realisation of tax, which have taken place in pursuance of the earlier enactment which has been found by the Court to be vitiated by an infirmity. Such an amending and validating Act in the very nature of things has a retrospective operation. Its aim is to effectuate and carry out the object for which the earlier principal Act had been enacted. Such an amending and validating Act to make 'small repairs' is a permissible mode of legislation and is frequently resorted to in fiscal enactments. Again when the question arose whether factory and other buildings were 'houses' for the purpose of levy of house tax, the High Court held that the word 'house' could not be construed to include factories and other buildings. Pending the appeal from the High Court's decision before this Court, the word 'house' was legislatively redefined to include factories and other buildings with retrospective effect. This Court in The Govt. of A.P. v. Hindustan Machine Tools Ltd. , rejected the challenge to the amendment holding that this was a permissible legislative exercise. It was held that the legislature had not overruled or set aside the judgment of the High Court but had removed the basis of the decision rendered by the High Court so that the decision could not have been given in the altered circumstances. This enunciation of the law has been noted with approval by the Constitution Bench in State of T.N. v. Arooran Sugars Ltd. . 6.3 In view of above, amendment in question is merely with a view to "cure" the statute so as to make it correctly represent the legislative intention that period of limitation under Section 143(2) of the Act did not control the period for reassessment which was specined in other provisions of the Act. 6.4 As regards violation of Article 14, it is well settled that though, discrimination is prohibited, Article 14 does not prohibit classification for legitimate purposes, even if it may produce some inequality. The classification must be based upon real and substantial distinction havmg reasonable nexus with the object sought to be achieved by such classification. In State of Bombay and Anr. v. F.N. Balsara AIR 1951 SC 318, Fazl Ali, J. summed up meaning and scope of Article 14 in following words: 1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. 2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class. 3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate treatment. 4. The principle does not take away from the State the power of classifying persons for legitimate purposes. 5. Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough. 6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. 7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis. 6.5 The said principles have been followed by the Hon'ble Supreme Court till date. Reference may be made to some of the judgments, namely State of West Bengal v. Anwar Ali Sarkar and Anr. , Lachmandas Kewalram and Anr. v. State of Bombay , Ameerunnissa Begum v. Mahboob Begum , Khandige Sham Bhat and K. Krishna Bhatta v. Agrl. ITO and Anr. AIR 1963 SC 591, ITO v. Murlidhar Bhagwan Das , Rustom Cavasjee Cooper v. Union of India , Amalgamated Tea Estates Co. Ltd. v. State of Kerala , Superintendent and Remembrancer of Legal Affairs, W. Bengal v. Girish Kumar Navalkha and Ors. , In re. The Special Courts Bill, 1978 , Kerala Hotel and Restaurant Association and Ors. v. State of Kerala and Ors. , Shashikant Laxman Kale and Anr. v. Union of India and Anr. , Union of India and Ors. v. No. 664950/M Havildar/clerk SC Bagri , Satnam Overseas (Export) v. State of Haryana and Anr. etc. , John Vallamattom and Anr. v. Union of India , People's Union for Civil Liberties and Anr. v. Union of India and Ors. , M.P. Rural Agnculture Extension Officers Association v. State of M.P. and Anr. . In Ameerunnissa Begum's case (supra), B.K. Mukherjea, J., observed: 11. The nature and scope of the guarantee that is implied in the equai protection clause of the Constitution have been explained and discussed in more than one decision of this Court and do not require repetition. It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause. it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. In every given case, the Court has to go into the question of object, nature and effect of classification. The classification may be based on diverse factors- -historical, geographical, economic, social, scale of operation, temporal, persons, commodities, nature of trade or otherwise. The classification must be for a public purpose and be based on real and substantial distinction having just and reasonable nexus with the object sought to be achieved and must not be arbitrary, artificial and evasive. 6.6 In the field of economic activities/taxation, legislature is allowed greater latitude on account of complex problems which do not have doctrinaire or straightjacket solutions. In R.K. Garg v. Union of India (1981) 25 CTR (SC) 406 : AIR 1981 SC 2138, it was observed: 8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud (1957) 354 US 457 where Frankfurter, J., said in his inimitable style: In the Utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events-self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. The Court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry'; 'that exact wisdom and nice adaption of remedy are not always possible' and that 'judgment is largely a prophecy based on meagre and uninterpreted experience'. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The Courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Roig Refining Co. (1950) 94 L ed 381, be converted into Tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 6.7 This principle has been followed in a number of decisions including Bharat Hari Singhania and Ors. etc. v. CWT and Ors., Tata Motors Ltd. v. State of Maharashtra and Ors. , Mardia Chemicals Ltd. etc. v. Union of India and Ors. etc. and State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors. . The judgments relied upon by the learned Counsel for the petitioner also reiterate the same principles. 7. In the present case, the classification is for a different treatment to the assessees who filed return during the period 1st Oct., 1991 to 30th Sept., 2005 and were subsequently given notice of reassessment within permissible limitation to frame reassessment but beyond period specified under Section 143(2). Objection of learned Counsel for the petitioner is that this period has been arbitrarily selected, which violates Article 14. Having regard to legislative history of the relevant provisions noticed above, this contention has no merit. The situation sought to be remedied by the legislature relates to the period during which provisions of Section 143(2) of the Act have been interpreted as controlling limitation specified for assessment, reassessment or recomputation under Section 153(2) of the Act, which, according to the amendment, was not intended. The classification has object of saving assessment, reassessment or recomputation in accordance with the limitation already specified. The tests for compliance of Article 14 are fully met by the legislation in question. 8. Accordingly, we do not find any merit in the petition. The same is dismissed.

Punjab State Cooperative Supply ... vs Union Of India (Uoi) And Ors. on 24 October, 2006

Punjab-Haryana High Court

Gujarat High Court Case Information System Print SCA/989/2003 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 989 of 2003 ========================================================= RAMESHKUMAR SHAKARAJI THAKORE & 2 - Petitioner(s) Versus STATE OF GUJARAT & 18 - Respondent(s) ========================================================= Appearance : MR AJ PATEL for Petitioner(s) : 1,1.2.1 - 3. GOVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2 - 3,3.2.2 - 4,10 - 18. MR MG NAGARKAR for Respondent(s) : 2, MR SATYAM Y CHHAYA for Respondent(s) : 2, None for Respondent(s) : 3, RULE UNSERVED for Respondent(s) : 5 - 6. DELETED for Respondent(s) : 7, 19, MR HARIN P RAVAL for Respondent(s) : 8, UNSERVED-EXPIRED (R) for Respondent(s) : 9, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/04/2011 ORAL ORDER By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following main relief in terms of para 27(A) :- "27(A). This Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent Corporation to specify the area of the land allotted to the petitioners under T.P. Scheme No. 23 of Sabarmati, out of Final Plot Nos.56 and 57, in lieu of the lands of the petitioners bearing Survey Nos.150 and 161/3 of Village Acher, Taluka City, District : Ahmedabad and permit the petitioners to develop the said area in accordance with the provisions of the Act and the Building Regulations of the respondent Corporation, within a period as may be specified by the Honourable Court." After making some submissions, Mr.A.J. Patel, learned advocate does not press the present petition for the realief sought in para 27(A) by submitting that the petitioners propose to initiate independent proceedings for appropriate relief directing the appropriate authority and the Corporation to acquire the land in question for Bus Depot for Ahmedabad Municipal Transport Services (AMTS). Under the circumstances, present petition is dismissed as withdrawn so far as prayer in terms of para 27(A) with above liberty. As and when independent proceedings are initiated, the same shall be considered in accordance with law and on merits, for which this Court has not expressed any opinion on merits. Rule is discharge. Interim relief granted earlier, if any, stands vacated forthwith. No costs. [M.R. SHAH, J.] rafik     Top

Author: M.R. Shah,&Nbsp;

Rameshkumar vs State on 21 April, 2011

Gujarat High Court

. rséisé :;Amd ' .»S'/0 _ta1;e~syed -Ibrahim @ IN THE HIGH COURT or RARNATAKA AT BANGALORE DATED 3":-us THE 3*" DAY or NOVEMBER 2010 BEFORE : THE I-£ON'BI..E MRJUSTICE MO!-{AN snANTANA§¢Qb§Aa""'A.V wan PETITIQN Ng.21§§§g2gQg (gM~2:)iz"rv).A'J:'" Bwn: 1. Smt. Noor Jan D/o iate Syed Ibrahim @ Syed Biram Aged about 38 years 2. Smt. Maqbool Jan D/0 late Syed Ibrahim @_A_" " ; Syed Biram . ' W/0 Abdul Wajid Aged about 3. Syed1'Me'E1ébo§§d':V:'V"-AA':% S/0 iate..Syed E'bra'h'im " @ Syed Bi-ruarn V __ V Agégd" about 343/'ears' 'Aged abohjt 30 years A'i'%._arefre.siding at No.4.83«._and 483/1 Annasahdra Paiya HA5, Post, Banga|ore--i7. (fig Sflri V.R. Kulkarni, Adv.,) ..Petitioners 8.9.9 I 1. ING Vysya Bank Ltd., No.23-4, Garudachar Complex Chickpet, Bangalore--560 (353 Rep by its Branch Manager. 2. Syed Basha S/0 late Syed All Age Major 3. Syed Yosuf S/o late Syed All Age Major V 5 Respondents 2 and 3"are.. j, Residing at No.-483 & 483/1 1 Annasandra Paiya 7 " '' H.A.L. Post,;'Bang'alore--l;7-5 4. Shamsundar,:'C3_0e|"'--- . R" S/o Jag_adeeps'h'§?'raVsa.d" _ * " Age :lVla}'o'r;~P;'a_vrtni4'f:r' _ M/s. 'Durga yE'riterp'rises_ No.7/1,, M.T. Stree~t_ __ it 2"" Cross, Chickpetg = " Bangalore#S_6OVQS3."v. ..Respondents {By Mg;iR. =Szhashid'h'a'r", Adv., for R1) it 'This .W:r.itl:;Petition is filed under Articles 226 & 227 of -the Constitution of India praying to set aside the orders 'passed"by1~ the Debts Recovery Tribunal, Bangalore in ASA " 'V.~rNo.23_3/2'009 on 14.7.2009 as per Annexure--A. This Writ Petition coming on for orders this day, the Coiart made the following : ORDER By filing this writ petition, petitioners have quashing the order passed by Debt R€CQ'v'€ia'_:y:~.VVT'i%l:bLil']r3l':,u Bangalore, in ASA.i\lo.233/2009 dated 14..,i,2o'o,91.',,,' T In View of the availability of"a.lytern.at.iye Velificacious 'V statutory remedy of appeal of the SARFAESI Act, this Cou'rt'é'_o'eeiai_n§es the writ petition. Petition"fai'is._ancf:"the' It is open for the petitiorl'ers.__Vto',: ijfietqtlllitecovery Appellate Tribunal within'VA"fo't;rV'i'1«;§geeks,*::thi.s"§dav. All questions are kept open,'..."It-- if petitioners approach the Debt RecoveryafribuVnai.'4V\rritiai:rt'i' four weeks from this day, the v4,q.uestion.§:,t>tlimitation-Vs,ho_t;ld not be raised. Sd/Q Iudcj-""

Author: Mohan Shantanagoudar

Smt.Noor Jan vs Ing Vysya Bank Ltd on 3 November, 2010

Karnataka High Court

(3) Ramesh Chandra v. IInd Additional District Judge, Allahabad and others, 1996 (2) ARC 617. (4) Daya Kishan Pandey v. IInd Additional District Judge, Nainital and others, 1996 (2) ARC 426. ORDER J.C. Gupta, J. 1 This writ petition is directed against the order dated 9.2.1996 passed by respondent No. 1 allowing the appeal filed by respondent Nos. 2 and 3. 2. The dispute relates to a shop situated in Gandhi Colony, North Pachenda Road. Muzaffarnagar, wherein the petitioner, as a tenant of respondent Nos. 2 and 3, is carrying on business of cycle repairing, etc., for the last more than 22-23 years. Respondent Nos. 2 and 3 moved an application under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 (hereinafter to be described as the 'Act'), against the petitioner for the release of the disputed shop alleging therein that the husband of respondent No. 3. Sri Khem Chand, was going to retire shortly on 30.9.1993 from Government service as Tehsildar and after his retirement, he would involve himself in business activity with his son Raj Kumar who was aged about 23 years and was yet unemployed. They both desired to set up the business of motor parts and since no other accommodation was available, the disputed shop was bona fide and genuinely required for that purpose. It was also pleaded that since the tenant has available with him other alternative accommodation, he would not suffer any hardship if he vacated the disputed shop. 3. The petitioner contested the release application on a number of grounds, the main defence being that both Khem Chand and his son Raj Kumar were already engaged in a flourishing business of 'DAIRY' and the respondents were having other accommodations also where their family members were carrying on business. Thus, according to the tenant-petitioner, the need set up in the release application was not real but only a fanciful wish. 4. The Prescribed Authority by the order dated 10.1.1995 rejected the release application holding that the need shown therein was not honest and bona fide. Both Khem Chand and Raj Kumar were wholeheartedly carrying on the business of Dairy and were not unemployed. The appeal filed by the respondent Nos. 2 and 3 against the judgment of the Prescribed Authority has, however, been allowed by respondent No. 1 by the impugned order, which has been challenged by the tenant in the instant writ petition. 5. Learned counsel for the petitioner vehemently contended that when the Prescribed Authority has categorically found that both Khem Chand and Raj Kumar for whose requirement the shop in question was asked for, were engaged in the flourishing business of Dairy, the lower appellate court without touching that finding has committed a gross error of law in reversing the order of the Prescribed Authority and therefore the judgment of the Appellate Authority should be quashed. Learned counsel for the contesting respondents on the other hand supported by order of the Appellate Authority by contending that since the judgment contains findings on both the relevant issues of bona fide need and comparative hardship, and such findings being of fact, this Court should not interfere while exercising writ jurisdiction. He argued that in matters like the present one, where this Court is called upon to examine the judgment of the Court below, the powers of this Court are only supervisory in nature and it cannot examine the evidence and re-appraise it to disturb a finding of fact recorded by the fact finding authority. 6. It is true that the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India in rent control matters where the orders of the Rent Control Authorities are challenged is of supervisory nature only, as a finality is attached to the order of the Appellate Authority made under Section 22 of the Act because no second appeal or revision is provided under the Statute against the said order. The High Court while exercising powers in such matters cannot sit as a Court of appeal when called upon to examine the correctness or validity of the order of the Rent Control Authorities and it will not take upon itself, the task to re-appraise the evidence for substituting its own findings of fact in place of findings reached by the fact finding authorities. The power is one of judicial review, which is a basic feature of the Constitution. The parameters of judicial review are now well-settled as a result of a series of pronouncements of Supreme Court and the High Courts, wherein it has been laid down that judicial review is not concerned with the merits of the decision, but with the manner in which the decision is taken, thus in a sense the jurisdiction is very limited but howsoever limited it may be, the Court will not shut its eyes and uphold every judgment based on findings of fact merely on the supposition that interference in such findings is not permissible. Interference will be fully justified where the Court finds that the finding is manifestly erroneous and unjust. In the case of M/s. Variety Emporium v. V.R.M. Mohammad Ibrahim Narain, 1985 SC and FB Cases 52, the Apex Court made interference in the concurrent findings of fact on the ground that injustice should not be allowed to perpetuate. 7. In another decision in the case of Chandravarkar Sita Ratna Rao v. Ashalata S. Guram, 1986 (4) SCC 447, it has been held that in exercise of jurisdiction under Article 227 of the Constitution, the High Court can go into the question of fact or look into the evidence if justice so requires it. But it should decline to exercise that jurisdiction in the absence of clear cut down reasons where the question depends upon the appreciation of evidence. It also should not interfere with a finding within the jurisdiction of the inferior tribunal or Court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is mis-direction in law or a view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it has resulted in manifest injustice. Except to that limited extent the High Court has no jurisdiction. 8. It is also well-settled that the High Court in its supervisory jurisdiction will not upset a conclusion of fact arrived at by the inferior authorities even where the High Court may be inclined to take a different view on the evidence on record. 9. In the backdrop of these settled principles, it has to be examined and find out whether the impugned order requires interference by this Court in these proceedings. 10. In the present case, the release of the disputed shop was claimed for the requirement of Khem Chand and Raj Kumar, the husband and son of respondent No. 3 respectively for settling them in a new business venture as both of them were doing no business and were unemployed. The tenant's specific defence was that both these persons were already engaged in a flourishing business of 'DAIRY' in their own premises and there was no requirement of any other accommodation to start the alleged business of motor parts. He also adduced evidence both oral and documentary in support of his case. The Prescribed Authority while deciding the question of bona fide need, recorded a categorical finding that the landlord's assertion that Khem Chand and Raj Kumar were sitting idle and were not doing any business was false as from the evidence on record, it was established that both these persons were doing 'DAIRY' business in their own premises and their alleged need for the shop in question was not bona fide. In coming to this conclusion, the Prescribed Authority took into consideration along with other evidence, the affidavit of the tenant and the documents annexed therewith so also the affidavit of a customer who stated to have purchased milk from the 'DAIRY' run by Khem Chand and Raj Kumar. The Appellate Authority while reversing the judgment of the Prescribed Authority has not touched that finding and it has nowhere been held by him that no 'DAIRY' business was being carried on by the aforesaid persons, instead he has observed that the tenant has not produced any evidence to indicate that the husband and the son of the landlady were doing any business. This observation of the Appellate Authority is wholly against the record as evidence to the effect that they were doing DAIRY business has been brought on record by the tenant and even believed and relied upon by the Prescribed Authority while answering the question of bona fide need. The Appellate Authority has, thus, totally ignoring that material piece of evidence and without touching the aforesaid finding of the Prescribed Authority, reversed the conclusion of fact recorded by the Prescribed Authority on the issue of bona fide need. A manifest error has, thus, been committed by the lower appellate court and the judgment impugned is vitiated in law. 11. It is well-established principle that where the Appellate Authority records a finding of reversal, a duty is imposed upon him to take into consideration all the relevant facts and factors which had weighed with the Prescribed Authority in reaching to a particular conclusion of fact and also to meet out the reasonings assigned in support thereof. As for authorities for this proposition, a reference may be made to the following cases : (1) Mahabir Jain v. 1st Additional District Judge, Jhansi and others, 1985 (1) ARC 368. (2) Ram Niwas Pandey v. VIIIth Additional District Judge, Kanpur and others, 1982 (1) ARC 246. 12. In all these cases referred to above, it has been held that it is open for the High Court in exercise of its writ jurisdiction to quash the order of the Appellate Authority whereby the order of the Prescribed Authority has been reversed without an examination of the finding recorded by the Prescribed Authority critically and the evidence and material relied upon and the reasons recorded in support of the conclusion arrived at, with the result that the finding remained untouched and was not specifically reversed. 13. The impugned order of the Appellate Authority, respondent No. 1, in the present case for the reasons as have been stated already suffers from arbitrariness and is manifestly erroneous and cannot be sustained. It is, therefore, necessary that the entire matter is examined afresh by the Appellate Authority according to law. 14. Learned counsel for the contesting respondent Shri S.S. Tyagi vehemently argued that since tenant-petitioner has available with him alternative accommodation, he had no right to raise objection against the release application. It is well-settled law that even where the tenant may be having another alternative accommodation, the landlord is not relieved of the burden of proving that the need set up by him is genuine and bona fide. The attention of the Court was also invited to Rule 16 (2) (b) which says that where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss, there shall be greater justification for allowing the application. On the basis of this sub-rule, it was argued by the learned counsel for the respondents that since the petitioner-tenant has available with him suitable accommodation for shifting his business, the release application has rightly been allowed and, therefore, this Court should not make interference in the order of the Appellate Authority. It may be relevant to mention here that Rule 16 provides guidelines which are to be considered by the concerned authorities while making comparison of hardship of the parties. The landlord is first to prove and establish his bona fide need for the disputed accommodation. In any view of the matter, merely on the ground that some other accommodation is available to the tenant. Rule 16 (2) (b) cannot be attracted. For attracting Rule 16 (2) (b), the following conditions are essential : (a) that another accommodation is available to the tenant for shifting his business ; (b) that such an accommodation is suitable for his business ; and (c) that the shifting of business in that accommodation will be without any substantial to his business. 15. In the case in hand, the lower appellate authority has not recorded specific findings that the alleged alternative accommodation is suitable for the tenant's business and his shifting therein will be without substantial loss to him. In the absence of these essential findings, Rule 16 (2) (b) cannot be applied to. 16. For the reasons stated above, the impugned order dated 9.2.1996 of the lower appellate court cannot be sustained and the same is quashed. The case is sent back to the lower appellate court for a fresh decision in accordance with law and in the light of observations made in the body of this judgment. 17. Since the matter has become old, the lower appellate court is directed to decide the appeal expeditiously preferably within a period of two months from the date a certified copy of this order is produced. The writ petition is, accordingly, allowed. Parties are directed to bear their own costs.

Author: J Gupta

Ashok Kumar vs Viith Additional District Judge, ... on 11 August, 1998

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13391 of 2006 Rupesh Kumar Versus The State Of Bihar & Ors ----------- SC ( Dr. Ravi Ranjan, J.) 4 12.07.2011 As prayed, put up this case on 27.07.2011 under the same heading retaining its position.

Rupesh Kumar vs The State Of Bihar & Ors on 12 July, 2011

Patna High Court - Orders

[Section 209A(1)] [Section 209A] [Complete Act]

Central Government Act

JUDGMENT Thomas, J. 1. The Collector of Customs demands payment of interest on the duty amount for certain goods which have been warehoused, even though duty for those goods was subsequently withdrawn by the Government. The Collector does not allow the petitioner to remove the goods from the warehouse until payment of interest on the duty amount which was payable earlier. The importer, who is called upon to pay the interest, has filed this Original Petition in challenge of the aforesaid demand made by the Collector of Customs. 2. Petitioner-Company is engaged in manufacture of a product which is one of the constituents for making textile goods. "Wood pulp" is necessary for manufacture of that product. So, the petitioner imported wood pulp America from abroad. As the imported goods arrived at Cochin Port, petitioner for his own reasons did not pay the duty. However, the Customs officials had to keep the goods in the warehouse. Petitioner executed bonds under S-59 of the Customs Act, 1962 (for short 'the Act') binding himself to pay all duties together with interest on or before the date specified in a notice of demand and to remove the goods from the warehouse for home consumption. One bond was executed on 7-3-1984 and the other was executed on 14-9-1984. Petitioner did not apply for extension of the warehousing period. However, the goods remained in the warehouse as they were not removed. A notification was issued on 17-3-1985 by which wood pulp was totally exempted from duty. Petitioner then approached the customs officers for clearance of the goods. But the Collector of Customs insisted that the petitioner should pay interest on the total amount of duty which was levied first, although no duty can now be collected in view of the exemption order. The customs officials refused permission to clear the goods without payment of interest accrued on the erstwhile duty, although the goods have ceased to be dutiable goods. Petitioner filed this Original Petition for a direction to the Collector of Customs to release the goods covered by the bonds. 3. In the counter affidavit filed by the Collector of Customs, he contended, inter alia, that inasmuch as the goods were dutiable goods till 17-3-1985, the importer has liability to pay interest thereon, though of course at the time of clearance he has no liability to pay the duty. The reasoning is that warehouse is not a place where imported goods can be deposited by the importer and cleared by him at his own convenience. 4. The question appeared to be simple at the first blush. But answer to the question cannot be given without examining some of the provisions of the Act. 5. S. 12 of the Act empowers levy of duty on goods imported into India. S. 15 provides that the rate of duty applicable to any imported goods shall be the rate in force, in the case of goods cleared from a warehouse, on the date on which the goods are actually removed from the warehouse. S. 68 says that the importer of any warehoused interest and other charges payable thereon have been paid. 6. In Prakash Cotton Mills (P) Ltd. v. B Sen (AIR 1979 S.C. 675) the Supreme Court, after analysing S. 15 of the Act has held that the rate of duty shall be the rate and the warehouse. "The requirement of the amended S. 15 could not be ignored simply because the goods were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date". Therefore the crucial date for payment of duty on goods is the date of removal of the goods from the warehouse. On the day of such removal, if the goods are not chargeable to duty, there is difficulty to make him bear the interest on a sum which was the duty on such goods before clearance from warehouse. 7. S. 25 of the Act confers power on the Central Government to exempt certain goods from duty through notification if the Central Government is satisfied that it is necessary in public interest so to do. In exercise of the said power, the Central Government totally exempted wood pulp from duty by notification dated 17-3-1985. S. 45 of the Act says that imported goods unloaded in a customs area shall remain in the custody of customs officials until they are cleared for home consumption or are warehoused. A public warehouse is intended for deposit of dutiable goods' without payment of duty. This is the purport of S. 57 of the Act. A bond has to be executed by an importer in respect of goods which are warehoused, as per S. 59 of the Act. The said provisions imposes obligation on the importer to execute a bond binding himself in a sum equal to twice the amount of duty assessed on such goods, to observe all the provisions of the Act and the Rule and regulations m respect of such goods and to pay on or before a date specified in a notice of demand all duties, rent and charges claimable on account of such goods under the Act together with interest on the same from the date so specified at the rate of six per cent per annum or such other rate as is for the time being fixed by the Board". When a bond envisaged in S. 59 is executed, the customs officer has power to permit the deposit of goods in the warehouse without payment of duty. 8. A reading of the relevant provisions of the Act would show that the liability to pay interest cannot be delinked or divorced from the liability to pay duty. Both are conjunctive and must go together. The words "together with interest" in S. 59(b) are sufficient to indicate that the interest is linked with duty. In other words, an importer has no liability to pay interest is an adjunct to a debt or liability. It has no separate existence. It is one of the incidents of a debt which in the absence of the latter has no sanction for enforcement. The importer's liability to pay duty is at the time of clearance of the goods from a warehouse. He has no obligation to pay duty as long as goods remained in the warehouse. When goods are exempted from duty before they are removed from the warehouse, the natural as well as legal corollary is that none can be mulcted with the burden to pay interest on a non-existing duty. I, therefore, direct the second respondent to release the goods covered by Ext. P3 series without insisting on payment of interest on the duty which prevailed prior to 17-3-1985. Original Petition is disposed of in the above terms.

Author: Thomas

Thungabhadra Fibres Ltd. vs Union Of India (Uoi) on 30 August, 1990

Kerala High Court

ORDER B. Sudershan Reddy, J. 1. This civil revision petition is filed under Article 227 of the Constitution of India by the State Bank of India, Vizianagram Branch, Vizianagaram with a prayer to withdraw OS No. 34 of 2003 on the file of the learned IV Additional District Judge Visakhapatnam, filed by the Respondents 1 to 3 herein, and transfer the same for its enquiry and trial along with OS No. 132 of 2002 (Old OA. No. 376 of 2000), on the file of the Debts Recovery Tribunal, Visakhapatnam (for short 'the Tribunal'). 2. In order to consider as to whether such a relief could be granted, it may be just and necessary to notice a few relevant facts leading to filing of this civil revision petition. 3. The first respondent herein is alleged to have availed the agricultural term loan of Rs. 60.00 lakhs to establish a poultry layer unit of 40,000 layer birds at Gaddapeta Village, Padmanabham Mandal, Visakhapatnam from the petitioner-Bank after executing the required security documents on 11-6-1996. Respondents 2 to 4 herein stood as guarantors for the said loan. The first respondent is alleged to have committed default in repaying the loan amount together with interest thereon. The petitioner-Bank accordingly filed OA No. 376 of 2002 on 11-7-2000 before the Debts Recovery Tribunal, Hyderabad which later stood transferred to the Debts Recovery Tribunal, Visakhapatnam and renumbered as OA No. 132 of 2002, for recovery of Rs. 1,06,29,497/- together with future interest and costs. 4. Respondents 1 to 3 hereinafter receiving the summons form the Tribunal and having filed their written statement in OA, filed OS No. 34 of 2003 on the file of the learned IV Additional District Judge, Visakhapatnam against the petitioner-Bank seeking damages. The sum and substance of the said suit filed by the Respondents 1 to 3 herein is that there was deficiency of service on the part of the petitioner-Bank in respect of the loan facilities sanctioned by it to the first respondent. 5. The respondents herein in their suit sought to place reliance upon the same documents upon which the petitioner-Bank is relying upon in OA., filed by it, for recovery of amounts, against the respondents. 6. In the OA., filed by the petitioner-Bank, it is clearly and specifically averred that the cause of action for the application arose on 11-6-1996 when the petitioner-Bank sanctioned the agricultural term loan facility of Rs. 60.00 lakhs to the first respondent and on 11-6-1996 when the respondent have executed the documents creating equitable mortgage over the schedules of properties I to V towards security for the loan amount. 7. In the suit filed by Respondents 1 to 3 herein, it is specifically averred that the case of action for the suit arose when the first respondent approached the petitioner-Bank for an agricultural terms loan of Rs. 60.00 lakhs and when the same was sanctioned by the Bank for establishing the Poultry layer unit of 40,000 layer birds at Gaddapeta Village, Padmanabham Revenue Mandal, Visakhapatnam District and when the first respondent alleged to have invested initial capital including entrepreneur contribution of about Rs. 90.00 lakhs and when the first respondent executed necessary documents insisted by the petitioner-Bank, which according to him, are unilateral and arbitrary. 8. Thus, it is clear that Respondents 1 to 3 herein in their suit, filed for recovery of certain amounts from the petitioner-Bank, and the petitioner-Bank in its OA, filed for recovery of money advanced to the respondents, rely upon the same set of documents. 9. The learned Standing Counsel for the petitioner-Bank rightly contended that the suit filed by the respondents herein is, practically and in substance, in the nature of a counter claim, which as well could have been preferred by the respondents in the very OA, filed by the petitioner-Bank, pending adjudication on the file of the Debts Recovery Tribunal, Visakhapatnam. 10. In order to avoid the possible conflicting judgments and further with a view to avoid unnecessary complications, it is not only desirable, but also just and necessary to withdraw and transfer OS No. 34 of 2003 from the file of the learned IV Additional District Judge, Visakhapatnam for its enquiry and trial along with OA No. 132 of 2002 on the file of the Debts Recovery Tribunal, Visakhapatnam filed by the petitioner-Bank. 11. Obviously, the learned IV Additional District Judge, Visakhapatnam shall have no jurisdiction to make an enquiry and trial into OA.No. 132 of 2202 filed by the petitioner-Bank for the reasons that the jurisdiction of the Civil Court is excluded under Section 18 of the Recovery Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act') to try such applications. The Tribunal constituted under the provisions of the Act shall alone exercise the jurisdiction, powers and authority to entertain and decide applications from the Banks and financial institutions for recovery of debts due to such Banks and financial institutions. The petitioner herein is a Bank and the proceedings have been initiated by it as against the respondents for recovery of debts due to it from the respondents. The said application is liable to be exclusively tried by the Tribunal created under the provisions of the Act and to that extent the jurisdiction of the Civil Court is barred. 12. That apart, under Sub-section (8) of Section 19 of the Act even a defendant in an application may, in addition to his right of pleadings a set-off under Sub-section (6), set up, by way of counter-claim against the claim of the applicant (Bank or financial institution), any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application. 13. A plain reading of Sub-section (8) of Section 19 of the Act makes it clear that the Tribunal is clothed with the exclusive jurisdiction not only to make an enquiry into the application filed by a Bank or financial institution to recover the debts due to such Bank or Financial Institution, but is also clothed with the jurisdiction to make an enquiry into the counter claim that may be set up by a defendant in the application filed by such Bank or Financial Institution. The nature of the suit filed by the respondents herein is, practically and in substance, in the nature of a counter claim. Thus the Tribunal has jurisdiction to try the same. 14. Interest of justice requires hearing and disposal of OA No. 132 of 2002 filed by the petitioner-Bank against the respondents herein as well as OS No. 34 of 2003 filed by the Respondents 1 to 3 herein against the petitioner-Bank together by the Tribunal. 15. In the result, OS No. 34 of 2003 on the file of the learned IV Additional District Judge, Visakhapatnam, filed by Respondents 1 to 3 herein, is accordingly withdrawn and transferred for its enquiry and trial, by the Tribunal, along with OA No. 132 of 2002 on the file the Debts Recovery Tribunal, Visakhapatnam, filed by the petitioner-Bank. 16. The civil revision petition is accordingly allowed. There shall be no order as to costs.

Author: B S Reddy

State Bank Of India, Vizianagaram ... vs Siri Poultry Complex, ... on 5 December, 2003

Andhra High Court

Dated : 26.10.1987 (K. Prakash Anand) Member In view of the majority opinion, the impugned order is upheld and the appeal is dismissed. ORDER S.G. Sankaran, Senior Vice-President 1. The dispute in the present "case concerns miniature tyres manufactured and distributed as free gifts by the appellants. On a representation from the appellants, the Central Board of Excise and Customs (hereinafter the "Board" for short), in exercise of its powers under Sub-rule (2) of Rule 8 of the Central Excise Rules, 1944 (hereinafter the "rules") exempted such tyres from the whole of the excise duty leviable thereon. The Order F.No. 7/20/64-Ex.II dated 27.10.1984, read as follows :- "I am directed to refer to your letter No. 031/PTJ, dated the 3rd October, 1964 on the above subject and to say that in pursuance of Sub-rule (2) of Rule 8 of the Central Excise Rules, 19W, the Central Board of Excise and Customs grants exemption from whole of the Central Excise duty leviable on miniature tyres proposed to be manufactured and distributed as free gifts." (It may be noted that the Board's order did not say under which item of the Central Excise Tariff Schedule - CET - miniature tyres fell). It appears that the Assistant Collector, Goa, considered that the Board's order applied to miniature tyres falling under Item No. 16, CET otherwise no purpose would have been served by the Board's order. According to the Assistant Collector, the subject goods which were not pneumatic tyres but were used as ash trays or show pieces, more appropriately fell under Item No. 68 CET. On this basis, he passed an order on 13.2.1980 rejecting the appellant's claim for exemption from duty on the miniature tyres manufactured by them. He also passed another order on 3.6.1980 rejecting the claim filed by the appellants for refund of the duty paid on miniature tyres during the period 3.11.1979 to 30.4.1980. In appeal, both these orders were upheld by the Appellate Collector of Central Excise by his order dated 5.4.1982 which is challenged in the present proceedings before us. 2. We have heard Shri S. Ignatius, Manager, Indirect Taxes of the appellant company and Shri K.C. Sachars J.D.R. for the respondent. 3. Shri Ignatius referred to, and relied on, this Tribunal's decision on a similar issue in another appeal of the same appellants reported in 1987 (29) ELT 732. By a majority of the Bench, it was held therein that miniature tyres manufactured by the appellants and distributed at free gifts (the two requirements in the Board's order) were entitled to exemption from duty irrespective of whether they fell under Item 16 or 68 CET because the Board's order did not tie up the exemption with any particular tariff entry). 4. The Bench enquired of Shri Ignatius whether the Board could grant an exemption of a permanent nature under Rule 8(2) when its powers under that sub-rule would appear to relate to specific consignments, Shri Ignatius submitted that the Board's order was specifically on miniature tyres and the precedent decision of this Tribunal should be applied to the instant case too. However, Shri Sachar, D.R. submitted that an exemption order under Rule 8(2) could only be ad hoc. 5. At this stage, Shri Ignatius sought leave of the Bench to withdraw the appeal. Leave was declined by a majority of the Bench. This was in the light of this Tribunal's decision in Mahandra Mills Ltd. v. CCE, Baroda - 1987 (31) ELT 295, holding inter-alia that right of withdrawal of appeal is not available to parties and further because it appeared that the appellants were trying (at a belated stage at the end of the hearing) to avoid what they perhaps felt was likely to be an adverse decision. The request did not appear, therefore, to be bona fide reasons. 6. In our view, the powers of the Board under Sub-rule (2) of Rule 8 are limited in nature. Sub-rule (2) reads thus : "The Central Board of Excise & Customs may by special order in each case, exempt from the payment of duty under circumstances of an exceptional nature, any excisable goods." It is clear that the exemption can be only with reference to each case i.e. a specific consignment or lot or for a specific period. An order under Rule 8(2) cannot be of a permanent nature like a notification issued by the Central Government under Rule 8(1). The present order under Rule 8(2) was issued as far back as on 26.10.1964,, It cannot, by any means, be said to be operative as late as in 1979 and 1980 (the period of the present dispute is 3.11.1979 to 30.4.1980). Quite apart from this consideration, the goods fell under Item No. 68 CET with effect from 1.3.197.5 (Shri Ignatius said he was not making any submission on the point of confiscation of the goods) for the cogent reasons set out in the opinion recorded by the learned Judicial Member in his order in the precedent decision. It should be noted that the majority did not go into the question of classification. 7. In the result, we hold that the Board's order dated 27.10.1964 did not apply to the subject goods during the material period. We uphold the impugned order and dismiss the appeal. V.T. Raghavachari, Member (J) 8. I am writing this separate order since, when a request was made for withdrawal of the appeal (as noted in paragraph 5 of the order prepared by the Sr. V ice-President), I was of the opinion that the same should be permitted but, as noted in the order of the Sr. V ice-President, the majority of the Members were of the contrary view and, therefore, permission for withdrawal of the appeal was declined by the Bench. 9. In his submissions Shri Ignatius mainly relied on the decision of this Tribunal reported in 1987 (29) ELT 732 which dealt with the same manufactured by the same appellants. The only difference between that case and the present case is with reference to the period for which duty was to be paid on the said product. In the circumstances Shri Ignatius, quite rightly in my opinion, relied on the said decision and therefore requested that this Bench should, following the said decision, allow the appeal. Hence, at that stage, Shri Ignatius was perfectly justified in thinking that this Bench would, in the normal circumstances, follow the said decision and allow the appeal. 10. But during the hearing it was the Bench which raised the query whether the letter dated 27.10.1964 relied on by the appellants (and on the basis of winch the earlier decision had been rendered) would in fact be a proper ground for granting relief either in the earlier case, or in the present appeal, since, on a proper reading of the relevant legal provisions, the Central Board would have no jurisdiction to grant any such general exemption from payment of duty in respect of future goods of a particular category. It was, therefore, enquired whether the said letter ought not to be ignored and, therefore, go into the question of the excisability of the product and the item under which it would fall for purpose of levy of duty. 11. It should be remembered that the contention for the appellants has been that except in the case of the Goa Central Excise Collectorate duty was not being demanded on this product by any of the other Collectorates, the reason therefor being the exemption granted under the letter dated 27.10.1964. That is to say, the appellants were being permitted by other Collectorates except the Goa Collectorate to remove this product without payment of duty. In respect of Goa Collectorate the appellants have obtained the order of this Tribunal cited supra upholding their contention for eligibility for exemption. It is in these circumstances that, when posed with the question whether the decision of the Tribunal earlier would not be wrong (on the basis that the letter dated 27.10.1964 could not grant exemption in respect of future removals), Shri Ignatius made the request for withdrawal of the appeal, evidently because he felt that any adverse decision in this appeal may initiate action for demand of duty from other Collectorates also. 12. The decision in 1987 (31) ELT 295 does not lay down that no appellant can in any circumstance be permitted to withdraw his appeal. As regards the observations therein that the Tribunal has powers, in modifying the order appealed against, to so modify it as to enhance the liability of the appellant, I have my own serious doubts. The normal rule is that no person shall be placed in a worse position than he is because he has preferred an appeal. Any exception to this rule will have to be supported by the provisions in the statute (providing for the appeal) containing a suitable provision for enhancement of the liability. Therefore, to read from Section 35-C of the Central Excises and Salt Act a provision to this effect does not appear to be very proper. 13. It is in view of the above considerations that I felt, when the request for withdrawal was made, that this would be a proper case where permission for withdrawal may be given. But since the other two members of the Bench were of the contrary view the permission was declined by the Bench and further hearing was continued. 14. On the merits of the issue I agree with the Sr. Vice-President that the provisions of Rule 8 of the Central Excise Rules could not be construed as conferring on the Central Board a power to grant exemption indefinitely on all future removals but that such a power should be held to be restricted to a particular instance or instances. I, therefore, agree that the letter dated 27.10.1964 relied on by the appellants would not entitle the appellants to claim exemption from payment of duty in the instances in issue. I, therefore, concur with the order of dismissal of the appeal proposed by the Sr. Vice-President. K. Prakash Anand, Member (T) 15. I wholly concur in the order recorded by my learned brother Shri Sankaran. In view, however, of the comments made by my learned brother Shri Raghavachari, it has become necessary for me to make a small observation. 16. I do not think that brother Sankaran and I felt that in the light of the decision of Mahandra Mills Ltd. v. Collector of Central Excise, Baroda - 1987 (31) ELT 295, no appellant can, in any circumstances, be permitted to withdraw his appeal. Here was a case where the hearing of the matter which had proceeded for quite some time, had nearly concluded and, as it happened, towards the end, it became apparent that the appellant's appeal was likely to" be dismissed by the Bench. On quick calculation of his interest, Shri Ignatius thereupon sought permission to withdraw the appeal. It is, in these circumstances that we decided that the request could not be granted. If every appellant were to be considered to have a right to withdraw his appeal after he has argued that length, and in the course of arguments, it becomes apparent to him that the consequences of the appeal are going to be adverse to him, this would certainly defeat the ends of justice. 17. Appeal dismissed.

M.R.F. Limited vs Collector Of Central Excise on 27 October, 1987

Customs, Excise and Gold Tribunal - Delhi

ORDER Ghulam Mohammed, J. 1. The petitioners are weavers by profession and in view of the rapid industrialisation, they were facing certain problems and formed a registered society viz., Sri Siddeswara Swami Silk Weavers Co-operative-cum-sales Society Limited and approached the 4th respondent bank for loan and the 4th respondent bank extended the loan of Rs. 10,000/- to the petitioners for purchase of instruments. 2. Due to subsequent events they are not in a position to repay the dues and sought for relief under Agricultural and Debt Relief Scheme and the bank having considered their request granted the relief indicated in the scheme. However, the petitioners herein contend that they are entitled to total waiver of loan amount i.e., Rs. 10,000/-. 3. The first respondent issued G.O. Ms. No. 665 dated 17-10-1990 providing 50% of the cost of the debt relief would be borne by the Government of India and the Government of India offered to provide loan to the State Government to meet the balance of 50% throwing NABARD. It is also stated that the Government Order provides for elaborate procedure for extending the debt relief. 4. It is thus contended that the petitioners are eligible to the debt relief and instead of providing the relief, the respondent bank issued notices calling upon the petitioners to repay the outstanding amounts and threatening to take coercive steps. 5. Court affidavit is filed stating that under the guidelines of the Agricultural and Rural Debt Relief Scheme, 1990, Clause 2(g) states that eligibility means "that part of the short-term loans including converted/reschedule medium term loan availed by an individual borrower on or after 1-4-1986, the instalment of the short-term loan falling due after 2-10-1986 which was overdue as on the effective date i.e., 2-10-1989 and includes overdue interest". It is also stated in the counter affidavit that petitioner Nos. 1, 4, 6, 12, 15 and 17 are eligible for the relief under the scheme and got claim of Rs. 3,000/-, Rs. 1,000/-, Rs. 250/-, Rs. 200/-, Rs. 600/- and Rs. 70/-respectively and that the said amounts were got adjusted to then loan accounts, that since the remaining petitioners are not eligible under the said scheme, notices are issued and that the said action on the part of the bank is neither illegal nor arbitrary and the same was permissible under the law. It is further stated that the petitioners have not impleaded the proper and necessary parties i.e., Central Government in the writ petition and the Government of India and Reserve Bank of India and contended that the bank has examined the scheme and as per entitlement, it has extended the benefit to respective parties and adjusted the amounts in their respective accounts. It is submitted that only few persons who have not repaid the loan amounts have approached this Hon'ble Court and that this Hon'ble Court cannot entertain writ petition dealing with commercial transactions and the learned Government Pleader drawn my attention to judgment of Hon'ble Supreme Court in Central Bank of India v. Roopal Bonsal, , wherein it is held as follows: "In our opinion, the High Court was not right in entertaining the writ petition. The transaction between the parties was purely commercial one. Admittedly, the respondent had stood as guarantor is respect of the loans which had been advanced by the appellant. For the realisation of the amount, the appellant had filed a suit in a Court of competent jurisdiction. If the respondent had any grievance in respect of letter dated 7-10-1986, then the appropriate remedy available to the respondent was to file a civil suit and the High Court ought not to have entertained the writ petition under Article 226 of the Constitution especially when the disputed questions of fact had to be gone into. On this ground along, the judgment of the High Court is liable to be set aside." 6. In the circumstances, I do not find any infirmity legal or otherwise. The writ petition fails, accordingly, the same is dismissed. However, in the circumstances of the case, there shall be no order as to costs.

Author: G Mohammed

Ramalingam And Ors. vs State Of A.P. And Ors. on 12 February, 2002

Andhra High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Con.Case(C).No. 526 of 2009(S) 1. SEBASTIAN JOSEPH, ... Petitioner Vs 1. P.M.DEVASSIA (FATHERS NAME & AGE NOT ... Respondent For Petitioner :SRI.N.MURALEEDHARAN NAIR For Respondent : No Appearance The Hon'ble MR. Justice K.M.JOSEPH Dated :10/06/2009 O R D E R K.M. JOSEPH, J. ```````````````````````````````````````````````````` Contempt Case (C) No. 526 OF 2009 ```````````````````````````````````````````````````` Dated this the 10th day of June, 2009 J U D G M E N T It is submitted on behalf of the petitioner that the judgment is complied with. Accordingly, the Contempt Case is closed. (K.M.JOSEPH, JUDGE) aks 

Sebastian Joseph vs P.M.Devassia (Fathers Name & Age ... on 10 June, 2009

Kerala High Court

> Title : Presentation of 5th Report of the Committee on Absence of members from the sitting of the House. SHRI RAJESH VERMA (SITAPUR): Sir, I beg to present the Fifth Report (Hindi and English versions) of the Committee on Absence of Members from the sittings of the House.

Presentation Of 5 Th Report Of The Committee On Absence Of Members From ... on 21 December, 2005

Lok Sabha Debates

[Section 23] [Complete Act]

Central Government Act

Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 676 of 2009 Petitioner :- National Insurance Company Ltd. Respondent :- Neetu Gupta, W/O-Late Neeraj Gupta, Petitioner Counsel :- Vaibhav Raj Respondent Counsel :- Anil Kumar Mishra,Anil Srivastava Hon'ble Devi Prasad Singh,J. Hon'ble Yoeesh Chandra GuDta.J. List in the next cause list on account of illness slip of Sri Vaibhav Raj. Order Date :- 15.7.2010 Rajneesh)

National Insurance Company Ltd. vs Neetu Gupta, W/O-Late Neeraj ... on 15 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2192 of 2010 CHAMELI DEVI Versus STATE OF BIHAR ----------- 2/ 10.08.2010 Put up this case along with the records of M.J.C. Nos. 2189 of 2010 and 2191 of 2010 side by side on Tuesday next i.e. 17.08.2010 retaining its position. (Samarendra Pratap Singh, J.) Uday/

Chameli Devi vs State Of Bihar on 10 August, 2010

Patna High Court - Orders

Assessment year Amount to be added Rs. 1953-54 1,05,000 1954-55 83,000 1955-56 83,000 1956-57 76,564 1957-58 85,939 1958-59 1,12,318 1959-60 61,191 1960-61 1,00,571 1961-62 75,967 1962-63 80,763 1963-64 1,08,936 1964-65 1,05,827 1965-66 86,779 3. It will be seen from the above table that the Income-tax Officer accepted the last five offers made by way of voluntary disclosure of income which are not earlier disclosed by them in their original returns and which were are not disclosed as income receipts in the books of account. Assessment year Rs. 1953-54 15,666 1954-55 13,610 1955-56 14,892 1956-57 13,718 1957-58 15,852 1958-59 17,465 1959-60 9,274 1960-61 19,380 1961-62 12,748 1962-63 13,542 1963-64 18,670 1964-65 17,461 1965-66 7,750 -------------- 2,90,028 -------------- JUDGMENT Balasubrahmanyan, J. 1. The assessee in this group of cases is a registered firm with three partners carrying on business in the manufacture and sale of handloom piece-goods. For the assessment years 1953-54 to 1961-62, the Income-tax Officer assessed the firm's income on the the basis of revised returns furnished by the assessee. The revised returns were submitted by the assessee firm in the following circumstances. For 1962-63, the assessee filed a return of income on December 26, 1962. The income-tax Officer, in the course of the proceedings for assessment for wheat year, noticed credits appearing in the firm's accounts in the names of certain multani bankers. Those multani bankers were reputed in the Income-tax Department to have indulged in hawala transactions, that is to say, in aiding income-tax assessees to post credit entries in their accounts as though they had obtained loans on hundis and had repaid them while no money passed as loans, nor were any money returned as repayment. Before, however, investigations could be concluded as to the genuineness and the nature and source of those credits, the assessee filed a petition before the Commissioner of Income-tax purporting to be made under section 27(4A) of the Income-tax Act, 1961. In that petition, it referred to the credits appearing in their books in the names of multani financiers, the bulk of which arose in the account years relevant to 1956-67 to 1958-59. The peak credit in the multani bankers' accounts amounted to Rs. 6,00,000. The assessee submitted that the peak credit may be regarded as the firm's income. But since the entire income could not have accrued in a single year, it was suggested that the amount may be spread over six years of assessment from 1958-59 attributing Rs. 50,000 (sic) in each of the assessment years as the income over and above what was returned by the assessee-firm from out of its books of account. Having offered for assessment the peak credit as spread over in this manner in a number of assessments, the assessee pleaded that in view of the voluntary disclosure made by them of the income represented by the hundi loans, any penalty which might otherwise be exigible might be waived. A copy of the petition presented before the Commissioner of Income-tax was marked to the assessing officer. The officer, however, completed the assessment for the assessment year 1962-63 without paying any regard to the assessee's disclosure petition. He made a similar assessment for the subsequent year 1963-64. These assessments were taken in appeal by the assessee to the Appellate Assistant Commissioner. It was represented before the Appellate Assistant Commissioner that in view of their disclosure petition which was being considered by the Commissioner of Income-tax, the assessments made without any regard for that disclosure petition should be set aside. The Appellate Assistant Commissioner accepted this submission, set aside the assessment orders for 1962-63 and 1963-64 and directed the Income-tax Officer to make fresh assessments in conformity with any order that the Commissioner may pass on the basis of the disclosure petition filed by the assessee. Subsequently, the assessee filed a further petition before the Commissioner of Income-tax which practically set out an agreed basis for making the assessments on the assessee having regard to the credits in the multani bankers' hundi loan accounts. On the basis of those proposals, the assessee also filed revised returns for the years 1953-54 to 1965-66. In that petition, it undertook to pay the tax payable on these disclosed amounts thus at Rs. 1,00,000 at once and the balance in 24 equal monthly instalments commencing from April, 1969. It also furnished a security for the due payment of any additional tax that might be levied as a result of the disclosure. To secure the due payment of the tax, the assessee gave its immovable property in Angappa Naicken Street, Madras, as security under a security bond. Having done so, it made a request to the Department that only a nominal penalty may be levied. 2. The Income-tax Officer accepted the offer of the assessee and also the scheme of spread-over of the amount of peak credits as between the several years. The following table sets out for each of the relevant assessment years the amount offered by the assessee for the assessment years, the amount offered by the assessee for assessment over and above the income already assessed and the actual additions made by the Income-tax Officer on the basis of the assessee's offer : 4. While the Income-tax Officer made the assessments in this manner following the voluntary disclosure, he nevertheless initiated penalty proceeding against the assessee under section 27(1)(c) of the Income-tax Act, 1961. These proceedings subsequently stood transferred to the Inspecting Assistant Commissioner. When the assessee was asked to show cause against the levy of penalty, the assessee represented that these were not cases in which action under section 271(1)(c) could be launched. The assessee submitted that the assessment was made on the basis of the petition under section 271(4A) of the Income-tax Act filed by the assessee before the Commissioner of Income-tax, even before any investigation was undertaken by the Department. It was further represented that the figures offered by the assessee for the assessments have been accepted as correct. Besides, the assessee also paid off all the tax demands and had furnished adequate security of immovable property for the taxes that might still have to be raised. Above all, the assessee had co-operated with the Department for the expeditious completion of the assessments. In these circumstances, the assessee submitted that there was no case for levy of penalties. 5. The Inspecting Assistant Commissioner, however, held that the penalties had to be levied on the assessee on the score that it had concealed particulars of their income. The Inspecting Assistant Commissioner observed that since the assessee had offered the peak credit in the accounts as taxable income, the assessee must be taken to have admitted that the credit entries were bogus and they represented the assessee's concealed income. The Inspecting Assistant Commissioner further held that the facts that the assessee had admitted the income character of the cash credits while filing the returns and had also co-operated with the Department in getting the assessments concluded and also paid the taxes levied on the basis of reassessments were all irrelevant factors in the proceedings under section 271(1)(c) of the Act. In this view, he levied the following penalties under section 271(1)(c) : 6. On appeal, the Tribunal sustained the penalties for all the years although they did so for different reasons. For the first nine years 1953-54 to 1961-62, the penalty proceedings were started on the foot of reassessment proceedings made under section 147. The Tribunal sustained the penalties for those years on the score that the reassessments were all made on the vary basis of the assessee's revised returns filed during the course of reassessment proceedings which disclosed an income far higher than income returned by the assessee in the original assessment proceedings. As for the next assessee come out with voluntary disclosure. This feature, according to the Tribunal, showed that the assessee had concealed its income for this years. For the last three years, namely, 1963-64 to 1965-66, the Tribunal accepted the fact that the assessee had filed revised returns even before the Income-tax Officer set on foot any inquiries or investigations. However, the revised returns even for those years, according to the Tribunal, came about only because of the inquiries being conducted by the Income-tax Officer in the course of the assessment for 1962-63. The Tribunal pointed out that in the voluntary disclosure petition, it was admitted that the crediting of of interest on hundi credits was also fictitious and since the interest figured in the last three years of assessment, 1963-64 to 1965-66, the assessee must be treated as having concealed their income. The Tribunal then proceeded to hold generally that the assessee cannot escape from the penalties merely because the additional assessment adhered to the figures returned by the assessee in the revised returns. 7. In this group of references by the assessee, the very basis of the Tribunal's decision is challenged from different angles such as legality of penalty, burden of proof of concealment of income, reasonableness of inference of concealment and non-detection of concealment by the Department before the filing of the revised returns. Contentions based on s. 271(4A) were earlier addressed by the assessee before the Inspecting Assistant Commissioner in the course of the penalty proceedings. Section 271(4A) came into the discussion because the assessee had filed a voluntary disclosure of income before the Commissioner and had invoked the Commissioner's power under section 271(4A) of the Act. This provision empowers empowers the Commissioner to waive altogether or at least reduce the penalty impossible on the assessee even for concealment of income, if certain conditions are fulfilled, namely, (i) if the assessee voluntarily and in good faith has made a full disclosure of his income before an investigation is set on foot by the Income-tax Officer in the concerned assessment or before the Income-tax Officer actually detects any concealment on the part of the assessee; (ii) the assessee has co-operated in the inquiry into the assessment of income; and (iii) that the assessee has either paid or made satisfactory arrangements for payment of the tax payable on the basis of his voluntary disclosure. Before the Inspecting Assistant Commissioner, the assessee urged that they had fulfilled all those conditions and, therefore, no penalty should be levied. As earlier indicated, the Inspecting Assistant Commissioner, however, considered that those contentions have properly to be urged in a different forum, namely, before the Commissioner, and in different proceedings, namely, under section 271(4A). 8. We agree with the Inspecting Assistant Commissioner to one extent that the two proceedings, one under section 271(1)(c) and the other under section 271(4A), are different proceedings. The question, however, is whether the grounds for penalty stated by the Inspecting Assistant Commissioner and approved by the Tribunal are good in law. 9. We think we may address ourselves to this question by adopting the manner of the Tribunal and examining the several assessments involved in these references as falling under well-defined groups. The penalties falling under the first group relate to nine assessment years from 1953-54 to 1961-62. The levy for this group of assessment years was made in the course of the reassessment proceedings. The record shows that on the very day the assessee filed the returns in the course of reassessment proceedings the assessments were completed, adopting, without any material change, the figures offered for assessment by the assessee. The pattern of these reassessments shows that in the course of reassessment proceedings, at any rate, there was no concealment by the assessee. However, both the Inspecting Assistant Commissioner and the Tribunal only laid stress on the undeniable fact that there was a blatant concealment of income on the part of the assessee in the original assessments for the years 1953-54 to 1961-62. The question is whether for such concealment, penalties can be levied on the assessee in the reassessment proceeding. According to the legal position laid down by the Supreme Court in a recent decision, a reassessment under the taxing enactments completely obliterates without a trace the original assessment proceedings, vide Deputy Commissioner of Commercial Taxes v. Sri Ramulu . It was observed that once reassessment was started, the initial order of assessment creases to be operative. It was further observe that the effect of reopening the assessment was to vacate or set aside the initial order of assessment and to substitute in its place the order made on reassessment. According to the Supreme Court, the initial order for assessment in such a case cannot be said to survive even partially. This decision of the Supreme Court was rendered in a sales tax case. 10. In a decision dealing with reassessment for income-tax in Jaganmohan Rao v. CIT , the Supreme Court went further and observed that once an assessment is reopened by the issue of a notice of reassessment, the previous under assessment is set aside and the whole assessment proceedings start afresh. 11. Although the two decisions of the Supreme Court cited above lay down the legal position on the question whether the original assessment survives the moment reassessment proceedings are started, there is no reported decision by any court to the effect that on reassessment being made, no penalty can be levied on the basis of the assessee's concealment in the original assessment proceedings. On the contrary, there is a decision of the Supreme Court in Malbary and Bros. v. CIT , in which it was held that for a concealment in the original assessment proceedings, the assessee may be rendered liable for penalty in the course of the reassessment proceedings. That was a case where an assessee did not report his income from a foreign branch in the course of original assessment proceedings but on the assessment being reopened, he disclosed the entire branch income with correct and complete particulars. The reassessment was based solely on the basis of the figures furnished by the assessee. There was also no other default on his part in the reassessment proceedings. Nevertheless, penalty was levied on the assessee on the score that he concealed the branch income in the course of the original assessment proceedings. This penalty was upheld by the Supreme Court. 12. We do not find any discussion in this case about the effect of a reassessment on the original assessment proceedings. Nor has the court discussed the position whether concealment of income by the assessee in the course of the original proceedings would survive when the original assessment itself is supplanted by the reassessment. It, however, seems to us that even on the basis of the position that reassessment proceedings arose out of existence of the original assessment proceedings, the assessee can by no means be regarded as not having concealed his income, merely because in the reassessment proceedings he has made a clean breast of the whole income and expenditure position. The very reason for reassessment proceedings especially under section 147(a) of the Income-tax Act is that income has escaped assessment by reason of the failure or omission on the part of the assessee to fully and truly disclose all material facts necessary for his assessment. when such is the basis for reassessment, it would be quite odd to hold that the assessee is not guilty of concealment of income, merely because in the reassessment proceedings he unconceals what he has concealed in the original assessment. We are, therefore, satisfied that the assessee in the present case was properly charged with penalty in the reassessments for 1953-54 to 1961-62 notwithstanding the fact that it was the assessee's own voluntary disclosure which brought about the reassessments and despite the circumstance that not a pie more was added that what was disclosed by the assessee in the reassessment proceedings. We must, therefore, uphold the penalties for these years. 13. This leaves us with the penalties for the subsequent assessment years 1962-63 to 1965-66. Amongst those assessments, those for 1962-63 and 1963-64 from a distinct group and may be dealt with as such. For these two assessment years, the assessee filed returns of income which the Income-tax Officer found to be incorrect and incomplete. While completing the assessments, therefore, the Income-tax Officer issued penalty notices under section 271(1)(c) on the score that the assessee had concealed particulars of his income. The assessee appealed against those assessments. During the tendency of those appeals before the Appellate Assistant Commissioner, the assessee and the Department arrived at a settlement on the basis of the assessee's voluntary disclosure. To give effect to the settlement, the Appellate Assistant Commissioner set aside these two assessments and directed the officer to redo the assessments and implement the terms of the of the settlement. In the events that happened, the question is whether in the assessments made by the officer after remand by the Appellate Assistant Commissioner, there was any scope for the levy of penalty solely for the reason that in the original assessment proceedings, the assessee had not truly or completely disclosed his entire income. It seems to us that the position is a fortiori. The Appellate Assistant Commissioner, while disposing of an appeal, has the power to set aside an assessment and direct the officer to redo the assessment, vide section 256(1)(a) of the Act. It seems to us that what can be set aside in exercise of this power is an order of assessment made by the officer. The Appellate Assistant Commissioner cannot set aside a return made by the assessee or completely rub off from the record the conduct of the assessee on concealing the particulars of his income in the assessment proceeding. The position seems to us to be similar to the concealment of income in the course of the original assessment proceedings. As contrasted with reassessment proceedings, that concealment would lend to survive even the reopening of the assessment and the subsequent retiring of a reassessment. By analogy of deduction from Malbary & Bros. v. CIT , we must hold that the assessee cannot be absolved from having concealed his income in the course of the original assessment proceedings, merely because the original assessments were set aside on appeal by the Appellate Assistant Commissioner. The penalties for the two years 1962-63 and 1963-64 must also be upheld. 14. This leaves us only with the last two assessment years under reference. namely, 1964-65 and 1965-66. The assessee filed original returns for these two years, but subsequently, even before the officer took up the returns for inquiry, the assessee filed revised revised returns reporting higher figures of income, adopting the voluntary disclosure settlement between him and the Department. In other words, even before the Income-tax Officer set on foot any investigation and even before he detected any concealment of income in these two years, the assessee came out with revised returns on the basis of his voluntary disclosure. What is more, the assessments which were completed by the Income-tax Officer were based out and out on the figures offered by the assessee on the basis of the voluntary disclosure in the revised returns. Nevertheless, the inspecting Assistant Commissioner of Income-tax held that even for those two years, the assessee was liable for penalty. 15. In our view, section 271(1)(c) could not be invoked against the assessee for these two years, namely 1964-65 and 1965-66. It is true that the original returns filed by the assessee understated the income. But before the ink on the returns were dry, as it were, the assessee came out with the full disclosure on the basis of which the assessments had been completed. In these circumstances, we fail to see how any concealment of income can be attributed to the assessee. In a recent unreported judgment rendered by this court in Tax Case No. 466 of 1977 (M. Radhakrishnan v. CIT - since reported in [1984] 147 ITR 133), it was held that penalty under section 271(1)(c) cannot be levied merely by spelling out the concealment from the original return of income. This court held that for a finding as to concealment, the whole gamut of the assessment proceedings will have to be taken note of and not merely the initial return filed by the assessee. It was pointed out in that case that although the original return furnished by the assessee contained omissions, yet those omissions were made good voluntarily and before any investigation was set on foot by the assessing officer. In the event, it was held that it cannot be said that there was any concealment in the course of the assessment proceedings. This unreported decision covers the present case in regard to the penalties for the last two assessment years. 16. Learned counsel for the Revenue cited, in support of the levy of penalty for the last two years, CIT v. J. K. A. Subramania Chettiar [1977] 110 ITR 602 (Mad). In the unreported judgment to which we have made reference earlier, it was observed that Subramania Chettiar's case [1977] 110 ITR 602 (Mad) cannot be regarded as a complete tract on the construction of section 271(1)(c) of the Act, but that it turned purely on the answer to the two minor legal contentions. We do not accordingly feel incommoded, in the slightest degree, by Subramania Chettiar's case [1977] 110 ITR 602 (Mad), in following the unreported judgment and holding that the levy of penalties for the last two years is illegal. 17. Learned counsel for the Revenue referred to another judgment of a Bench of this court in CIT v. Krishna & Co. , which was also a case of penalty under section 271(1)(c) of the Act. It was somewhat broadly stated in that case that where the assessee himself made an admission about having earned income which was not shown by him in the original return, that by itself would be sufficient to justify a penalty for concealment. It must, however, be pointed out that in that case, the admission or confession by the assessee as to his having earned a larger income that he reported originally came about only after an inquiry was set on foot by the Income-tax Officer and after the Income-tax Officer was about to detect the concealment. In the present case, however, the fact is quite different. As we pointed out earlier, even before the Income-tax Officer took up for scrutiny the assessee's returns for these two years, the assessee had filed a voluntary disclosure and on that basis had offered income over and above that which he furnished in the original return. We do not, therefore, see any parallel between the present case and the case in CIT v. Krishna & Co. . 18. The first question of law propounded for our consideration in this group is as follows : "Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that section 271(1)(c) is attracted and the levy of penalty of Rs. 15,666; Rs. 13,610; Rs. 14,892; Rs. 13,718; Rs. 15,852; Rs. 17,465; Rs. 9,274; Rs. 19,380; Rs. 12,748; Rs. 13,542; Rs. 18,760; Rs. 17,461; Rs. 7,750 is lawful for the assessment years 1953-54; 1954-55; 1955-56; 1956-57; 1957-58; 1958-59; 1959-60; 1960-61; 1961-62; 1962-63; 1963-64, 1964-65 and 1965-66, respectively ?" 19. We may sum up our answer to the above question of law in the following terms : The penalties for the first nine assessment years, namely, 1953-54 to 1961-62, must be held to have been levied in accordance with law. The penalties for the last two assessment years 1964-65 and 1965-66, however, must be held to have been wrongfully levied, since there was no basis for the finding as to concealment. 20. In the light of our answer to the first question, we do not think the other question of law propounded by the Tribunal arise at all for consideration . Those questions are not independent question in themselves, but they only highlight the different facets of the question of law which we have already disposed of. We desist from entering any formal answers to the rest of the questions of law. 21. Having regard to the results of these references, we do not make any order as to casts.

Author: Balasubrahmanyan

K.P. Kandasami Mudaliar And Sons vs Commissioner Of Income-Tax on 17 January, 1983

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 23816 of 2008(I) 1. K.A.SHAMSIAMMA, AGED 55 YEARS, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. THE DEPUTY DIRECTOR OF EDUCATION, 3. THE DISTRICT EDUCATIONAL OFFICER, 4. THE ASSISTANT EDUCATIONAL OFFICER, For Petitioner :SRI.ESM.KABEER For Respondent : No Appearance The Hon'ble MR. Justice K.T.SANKARAN Dated :22/08/2008 O R D E R K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 23816 OF 2008 I -------------------------------------------- Dated this the 22nd August, 2008 JUDGMENT Learned counsel for the petitioner seeks permission to withdraw the Writ Petition with liberty to pursue the remedies, if any, available to the petitioner. Permission sought for is granted and the Writ Petition is dismissed as withdrawn. It is made clear that dismissal of the Writ Petition will not prejudice the rights of the petitioner to pursue her remedies elsewhere. (K.T.SANKARAN) Judge ahz/ 

K.A.Shamsiamma vs State Of Kerala on 22 August, 2008

Kerala High Court

JUDGMENT Chandrakantaraj URS, J. 1. These appeals are directed against the Judgment and Decree in O. S. No. 94/62 on the file of the then Principal District Judge, Bangalore City. Later the suit was transferred to the file of the I Addl. Civil Judge, Bangalore City and re-numbered as O.S. No. 119/64, Defendants 1 to 7 are the appellants in R. F. A. No. 95/75 and plaintiff is the appellant in R. F. A. 107/75. 2. In the course of the judgment, we will refer to the parties according to the rank assigned to them in the Trial Court. 3. Plaintiff filed the suit for specific performance of a contract. The facts leading to the filing of the suit may be briefly stated as follows : Plaintiff, in response to an, advertisement he saw in the newspaper "Deccan Herald", made enquiries about the public auction of premises No. 74/125 (old) New No. 3, situated in 5th Cross Narasimharaja Colony, Bangalore. The advertisement for public auction was inserted by a firm of auctioneers known as "Reliable Auctioneer" apparently under the instructions of one Sait Chaganmal Ghasiram. The said Sait Chaganmal Ghasiram and the Reliable Auctioneer are the 8th and 9th defendants in the suit. Ultimately the auction took place on 2-8-1962. At that auction, plaintiff was the highest bidder having bid the suit schedule property for Rs. 22,250/-. In accordance with the terms set by the auctioneer, the 9th defendant, he paid 1/4th of the bid amount to the auctioneer. The terms of the auction were such that the balance of the bid amount was to be paid on or before 17-8-1972 and within 15 days there from, the conveyance deed was required to be got executed and registered. However, plaintiff met defendant-8, the power of attorney holder of the owners on the date of the auction and sought inspection of the relevant documents in proof of the vendor's title and he was promised that the same would be furnished for inspection before 17-8-1962, the date fixed for payment of the balance by the successful bidder. Accordingly the 8th defendant furnished on or about 6-8-1962 certain other documents (copies) which disclosed that the first defendant was acting tinder the power of attorney given to him by his son, the 4th defendant in the matter of the sale of plaint schedule property. Plaintiff, on further enquiries, learnt that the said power given by 4th defendant was later cancelled by him and that there were other Court proceedings relating to the family of the 1st defendant the details of which plaintiff could not ascertain in spite of his diligent enquiries. Plaintiff, therefore, sought a clarification by issuing a notice dated 9-8-1982 to the auctioneers as well as the 8th defendant. Those notices were replied to by the 8th and. 9th defendants. In the replies furnished, it was made known to plaintiff that the 8th defendant was competent to convey title to the suit scheduled property and, therefore he may pay to him Rs. 1000/- towards conveyance charges including registration fee. Accordingly, on 17-8-1962, 8th defendant was paid a sum of Rs. 1,000/-by plaintiff in addition to the sum of Rs. 5,625/paid on 2-8-1962 to the auctioneers. Plaintiff also obtained encumbrance certificate in respect of the property. He also got ready the balance of the sale consideration to be paid to the 8th defendant. Plaintiff has asserted that the transaction could not be gone through on 17-8-1962, as the 8th defendant was out of town on or about that date. In this position, plaintiff received on 21-81962 a notice from the Counsel of defendants 1 to 7 intimating plaintiff that the power of attorney granted by the 2nd defendant had been cancelled in the year 1957 itself and the power of attorney given by the 1st defendant to 8th defendant had also been cancelled and in effect, the notice repudiated and cancelled the contract and their obligations arising under the contract to plaintiff in respect of the auction sale. Plaintiff has further asserted that defendants 1 to 7 had knowledge of the auction sale, as they had been intimated of the auction sale by telegram by 6th defendant. In that circumstance, plaintiff caused another notice to be issued to 8th defendant calling upon him to get the owners also to join in the execution of the sale deed. Admittedly, the balance of bid amount was not paid to the auctioneers, 9th defendant on or before 17-8-1962. In that circumstance, as plaintiff was ready and willing to perform his part of the contract and the defendants had not performed their obligations arising out of the auction sale, he filed the suit for specific performance of conveying the suit scheduled property in his favour on acceptance of the balance of consideration. In the alternative if specific performance was not granted, plaintiff proved that the amount he had paid by way of 1/4th of the consideration on the date of auction and Rs. 1,000/- paid to 8th defendant towards conveyance charges and registration fee should be directed to be refunded together with interest at 12 per cent per annum from 21-8-1962 till date of realisation. 4. The suit prayer was resisted by defendant-1 on the ground that the suit property was worth more than Rs. 50,000/and the sale conducted by 8th defendant was fraudulent in collusion with plaintiff and that he had not authorised 8th defendant to sell the property, but only to negotiate for the sale of the property. He stated the circumstances in which he was called upon to execute the power of attorney in favour of the 8th defendant. He was emphatic in his defence that the power of attorney did not authorise 8th defendant to do anything more than to secure a good price and intimate the price secured for the suit scheduled property before any sale could be effected. Having not intimated the price secured for the suit scheduled property, he was not authorised to proceed with the sale. In that circumstance, he prayed for dismissal of the suit and he was not bound by any commitment made by 8th defendant by virtue of the power of attorney given in his favour. 5. Defendants 2, 3, 5 and 7 filed separate written statements. We do not propose to recite their stand inasmuch as it was more a case made out against their father, the 1st defendant which has nothing to do with the alleged specific performance sought by plaintiff in the suit. 6. However, 8th defendant also filed a separate written statement which requires to be noticed. 8th defendant asserted that he was the power of attorney holder of the first defendant for selling the suit scheduled property along with other properties which he had validly sold on earlier instances. He had advertised in terms of the general power of attorney for the sale of the scheduled properties even on the earlier occasions just as he had done in the case of the suit scheduled property he asserted that plaintiff was at all times aware that the auction sale had been authorised by him as the power of attorney holder. He also asserted that such documents as were available and necessary for any prudent man to purchase the property were shown to plaintiff and plaintiff was satisfied and even got ready for registration of the document. He disclaimed any responsibility for the notice or notices issued on behalf of defendants I to 7. Even after the auction, defendant 8 had a valid power of attorney in his favour and he did not receive any notice of cancellation' from any person and there was ample opportunity for defendants I to 7 to repudiate or cancel the power of attorney. He further stated that plaintiff was free to retrace his bid or seek cancellation of the sale at any time if he found the power of attorney had not authorised him to sell the property. Plaintiff not only did not resile from the sale, but further agreed and paid necessary amounts for stamps for purposes of registration. 8th defendant asserted that he had acted bona fide as a power of attorney holder of the first defendant and he was in no way responsible for any damages that plaintiff might have sustained in that behalf. He resisted the relief of specific performance prayed for and considered the damages claimed to be high which in any event could not be enforced against the 8th defendant. 7. 9th defendant does not appear to have filed any written statement. 8.On the above pleadings, the Trial Court framed as many as 23 issues which we think were quite unnecessary as most of the facts were not in dispute. We will set out those issues which we think were relevant in the light of the undisputed facts of the case. Issue No. 3 : Has the 8th defendant no right to sell the suit schedule item? Issue No. 10 : Is the plaintiff entitled to Rs. 7750.00 ;is damages? Issue No. 11 : Is not the plaintiff entitled to refund of Rs. 5625.00 paid by him as 1/4th of the amount? Issue No. 12 : Has the plaintiff paid Rs. 1000.00 on 17-8-1962 towards stamp paper and registration charges and Rs. 33.00 for 11 9 obtaining the encumbrance certificate? Issue No.. 13 : Is the plaintiff entitled to-specific performance of the contract by the defendants 1 to 7 executing a sale deed in his favour? 9. In support of their respective cases, plaintiff examined himself and two other witnesses as also the 8th defendant as P. W. 4 and defendants examined two witnesses including defendant1 as D. W. 2. Plaintiff got marked as many as 20 documents and the defendants got marked 4 documents. On appreciating the evidence, the trial Court came to the conclusion that the 8th defendant was competent, under Exhibit P-8, the power of attorney in his favour to sell the property in question by public auction. Having reached that conclusion, he held that defendants 1 to 7 were bound by the sale, and therefore, they were required to execute the sale deed as demanded by plaintiff, but refused to grant the prayer for specific performance holding that plaintiff was not entitled to the same in view of his having breached one of the terms of-the auction sale in not depositing the balance of bid amount on or before 17 -8-1962. In the result the prayer for specific performance was refused. but having regard to the evidence of P. W. 4 (defendant-8) that the initial amount paid by plaintiff having been applied to discharge part of the debts of defendants I to 7, he directed that defendants 1 to 7 should pay the same to plaintiff with interest at 12 per cent per annum from 21-8-1962 to 25-7-1964 and interest at 6 per cent per annum from the date of suit till the date of realisation. 10. We may here point out that he completely forgot to deal with Rs. 1,000/- received by 8th defendant towards registration fee and conveyance charges. It is in the light of this finding that both the appellants i.e., defendants 1 to 7 and plaintiff have before us presented these appeals and in the light of the contentions raised in the Trial Court, the q questions which we are called upon to answer may be stated as follows : (i) Was there a contract for sale of the suit-scheduled property between plaintiff and defendants 1 to 7 and, if so, whether plaintiff is entitled to a decree for specific performance? (ii) Whether plaintiff failed to deposit the balance of the bid amount as per the terms of the auction sale and if he failed to deposit whether he thereby forfeited his right to seek specific performance of the contract? (iii) Whether plaintiff is entitled to refund of 1/4th of the bid amount and Rs. ISM, -paid by him towards registration and conveyance charges? 11. Sri Mirle L. Krishnamurthy, learned Counsel appeared for plaintiff in R. F. A. No. 107"75, strenuously contended before us that there was no contract of sale which would bind or which would in any way oblige defendants 1 to 7 to convey the suit scheduled property as under Exhibit P-8, the power of attorney; that 8th defendant had not been authorised to effect a sale and, therefore, in the light of the cancellation of the power of attorney and the notice received by him from defendants 1 to 7 plaintiff was justified in not paying the balance of the bid amount before the same was actually executed in his favour by 8th defendant along with defendants 1 to7. He has commended to us to look at Exhibit P 8 as no more than a document which authorised 8th,defendant to negotiate and find a buyer for the items of properties and if seen that way, there would be no power to convey title on behalf of defendants 1 to 7 given under the power of attorney. It would be, therefore, useful to set out the relevant paragraphs in the power of attorney. Exhibit P-8, as follows : "(2) To discharge the debt due under the hypothecation deed dated 13-1-1956 hereby empower my power of attorney holder Sri Chugganmal Ghaziram, to sell the immoveable properties scheduled hereunder. (3) To give wide publicity of the sale of the scheduled properties and to advertise the same in some local paper on three successive weeks and to inform me the several offers made in respect of each item of the scheduled properties. (4) To make all possible arrangements to secure the best price in the scheduled properties either by selling the scheduled properties by public sale or otherwise. (5) To appropriate the sale proceeds realised after tile sale of the scheduled properties towards the discharge of the debt under the hypothecation deed dated 13th January. 1956, and intimate the same to me. And I hereby agree and undertake to ratify and confirm all and whatsoever my said Attorney Chugganmal Ghaziram shall do or purport to do by virtue of this deed." 12. Having regard to the clear language used in Para 2 extracted above, it is evident that power to sell the immoveable properties was indeed given to 8th defendant by the first defendant on behalf of himself and defendants 2, 3, 6 and 7. Even apart from the plain language employed to remove ambiguity, Mr. Krishnamurthy now wants us to read into that Clause ambiguity which did not exist when plaintiff had the inspection of Exhibit P-8 and other documents. Plaintiff in his evidence has stated that he verified that the 8th defendant had necessary power to sell the property. He further stated that seeing the documents he satisfied himself that he could purchase the property. If that is how he understood Exhibit P-8 at the relevant time before he made up his mind to bid at the auction, he cannot now call upon this Court to clear the ambiguity which does not exist in the document and to give benefit of construction to deny the power of sale to 81h defendant under Exhibit P-8. The rule of construction commended by the Learned Author in page 75, is that power of attorney should be construed and interpreted so as to give only such authority as is conferred expressly or by necessary implication. The rules of constructions suggested by him arc that the operative part of a deed should he controlled by the recitals where there is ambiguity: where authority is given to do particular acts, followed by general words, the general words should be restricted to what is necessary for the proper performance of the particular acts authorised; general words do not confer general powers, but should be limited to the purpose for which the authority is given and should be construed as enlarging the special powers only when it is necessary for that purpose: and the deed must be construed so as to include all incidental powers necessary for its effective execution, If we apply the above rules of construction commended and accepted, in our jurisprudence, it is easy to see that Mr. Krishnamurthy's contention cannot succeed. 13. Paragraph-4 clearly specifies the purpose for which the power is conferred. The purpose is to enable the power of attorney holder to discharge the admitted debts of the donors of the power, i.e., 1 to 11. By employing the expression "to sell," the donors have made it clear that their agent is authorised to do all that is necessary in accordance with law to complete the act of selling or the sale. In paragraph 5 of the power of attorney extracted above, the agent is required to apply the sale proceeds to the discharge of the debts which by necessary implications means that the agent should receive the consideration of the sale if he is specifically authorised to receive. Then it further strengthens the in caning we have given to the expression "to sell" with all its incidental powers to necessary mean that the agent had the power to convey proper title under Exhibit P-8. In that sense, the Trial Court was correct in coming to the conclusion that plaintiff had acquired the right to enforce the obligation arising out of the public auction against the defendants 1 to 7. Defendants 1 to 7, therefore, cannot escape their liability having, regard to the plain language of Section 226 of the Contract Act and Section 2 of the Power of Attorney Act. We, therefore, sustain the conclusion reached by the Trial Court in this regard. 14. Though defendants 1 to 7 are not directly parties to any contract between plaintiff and 8th defend ant, through the sub-agency of defendant-9, the effect of the acts done by 8th and 9th defendants in terms of Exhibit P-8 is such that the principal who authorised the agent to perform such act is bound by the actions of the agents. Therefore, though there is direct contractual obligations between plaintiff and defendants I to 7, they are bound to perform the obligations arising out of the public auction between plaintiff and 8th defendant by virtue of the power of attorney given and by reasons of, S. 226 of the Contract Act. 15. This takes us to the second question. Mr. Krishnamurthy strenuously contended that the Trial Court was in error in recording a finding that the breach of the terms of sale was committed by plaintiff which disentitled him to seek specific performance. He contended that there was sufficient justification for plaintiff not to pay the balance of the bid amount on or before 17-8-1962. We are unable to see how there could be any justification. Admittedly, the power of attorney was cancelled only a week after the sale was held. Plaintiff came to know of it only when he received the notice from defendants I to 7 much later i.e. on or about 21-8-1962. He has pursued his queries and investigation of title between 2-8-1962 and 17-8-1962. He has even paid Rs. 1,000/- towards registration fee and conveyance charges, but he has declined to have the sale deed executed by only 8th defendant, the power of attorney holder. He has insisted that defendants I to 7 should also join in the execution of the sale deed in his favour. That fact is admitted in the plaint itself apart from being crystal clear from a perusal of Exhibits P-16 and P-18. We, therefore, do not think that there was sufficient justification for plaintiff not to conform to the terms of the auction sale which are to be found at Exhibits P-18 and P-19(a) which were published in the newspaper when the advertisement of the sale was inserted. He relied upon sonic of the decisions of the Supreme Court in support of his contention that he was justified because of the ambiguity and the doubt created about the competency of defendants to sell. The drew our attention to the decision of the Supreme Court in Abdulla Ahmed v, Animendra Kissen . In that case what fell for consideration was a letter of authorisation issued by one in favour of other to negotiate the sale of his property free from all encumbrances at a price not less than Rupees one lakh. Interpreting the letter of authorisation per majority, it was held that the letter did not authorise the agent to sell but only to negotiate or being the buyer and the seller together and no more. We are indeed bound by that decision. That view was taken by the Supreme Court on the language employed in the letter of authorisation and that is not the case here. Here, as we have already noticed, there was no room for ambiguity in the power of attorney. 16. The other decisions relied upon by the learned counsel, in our opinion, do not have any bearing or application to the facts of the case. In the result, we must answer the second question also against the plaintiff and examine the last question as to what relief plaintiff is entitled to. 17. Defendants 1 to 7 have at no time denied the fact that 1/4th of the bid amount received by the auctioneer and apparently transferred to the 8th defendant has been applied to discharge the debts to which reference has been made in the power of attorney, Exhibit P-8. In fact, it has been elicited in the cross examination of defendant 8 (P. W. 4) that he applied the funds for discharging the debts in accordance with the power of attorney. If that way the defendants are benefited, defendants 1 to 7 to the extent are enriched by the money belonging to plaintiff and they must refund the same if they are not bound to convey the house. 18. Whatever the reasons the trial Court might have given, the conclusion reached by it that defendants 1 to 7 are liable to pay together with interest at 12 per cent per annum from 21-8-1962 to 25-7-1964 and thereafter at 6 per cent per annum from the date of suit till t he date of realisation in our opinion is sound and does not call for interference. 19. We have already pointed out earlier that the Trial Judge has totally forgotten about the claim of refund of Rs. 1,000/- paid to 8th defendant towards registration fee and conveyance charges on 17-8-1902. This has been admitted by 8th defendant, but no order has been made in regard to this amount. It is unfortunate that 8th defendant is not represented before us. He has remained ex parte. Possible that amount could not have been applied for discharging the debts. He has clearly stated in the evidence that 1/14th of the hid amount received by him was applied to the discharge of debts of defendants 1 to 7. 20. In the result, we allow R. F. A. 107/75 in part. While affirming the decree of the Trial Court, we further direct that there shall also be a decree for Rs. 1,000/- as against defendants 1 to 8 without interest. Costs to the extent of success only. 21. In the light of the conclusions reached in R. F. A. No. 107/75, R. F. A. No. 95/75 stands dismissed. 22. Appeals dismissed.

Author: C Urs

Doddarajappa vs Venkoba Rao on 2 April, 1985

Karnataka High Court

Court No. - 6 Case :- WRIT - C No. - 17960 of 2009 Petitioner :- Ashok Kumar Respondent :- State Of U.P. And Others Petitioner Counsel :- S.K. Tyagi Respondent Counsel :- C.S.C. Hon'ble Prakash Krishna,J. In Re:Application No.185201 of 2009. List has been revised. None is present to oppose the present application nor any counter affidavit has been filed. This is an application on behalf of the petitioner for issuing the necessary direction to the respondents to pay the sum already awarded to the petitioner. The case of the petitioner in brief is that the labour court by its award passed in case no.325 of 1994 by the order dated 28.5.2008 has awarded 50% back wages. The grievance of the petitioner is that the amount is not being paid to the petitioner although the employer respondent has not challenged the said part of the award. Taking into consideration the entire facts and circumstances of the case, the labour court is hereby commanded to execute the award within a period of one month from the date of production of a certified copy of this order unless there is any stay order or any other order passed by any competent court of law. The application is accordingly disposed of . Order Date :- 23.7.2010 VPC

Ashok Kumar vs State Of U.P. And Others on 23 July, 2010

Allahabad High Court

[Section 10] [Complete Act]

Central Government Act

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

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 4504 of 2010() 1. VRINDA VARMA, MANAGER, ... Petitioner Vs 1. GEORGEKUTTY ABRAHAM, ... Respondent 2. STATE OF KERALA, For Petitioner :SRI.P.VIJAYA BHANU (SR.) For Respondent :SRI.NOBLE MATHEW The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :08/12/2010 O R D E R M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4504 OF 2010 --------------------------------------------- Dated 8th December, 2010 O R D E R A refer report was filed by the Sub Inspector of Police, Ernakulam Town South Police Station in Crime No.749/2009 before Chief Judicial Magistrate, Ernakulam. Notice was issued on the refer report to the de facto complainant by Additional Chief Judicial Magistrate, as he bound to issue notice to the de facto complainant, before considering the question whether the refer report is to be accepted or not. As the de facto complainant had received notice of the refer report from the police, he filed Annexure-A protest complaint before Additional Chief Judicial Magistrate.  Crmc 4504/10 2 Additional Chief Judicial Magistrate without deciding the question whether the refer report is to be accepted or not, took cognizance of the offence in Annexure-A complaint and issued summons to the petitioner, the accused, in C.C.3289/09. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken. 2. Learned counsel appearing for the petitioner and learned counsel appearing for the first respondent/complainant in C.C.3289/2009 were heard. 3. Learned counsel appearing for the petitioner made available certified copy of the refer report, filed under Section 173(2) of Code of Criminal Procedure. It shows that on receipt of the refer report, learned Magistrate issued notice to the de facto complainant and as it was not served on two occasions, it now  Crmc 4504/10 3 stands posted to 27/1/2011 for return of notice. It is thus clear that learned Chief Judicial Magistrate took cognizance of the offence on Annexure-A complaint, before considering whether the refer report is to be accepted or not. In such circumstances, cognizance taken in Annexure-A complaint in C.C.3289/2009 can only be quashed and Additional Chief Judicial Magistrate is to be directed to consider the question of taking cognizance along with the question whether refer report is to be accepted or not on 27/1/2011. First respondent can appear in the inquiry to be conducted by the Additional Chief Judicial Magistrate, on the refer report on that day. Petition is allowed. Cognizance taken on Annexure-A complaint in C.C.3289/2009 on the file of Additional Chief Judicial Magistrate,  Crmc 4504/10 4 Ernakulam is quashed. Additional Chief Judicial Magistrate is directed to consider Annexure-A complaint along with the refer report which now stands posted to 27/1/2011. If Additional Chief Judicial Magistrate has already recorded, statement of the complainant witnesses as provided under Section 202 of Code of Criminal Procedure Magistrate need not record the statements again. Learned Magistrate shall consider whether cognizance is to be taken on Annexure-A complaint only on considering the refer report also and shall also consider whether the refer report is to be accepted or not. M.SASIDHARAN NAMBIAR, JUDGE. uj.

Vrinda Varma vs Georgekutty Abraham on 8 December, 2010

Kerala High Court

Court No. - 40 Case :- FIRST APPEAL FROM ORDER No. - 2058 of 2010 Petitioner :- Uttar Pradesh State Road Transport Corp. Thru' Reg. Manager Respondent :- Smt. Geeta & Others Petitioner Counsel :- V.K. Oj ha Hon'ble Satva Poot Mehrotra.J. Hon'ble Shyam Shankar Tiwari,J. Case called out. None is present for the appellant. Put-up as fresh on 14.9.2010. Order Date :- 6.8.2010 aks

Uttar Pradesh State Road ... vs Smt. Geeta & Others on 6 August, 2010

Allahabad High Court

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1736 OF 2007 Jalpat Rai & Ors. ...Appellants Versus State of Haryana ...Respondent WITH CRIMINAL APPEAL NO. 1306 OF 2006 JUDGEMENT 6. Haemo thorax and Haemo peritoneum present." R.M. LODHA, J. On October 2, 2002 two persons - Sunil and Chand - were shot dead and three persons - Pawan, Rohtas and Rakesh - got injured in the town of Jind (Haryana). One of the injured, Pawan died after three days. In connection with that incident, six persons--Jalpat Rai (A-1), Shyam Sunder (A-2),  Satish Kumar (A-3), Purshotam (A-4), Harinder alias Kala (A-5) and Pawan (A-6) -- were tried by the Additional Sessions Judge, Jind for the offences punishable under Section 148, Section 302 read with Section 149, Section 307 read with Section 149 and Section 323 read with Section 149 IPC. Four of them were also charged for the offence punishable under Section 27 of the Arms Act, 1959. The trial court vide its judgment dated November 20, 2004 convicted A-2 under Section 302 IPC and sentenced him to suffer life imprisonment and imposed a fine of Rs.25000/- with default stipulation. A-2 was also convicted for the offence under Section 27 of the Arms Act, 1959 and sentenced to undergo imprisonment for a term of one year with a fine of Rs.1000/- with default stipulation. The trial court acquitted A-1, A-3, A-4, A-5 and A-6 of all the charges. 2. Against the judgment of the trial court, two criminal appeals and one criminal revision came to be filed before the High Court of Punjab and Haryana. The State preferred appeal being Criminal Appeal No. 95-DBA of 2006 aggrieved by the acquittal of A-1, A-3, A-4, A-5 and A-6. The complainant party 2  filed a criminal revision being Criminal Revision No. 578 of 2005 against the acquittal of the five accused and for enhancement of sentence. A-2 preferred criminal appeal being Criminal Appeal No. 42-DB of 2005 against his conviction. 3. The High Court heard all the three matters together and by a common judgment dated September 20, 2006; allowed the appeal of the State and convicted A-1, A-3, A-4, A- 5 and A-6 under Section 148 and Section 302 read with Section 149 IPC. A-5 was also convicted under Section 323 IPC. All these five accused have been sentenced to undergo imprisonment for life. A fine of Rs. 10,000/- with default stipulation was also imposed on them. Insofar as A-2 is concerned, the High Court modified his conviction from Section 302 to Section 302 read with Section 149 IPC while maintaining the sentence awarded to him by the trial court. In light of the judgment in the appeal preferred by the State, the criminal revision preferred by the complainant party was dismissed. 4. A-1, A-3, A-4, A-5 and A-6 are the appellants in the two appeals before us filed under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 3  1970 (for short, `1970 Act'). A-2 filed special leave petition against his conviction which came to be dismissed by this Court summarily. 5. The prosecution case in regard to the incident leading to the triple murder is this: On October 2, 2002 at about 9.00 p.m., Sewa Singh (PW-1) and one Subhash Gaba were sitting in their office (Nav Bharat Transport Company) situate at Phuara Bazar, Jind. At that time, A-2, A-3 and A-4, all sons of A-1, passed in front of their office and went towards Chamber Dharamshala. They were armed with firearms. PW-1 suspected their movement as he had long standing truck owners' union rivalry with A-2 and his family. PW-1 came out of his office and saw that A-2 was talking with someone on mobile phone. After about 10/15 minutes, A-1 came there on a motorcycle. He, too, carried firearm with him and was accompanied by a boy. Sensing some danger from A-1, A-2, A-3 and A-4, PW-1 telephoned his brother Rohtas (PW-4) who along with his nephews Chand, Sunil, Pawan, Arun and Rakesh (PW-8) reached the office of PW-1 in about 10/15 minutes. PW-1 told his brother (PW-4) that A-1 and his sons had 4  gathered nearby and might commit some mischief. On the advise of PW-4, the office was closed and PW-1, PW-4, their nephews and Subhash Gaba left for their homes. Hardly had they started that A-2 fired one shot from behind with a licensed pistol which he was carrying. PW-1 and his nephews ran towards A-2 to catch him but A-2 fired another shot from his pistol that hit Chand on the left side of his chest. A-4 fired a shot from the pistol he was carrying which hit Sunil on the left side of his chest. A-3 and A-1 then started firing shots from their guns. A-2 and A-4 repeated firing from their firearms. As a result of the shots fired by A-2 and A-4, PW-4 and Pawan received injuries. Pawan, Chand, Sunil and PW-4 fell on the ground. A-5 who was armed with sword gave the sword blow to PW-8. All the accused persons then fled from the spot. 6. After the firing, few persons gathered at the place of occurrence and took the injured persons--Chand, Sunil, Pawan and PW-4 to the General Hospital, Jind for treatment. On way to the hospital, Chand and Sunil succumbed to the injuries and died. Pawan and PW-4 were referred to PGI, Rohtak for further 5  treatment. PW-1 had also informed the Control Room of the incident. 7. At about 11.30 p.m., the doctor on duty at General Hospital, Jind sent two rukkas (Ex. PP and Ex. PQ) to the Police Station City, Jind informing them that Sunil and Chand were brought dead while Pawan and PW-4 were brought injured. On receipt of the two rukkas, Haricharan (PW-20) who was Sub-Inspector left the Police Station for General Hospital, Jind along with two constables. At the main gate of the General Hospital, PW-20 met PW-1 who gave his statement which was reduced into writing. Based on the statement of PW-1, the first information report was registered in the midnight at 12.30 a.m. (October 3, 2002) under Sections 302/307/148/149 IPC and the Arms Act. 8. PW-20 commenced investigation and visited the place of occurrence. The office of Nav Bharat Transport Company is adjacent to the Chamber Dharamshala situate in the busy market area which has shops, offices and hospitals. The Chamber Dharamshala has seven shops, four on the one side and three on the other. At the place of occurrence, PW-20 6  recovered one belcha, one sword, four pair of chappals, one Maruti car, one scooter, two Hero Honda motorcycles (one of which was without registration number), one wrist watch and three empties of used .32 calibre bullets. PW-20 also conducted inquest on the dead bodies of Chand and Sunil on October 3, 2002 before they were handed over for autopsy. 9. Dr. Kuldeep Singh Rana (PW-5), Medical Officer, General Hospital, Jind conducted the post-mortem examination on the dead body of Sunil on October 3, 2002 at 9.00 a.m. In the post-mortem report, he recorded as follows : In the opinion of PW-5, the cause of death of Sunil was due to shock and haemorrhage because of firearm injuries to vital organs. He opined that the injuries were ante mortem and sufficient to cause death in normal course of nature. 10. On the same day at about 9.30 a.m., PW-5 conducted post-mortem examination on the dead body of Chand. He found the following injury on the dead body of Chand: In the opinion of PW-5, the cause of death of Chand was due to shock and haemorrhage because of firearm injury to vital organs. 11. Pawan was medically examined by Dr. Rajesh Gandhi (PW-6) on October 2, 2002 at about 10 p.m. as soon as 8  he was brought to the General Hospital, Jind. On the person of Pawan, PW-6 found the following injury: He advised X-ray and Surgeon's opinion. 12. PW-6 also examined PW-4 on October 2, 2002 at about 10.15 p.m. and found the following injury on his person: 13. PW-6 examined PW-8 on October 3, 2002 at about 3.40 p.m. and the following injury was found on his person. 14. On October 5, 2002, the investigation of the case was entrusted to Inspector Wazir Singh (PW-23). He conducted further investigation. PW-23 sought to record the statements of PW-4 and injured Pawan but both were not fit to give 9  statements. Pawan succumbed to injuries on October 6, 2002 and his statement could not be recorded. 15. The post-mortem examination on the dead body of Pawan was conducted by Dr. R.K. Nandal (PW-9) on October 6, 2002. At the time of post-mortem examination, he found the following injuries on the body of Pawan: 16. The statement of PW-4 was recorded by PW-23 on October 8, 2002. 17. PW-23 arrested A-1 on October 14, 2002 while A-2 and A-3 were arrested on October 26, 2002. Based on the disclosure statement of A-2, PW-23 recovered one licensed pistol of .32 bore and one licensed rifle of .22 bore. In pursuance of the disclosure statement of A-3, one licensed pistol of .32 bore and one rifle of .12 bore were recovered by PW-23. 18. The bullets recovered from the dead bodies, the empties of bullets picked up by PW-20 from the place of occurrence, the firearms seized pursuant to disclosure statements and the clothes of dead persons were sent for forensic/ballistic examination by PW-23 on November 14, 2002 to the Forensic Science Laboratory Haryana, Madhuban (Karnal). 19. On completion of investigation, the challan was submitted against A-1, A-2, A-3, A-4, A-5 and A-6 in the Court of Chief Judicial Magistrate, Jind who, by his order dated 11  January 7, 2003, committed them for trial by the Court of Sessions, Jind. 20. The Sessions Judge, Jind framed the charges against the six accused persons (A-1, A-2, A-3, A-4, A-5 and A-6) on April 18, 2003 as follows : 21. The prosecution in support of its case examined 23 witnesses in all . Three of these witnesses, PW-1, PW-4 and PW-8 were tendered as eye-witnesses to the occurrence. Inter-alia, Inquest Reports, Post-mortem Reports, Forensic Science Laboratory Examination Reports, Site Plans [rough 13  plan prepared by IO and the other by draftsman) were got exhibited. 22. The statement of the accused persons was recorded under Section 313, Cr.P.C. The accused persons denied their involvement in the crime and stated that they have been falsely implicated. 23. The trial court, as indicated above, acquitted the present appellants and convicted A-2 under Section 302 IPC and Section 27 of Arms Act, 1959. The trial court, inter alia, held that the ocular testimony of PW-1, PW-4 and PW-8 was not reliable. It does not get corroborated from the medical evidence and their version is contradictory to the report of the ballistic expert. We intend to refer to the trial court's view about their evidence a little later. 24. The opinion of the High Court differed with that of the trial court. The High Court held that the evidence of PW-1, PW-4 and PW-8 in totality was cogent, convincing and truthful. 25. Mr. Sushil Kumar, learned senior counsel representing A-1, A-3, A-4 and A-5 vehemently assailed the judgment of the High Court. He argued that the acquittal of the 14  appellants by the trial court was based on proper appreciation of the entire evidence on record. The view taken by the trial court was a reasonable and possible view on consideration of the evidence in totality which the High Court ought not to have disturbed. He relied upon few decisions in this regard, particularly, Ghurey Lal v. State of Uttar Pradesh1 and Mahtab Singh and Anr. v. State of Uttar Pradesh2. 26. Learned senior counsel, while relying upon the decision in Mahtab Singh2, also submitted that the first information report (FIR) was not only delayed but was also a suspect and doubtful document. Mr. Sushil Kumar submitted that PW-1 was not an eye-witness and pointed out various discrepancies in the testimony of PW-1 to buttress his argument that PW-1 was not present at the time of incident. 27. As regards the evidence of PW-4, learned senior counsel submitted that he had not disclosed anything to the doctor in the hospital. According to him, PW-4 did not suffer any injury in the incident. He contended that although PW-4 deposed that he was injured by a gunshot but he did not have a 1 (2008) 10 SCC 450 2 (2009) 13 SCC 670 15  single pellet in his body; his clothes had no perforation. Learned senior counsel submitted that his statement was recorded on October 8, 2002 for the first time as, according to him, he was unconscious upto that date but the medical record showed otherwise. 28. Mr. Sushil Kumar, learned senior counsel was also critical about the deposition of PW-8. He submitted that PW-8 was an introduced witness. His presence is not stated in the FIR. PW-8 does not get himself medically examined at Jind on the day of incident or at Rohtak but goes to a private doctor and tells him that he suffered injuries because he fell accidentally. He, thus, submitted that the evidence of PW-1, PW-4 and PW-8 was not reliable and trustworthy. In support of his submission, he cited Balakrushna Swain v. State of Orissa3, Balak Ram v. State of U.P.4, Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel & Ors.5 and Darshan Singh v. State of Punjab & Anr.6. 3 (1971) 3 SCC 192 4 (1975) 3 SCC 219 5 (2004) 10 SCC 583 6 (2010) 2 SCC 333 16 29. Learned senior counsel strenuously urged that the circumstantial evidence on record clearly disproves the prosecution case. No blood was found on the spot and there was absence of blood on the clothes of the person who is said to have carried the injured. The ballistic evidence completely rules out complicity of the appellants. He relied upon the decisions of this Court in the cases of Khima Vikamshi and others v. State of Gujarat7, Balwan Singh v. State of Haryana8, Brijpal Singh v. State of M.P.9, Ghurey Lal1, Mahendra Pratap Singh v. State of Uttar Pradesh.10 and Darshan Singh6. 30. Learned senior counsel for the appellants also submitted that number of deaths does not matter in appreciation of evidence. According to him, the High Court was unnecessarily influenced by the fact that three murders in the same family had taken place resulting in erroneous appreciation of the evidence. In this regard, he cited State of 7 (2003) 9 SCC 420 8 (2005) 11 SCC 245 9 (2003) 11 SCC 219 10 (2009) 11 SCC 334 17 U.P. v. Moti Ram and others11, Deepak Kumar v. Ravi Virmani & Anr.12 and Asif Mamu v. State of Madhya Pradesh.13 31. It was also contended by Mr. Sushil Kumar that in the event of conviction of the appellants being set aside, A-2 may also be granted same relief although his SLP has been dismissed. He would contend that SLP filed by A-2 was non-est since he had a right of appeal under Section 2 of the 1970 Act and, therefore, the order of this Court dismissing his SLP is also non-est. In support of his contention, he referred to few decisions of this Court, namely, Harbans Singh v. State of Uttar Pradesh and others14, A.R. Antulay v. R.S. Nayak and another15, Raja Ram and Ors. v. State of M.P.16, Deepak Kumar12, Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra17 and Shingara Singh v. State of Haryana & another18. 32. Mr. Arun Bhardwaj, learned counsel for A-6 contended that A-6 has been falsely implicated in the incident. He referred to the evidence of PW-1 and submitted that not a 11 (1990) 4 SCC 389 12 (2002) 2 SCC 737 13 (2008) 15 SCC 405 14 (1982) 2 SCC 101 15 (1988) 2 SCC 602 16 (1994) 2 SCC 568 17 (2003) 2 SCC 708 18 (2003) 12 SCC 758 18  word is stated by him about the involvement of A-6. He argued that the prosecution evidence does not establish the complicity of A-6 at all and the High Court was in error in reversing the judgment of acquittal as regards him. 33. Ms. June Chaudhari, learned senior counsel for the State opposed the submissions of the learned senior counsel and the learned counsel for the appellants with equal vehemence. She stoutly defended the judgment of the High Court and submitted that from the entire evidence let in by prosecution and considered by the High Court, it is apparent that the view taken by the High Court is the only possible view and the High Court was fully justified in reversing the judgment of the trial court. She submitted that Section 149 IPC was integral part of the charge and the prosecution evidence establishes the unlawful assembly of which A-1, A-3, A-4 and A-5 were members along with A-2 and the three murders were committed in pursuance of its common object. She submitted that all the members of the unlawful assembly were armed with deadly weapons and their conviction by the High Court does not suffer from any legal or factual infirmity. 19 34. That Chand, Sunil and Pawan died homicidal death is neither in doubt nor in issue. The question that arises for our consideration is whether the High Court was justified in interfering with the order of acquittal passed in favour of the appellants by the trial court. Obviously, if the complicity of the appellants (A-1, A-3, A-4, A-5 and A-6) with the crime is established beyond any reasonable doubt, the view of the High Court would not call for any interference. 35. The two courts - High Court and the trial court -- have divergence of opinion with regard to the evidence of eye witnesses. The trial court rejected the evidence of PW-1, PW-4 and PW-8 for the following reasons : It seems that there was a brawl between accused Shyam Sunder and some members of the complainant party on that fateful evening. The medical evidence reveals that there was flame effect, blackening and tattooing at the entry wounds on all the three bodies meaning thereby that the shots had been fired from point-blank range. The recovery of the articles like Belcha and Sword at the spot goes to show that accused Shyam Sunder may have found himself in imminent danger and he resorted to firing from his licensed pistol thereby claiming the lives of the three youngmen. Accused Shyam Sunder has not 20  pleaded the right of private defence of person and property but he has pleaded false implication at the hands of the sworn enemies of the family. The circumstances of the case also do not warrant the extension of such concession to him. He had not suffered any serious injury in the incident and the claim for use of force in defence of person and property has to be completely excluded in this case. P.W. Rohtas did not suffer a firearm injury in the incident. Similarly, P.W. Rakesh had allegedly offered himself for medico legal examination to a private medical practitioner and he had told him that he had suffered the injuries in an accidental fall. It is also evident that complainant Sewa Singh may not have at all witnessed the occurrence but he offered to lodge the First Information Report after due deliberations and consultations. A story was concocted with intent to implicate all the male members of the family of accused Jalpat Rai. A last minute efforts was made to rope in his other two sons namely, Vinod and Sushil by moving an application under Section 319 of the Criminal Procedure Code which was eventually withdrawn by the learned Public Prosecutor on prevalence of better counsel upon him. All the three alleged eye witnesses have rendered highly contradictory versions and their evidence does not receive corroboration from the medical evidence and the ballistic expert's report. It shall be absolutely absurd to say that multiple firearms were used in the incident. All the three deaths were caused by the use of .32 bore licensed pistol (Exp. 22) owned by accused Shyam Sunder and this court has very valid reasons to believe that he had pressed the trigger each time. Let it be made absolutely clear here that it is not the case of the prosecution that the licensed firearm of accused Shyam Sunder had been taken away from him by any other accused or that it had been used for gunning down the three victims. It is the case of the prosecution that accused Shyam Sunder had triggered off the incident by firing a shot from his pistol even as the complainant and his companions were walking away from him. It is also the case of the prosecution that the complainant and his companions 21  turned about and rushed to nab accused Shyam Sunder but he fired a shot at Chand which hit him in the left flank and killed him. The same weapon was used for causing firearm injuries to deceased Sunil and deceased Pawan. Therefore, there should be no manner of doubt about the direct involvement of accused Shyam Sunder in the commission of the alleged crime." 36. On the other hand, the High Court was not convinced with the reasoning of the trial court and found the evidence of PW-1, PW-4 and PW-8 cogent, convincing and truthful. The High Court with regard to their evidence observed thus : 37. PW-1 and PW-4 are real brothers. PW-8 and the deceased are nephews of PW-1 and PW-4. The presence of 22  PW-1, PW-4 and PW-8 at the time of incident, does not appear to us to be doubtful. The trial court has doubted the presence of PW-1 at the place of occurrence but we find it difficult to accept the reasoning of the trial court in this regard. Being transporter, the presence of PW-1 in his office at about 9.00 p.m. was not unnatural. It was his good luck that he did not receive any injury in the incident. We do not think that absence of any injury on his person renders his presence doubtful. The presence of PW-4 and PW-8 at the time of incident also cannot be doubted. Both of them suffered injuries. Both, PW-4 and PW-8, were medically examined by PW-6. PW-4 was examined by PW-6 immediately after the incident at about 10.15 p.m. on October 2, 2002. PW-8 was examined by PW-6 on the next day, i.e. October 3, 2002 in the afternoon. The trial court doubted that the injury suffered by PW-4 was from the firearm but the evidence of Dr. Paryesh Gupta (PW-19) leaves no manner of doubt that PW-4 received firearm injury in the incident. PW-19 deposed that PW-4 was operated upon for a firearm injury in the abdomen on October 3, 2002 in the emergency O.T. and the firearm was used from a close range. 23  However, the presence of PW-1, PW-4 and PW-8 at the time of incident does not guarantee truthfulness. The question is whether their testimony is trustworthy and reliable insofar as complicity of the appellants with the crime is concerned or they have tried to involve the innocent along with the guilty. 38. Broadly, the evidence of PW-1, PW-4 and PW-8 has been indicated by us while narrating the prosecution case and by reason therefor, we need not reiterate the same except the salient features emerging therefrom. PW-1 had a long standing rivalry with A-1 in connection with Truck Owners' Union. Their rivalry has led to many criminal cases being filed against each other. PW-1 was prosecuted earlier for causing injuries to A-1 and others. On September 12, 2002, i.e., about 20 days prior to the date of present incident, an FIR was registered against PW-1 and his partner under Sections 323, 506, 148 and 454 IPC at Police Station City, Jind for causing injuries to one Shambir. In that incident, A-2 was an eye- witness. Two days later, on September 14, 2002, PW-1 reported to the police against A-2, A-3, A-4 and A-5 by way of counter case but police did not take any action. A complaint 24  was then lodged by PW-1 party against A-2, A-3, A-4 and A-5 in the Court of Additional Chief Judicial Magistrate, Jind. 39. PW-1, PW-4 and PW-8 are not only much interested in the prosecution case but they are inimically disposed towards the accused party as well. The deep rooted enmity and serious disputes between PW-1 on the one hand and A-1 and his sons on the other and their unflinching interest in the prosecution case necessitate that the evidence of PW-1, PW-4 and PW-8 is considered with care and caution. To find out intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record. There cannot be a rule of universal application that if the eye- witnesses to the incident are interested in prosecution case and/or are disposed inimically towards the accused persons, there should be corroboration to their evidence. The evidence of eye-witnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a caliber as to be regarded as wholly reliable could be 25  sufficient and enough to bring home the guilt of the accused. But it is reality in life, albeit unfortunate and sad, that human failing tends to exaggerate, over-implicate and distort the true version against the person/s with whom there is rivalry, hostility and enmity. Cases are not unknown where entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime. In the circumstances of the present case, to obviate any chance of false implication due to enmity of the complainant party with the accused party and the interestedness of PW-1, PW-4 and PW-8 in the prosecution case, it is prudent to look for corroboration of their evidence by medical/ballistic evidence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The lack of corroboration from medical and ballistic evidence and the circumstances brought out on record may ultimately persuade that in fact their evidence cannot be safely acted upon. 40. Besides PW-1, PW-4 and PW-8, who are closely related to the three deceased, no other independent witness 26  has been examined although the incident occurred in a busy market area. The place of occurrence was visited by PW-20 in the same night after the incident. He found three two- wheelers one bearing no. HR--31--A/5071, the second bearing no. RJ--13--M/7744 and the third without number lying there. One Maruti car bearing no. HR--20--D/8840 with broken glasses was also parked there. The owners of these vehicles have not been examined. At the place of occurrence, one HMT Quartz wrist watch with black strap, one belcha and four pair of chappals were also found. There is no explanation at all by the prosecution with regard to these articles. Nothing has come on record whether four pair of chappals belonged to the accused party or the complainant party or some other persons. Whether HMT Quartz wrist watch that was found at site was worn by one of the accused or one of the members of the complainant party or somebody else is not known. Then, the mystery remains about belcha that was found at site. These circumstances instead of lending any corroboration to the evidence of those three key witnesses, rather suggest that they have not come out with the true and complete disclosure 27  of the incident. 41. If the evidence of PW-1, PW-4 and PW-8 is to be believed then there was indiscriminate firing by the accused party at the complainant party. PW-1 has said so in so many words. Four members of the accused party - A-1, A-2, A-3 and A-4 - were armed with firearms. According to these witnesses, all of them fired shots from the firearms they were carrying. The first shot was fired by A-2 from the pistol he was carrying (although in the FIR it is recorded that A-2 was armed with revolver but this inconsistency is not very material). That shot did not hit anyone. A-2 then again fired shot that hit Chand. A-4 fired a shot with pistol that hit Sunil. A-3 and A-1 fired shots from their guns and A-2 and A-4 also fired shots from the pistols causing injuries to Pawan and PW-4. However, at the place of occurrence, only three empties were found. Had the firing taken place in the manner deposed by PW-1, PW-4 and PW-8, obviously there should have been more empties at the place of occurrence. It is conjectural to assume, as has been done by High Court, that the Investigating Officer was not able to recover more than three empties because the occurrence 28  took place in `chowk' and by the time he reached at the site, a lot of traffic must have passed there. Moreover, at the scene of occurrence, there were no marks of indiscriminate firing. 42. The medical evidence is clear and specific that the three deceased--Chand, Sunil and Pawan received one firearm injury each. The blackening and singeing injuries leave no manner of doubt that shots were fired at the deceased persons from a very close range. As a matter of fact, medical evidence is categorical to that effect. However, the ocular account given by PW-1, PW-4 and PW-8 does not indicate that. 43. The ballistic report records unambiguously and unequivocally that the crime bullets (BC/1 to BC/3) and the cartridge cases (C/1 to C/3) were fired by the pistol stated to have been recovered from A-2 and no other firearm. The cartridge cases and the crime bullets have positively matched to 7.65 mm pistol no. 109033-2002. This pistol is licensed pistol of A-2 and was recovered from him in dismantled condition with parts separated in three pieces. The Forensic Science Laboratory marked the above pistol `W/2' for the 29  identification purposes. Based on the examination carried out in the Laboratory, the result of analysis is recorded as under: The ballistic evidence is clearly in conflict with the evidence of PW-1, PW-4 and PW-8 and shatters their evidence completely vis-`-vis the appellants. The testimony of PW-1, PW-4 and PW-8 about the role of appellants, thus, is not corroborated by medical and ballistic evidence. Their evidence also does not get support from the collateral circumstances that have come on record. 44. The deposition of PW-1, PW-4 and PW-8 suffers from significant improvements and omissions as well. PW-1 deposed that he did not tell the police that Satish had fired from his .12 bore licensed gun, Jalpat had fired from .22 rifle of Shyam Sunder and Purshotam had fired from .32 licensed pistol of Satish but when he was confronted with portion A to A of his statement (Ex. DA) before police, it was found that it was so recorded. He testified that he had stated in his 30  statement to the police that A-5 had caused injuries to PW-8 but when confronted with that statement, it was found that it was not so stated. PW-4 deposed that he had told the police that A-4 had fired at Sunil from his revolver but when confronted with that statement, it transpired that it was not so stated. He also deposed that he had told the police that A-5 had given a sword blow to PW-8 on his temple but when he was confronted with that statement, it was found that it was not so stated. PW-8 deposed that he had stated before the police that the shots fired by A-3 and A-1 from their guns did not hit anyone but when confronted with that statement, it transpired that he has not so stated. 45. As regards arrival of A-5 at the place of occurrence, the evidence of PW-1 and PW-8 is not consistent. PW-1 has deposed that A-5 was also present with the other accused when the incident started; he was armed with sword and caused injuries with the sword to PW-8. PW-8, on the other hand, has stated that A-5 descended on the scene of occurrence after firing had started. 31 46. We have indicated broadly some of the more serious infirmities in the evidence of the eye-witnesses (PW-1, PW-4 and PW-8) in order to indicate that their evidence at any rate is not wholly true and it is unsafe to act on their evidence insofar as complicity of A-1, A-3, A-4, A-5 and A-6 is concerned. Brushing the impact of these infirmities aside , the High Court erroneously treated the evidence of PW-1, PW-4 and PW-8 cogent, convincing and truthful. All in all, the evidence of PW-1, PW-4 and PW-8 lacks in credibility and is not of sterling worth to prove the involvement of A-1, A-3, A-4, A-5 and A-6 in the crime beyond any reasonable doubt. As regards A-6, as a matter of fact, it was conceded by the learned senior counsel for the State that there was no reliable evidence to prove his involvement in the crime. The appellants, in our opinion, are entitled to benefit of doubt. 47. Incidentally, Vinod and Sushil (sons of A-1) were also shown as assailants in the FIR. In the investigation, their presence was not established; they were not charge-sheeted. PW-1, PW-4 and PW-8, however, in their deposition before the Court made an attempt to implicate them. Based on their 32  deposition, the public prosecutor made an application under Section 319 of Cr.P.C. for summoning those two sons of A-1 but that application was eventually withdrawn. This by itself has not much bearing in the case. What it shows is that there has been attempt by PW-1, PW-4 and PW-8 right from the inception to rope in A-1 and all his sons in the incident irrespective of whether all of them were involved in the crime or not. 48. We are not oblivious of the fact that A-2 was convicted by the trial court for the offence under Section 302 IPC but the High Court has altered his conviction from Section 302 to Section 302 IPC read with Section 149 IPC and his special leave petition (SLP) against that judgment has been dismissed summarily. The dismissal of SLP summarily does not mean affirmance of the judgment of the High Court on merits. It has been repeatedly held by this Court that mere dismissal of SLP does not amount to acceptance of correctness of the High Court decision. The order of this Court in A-2's SLP is not an impediment in allowing these two appeals once it is 33  held that prosecution has failed to prove the complicity of the appellants beyond any reasonable doubt. 49. We are not impressed by the argument of Mr. Sushil Kumar, learned senior counsel, that the SLP preferred by A-2 was non-est since he had a right of appeal under Section 2 of the 1970 Act and, therefore, the order of this Court dismissing the SLP preferred by A-2 is also a non- est. The judgments cited by learned Senior Counsel in support of his submission that in the event of appellants' conviction being set aside, A-2 is also entitled to the same relief although his SLP has been dismissed have no application to the facts of the present case. The case against A-2 stands on a different footing. The ballistic evidence is conclusive against him and leaves no manner of doubt about his involvement in the crime. We need not say any further in this regard as SLP preferred by A-2 against his conviction has already been dismissed. 50. In view of the above discussion, these two appeals are allowed and the judgment of the High Court as regards the present appellants is set aside. The judgment of acquittal 34  passed in their favour by the trial court is restored. The appellants Jalpat Rai and Pawan are already on bail and accordingly their bail bonds are discharged. The other appellants, Satish Kumar, Purshotam and Harinder alias Kala be released forthwith, if not required in any other case. . .....................J. (Aftab Alam) ........................ J. (R.M. Lodha) NEW DELHI, JULY 6, 2011. 35

Author: R Lodha

Jalpat Rai & Ors vs State Of Haryana on 6 July, 2011

Supreme Court of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 703 of 2011() 1. VELLA, S/O.KUNJU, AGED 63 YEARS, ... Petitioner 2. PARVATHY, W/O.VELLA, AGED 58 YEARS, Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent For Petitioner :SRI.P.K.MOHANAN(PALAKKAD) For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :04/02/2011 O R D E R V. RAMKUMAR, J. ......................................... Bail Application No. 703 of 2011 .......................................... Dated: 4-2-2011 ORDER Sd/-V.RAMKUMAR, JUDGE ani/ /true copy/ P.S. to Judge  Petitioners who are accused Nos. 2 and 3 in Crime No. 330 of 2010 of Hemambika Police Station , Palakkad District for offences punishable under Sections 341 and 323 read with Sec. 34 I.P.C., seek anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. After evaluating the factors and parameters which are to be taken into consideration in the light of paragraph 122 of the verdict dated 2-12-2010 of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2010 (4) KLT 930), I am of the view that anticipatory bail cannot be granted in a case of this nature, since the investigating officer has not had the advantage of interrogating the petitioners. But at the same time, I am inclined to permit the petitioners to surrender before the Investigating Officer for the purpose of interrogation and then to have their application for bail allowed by the Magistrate or the Court having jurisdiction. Accordingly, the petitioners shall surrender before the investigating officer on 16-2-2011 or on 17-02-2011 for the purpose of interrogation and recovery of incriminating material, if any. In case  B.A.No. 703 /2011 -:2:- the investigating officer is of the view that having regard to the facts of the case arrest of the petitioners is imperative he shall record his reasons for the arrest in the case diary as insisted in paragraph 129 of Siddharam Satlingappa Mhetre's case (supra). The petitioners shall thereafter be produced before the Magistrate or the Court concerned and permitted to file an application for regular bail. In case the interrogation of the petitioners is without arresting them, the petitioners 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 petitioners have been interrogated by the police shall, after hearing the prosecution as well, release the petitioners on bail. 4. In case the petitioners while surrendering before the Investigating Officer have deprived the investigating officer sufficient time for interrogation, the officer shall complete the interrogation even if it is beyond the time limit fixed as above and submit a report to that effect to the Magistrate or the Court concerned. Likewise, the Magistrate or the Court also will not be bound by the time limit fixed as above if sufficient time was not available after the production or appearance of the petitioners . 5. The release of the petitioners shall be on each of the petitioners executing a bond for `. 15,000/- (Rupees fifteen thousand only) with two solvent sureties each for the like amount to the satisfaction of the Court concerned and subject to the  B.A.No. 703 /2011 -:3:- following conditions:-

Vella vs State Of Kerala on 4 February, 2011

Kerala High Court

Gujarat High Court Case Information System Print LPA/914/2009 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 914 of 2009 In SPECIAL CIVIL APPLICATION No. 3862 of 2009 with CIVIL APPLICATION No. 4969 of 2009 ========================================= OM OVERSEAS THROUGH PARTNERS MITESHBHAI VORA & 1 - Appellant(s) Versus BANK OF INDIA & 1 - Respondent(s) ========================================= Appearance : MS SEJAL K MANDAVIA for Appellant(s) : 1 - 2. MR ABHISHEK M MEHTA for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, ========================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 01/04/2010 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Measures having been taken under Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, the appellants may prefer appeal under Section 17 of the Act before the concerned Debt Recovery Tribunal. Further, in addition to the security asset, if any unsecured asset is also in the possession of the Bank, the appellants may represent the Bank to return the same. Appeal and Civil Application stand disposed of with the above observation. (S.J.Mukhopadhaya, C.J.) (Akil Kureshi, J.) */Mohandas     Top

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

Miteshbhai vs Bank on 1 April, 2010

Gujarat High Court

Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 812 of 2010 Petitioner :- Rakesh Kumar Respondent :- State Of U.P. Petitioner Counsel :- R. B. Gaur Respondent Counsel :- Govt Advocate Hon'ble Amar Saran,J. Heard learned counsel for the applicant and the learned A.G.A. It is argued by the learned counsel for the applicant that this is a case of circumstantial evidence and that on 3.10.2009, a report was given by Sanjay Trivedi son of the deceased that his mother had disappeared. After seven days i.e. on 10.10.2009, the statement of one witness Ram Bharosey has been recorded that he saw the applicant strangulating the deceased but there is no explanation for belated disclosure of this witness. It is further aruged that subsequently on 4.10.2009, statement of Ram Murti was recorded that the applicant was seen near about the place where the dead body was recovered. He further argued that there is no evidence of recovery etc. Per contra, learned AGA opposed the prayer for bail and argued that the applicant had taken some money from the deceased, hence he committed the murder and the applicant has some criminal history. Learned counsel for the applicant argued that this was the reason for false implication of the applicant. Having considered the submissions of the parties and without expressing any opinion on the merits of the case, let the applicant Rakesh Kumar be released on bail in case crime No. 388 of 2009, under Section 302 and 201 I.P.C., P.S. Nigohi, district Shahjahanpur on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of court concerned. Order Date :- 11.1.2010 sfa/

Rakesh Kumar vs State Of U.P. on 11 January, 2010

Allahabad High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A.No.391 of 2008 Pramod Kumar & Others. ... ... ...Appellant(s) -Versus- Bharat Coking Coal Limited & Ors. ... ...Respondent(s) ------------ CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE D.K.SINHA For the Appellant(s): Mr. Lalan Kumar Singh, Advocate. For the Respondent(s): Mr. Ananda Sen, Advocate. ------------ 03/ 09.02.2009 This appeal has been filed against the order dated 04.09.2008 passed by the learned Single Judge in W.P.(S)No.5585 of 2007 which had been filed by the petitioners/appellants herein for issuance of a writ in the nature of mandamus directing the respondents to appoint the petitioners/appellants on the post of junior Overman and Mining Sardar which posts had been advertised to be filled up vide Advertisement No.1762(NEE) published in the Employment News dated 06.01.2007. The writ petition was dismissed, inter alia, on the ground that the petitioners were not possessing requisite qualification for appointment on the post of Overman and Mining Sardar as they had no valid Overmanship certificate of competency issued by the Director General of Mines Safety, Dhanbad with valid First Aid and Gas Testing Certificate which was the essential qualification for appointment. Beside this, the learned Single Judge has also observed that the petitioners never applied for the post which was advertised and the process of the selection is over and now the persons have even been appointed on the post of junior Overman and Mining Sardar. Learned Counsel for the appellants submitted that the learned Single Judge has wrongly recorded that the petitioners were not duly qualified for appointment, as they have valid Overmanship certificate. If the Counsel's submission is correct, then obviously this will have to be treated as an apparent error on the face of the record in so far as the eligibility of the petitioners/appellants herein is concerned but the same cannot be rectified by way of filing an appeal and for that purpose the petitioners ought to have moved by way of a petition for review before the learned Single Judge which have not been done. Besides this, if the petitioners had never applied for the post, that also was an additional reason not to entertain the writ petition at their instance. For these reasons, this appeal is dismissed at the admission stage itself. If the petitioners succeed in establishing before the appropriate court that they were duly qualified at the relevant time and had also applied for the post, it will be open for them to file an appeal against the said order. [Gyan Sudha Misra, C.J.] [D.K.Sinha,J.] S.D./P.K.S.

Pramod Kumar & Ors vs Bharat Coking Coal Ltd & Ors on 9 February, 2009

Jharkhand High Court

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C/M Sri Ram Singari Harizan ... vs State Of U.P. Thru' Its Principal ... on 28 August, 2010

Allahabad High Court

"'9 9' » ' S E)' IN THE HIGH COURT 0? KARNAT_==§.KA AT DATED Tms ml: 16"'-' DAY OF 0cT03ER%_:;303%'A--T.ILj . : " u. BEFORE THE HUMBLE .411aJUsr;ctgfs. AEp:rL :3 mmTPET1rgQA*.N0.15§gggg_a g1,{_zi4;'a'.2i4g. as. Ramamani, V Wfolate Dr.K.R. Sz;:'yaa1araj§?a11a Iy§:r,.'4 ' " Aged aboutél ye;-'_irs,f;1;~~' V ' V ma No.4}6,R}v1'V"'2'fd:$iageg V L Bangaiore. ' 5__ ' ' .. Petitioner. (BySri Refiben . ' And: A A H "V I T'.§:eState of _i}£>pa1fm1€:g1t of Urban-«fievelopznaexmt, % % _ M.S."Buil_din.gs, ' 'D1: ' Veedhi, . '«Bang2lfir¢_ _ 991, ' A its _» The~~Bai;aga!ore Develepmem Aufl1erity, _ ' .. Saxflcéy Road, Kunlaza Paxk West, J " _ Béirgalere M 560 @203 ._ Rapid. By its Connnissioxier. 3 The Special Land Acquisition Officer, Bangaiore Development Authority, Sankey Road, Kumara Park West, Bangalore -569 020. it (By Sri M. Keshav Reddy, AGA for R1 i Sri Ravi G. Sabhahit, Adv. for R2 atid R3) omn- This Writ Petition is 22'7"ot' the Constitution, praying to quash the 'ordere.de;te'd 3gL4.,;ZQO"?..passed by R3, etc. V _ This Writ Petitien C§)i2ti23g:'3n_€fdt Prelimixjérgfiearixag in 'B' Group this day", tlleféieiuft jizeeie tt1eVfeiiewi;:;g:..V ' iiii it The peti-tiefier purchased 8500 sq. ft. ef land in Sy.No. .VofvI,ettefige3,tei1einli village from the iegai heirs Oficne t:31derV.ia'i"r'eg£ete:"ed sale deed dated 6.2.1998. It is the."t:aseV"uf 1the"f:eti.tixmer that since there was a threat of {ijgpossessiéfi officials of the second respondent, she filed C3.v§.'Nes.648/1997 and 715531998 against the second has ebtained an order of temporary injutiction V' the second respondent firom dispessessing her from the {:3 "K property in question. It is further contended that pendeney of the said suits, at the behest of the petitioriei; :Stzite-- _ it it Government has sent 3 letter to the 7;' 7. £01999 suggesting the second respondent to~oomide1{eli~otxnent.w3 of the said site in favour of the seiéond respondent did not of the State Government, she filed Court in W.P.Nos.46I9 and to the second respondent to by the State Government question in her favour. This Court by its the second respondent to the filed by her. In terms of the .C'iio4i;1r.t,_'the second respondent has gassed an order at AnfieXiire«i'A':'irejeeiinn her application for allotment of the said wsiiVte_. Petitioner"---iras' ealled in question the said order in this writ S':-n W Rules made theretznder. Therefore, second respondent is right rejecting the request: efthe petitioner. . » 5. I have earefixiiy censédered {he arguments made ' 'M learned Counsel at the Bar and perused the recerd, 6. It is the ease of the petifiener 'purchaeed the property' in question by a deed ofsafie the legai heirs of one Patalappei ft«!i9eiz1_the.'materia§ en record that the leads £11 questienee have V2i.*fea._eiy. acquired by the State Gm*emrnen't<;a1i<Ie.hax?e iraneferred to the second respondent e23;rlierv':te« fizgehase by the pefitioner for development in a£eerd:i13ee'T'.__3ei{h 'f§r'ai%?isiens of the Act and Rules made V ;gi§:ei'eunder. "The~.fifiotifieaiien under Sectien 16(2) of the Land already been issued on 3957,1987. Petitiener .§_:et gfxrjedsieed any material to Show that the iands have not been ' .._féeete§i''£x?§th the Bangalore velepment Aetherity earfier to the K1 date of her purchase. The third respondent after examination of the __ acquisition records has rightly come to a conclusion that the lands-~ are vested with the second respondent eariier to the ~£i1:ét"£€V " purchase by the petitioner. Therefore, the purehase 'oiadeii. petitioner subsequent to the vesting' is .ti:.ei it respondents. The State Government, thetefore, eaen.ot--..di1feoit*;it}ie" second and third respondents Vttnxallot;iteoz1traty"'to"'the provisioras of the Bangalore Dexzeiopmieiitii and the Rules made thereunder.' gu3:iiuittedi'iii33? ,i',I_i1§:fieii£!1116d AGA, a careful peruaal oi' State Government shows that it eoiziiiiuiiieatioe sent by the Under Seeretary»»toitiie.Staite and not a direction referable to of ffhe being a statutory authority having forzniiiated sc§:ieuteViii§iv'aecerdanee with the provisions of the Act and obtaiioeziiflie approval of the State eannot deviate from seheme exeept in the manner provided under the Act. The iand by the State Governrnent and made over to the BDA ' V .__V T t1:~ua"specifie purpose ofexeeuting the approved scheme and such a \a t land has to be utilised by the BDA strictly in accordance ' vi' -1~ ii provisions of the Asst and the Rules made thereiinder. It "is V' ii settled that a pubiie body invested with statutnryipowiere. te i i:"p_ * 'i care not to exceed or abuse its pewers.'iIt"'m;1st Reef) limits ofthe authority committed tq it. 7. Learned Counsel _1'fi)r._ti1e éliow any statutory provision is i Jeiifi;ii0w'ered to regularisefallet except pointing out the letter ifinder Secretary to the State Govermrient. the Act, the Government is enebiegi to ii)' th.e__BDA as are necessary or expedient for vQLii.4Q€t§§§"t}3:¥i}i1"§}GS€S (}f the Act. If the power of the '-{3:€}vem;ziienti"iis exrétiieliie to direct the BDA to carry out the ..i§i1r;;eses ef the certainly a --direetien in disregard cf the pfesgrision cannot be issueri. Such a direction is not H in law. Therefere, it eamiet be argued that the ietter at ij3§':;§}$i:':§&'§3r€ 'D' is in the nature of a directicm ender Section 65 efthe \x. as Act. Since the property is vested with the secend respondegxt; A4 cannot be aiiertted to the petitioner contrary t9 the pravisioazstif ._ Bangaiere Development Authority Act thereunder. 8. Having considered the dr:*.3i1;~--.I'»r.;15'~nQt find any merit in this writ petitien. It is acceréifigig! disrnisééd. "chats.

Author: S.Abdul Nazeer

D S Ramamani W/O Late Dr. K.R. ... vs The State Of Karnataka on 16 October, 2008

Karnataka High Court

Title: Need to take steps for the revival of tea industry in the country. SHRI JOACHIM BAXLA (ALIPURDUAR): Since 1998, Tea Industry has been passing through a bad phase, resulting in closure of several tea gardens. Ultimately, labour force has to suffer a lot. They are deprived of their statutory benefits. Wages are not paid timely as it should have been done as per Plantation Labour Act,. Further, medical facilities are suspended, ration is not provided regularly, provident fund and LIC premium although deducted from the salary of the workers, are not deposited at the respective accounts. PF and gratuity are not paid to the employees even after retirement. Replantation and rejuvenation were not done for long. Approximately, 1,72,000 and 42,000 hectares of land is required to be replanted and rejuvenated respectively in the existing tea gardens. It was given an impression by the hon. Commerce Minister that a package of relief would be announced during the Budget session to support the tea industry. Except withdrawal of surcharge of Re.1.00 on one kilogram of tea, quantum of sum required for revival of tea industry has not been declared as yet. I request the hon. Minister of Commerce to expedite the matter and a package of relief for the tea industry may be announced immediately.

Need To Take Steps For The Revival Of Tea Industry In The Country. on 4 May, 2005

Lok Sabha Debates

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl MC No. 2791 of 2007() 1. MOHAMMED BASHEER, S/O. MOHAMMED, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. JAINLALIT KUMAR, For Petitioner :SRI.SANTHEEP ANKARATH For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :06/09/2007 O R D E R R.BASANT, J. ---------------------- Crl.M.C.No.2791 of 2007 ---------------------------------------- Dated this the 6th day of September 2007 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.33,500/- and is dated 01/12/2004. Prosecution was initiated as early as in 2005. The petitioner has not entered appearance so far. The petitioner had received summons from the court but on account of reasons beyond his control, it became impossible for him to appear before the learned Magistrate, it is submitted. His absence was not wilful; but was on account of reasons beyond his control. 2. According to the petitioner, he is absolutely innocent. The petitioner is willing to pay the cheque amount to the complainant along with reasonable interest. But the complainant, in his anxiety to vex and harass the petitioner, is not willing to compound the case. The matter hence drags on unnecessarily. The petitioner now wants to surrender before the learned Magistrate and seek regular bail. But he  Crl.M.C.No.2791/07 2 apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 438 and/or 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 3. The learned counsel for the petitioner submits that to show his bonafides, the petitioner shall deposit the cheque amount with interest before the learned Magistrate within a period of fifteen days. 4. Having considered all the relevant inputs, I am persuaded to agree that directions under Section 438/482 Cr.P.C can be issued in favour of the petitioner. I am impressed by the offer made by the learned counsel for the petitioner to deposit an amount of Rs.45,000/- before the learned Magistrate to show his bona fides. 5. This petition is, in these circumstances, allowed. Following directions are issued under Section 438/482 Cr.P.C. i) The petitioner shall surrender before the learned Magistrate at 11 a.m on 22/9/2007. Till then the non-bailable warrant issued against him shall not be executed.  Crl.M.C.No.2791/07 3 ii) He shall be released on regular bail on condition that he deposits an amount of Rs.45,000/- (Rupees forty five thousand only) and executes a bond for Rs.25,000/- (Rupees twenty five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. 6. The learned Magistrate shall record the plea of the accused on the date of surrender and shall thereafter permit him to be represented by his counsel. Subsequent personal presence of the petitioner shall be insisted only if it is absolutely necessary for the further progress of the case. I record the submission of the learned counsel for the petitioner that if the complainant is willing to accept the said amount and compound the same, the entire amount can be released to the complainant forthwith. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr  Crl.M.C.No.2791/07 4 Crl.M.C.No.2791/07 5  R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007 

Mohammed Basheer vs State Of Kerala on 6 September, 2007

Kerala High Court

Central Information Commission Room No. 415, 4th Floor, Block - IV, Old JNU Campus, New Delhi - 110066 Tel : + 91 11 26161796 Decision No. CIC/WB/A/2007/00931/SG/00100 Appeal No.CIC/WB/A/2007/00931 Appellant : Mr. Dinesh Kumar Saini J-60, Street, Street No. 38, Rajapuri Uttam Nagar, Delhi- 59 Respondent : ADM, (South West) & Public Information Officer Under RTI Act 2005 Govt. of NCT of Delhi O/o. The DC (South West), Old Terminal Tax Building Kapashera, New Delhi RTI filed on : 24-05-2007 PIO replied on : 04-07-2007 (received by applicant on 10-08-2007) First appeal filed on : 10-07-2007 First Appellate Authority : Dy. Commissioner (South West), Kapashera First appellate Authority's order : First Appellate Authority called the applicant on 31/07/07 but did not pass any order. Second Appeal Filed on : 20-08-2007. Applicant filed application on 24-05-2007 under Right to Information Act seeking information regarding the reasons for rejection of application No. 1418 for the issue of OBC Certificate and why the RTI fees is received only through demand draft (DD) in SDM Office. PIO did not provide any reply to the appellant, So he filed first appeal on 10-07-2007. First Appellate Authority called the applicant on 31/07/07 but did not pass any order. Later on appellant received the reply on 10/08/07 from PIO vide letter no. F.SDM/NG/2007/122 dated 04/07/07. Appellant has attached the proof of dispatch form the office of Dy. Commissioner which shows that the letter was posted on 01/08/07. Dissatisfied with the reply of PIO the appellant filed second appeal on 20/08/07. Relevant Facts emerging during Hearing: The following were present Appellant: Mr. Dinesh Kumar Saini Respondent: Absent The appellant admits that the information has been provided. His reason for filing the second appeal is because of the delay in providing the information. Decision: The appeal is allowed. The PIO will be issued a showcause notice to show cause why penalty should not be imposed on him for not providing the information within the time mandated under the RTI act. This decision is announced in open chamber. . This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Shailesh Gandhi Information Commissioner 20th October 2008 Decision No. CIC/WB/A/2007/00931/SG/0100 Appeal No.CIC/WB/A/2007/00931/

Mr. Dinesh Kumar Saini vs Govt. Of Nct Of Delhi on 20 October, 2008

Central Information Commission

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED 'THIS THE DAY OF NOVEMBER 2009 PRESENT V _ THE HON'BL§3 MR. P. 1). DI , CHEF TI-IE HONBLE MR. JUSTICE MOHAER' x J QETWEEN : 01. B. Simdal' Rae, Aged 52 }'€i'3.I'S, Advocate, 8/0 E. Yogeudra Rae, Ba1mai:taNew RQa('i,,__ . _ . Mangaiaorc 575 ()2. KS. Uda3§anaIay'an'a{,"V Aged 43 years,» ' Advocate, ' \V 3/9 V.-§5-uBh&t, V" Vfiaimatiasfiew Road; " """ " 'V '-.Mar:'gaIur_ e ' O0 1 . . ' 0:-3. Aged .38 years; ' E'; / 0 T. 4"Naray'aI1a' Rae, * ~ j ' ~_".:.5I'*'«F5 Floofijéaxn Bhavan Complex, ' Kfldialbafl, Maxzgaigm 573 003. '. "vAg¢d 36 years, S/0 K. Subraya, "' Bhavan Complex, Kodialbail, Mangalore 573 003. K wan' PETITION Ho.6r757/fiO0§ |Af§hi4Si'iR3i"iiflM': _ O5. O6. 07. O8. fm. "A€¢d.44 Wears, Ramesh Kumar, Aged 39 years, S] 0 Chudappa Salian, Ram Bhavan. Complex, Kodiaibail, Mangalott 5'73 003. Vasanthbaia, Aged 40 years, S/0 Omayya, Mahcshwari Apafmxents, Ram Bhavan Complex, Kodialabail, Mangalcre 573003. Dinesh Kumar AB. Aged 41 years, S/o'Lats K.A. Bhaskar, No.102, Deepa Arcade, ' " Bcjai, Mangalore 573o04."" " ' Maxwell Lobe, Aged 43 ycar::=.,_ S/0 A.L. Lobe, % % 601, Crysii, " __ Macara Hill Road, ' A' V' " Mangalore 57}30O2.V s«,1o.kJ,a:e, Hebbar, R Shivabagh, ,Bn_}ar Pratiiap, _ " ' . Aged .55 yéfars, " ._S'/. .L_at"e. Boiar Doomappa, v iiaiiéadikerc, --.A1ap£:--:, Padil, T '<.I\fIa1iga1orc 575 007. Fefix Laney D'souza, Aged 44 years, 1'2. 13. 14. 4 --: '16. S /0 Late. Anthony D'souza, Pfftdallilalfi House, Pedamale Post, Mangaiervs: 575 029. Mohandas P. Aged 37 years, S / 0 'Jayanth Amccn, Rajashree, Pachanadjv, Bonds} Post, Mangalore 575698. Diwakar Pakkala, Aged 34 years, S/0 Jaya {{unjat1"1bai1'P0sf£,.}?in_. sf(5»{)';~5. _ Mangalore Taipjlg. _ 1 " 4' Shambhu ;j_ ' ' Aged 48 yt:éI1'sT,A '1; "" " S/0 _ _ _ , R/at. K.K; HQu;5*:_,V V Karamudi House, A _ ' Kunjathbail Past., 575%) 15. V Mang.?j1dre.Taiui~:.. ' .1}, zaarmlgey Shanoy, S}'0V'G_,%ML"Sht::__I1Q'y;' R] at Lakshmi 'Sham, -Jai.t1R0adA, % " " ' ~ ' .. _ _ fJ£angalbr§'1~ 57 5 003. Méfiamohan Melly, -. ff.AgAa:d' 43 years, (3 Smlkappa Mally, *. KR/at. Susfuna, « ~~ Kunjathbail Post, Pin 575 015. Mangalorc Taluk. 17. Dr. A.G. Ramachandra Rae, ' 18. (By Sri/Smt: S.K. ACHARYA, g._dvo¢ate) '~. Agcd 54 ycazrs, S / 0 A.LP. Gopalakrishna Rae, Goutham Nilaya, Kavoor, Mangaiorciz 5750 15. Vittal Alva, Aged 49 years, 8/ 0 Kamhappa Alva, R] at Halemogcru, Kunjathbafl Post, Pin 575015. . Mangalore Taluk. V 1.}-..}PE'Hfr:t>NERV$ AND: 1." " " ?".R*::iz'e*g1ue Department, . Officer, State of Karnataka,_'" 1 Rep. by its Chief 2. IVES. Building, . State of _, Rep. by its 8:301"-cta1'}zf , ' [9 * . " Revenue Depérgxnxjnt; _M;.S; E'_;;1i1§ii;1g, Ba:1galo:jr:_.% " f3e2pa,;*tI31e;:1.1; of 'Revenue, Gov&r:1_1ne:33: '--Qf"I<a:g11ataka, * V Bangalore 5607_Q():;1§ The J 01133; .S'b;:r.efa1'y' to " - Of' Karnataka, MT,s;Bu%.k1ing, ' fj Bangalore 560 001. T L T136 'Inspector of General ofRegist1'a1;i0n 83 Commissioner of Stamps, Cauvery Bhavan, Bangalore 5'?5 009. ...5 i .15'- L 6. The District Registrar, D.K. District, Registrars Ofi'1t:er, Mangalore 57500 1. 7. The Sub Registrar, Mangalore City, The Sub Registrars Ofiice. Mangalore 57500 1. 8. The Sub Registrar, Mangalore Taluk, Ofiice of the Sub--registrar o '~ . «. Mangalore 575001. " .;.;R}3SPON§DENTS (By Sri/Smt; GA sn) This Writ Petition is filed :T'under.jArtic1es~ .226 & 227 of the Constitution of India praying to issue:"a__.W:rit~.of__certiorari, writ or direction by strildng out Section. of the Reggistration Act 1908 inserted on Act No'.5_5j'-- of¥_ 1916 'as*{_the jsame is wholly un constfitutional is 1;fl!:'.0utéOH1C of the arbitrary exercise of the poivexsnot'vested.i'r1--.the 'State. This Writ on this day the court made the following order.-~ 'V ~ ' ' -: ~ e * Q_~_.§;__D"E R Two weejks't.time comply with the ofiice objections, shall stand dismissed for non- prosecuttiongdwtthoutftixther reference to the Bench. Sdl CHIEF JUSTICE Sd/ JUDGE Tr 'OP! .0. Animal b . "l.|"G-at ofliuniuh ulou-550 fill '((2 ?-'»'1?'7Iv'

Author: P.D.Dinakaran(Cj) & Shantanagoudar

B Sundar Rao vs The State Of Karnataka on 9 November, 2009

Karnataka High Court

ORDER 1. This is " application for the issue of a writ in the nature of a writ of certiorari, to call for the records relating to the proceedings F. No. 138/74 Nazirul Quazaath/188 dated 23-4-1977 of the Andhra Pradesh Wakf Board, and to quash the same. 2. The relevant facts are as follows: The dispute in this writ petition relates to the appointment of Khazi to the areas of Nalgonda and Devarakonda. Originally one Khazi Gulam Mohiuddin, was the Khazi. He died in 1910 A. D. He had a son Mohammed Obedullah, who pre-deceased him, leaving behind two sons Mohammed Abdul Wahab, the father of the 3rd respondent and Mohammed Abbas Ali, the petitioner herein. Certain grants including Jagirs were endowed for the performance of services of Khazi of Nalgonda and Devarkonda. In 1352 fasli, the succession was granted in favour of Khazi Gulam Mohiuddin, son of Khazi Mohammed Abdul Wahab, with Shikmi rights of the petitioner Md. Abbas Ali, and the other heirs of Mohammed Abdul Wahab. Gulam Mohiuddin, and his sister Ismatunnisa Begum, migrated to Pakistan sometime after the police action. The other sister of Gulam Mohiuddin, Faridunnisa Begum, the 3rd respondent claimed the office of Kazaat by hereditary right along with the mash and cash grant attached thereto, the petitioner remaining as a shikmidar. One Shaik Ahmed was appointed as Naib Khazi for discharging the duties of Khazi. On the death of Shaik Ahmed on 5-3-1966, the question of making arrangements for the performance of the office of Kazaat of Nalgonda and Devarkonda, arose. The petitioner applied to the Andhra Pradesh Wakf Board for appointment in the place of late Shaik Ahmed. The Wakf Board rejected the application of the petitioner on 28-5-1968 but he continued to be the care-taker as Naib Khazi under the orders dated 14-7-1966 of the Wakf Board. Subsequently, the question of appointing a Khazi on a permanent footing arose. The Secretary of the Wakf Board, by the impugned order, recognised the right of the 3rd respondent to the office of Kazaat as she is the only legal heir and sole successor to late Khazi Abdul Wahab, the Khazi of Nalgonda and Devarkonda. The 3rd respondent being a woman she is directed to make arrangement for a Naib on her behalf for the actual performance of the office of Sadar Quazath, Nalgonda and Devarkonda, if she does not want to continue the petitioner as her Naib, and that on appointment of another person as Naib, the petitioner would automatically cease to hold the office of Quazath. In this writ petition, the petitioner challenges the impugned order, recognising the right of the 3rd respondent to the office of Kazat. 3. Sri Upendralal Waghray, learned counsel for the petitioner contends that the office of Khazi is purely a secular one, unconnected with any religious duties, and therefore the Wakf Board has no jurisdiction to appoint a Khazi. 4. On the other hand, it is contended by Sri K. F. Baba, learned counsel for the 3rd respondent that the office of the Kazi is a religious one, that for rendering the services of Kazi, properties were endowed and they constitute Wakf and therefore the Wakf Board has power to appoint a Kazi. 5. The first question for consideration is whether a Kazi, performs the religious duties a not Both the counsel have invited my attention to the passage from Text Books on Mohammadan Law and to several rulings of various High Courts. 6, In Wilson's Glossary, Kazi is mentioned as "A Mohammadan Judge, an officer formerly appointed by the Government to administer both civil and criminal law, chiefly in towns, according to the principles of the Koran: under the British authorities the judicial functions of the Kazis in that capacity ceased, and with the exception of their employment as the legal advisers of the Courts in cases of Mohammadan law, the duties of those stationed in the cities or districts were confined to the preparation and attestation of deeds of conveyance and other legal instruments, and the general superintendence and legalization of the ceremonies of marriage, funerals, and other domestic occurrences among the "Mohammadans". 7, In the Hedaya, Commentary on the Mussulaman Laws by Charles Hamilton, Book No. XX at page 334, it is stated that it is the duty of the Sovereign to appoint fit persons to the office of Kazee, that he must decide the claims relating to property and that he must attend funerals and visit the sick. 8. In Tayyabji's Muslim Law (Fourth Edition, it is mentioned at page 39, as follows:-- "Much confusion is frequently caused by failure to distinguish the person referred to in the Texts as Cadi (viz., the judge appointed by the State) from the person designated Cadi in our times in India and Pakistan viz.., an officiant at the performance of marriage and similar ceremonies." 9. In Mulla's Principles of Mohammeden Law (17th Edition) it is stated by the learned author at page 226, paragraph 221, as follows:- "Kazi:- the Mohammeden Law does not regard the office of Kazi as hereditary, and claim to such a right though supported by custom, is not one that can be recognised by a Civil Court." 10. The learned author also observed that "A Kazi may be appointed by the Government or by some internal arrangement among the Mohammadans of each locality." 1I. These Texts do not give us any clear idea a to whether a Kazi performs religious duties or not. 12. In Mahomed Ismail Ariff v. Ahmed Moolla Dawood 43 Ind App 127 at p. 134 : (AIR 1918 PC 132 at p. 135), their Lordships of the Privy Council, observed as follows:-- "Generally speaking, in case of a Wakf or trust created for specific individuals or a determinate body of individuals, the kazi, whose place in the British Indian system is taken by the Civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder. With respect, however, to public religious or charitable trusts, of which a public mosque is a common and well known example, the kazi's discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management which must he governed by circumstances he ha complete discretion. He may defer to the wishes of the founder so far as they pre conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public far whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the best interests of the institution.' 13. These observations do indicate that Kazi not only was previously exercising the powers of a Civil Court but also managing public religious or charitable trusts. But this case does not deal with the question as to the authority or body who should appoint a Kazi. 14. Phatmabi v. Abdulla Musa Salt (AIR 1914 Mad 714) only dealt with the question whether the office of a kazi was hereditary or not. But the question as to who should appoint a kazi, did not arise for consideration there. 15. In Kasamkhan v. Kaji Abdulla (AIR 1926 Bom 153) it was observed at P. 154 by Fawcett, J., as follows:-- "There is undoubtedly evidence to justify the finding that until the dispute about the Darga, the Kazi Community at pawas in variably Officiated at religious rites of the Mohammadan community at this village 16. In Sattappa Gurusattappa v. Md. Appalal Kazi (AIR 1936 Bom 227), Tyabji J., sitting single, observed at pages 233 and 234 as follows:-- 'The word qazi is etymologically derived from the root word for decreeing, ordaining or judging, and qazi signifies one who gives decisions. It is the technical designation for a judge (Civil as well as criminal the texts. In addition, however, to his strictly judicial functions the qazi used (by amenity) to perform other functions such as officiating at marriages, superintending talaks,(occasionally keeping marriage records) and perhaps leading ceremonial prayers. These latter are the only functions now discharged by qazis in British India. Thought Islam does not as a rule recognise an ordained priesthood or clergy or require their ministration the efficacy of any religious ceremony, end though the services of the qazi cannot of course be forced on anyone, (1878-79) ILR 8 Bom, 232 (Raja Valad Shivapa v. Krishnabhat) yet by most persons the presence of some religious officiant is considered desirable (or in a vague sense obligatory) and there is hardly any normal marriage at which the qazi or a religious dignitary is not present. It is thus obvious that the qazi's office entails in India the rendering of services to the community. This fact must not induce a closing of the eyes to the fact that when the ancient texts speak of a qazi they refer to a judicial office having entirely different functions from those of the religious officiant now spoken of al a qazi, and the applicability of the original texts to the question whether the office now known in India as that of a qazi should be hereditary may not be incontrovertible.' 17, This Judgment was carried in appeal. But the judgment in the appeal does not specifically deal with the question as to whether the kazi performs religious duties or not. From the observations of Fawcett, ~ in Kasamkhan v. Kaji Abdulla (supra), (A1H 1920 Bom 153) and Tyabji, J. in Sattappa Gurusattappa v.Md. Appalal Kazi (Supra) (AIR 1936 Bom 227) and of the privy Council in Md. Ismail Ariff v. Ahmed Moola Dawood (43 Ind App 127) : (AIR 1916 PC 132) it appears to me that a Kazi does perform some duties of a religious nature like performing marriages and leading prayers in Mosques. 18. That a kazi performs duties of a religious nature is also mentioned in the Statement of Objects and Reasons of Kazis Act, 1880 (Act XII of 1880), which reads as follows:- Under the Mohammadan Law the Kazi was chiefly a Judicial Officer. His principal powers and duties are stated at some length in the Hedaya, Book XX. He was appointed by the State, and may be said to have corresponded to our Judge or Magistrate. In addition, however, to his functions under the Mohammadan Law, the Kazi in this country, before the advent of British rule, appears to have performed certain other duties, partly of a secular and partly of a religious nature. The principle of these seems to have been preparing, attesting and registering deeds of transfer of property, celebrating marriages, and performing other rites and ceremonies. It is not apparent that any of these duties were incumbent on the kazi as such. It is probable that the customary performance of them by him arose rather from his being a public functionary and one known by his official position to be acquainted with the law, than from his having as Kazi, a greater claim to perform them than anyone else. Such was the position of the Kazi in this country under Native Government. On the 'introduction of the British rule, Judges and Magistrates took the place of Kazis and the Kazi in his judicial capacity disappeared: but the British Government, though no longer recognizing the judicial functions of the Kazi, did not abolish the office. By certain Regulations passed from time to time, the appointment of Kazi-ul-kuzaat and Kazis by the State was provided for, and the performance of their non-judicial duties was recognized by law. In the case of Bengal, indeed, certain additional duties were imposed on them. The duties of the Kazi under these Regulations comprised some or all of the following viz.:- (1) preparing and attesting deeds of transfer and other law-papers; (2) celebrating marriages and presiding at divorces; (3) performing various rites and ceremonies; (4) superintending the sale of distrained property and paying charitable and other pensions and allowances. In the course of subsequent legislation, the first and last of the above duties devolved on officers specially appointed for the purpose, and there remained nothing to be performed by the Kazi but the second and third, which were purely ceremonial. Under these circumstances it appeared no longer necessary that the Government should appoint these officer. Accordingly, in 1864, Act XI of that year, all the Regulations relating to the appointment of Kaziz by Government and the duties to be discharged by them were repealed, but in order that it might be clear that no interference with the ceremonial functions of these officers was intended, a section was added to that Act as follows:-' 'Nothing contained in this Act shall be construed so as to prevent a Kazi-ul-Kuzaat or other Kazi from performing, when required to do so, any duties pr ceremonies prescribed by the Mohammadan law (see Section 2 of Act XI of 1864). Certain of his duties having thus survived the passing of Act XI of 1864, the Kazi is still a functionary of considerable importance in the Mohammadan community. What was originally in some sense an accidental adjunct of his judicial office has become his principal and only duty, and in some parts of the country at least, the presence of a kazi at certain rites and ceremonies appears now to be considered by Mohammadans essential from their point of view.' In the preamble to the Kazis Act , it is stated as follows:- 'Whereas by the preamble to Act No. XI of 1864 (an Act to repeal the law relating to the offices of Hindu and Mohammadan Law officers and to the offices of Kazi-ul-kuzaat and of Kazi, and to abolish the former offices) it was (among other things) declared that it was expedient that the appointment of the kazi-ul-kuzaat, or of City, Town or Pargana Kazis should be made by the Government, and by the same Act the enactment's relating to the appointment by Government of the same officers were repealed; and whereas by the usage of the Mohammadan community in some parts of (India) the presence of Kazis appointed by the Government is required at the celebration of marriages and the performance of certain other rites and ceremonies, and it is therefore expedient that the Government should again be empowered to appoint persons to the office of Kazi;' 19. The aforesaid extracts from the Statement of Objects and Reasons and the preamble to the Kazis Act, clearly show that a kazi holds a position of considerable importance in Mohammedan community and that his presence at the celebration of marriages and at the performance of certain other rites and ceremonies, is considered essential by Muhammadans. Therefore the contention of Sri K. F. Baba, that a kazi performs not only secular duties but also certain religious duties, has to be upheld. 20. But the question for consideration is as to who is the authority competent to appoint a Kazi. Under S. 2 of the Kazis Act, 1880, it is the State Government that has to appoint a kazi after consulting the principal Muhammadan resident of such local areas. In the instant case, the State Government has not exercised the power to appoint a Kazi. 21. Sri Upendralal Waghray, learned counsel for the petitioner contends that the Wakf Board has no power to appoint a kazi. But it is contended by Sri K. F. Baba, learned counsel for the 3rd respondent, that the Wakf Board merely recognized the 3rd respondent as Kazi, that the petitioner himself was appointed as a Naib Kazi by the Wakf Board and therefore he cannot continue as a Naib Kazi when the Wakf Board has recognized the rights of the 3rd respondent as kazi and empowered her to appoint another Naib Kazi if she so desired. 22. I think, there is considerable force in the contention of Sri K. F. Baba. The order dated 15-5-1966 of the Secretary, Wakf, Board shows that the petitioner was appointed to perform the duties of Khazaat of Nalgonda and Devarkonda as In-charge Khazi until further orders. The letter dated 4-6-1966 from the Wakf Board addressed to the petitioner also shows that the petitioner was only accorded sanction to perform the duties of Khazaat of Nalgonda and Devarkonda as In-charge Kazi. To the same effect is the letter dated 14-7-1966 issued by the Secretary, Andhra Pradesh Wakf Board to the petitioner. From these letters, it is clear that the petitioner was appointed only as a kazi in-charge by the Wakf Board itself but he did not acquire any right under the aforesaid orders to hold the pose of kazi. By the impugned order dated 23-4-1977, the Wakf Board recognized the right of the 3rd respondent to be the Kazi, she being the only legal heir and sole successor to late Kazi Abdul Wahab, Sadar Kazi of Nalgonda and Devarkonda, and terminated the appointment of the petitioner as Naib Kazi, to which post he was appointed earlier by the Wakf Board until further orders. The petitioner, having been appointed as Naib Kazi until further orders by the Wakf Board, cannot claim to continue in the said post as of right and challenge the impugned order of the Board. 23. It is contended by Sri Upendralal Waghray, that the 3rd respondent being a woman, cannot discharge the duties of a Kazi. 24. In the present case, I do not propose to go into the question as to who is entitled to be appointed as permanent Kazi or as to which is the competent authority which should make the appointment. The petitioner and the 3rd respondent are setting up rival claims to the office of kazi, and this is a matter which cannot properly be decided in a writ petition. So far as the petitioner's appointment as Naib Kazi is concerned, it is purely a temporary one and he can hold the office of Naib Kazi until further order are passed by the Wakf Board, and hence it is not open to him to challenge the impugned order and continue in office as Naib Kazi. In this view, I do not think, I can interfere with the impugned order under Art. 226 of the Constitution. The Writ petition is therefore dismissed but in the circumstances without costs. Advocate's fee RS. 100/-. 25. Petition dismissed.

Khazi Mohd. Abbas Ali vs Andhara Pradesh Wakf Board And ... on 28 August, 1978

Andhra High Court

Gujarat High Court Case Information System Print MCA/2242/2005 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR ORDERS No. 2242 of 2005 ============================================================== HETALBEN HIMANSHUBHAI TAILOR - Applicant(s) Versus HIMANSHUBHAI MAHESHBHAI TAILOR - Opponent(s) ============================================================== Appearance : MR NIRZAR S DESAI for Applicant(s) : 1, MR SAMIR J DAVE for Opponent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 27/12/2005 ORAL ORDER The present application is filed by Hetalben Himanshubhai Tailor, the original defendant in Hindu Marriage Petition (HMP) No.405 of 2005 filed in the Court of the learned Civil Judge (Senior Division), Vadodara. The present application is filed for transfer of the said HMP to the Family Court at Ahmedabad. On the last occasion the learned advocates prayed for time to explore the possibility of an amicable settlement. 2. The learned advocates report that sincere attempts put by the learned advocates for the respective parties have achieved the result, the parties have settled the matter. Mr.Nirzar S. Desai, the learned advocate for the applicant herein, on instructions from his client, who is present in the Court, seeks permission to withdraw this Misc. Civil Application as the respondent has agreed to go to the place of the applicant and bring her back to her matrimonial home on 17th January 2006. It is also agreed between the parties that thereafter the respondent will withdraw the aforesaid HMP No.405 of 2005. 3. Permission as prayed for is granted. The Misc. Civil Application is disposed of as withdrawn. Liberty is reserved in favour of the applicant to revive this application in case of difficulty. Rule is discharged with no order as to costs. (RAVI R. TRIPATHI, J.) karim     Top

Author: Ravi R.Tripathi,

Hetalben vs The on 2 September, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 342 of 2007(S) 1. KUTTAPPAN, S/O. RAJAN, ... Petitioner Vs 1. MINI, AGED 24, ... Respondent 2. SINI, AGED 21, 3. ANU, AGED 18, For Petitioner :SRI.DILIP MOHAN For Respondent :SRI.C.HARIKUMAR The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :22/10/2008 O R D E R P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- W.P.(C)NO.342 OF 2007 -------------------------------- Dated this the 22nd day of October, 2008 JUDGMENT Raman,J. This writ petition is filed against the order of attachment passed by the court below. We have already disposed of Mat. Appeal No.124/2007. Though the writ petition is liable to be dismissed, since further proceedings for sale pursuant to the attachment was stayed by this Court, we extent it for a period of one more month so as to enable the petitioner to clear off the arrears as on today, in the light of the modified order passed in Mat. Appeal No.124/2007, failing which it will be open to the respondents to proceed with the same. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.

Kuttappan vs Mini on 22 October, 2008

Kerala High Court

Court No. - 1 Case :- WRIT - A No. - 12314 of 1987 Petitioner :- Jagdish Prasad Respondent :- D.I.O.S. And Others Petitioner Counsel :- G.M. Tripathi,S.P. Tripathi Respondent Counsel :- Sc Hon'ble Rakesh Tiwari,J. Heard learned counsel for the petitioner. Cause shown for nor appearance is sufficient. C.M. Restoration Application No. 47234 of 2010 is allowed. The order dated 6.2.2004 dismissing the writ petition in default is recalled. The writ petition is restored to its original number. It will be listed before the appropriate Bench in the next cause list and will not be treated as tied up or part heard to this Bench. Order Date :- 8.7.2010 RCT/-

Jagdish Prasad vs D.I.O.S. And Others on 8 July, 2010

Allahabad High Court

Court No. - 33 Case :- TESTAMENTARY CASES No. - 17 of 2010 Petitioner :- In The Mater Of The Goods Of Late Swami Nath Petitioner Counsel :- P.R. Maurya,R.D. Kushwaha Hon'ble Pankaj Mithal,J. Affidavit of service filed today is taken on record. This is an application for grant of Letters of Administration of the Estate of late Swami Nath son of late Raja, resident of Harpur, Tappa Haveli, Pergana Sidhuwa Jobna, Tehsil Tamkuhiraj, district Kushinagar with the Will dated 4.5.2003. Rule 7 of Chapter XXX of the Allahabad High Court Rules, 1952 provides that where the application is for grant of Letters of Administration with the Will annexed it shall be accompanied by annexure (a) referred to in Rule 5. Rule 5(a) provides for filing of an affidavit of one of the attesting witnesses to the Will. No such affidavit of any attesting witness to the aforesaid Will has been filed. Learned counsel for the petitioner prays for and is allowed a month's time to file affidavit of one of the attesting witnesses to the Will as contemplated by Rule 5(a) of Chapter XXX of the Allahabad High Court Rules, 1952. List thereafter. Order Date :- 10.5.2010 BK

In The Mater Of The Goods Of Late ... vs Unknown on 10 May, 2010

Allahabad High Court

Gujarat High Court Case Information System Print OLR/151/2009 7/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD OFFICIAL LIQUDATOR REPORT No.151 of 2009 =================================================== OFFICIAL LIQUIDATOR OF VARIOUS COMPANIES (IN LIQUIDATION) - Applicant(s) Versus . - Respondent(s) =================================================== Appearance : OFFICIAL LIQUIDATOR for Applicant(s) : 1,MS AMEE YAJNIK for Applicant(s) : 1, None for Respondent(s) : 1, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 03/02/2010 ORAL ORDEROfficial Liquidator has made the following prayers: This Hon'ble Court may be pleased to permit the Official Liquidator to appoint four stenographers, two company paid clerk out of the waiting list candidates as submitted at para 7 of this OLR, with the help of the Registry of this Hon'ble Court. As an alternative the Official Liquidator may further be permitted to follow earlier adopted procedure for further recruitment of vacant post at present as directed vide orders dated 21.05.2005 passed by this Hon'ble Court. If, the prayer (A) and (B) is in affirmative, then this Hon'ble Court may be pleased to permit the Official Liquidator to pay the salary from the funds available with the Official Liquidator in the head of Company Paid Staff Salary Reserve Fund Account in the similar terms and conditions and pay scale, etc., as applicable to other Company Paid Staff of similar category presently working in the office of the Official Liquidator, Ahmedabad as already approved by this Hon'ble Court in various orders as submitted above. Such other and further orders and directions as this Hon'ble Court may consider just and appropriate may also be passed. Heard learned advocate and the Official Liquidator. The Court was informed that in so far as prayer (A) is concerned, the waiting list of stenographers is already exhausted and in relation to the clerks no orders are made. Hence, it was submitted that prayer (B) may be considered and appropriate directions may be issued. In prayer (B) the date of order is wrongly mentioned as 21.05.2005, whereas the order annexed at Annexure-A is dated 21.10.2005. Official Liquidator is permitted to follow the procedure contained in Paragraph Nos.6, 7 and 8 of order dated 21.10.2005 made in OLR No.83 of 2005 which are reproduced hereunder: 6. On the aspect of procedure for appointment and inviting of applications are concerned, after hearing OL and the learned Counsel appearing for the parties, I find that a committee can be constituted of the following persons: (1) One Officer not below the rank of law officer having judicial background who may be nominated by the Registrar General of this Court.-The Officer having judicial background shall be the Chairman of the Committee and the OL shall be the Member Secretary and other Officer of the rank of Dy. Registrar shall be the member of the Committee. Official Liquidator (3) One Officer of the rank not below the rank of Dy. Registrar of this Court having administrative background, who may be nominated by the Registrar General of this Court. 7. Various modes are suggested by the OL at para 2-B for the purpose of inviting applications from the interested qualified persons and such mode appears can be followed by the Committee and, therefore, the Committee shall undertake the process for inviting applications and the scrutiny as stated hereinafter: (A) Applications of the candidates shall be invited by placing a notice on the notice boards of the followings:- 1. Notice Board of the High Court 2. Notice Board of BAR Association 3. Notice Board of BAR Council 4. Notice Board of Ahmedabad Chapter of the Institute of Chartered Accountants of India 5. Notice Board of Ahmedabad Chapter of the Institute of Company Secretaries of India 6. Notice Board of Ahmedabad Chapter of the Institute of Cost and Works Accountants of Indian 7. Notice Board of Gujarat University 8. Notice Board of Local Employment Exchange 9. Notice Board of Office of Official Liquidator 10. Notice Board of Office of Registrar of Companies, Gujarat Ahmedabad 11. Notice Board of National Institute of Information Technology (NIIT) 12. Any other place as may be directed by this Hon'ble Court. (B) After receipt of applications by a cut-off-date, the meritorious candidates as may be found eligible as per their academic qualification and experience shall be short listed (minimum 5 candidates and maximum 10 candidates per post) by a sub-committee consisting Official Liquidator and Registrar of Companies. (C) The short listed candidates shall be interviewed and screened by the selection committee and on the basis of marks awarded by members of the selection committee the best candidates shall be short listed by the selection committee and a panel of post wise second best candidates shall also be finalized by the selection committee so that in case the best and selected candidate does not finally accept the offer of appointment, the second best candidates from the waiting panel can be offered the appointment without repeating the whole process of recruitment. (D) The list of best selected candidates with the details of their qualification, experience and performance of their interview with recommendation of the selection committee shall be placed before this Court seeking permission and sanction to appoint them against the 18 posts of special company paid staff, initially for one year on probation and continuation thereafter for further two years depending upon their performance without any right of continuation in service on permanent basis or absorption in regular Govt. Service, and also liable to be terminated at any time. 8. The OL shall be at liberty to make appointment of company paid staff as per the final recommendations of the committee. If at any point of time there is any clarification required by the Committee then only report shall be submitted to this Court. Accordingly for recruitment of stenographers and company paid clerks, Official Liquidator is directed to adopt the aforesaid procedure for recruitment to fill up vacant posts. In so far as the prayer (C) is concerned, it is not necessary to make any orders at this juncture, leaving it open to the Liquidator to approach the Court as and when the requisite staff is appointed. The report stands accordingly. Sd/- [D. A. MEHTA, J] *** Bhavesh*     Top

Author: D.A.Mehta,&Nbsp;

(In vs Unknown on 16 August, 2010

Gujarat High Court

JUDGMENT Bhattacharya, J. 1. Five appellants were tried by the learned Sessions Judge, Howrah, with the help of a Jury and sentenced to various terms of imprisonment on a finding of guilty under Section 304(II) and Section 148 I.P.C. so far as the appellant Lalu alias Baliram, alias Sewji Kurmi alias Khatik is concerned, under Section 304(II)/149 and Section 148 I.P.C. as regards appellants Dinantb Goala and Sankar Kurmi alias Nata, and under Section 304(11) read with Section 149 as also under Section 147 I.P.C. in regard to appellants Ramabatar Singh and Shyamlal Singh. 2. Without a Jury the learned Sessions Judge further tried the five appellants of whom Ramabatar Singh and Shyamlal Singh were acquitted and appellants Lalu and Sankar Kurmi alias Nata were convicted under Sections 3 and 5 of the Explosive Substances Act and were sentenced to rigorous imprisonment for three years on each count, the sentences running concurrently, and appellant Dinanath alias Dina was convicted under Sections 4(a) and 5 of the Explosive Substances Act and was sentenced to rigorous imprisonment for three years on each count, the sentences running concurrently. 3. The prosecution case, briefly stated, is as follows: appellant Dinanath and his two brothers had a quarrel with Giridhari and his brother Suren and his mother Tentri over residence, because the former. had driven out the latter party, from the house and the Jadavas gave shelter to Giridhari and his family about 15 days before the occurrence in question. On the 13th October, 1956, which was Navami day of Durga Puja, at about 2-15 P. M., Srikissen Jadav (complainant), his brother Jahuri Jadav, and uncle Sundarlal Jadav, Sankar Show, Bhutan alias Bodha, Jhaku Prosad, Giridhari, Lakhi, Hingulal and others were seated by the side of a tank known as Kalibala tank in Nandibagan bye lane, Salkia, (P.S. Golabari), and were discussing Puja affairs. The five appellants and another person came from the south. Appellant Lalu threw a bomb which struck Jahuri Jadav, who fell down wounded. Appellant Sankar threw a bomb which exploded and injured serveral others. Appellant Dinanath threw a bomb which fell into a nearby drain and remained unexploded. Attracted by shouts and sounds of bombs people came and the appellants began to run away with some others in pursuit of them. Ramabatar and Shyamlal fled in one direction while the other three appellants (and Kalu Kahar who was not an accused and not an appellant) fled in another direction. During the chase the appellant Ramabatar and Shamlal threw more bombs at the chasing party. The bombs exploded but nobody was wounded. Ramabatar and Shyamlal were arrested by some members of the public and Sankar was arrested by others in another place. On receiving information from some members of the public over die telephone a police party came from Malipanchghara P. S. and took the arrested persons to the thana. Appellant Dinanath and appellant Lalu were arrested on the 13th October, 1956 and 24th November 1956 respectively by some constables. Jahuri Jadav and other injured persons were removed at first to the house of a local doctor named Parmalal Das, but later they were removed to Howrah General Hospital at about 3 P. M. In the hospital Srikissen Jadav made a statement to the Officer-in-charge Golabari P.S. at 4-15 P.M. It was at first treated as F. I. R: but later it was expunged from the record. Jahuri, Giridhari, Sankar and Lakhi were admitted into the hospital as indoor patients and the other injured persons including the complainant Srikissen Jadav were discharged after first aid. Jahuri's condition was very serious and he died in the hospital at about midnight as a result of the injuries. 4. The defence was that the appellants were innocent and had been falsely implicated in the case. It was suggested that the complainant party itself had in their possession bombs which exploded and injured them. 5. Mr. Mukherjee has pointed out several lacunae. He has also urged that there was no trial at all because the learned Sessions Judge held local inspection without notice to the accused persons and without keeping any memorandum. The learned Judge did not also caution the jury as to what use the local inspection may be put to. The defects, amounting to misdirection and non-direction, will be referred to hereafter. 6. The question of local inspection may be dealt with first. 7. As the order-sheet of the Sessions Court will show, on the 2nd September, 1957, when the Court was rising for the day, the Public Prosecutor filed an application for local inspection by the Court and the jurors in order to appreciate the evidence. The order of the learned Judge was: "Heard. Local inspection will be held tomorrow at 11 A.M. Accused as before." The relevant portion of Order No. 8 dated the 3rd September, 1957 is to the following effect: "Statement of each of the accused persons is recorded in this Court under Section 342 Cr. P. C. and each of them declines to adduce any defence witness. The Judge then started from Court with the Jurors in Motor Vehicles at 12 noon and after inspecting the alleged place of occurrence came back to Court at 12-25 P.M.'' There is no indication that any notice was given to the accused persons or to their lawyers. The order of the 2nd September 1957 or that of the 3rd September, 1957 is silent on this point. This aspect of the case becomes important when it is remembered that the Public prosecutor filed the application towards the close of the day, when the Court was rising. It is not certain therefore whether the lawyer for the defence was present at the time, nor is it noted anywhere in the order of the 3rd September, 1957 that the defence lawyer was intimated about this proposed local inspection. In his order No. 8 dated the 3rd September, 1957, as at p. 5 of the paper book, there is no mention whether the Public Prosecutor or the defence lawyer accompanied the Judge and the jurors. It is not realised how the learned Judge could reach the place of occurrence without the help of the Investigating Officer or any other person connected with the investigation. Mr. Bagchi appearing for the State has stated that the Judge and the Jurors could not have remained in the place for more than 2 to 5 minutes because the whole trip lasted only 25 minutes. Mr. Mukherjee has next drawn our attention to the absence of any memorandum in regard to this local inspection. The procedure for local inspection or view by jury is laid down in Sections 293 and 539B Cr. P. C. Section 293 is to the following effect: "View by Jury: (1) Whenever the Court thinks that the Jury should view the place in which the offence charged is alleged to have been committed, or any other place in which any other transaction material to the trial is alleged to have occurred the Court shall make an order to that effect, and the Jury shall be conducted in a body, under the care of an officer of the Court, to such place, which shall be shown to them by a person appointed by the Court. 2. Such Officer shall not, except with the permission of the Court, suffer any other person to speak to, or hold any communication with, any of the Jury and, unless the Court otherwise directs, they shall, when the view is finished, be immediately conducted back into Court". (9)_Section 539B runs as follows: "Local Inspection: (1) Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion, necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of the record of the case. It the public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost: Provided that, in the case of a trial by jury the Judge shall mot act under this section unless such Jury are also allowed a view under Section 293". 8. It is clear that the proviso to Section 539B regulated this procedure. The proviso cautions that "the Judge shall not act under this section unless such, jury are also allowed a view under Section 293". Now Section 539B(i) speaks of recording "a memorandum of any relevant facts observed at such inspection". Even if no relevant facts are observed, this will not be known to anyone unless a memorandum of this negative aspect is kept. If any relevant facts have been observed, details will foe essential. We looked in vain to see whether the learned Judge had really kept any memorandum. Such a memorandum is necessary, not merely because human memory is short and without written record no one, not even the learned Sessions Judge, will remember the details thereafter. The memorandum may suitably indicate also what Exactly the Jurors viewed, so that an appellate Court may find out whether the view was merely for the purpose of enabling the Jurors to appreciate the evidence instead of supplementing it, and also to see whether the learned Sessions Judge in his summing up has cautioned the jury in this respect. That this inspection is merely to enable one to appreciate the evidence is a proposition about which there cannot be any reasonable dispute. If any authority is necessary, it would be found in Kunjalal Chakravartti v. The King, 54 Cal WN 186. It was a case of trial by a Magistrate but the principles apply with equal force to a Sessions trial. In the instant case the learned Judge never cautioned the jury that the purpose of the inspection was only for appreciating the evidence and not for forming any idea apart from that evidence. He should have told the jury that it they are to satisfy themselves as to the possibility of identification, various factors would have to be taken into consideration, for example, whether the witnesses had good eye sight and strongly developed powers of observation which vary from man to man. Further, in this case no notice appears to have been given to the defence, as mentioned before. Such a notice was indispensable, as has been laid down in the case of Oudh Behari Narain Singh, In re. 1 Cal LR 143. A Division Bench decision of this Court in Hriday Gobinda Sur v. Emperor made it clear that the omission to place on record the memorandum of a local inspection was an illegality vitiating the conviction and not an irregularity curable by the absence of any prejudice resulting from the defaults. Mr. Bagchi has drawn our attention to a decision of the Oudh Chief Court in Mt. Shakura v. Mt. Nasira AIR 1938 Oudh 182, wherein it was held that non-compliance with the direction in Section 539B to make a memorandum of local inspection does not vitiate the trial; and that such an omission is an irregularity, unless it was proved that, the accused were prejudiced. In view of the facts of this case the decision of this Court referred to above, we are of opinion that in this case absence of a memorandum of local inspection is an illegality that goes to the very root of the case in the circumstances. 9. Mr. Mukherjee has pointed out that the learned Judge did not properly caution the jury in regard to appraisement of dying declaration and the need of corroboration . In the present case several witnesses have referred to the statement made by the deceased, and generally no written note has been kept of this alleged statement. In Ex. A, the injury report recorded by the Doctor, P. W. 15, the following note appears: "Said to have been injured as a result of explosion of bomb thrown by Laloo about 2-30 P.M." In his evidence the Doctor says that this statement was made by the deceased. The injury report in regard to the deceased, however, speaks of "said to have been injured". Consequently it is not clear whether the doctor is recording the statement of the deceased. The learned Judge moreover does not seem to have told the jury what weight was to be attached to a dying declaration. As was pointed out in the case of Emperor v. Premananda Dutt the weight to be attached to a dying declaration depends in India, not upon the expectation of death which is a guarantee of its truth but inter alia upon the circumstances and surroundings under which it was made. The law on the subject has been clarified by two recent decisions of the Supreme Court viz., the case of Ramnath Madhoprasad v. State of Madhya Pradesh, and the case of Khushal Rao v. State of Bombay, . The failure in the instant case to give directions that the jury should not forget that a dying declaration was not made on oath and was not subject to cross-examination amounted to a misdirection as was held in the case of Rased Molla v. Emperor . Further, the learned Judge did not tell the jury that it was ordinarily unsafe to base a conviction on the statement of a dead person. That this omission to caution the jury amounts to misdirection, will appear from Hussain Sk. v State, . 10. According to Mr. Mukherjee P. W. 11 Baijunath Singh was declared hostile by the learned Judge on insufficient grounds, for a witness is not necessarily hostile, if in speaking truth as he knows and sees it, his testimony happens to go against the party calling him and that a mere fact that at a Sessions trial a witness tells a different story from that told by him before the Magistrate does not necessarily make him hostile. Order No. 3 dated 28-8-1957 shows, in respect of P.W. 11, that "the Public Prosecutor prays for Court's permission to cross-examine the said witness on the ground that he has made some false statement to the detriment of the prosecution case''. This witness was brought to the Court of Session for the first time, for he had not deposed before the trying Magistrate. It would have been usual for a Judge to look into the statement made before the Investigating Officer to see whether the witness was actually resiling from the position taken during investigation. There is no indication anywhere showing that this was done by the learned Judge. The first question in cross-examination asked by the Public Prosecutor elicited this reply: "I do not remember if I stated to the Daroga that Ramabatar and Shyamlal were chased by people and were arrested after they had thrown bombs". The Investigating Officer had not been examined at that time and when he was subsequently examined, the prosecution did not put it to him whether the witness had made that statement. There is, therefore, some force in Mr. Mukherjee's contention that both before and after he was declared hostile, prosecution had not cared to lay a foundation for cross-examining its own witness. Be that as it may, the learned Judge does not appear to have given any caution to the jury as to how to evaluate the evidence given by a hostile witness. He should have given them proper directions in the light of several well known decisions of this Court including the Full Bench case of Profulla Kumar Sarkar v. Emperor . This non-direction, in our opinion, was a matter which cannot be overlooked. Then again, in regard to P. W. 14, Sudamalal, aged 10 years, the learned Judge did not tell the jury how to assess this evidence. Children, as is well known, are highly imaginative and given to imagining things and telling stories. Moreover they can be easily tutored and be asked to give from memory a story about which they have been told. In the circumstances the jurors cannot be said to have received proper assistance from the summing up by the learned Judge. 11. Mr. Mukherjee has referred to two other infirmities in this case. According to him the charge is defective inasmuch as in enumerating the common object to the assembly, the words "hurt to others" have been omitted, although in another charge these words appear. 12. Mr. Mukherjee has said that having expugned the F.I.R., marked Ext. 1 and 1(a), by an order dated 3-9-1957, the learned Judge should not have referred to these in his summing up, thus creating an anomalous impressions in the mind of the jury. It is not known under what circumstances and at whose instance the documents, formerly treated as F.I.R., were expunged. If it was because of receipt of previous telephonic messages by the Police, there is no indication whether the attention of the learned Judge was drawn to the case of Chandrama Prosad Chamar v. State, ILR (1951) 1 Cal 539 and Chiramel Varied Devassikutty v. State, 1953 Cri LJ 1301: (AIR 1953 Trav Co 275). In view of the order that we are going to pass in this case no further comments need be made in regard to the charge and the F.I.R., because the learned Sessions Judge will have to decide in reference to facts which will be elicited, what the charge should be, and which document, if at all, will be treated as F. I. R. 13. In the circumstances of the case, it is but proper that the case should go back for retrial by the learned Sessions Judge sitting with a fresh Jury. 14. Mr. Mukherjee has drawn our attention to the want of formal proof of any sanction in this case in regard to the charge under the Explosives Substances Act. Mr. Bagchi has conceded that no such sanction was formally proved. Accordingly, we order that the learned Sessions Judge should also re-hear this portion of the case on the same charges on which they were convicted. 15. In the result, the appeal is allowed, and the convictions and the sentences are set aside. The appellants are to remain in custody, pending further hearing, as under trial prisoners. 16. Let the records be sent down forthwith so that the trial may take place as expeditiously as possible. N.K. Sen, J. 17. I entirely agree.

Author: Bhattacharya

Lalu And Ors. vs The State on 17 September, 1958

Calcutta High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI C.W.J.C. No. 2797 of 1999 (R) M/s. Steel Authority of India Ltd. ... ... Petitioner Versus The Presiding Officer, Labour Court, B.S.City & Anr. ... ... Respondents -------- CORAM : HON'BLE MR. JUSTICE AJIT KUMAR SINHA For the Petitioners: Mr. Ananda Sen, Advocate For the Respondents: Mr. J.C. -------- 9/ 12.02.2009D.S. (Ajit Kumar Sinha, J.) . The present writ petition has been preferred for issuance of an appropriate writ, order, direction for quashing the entire proceeding of M.J.Case No. 5/1998 of the court of the Presiding Officer, Labour Court, Bokaro filed by the respondent No. 2 under section 33 C (2) of the Industrial Disputes Act. It appears that in the initial round the matter was considered by a Division Bench of this Hon'ble Court in C.W.J.C. No. 104 of 1983 (R) wherein the Division Bench specifically held as under:- Further a Special Leave Petition was preferred against this specific direction of denial of back wages in Civil Appeal No. 2052 of 1990. The Hon'ble Supreme Court vide its order dated 24th April, 1990 modified the order and held that "the appellant should be entitled to four years remuneration and quantified it to Rs.75,000/- (Rupees seventy five thousand) and the order and direction of the High Court was modified to that extent. There is no denial of the fact that the amount of Rs.75,000/- has been paid. Pursuant there to there was another clarification order in Contempt Petition No. 185 of 1991 preferred by respondent No. 2 and it was specifically directed as under:- The management also complied with the direction issued by the Hon'ble Supreme Court and instead of three years gave the weightage /seniority of 5 years and 9 months which was beyond the direction and rather in excess of the direction. It appears that thereafter again a Contempt Petition was filed by the petitioner which was dismissed vide order dated 2. 17.9.1992 and again the respondent No. 2 preferred an application under Sub Section (2) of 33-C of the Industrial Dispute Act, 1947 for computation of basic wages and other benefits from 3.7.1989 to 31.3.1993 amounting to Rs.16373/- and an order was passed in M.J. Case No. 2 of 1993 by the learned Presiding Officer, Labour Court on 2.8.1996 directing the petitioner-management to pay Rs.16373/-. Even this has been complied with. Thereafter another M.J. Case No. 5 of 1996 was filed by Respondent No. 2 in which again the order was passed under Sub-Section (2) of 33-C for payment of further amount. It appears that the Presiding Officer, Labour Court has not even bothered to consider the orders/direction of the Hon'ble Supreme Court and has erroneously entertained petitions after petitions under Sub Section (2) of 33-C of the Industrial Dispute Act, 1947 which is even otherwise barred and not maintainable more so when the direction issued is in contravention and against the specific direction issued by the Hon'ble Supreme Court. This writ petition is accordingly allowed and the Order passed by the Presiding Officer, Labour Court, Bokaro in M.J. Case No. 5/1998 is quashed.

M/S.Steel Authority Of India L vs P.O.Labour Court & Anr. on 12 February, 2009

Jharkhand High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31917 of 2010 VIDYANAND JHA Versus THE STATE OF BIHAR ----------- 02. 27.09.2010 Call for legible carbon copy of the case diary of Bhimpur P.S. Case No. 16 of 2004 from the Court of Chief Judicial Magistrate, Supaul. The same must be submitted within three weeks. Put up on receipt of the case diary. (Anjana Prakash, J.) Vikash/-

Vidyanand Jha vs State Of Bihar on 27 September, 2010

Patna High Court - Orders

Court No. - 35 Case :- WRIT - C No. - 13370 of 2004 Petitioner :- M/S Lala Bhairo Prasad Sarraf & Others Respondent :- State Of U.P. & OthersPetitioner Counsel :- Punit Kumar Gupta,Shri Ravi Kiran Jain Respondent Counsel :- C.S.C. Hon'ble Vineet Saran J. Hon'ble Anil Kumar J. This case is wrongly listed. List this case as directed by order dated 8.7.2010. Order Date :- 15.7.2010 dk/-

M/S Lala Bhairo Prasad Sarraf & ... vs State Of U.P. & Others on 15 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/9193/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9193 of 2008 ========================================================= HIMALAYA MACHINERY PVT. LTD. THRO DEPUTY MANAGER(ACCOUNT) - Petitioner(s) Versus DEPUTY COLLECTOR STAMP DUTY VALUATION ORG. & 1 - Respondent(s) ========================================================= Appearance : MR PS PATEL for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 11/07/2008 ORAL ORDER Mr.Patel, learned counsel for the petitioner states that as stated in para 5 of the petition, the copy of the order passed by the first authority under the Stamp Act is not at all served upon the petitioner and he also states that if such statement goes wrong, the petitioner is ready to bear the cost with penalty as may be imposed by this Court. In view of the above, Notice returnable on 21.07.2008 on the condition that the petitioner deposits an amount of RS.10,000/- with this Court on or before 16.07.2008. By ad interim order, status quo qua the property shall be maintained by the respondent authority as well as by the petitioner. D.S. today. (JAYANT PATEL, J.) *bjoy     Top

Author: Jayant Patel,&Nbsp;

Himalaya vs Deputy on 11 July, 2008

Gujarat High Court

Court No. - 19 Case :- CONSOLIDATION No. - 4932 of 1987 Petitioner :- Ram Newal And Another Respondent :- Deputy Director Of Consolidation, Faizabad & 2 OthersPetitioner Counsel :- S.K.Mehrotra,AVinash Srivastava Respondent Counsel :- C.S.C.,J.C.SriVastaVa Hon'ble S.C. Chaurasia J. List has been revised. None appears on behalf of the petitioners. The writ petition is dismissed for want of prosecution. Interim order, if any, stands Vacated. Order Date :- 21.7.2010 AKS

Ram Newal And Another vs Deputy Director Of ... on 21 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23:19 BAY or NOVEMBER,Vl2'Q.¥._0 BEFORE M A' THE HON'BLE MR. JUSTICE or Miscellaneous First Appealafi BETWEEN O H B Nagaraj. _ S/0. Halageri Basappa, _ Aged about 38 years} ~ ;, _ _ Jiraythi and Motor rewimrlirig work,' ' __ Alur Grama , . ' T * 3 DaVanagere"Ta1uK A Appellant [By G. P. Prakash, Ac1Vs.] 1. ; ' O. " ' o.._Vemare-d-sly, Aged about 50 years, _ Sri. Rameshwara, VT Ow'nerrv.of"Tipper Lorry, " to X 31~¢o1v1;c;:n Road, * 43} Cross, MCC B Block. "Da§vanagere. The Divisional Manager. H The Oriental Insurance Co. Ltd., Divisional Office, Thiluvalli Complex. Davanagere -- 577 002. Respondents%* [By R. 1 -- Served. Sri. C. Shankar Redcly, Adv. for R2) This MFA is filed U /S 173(1) of MVAC1; against-t.._the Judgment and award dated: 16/O8/Vin MVC No.349/ 2007 on the file of Add}. Sessions--.1;jt1§i'ge,s--.» Fast Track Court--I, Davangere, part1y.v_'aIIov§*ing the claim petition for compensation." and' "se_e,king enhancement of compensation}, This appeal coming' on for._Admission,:_this; the Court, delivered the foiiovvingz . J U 13 G M' ' This appeal is the 'vettasrm_an--t'A_'for'enhancement of compensation ..awaréted€ the 2. is admitted and with the consent"t1.~=3ar11eti'._Cotz;'nse1 appearing for the parties, it np 'for final disposal. ' sake of convenience parties are referred to " referred to in the claim petition before the Trrs.q"n;_a1. AA 4:; Brief facts of the case are: fig, That on 14-1-07, when the claimant was travelling in Gayathri bus bearing registrationg No. KA--l6~«--B--3245 from Jagalur bus stand, village, the Tipper lorry bearing KA--l7--A--4545 came with :sl_peed'.y_ii14_'a: 7 negligent manner and dashed l'againsteytl1ev:bus.:'; As la, result, the claimant 1 he filed a claim petition be;for'e_gt'he seeking compensation. of Tribunal by impugned has awarded interest at 6% p.a. of compensation awarded by the 'i"ribun.al' " is in appeal seeking Vefihaneernent' ofeompensation. thevre is no dispute regarding occurrence of Vaocicieriti' negligence and liability of the insurer of the it ; offending vehicle. the only point that remains for my llcolnsideration in the appeal is: Whether the quantum of compensation awarded by the Tribunal is just and proper or does it call for enhancement? 6. After hearing the learned Counsei for theifparties and perusing the award of the Tribunal}.iiiiijarnftif view that the compensation awarded not just and proper, it is on the':.10vv_er"iVside it is deserved to be enhance:d;.,V_ 7. The claimant injuries: F ractureof upper:'end'V.cf:pbcifh' of left leg and 0ther;siinp1e injuries. .. .ivIr'1juri'es étrstained by"-hiin are evident from the wourid 'certificate. discharge card -- Ex.P.6, disa}_:)i1ity""ceI'tifiC--ate_:-¥'EX.P. 10, X--rays --- EX.P.14 and 17, ofzML'C"i3obk -- Ex.P.15, case sheet -- Ex.P.16 V by oral evidence of the claimant and two d»Qctors.'e§:{i&n1ined as P.Ws. 1, 2 and 3 respectively. " _§;w.2 -- Dr. Ghanathe Madhukar, an Orthopaedic 'vS_u:r'ge0n from C.G.Hospita1, Davangere, has stated in gihis evidence that he examined the claimant. On physical examination, he found tenderness, swelling %. present over left knee and ankle joint, range movements restricted and painful of left knee joint. shortening of left lower limb by 1/2 em., signs of osteoarthritis present in left knee joint__an.d joint. X««ray shows malunited f1jaetur_e'7o'f.__'tibiatanid fibula of left leg and lumbar sporidjflosis with retrolishthesis of onL'4-- with spondylosis. He claimant has got 30 to 35% diSabilivt}'-»..:._ 'lorovsfisgv"examination, he admits the claimant for . . .' Nayak has stated in his evideneéifpaot the claimant on 15-1-07 and is»:suedll'the dis'abi_l_ity certificate marked at Ex.P. 10 and ' ;X4ray=v._Vfilrri.s:"'taken taken on 16-10-07 is produced at is also not the doctor who treated the claimaij t. Considering the nature of injuries, Rs.l5,000/- "tgawarded by the Tribunal towards pain and suffering is on the lower side and it is deserved to be enhanced and I award Rs.40,000/-- under this head. 9. Claimant was treated as inpatient Vat C.G.Hospita1, Davangere, and he has not document with regard to treatment and hospital _eXper1<'ses'.=. same, Rs.5,000/-- awarded» the" irxfibiiniéii towards medical and incide1ita1._ just proper and there is no scope for enhanceniientfl ' 1 ., 10. C1aimani::jec.Iajrr;..s to"'haife.:Vbeen-earnirlg Rs.6,000/-- per iriont-hidwdb-3;«doingvi._agric1iIture and motor rewinding Work. 'But not established by producing Vd'ocument._ Therefore, income assessed by the »A Rs.3,000/~---- per month is just and proper. H injiiries suggest, that claimant might have talétentirehst and treatment at least for four months. 2 Therefore, a sum of Rs.12,000/-- is awarded towards toss of income during laid up period as against Rs.9,000/-- awarded by the Tribunal. %~ 11. Considering nature of injuries, disability stated by the doctor and an amount of discomfo.r"t._ and unhappiness which he has to undergo in life, R.s.l5,000/-- awarded by the Tribuna1_.toward.s'~ amenities is on the lower side; and it is d'eserver.:l"tlo_be enhanced by another andegli 20.000/- under this head. _ _ p 12. Claimant is ..years.l Multiplier applicable to his ageH_gro_u irfivclome is assessed at Rs.3,00Q"/§l'j.:per .l_P.:W:2'--~~'ildoctor has stated, claim'ant'~.%7's'ufl'ere'd 'disability of 30 to 35%. Accordingly, to whole body can be taken at l'1*0f5/o. ..'.So;'v.fu"ture loss of income works out to (I~"1s."3';'ClOO/-- X 10/100 X 12 X15] and the awarded by the Tribunal. the claimant is entitled for the following pp compensation: 1) Pain and suffering Rs. 40,000/-- 2] Medical and incidental expenses Rs. 5,000/ -- 3] Towards loss of income during laid up period Rs. l2,000/-- 4) Towards loss of amenities Rs. 20,000/-- 5) Future loss of income Rs. 54,0_OO/- Total Rs.1,3ti1s»,V(3E'(;--s,/_7»" 14. Accordingly the appeal is allowed 3t'l'iel Judgment and award of the is extent stated herein above.4_Thet'cla'imant'its a total compensation of against Rs.98,000/~ aWard'ed_'fby interest at 6% p.a. on the enha.n.r:e_d. of Rs.33,000/-- from the_ till the date of realisation, 15. is directed to deposit the enhanced"compensation amount With interest Within months frornlllthe date of receipt of a copy of this .. it of the enhanced compensation 50% with ttpproportionate interest is ordered to be invested in FD. in any nationalized or scheduled Bank in the name of the claimant for a period of 3 years and the remaining '€53; amount with proportionate interest is ordered to be released in his favour. N0 order as to costs. Mgn*

Author: B.Sreenivase Gowda

H B Nagaraj vs R Venkata Reddy on 23 November, 2010

Karnataka High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 17164 of 2008 DATE OF DECISION : 26.09.2008 Basant Singh .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. M.S. Uppal, Advocate, for the petitioner. *** ( SATISH KUMAR MITTAL ) JUDGE September 26, 2008 ( JASWANT SINGH ) ndj JUDGE SATISH KUMAR MITTAL , J. ( Oral ) The petitioner has filed this petition under Articles 226/227 of the Constitution of India for setting aside the election of respondents No.7 and 8 as Panches of Gram Panchayat, Village Mirpur Kalan, Tehsil Sardulgarh, District Mansa. After arguing for some time, in view of the disputed questions of law involved in the petition and the availability of the remedy of election petition under Section 76 read with Section 89 of the Punjab State Election Commission Act, 1994, counsel for the petitioner states that the petitioner may be permitted to withdraw this writ petition with liberty to avail the CWP No. 17164 of 2008 -2- remedy of election petition, in accordance with law. Dismissed as withdrawn with the aforesaid liberty.

Basant Singh vs State Of Punjab And Others on 26 September, 2008

Punjab-Haryana High Court

ORDER C. Satapathy, Member (T) 1. This is an appeal filed by the Revenue. None is present for the respondents despite notice and adjournment granted earlier. Shri M.H. Sheikh, Learned JDR appearing for Revenue challenges the impugned Order-in-Appeal which classifies impugned goods viz. Nomex Aramid Paper under heading 85.46. The said product was classified by the Original adjudicating authority under chapter 39 on the basis of material composition, rejecting the claim of the appellants for classification under 85.46 as insulators. The Ld. JDR relies on the decision of the Apex Court in the case of Raja Radio Co. v. Collector of Customs, Bombay - [1995 (77) E.L.T. 251 (S.C) = 1995 (58) E.C.R. 581 (S.C.)] under which it was held that paper impregnated with plastic to provide electrical grade insulation was classifiable under heading 39.01/06. 2. After hearing Ld. JDR and perusal of case records, we find that the subject goods are in the form of sheets in running length and has to go through various operations such as lamination with plastic film etc. before the same can be put to use as insulators. As such, the Original adjudicating authority was correct in making a distinction for classification purposes between insulating materials and insulators which are made from insulating materials. The impugned goods as presented to the Customs are not insulators and hence they cannot be classified under heading 85.46. Accordingly, we set aside the impugned Order-in-Appeal and restore the Order passed by the Original authority.

Commissioner Of Customs vs Gujarat Polyster on 1 April, 2003

Customs, Excise and Gold Tribunal - Mumbai

Gujarat High Court Case Information System Print CR.MA/401/2011 1/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 401 of 2011 ========================================= SAHERKAZI ANWARHUSAIN GULAMNABI & 18 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================= Appearance : MR MA KHARADI for Applicant(s) : 1 - 19. MR KP RAVAL, ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/01/2011 ORAL ORDER Rule. Learned APP Mr. K.P.Raval, waives service of rule on behalf of respondent State. Counsel for the applicants submitted that the accused in cross-complaint have been granted anticipatory bail by the Court. He further pointed out that the present complaint has been lodged after a gap of more than 3 days. Allegations besides rioting are of causing simple hurt. Considering the above aspects of the matter, it is ordered that in the event of arrest of the applicants in connection with C.R. No.I-239/2010 registered with Vijapur Police Station, they shall be released on bail upon furnishing a bond of Rs. 5,000/-(Rupees Five Thousand) each with one surety of like amount to the satisfaction of the lower Court and subject to the following conditions that they : [A] shall cooperate with the investigation and make themselves available for interrogation whenever required. [B] shall remain present at Vijapur Police Station on 21.1.2011 between 11:00 am to 2:00 pm: [C] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer; [D] at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders; [E] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately [F] It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits. [G] This order will be operative if the applicants are arrested at any time within a period of 90 days from today . [H] Within a period of ten days from the date of arrest, the applicants shall apply for regular bail which application shall be decided by the competent Court in accordance with law without being influenced by the fact that anticipatory bail was granted. Rule made absolute. Application is disposed of accordingly. Direct service is permitted. (Akil Kureshi,J.) sudhir     Top

Author: Akil Kureshi,&Nbsp;

Saherkazi vs State on 18 January, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2985 of 2007 USHA SHARMA Versus THE STATE OF BIHAR & ORS ----------- Trivedi/ (Navaniti Prasad Singh, J.) 04 29.03.2011 As a matter of last indulgence, put up this matter on 11th April, 2011 retaining its position by that day University would have given complete calculations of the liability of the petitioner as admitted by the University remaining unpaid and also as to what are the steps that have been taken by the University to pay the same. This was because the difference as being claimed as arrears starts from 01.01.1981-82 and the writ petition was filed in the year 2007 and there is yet to be filed a counter affidavit therein. If full, correct and complete calculation on affidavit is not filed on that day then on the 11th April, 2011 the Vice-Chancellor of the Lalit Narayan Mithila University, Darbhanga shall be personally present in the Court to answer the rule of contempt.

Usha Sharma vs The State Of Bihar &Amp; Ors on 29 March, 2011

Patna High Court - Orders

Gujarat High Court Case Information System Print CA/995/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR FIXING DATE OF HEARING No. 995 of 2011 In SPECIAL CIVIL APPLICATION No. 7042 of 2009 ========================================================= NILESH T PANDYA - Petitioner(s) Versus GUJARAT STATE ROAD TRANSPORT CORPORATION - Respondent(s) ========================================================= Appearance : MR AS SUPEHIA for Petitioner(s) : 1, MR ASHISH M DAGLI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 21/02/2011 ORAL ORDER1. Heard learned advocate Mr.A.S.Supehia for applicant and learned advocate Mr.A.M.Dagli for opponent. 2. Present application is filed with a prayer to fix the main SCA for final hearing as early as possible. 3. Considering the submissions made by learned advocates and averments made in present application supported with affidavit, main SCA No.7042 of 2009 is fixed for final hearing on 21.3.2011. The Registry is directed to notify it for final hearing accordingly. Hence, present application is disposed of. [ H.K.RATHOD, J. ] (vipul)     Top

Author: H.K.Rathod,&Nbsp;

Nilesh vs Gujarat on 21 February, 2011

Gujarat High Court

JUDGMENT Burkitt, J. 1. This case is a very instructive illustration of the saying that a successful litigant's troubles commence when he tries to execute his decree, as we have here the case of a decree-holder who for more than eleven years has been unable to obtain the fruits of a decree in his favour. 2. The facts are as follows: One Sheo Bakhsh lent money to one Adhar Singh wherewith to pay the Government revenue due from him and to save his property from sale. No security was taken for the loan. The money not being repaid, Sheo Bakhsh sued Adhar Singh and obtained a money decree on the 24th April 1886 for some Rs. 9,642 odd. He took out execution in May 1887 by attaching two villages belonging to his judgment-debtor, namely, Atarra Mahal Ajit Singh and Bairipur, and asked that they should be sold and his decree paid off from the proceeds of the sale. His troubles then began. An objection to the attachment was made by Bijai Singh, son of the judgment-debtor. Bijai Singh claimed these villages as his property under a deed of gift, dated June 23rd, 1886, from his father, the judgment-debtor. The Court executing the decree allowed the objection and directed the attachment to be removed. That order was passed in May 1888. The decree-holder thereupon instituted a suit against his judgment-debtor and against Bijai Singh, and on February 14th, 1889, he obtained a decree declaring that the two villages were liable to attachment and sale in execution of the decree of April 1886. An appeal was taken against the declaratory decree, but was dismissed by the High Court on January 28th 1891. Meanwhile the decree-holder took prompt action on the decree of February 19th, 1889. He made an application on February 19th 1889, to the execution Court, on the strength of that decree, asking for attachment and sale of the two villages. That application was granted, an attachment being levied on the two villages on the 22nd June 1889. As the villages attached were ancestral property, the further execution of the decree was, on September 12th 1889, transferred to the Collector under the rules framed by Government to give effect to Section 320 of the Code of Civil Procedure. The case however, did not remain long in the Collector's Court. For on January 31st 1890, as the decree-holder was unable to attend at his Court in camp in the interior of the district, the Deputy Collector, on whose file the execution case was pending, struck it off for default and returned the papers to the Subordinate Judge, who at once followed suit by striking the case off his pending files. This proceeding was quite unnecessary, as he had struck the case off his files when he sent it to the Collector in September. The decree-bolder then made several ineffectual attempts to induce the Subordinate Judge to send back the case for further execution to the Collector. At last, on an application made in September 1890, the Subordinate Judge directed the case to be again sent to the Collector for further execution. This order was made on November 19th 1890. The result of this last order was in our opinion to restore the state of things which existed on September 12th 1889, when the decree first was sent to the Collector for execution. There was no necessity for any further attachment. The orders of the Deputy Collector and of the Subordinate Judge striking the execution case off their files of pending cases did not dissolve the attachment which had been imposed in the previous June, 1889. No formal order was passed by either tribunal withdrawing the attachment, and the decree-holder certainly had neither asked for, nor consented to such a withdrawal. In this opinion we are supported by the authority of many decided cases, e.g., Gunga Rai v. Mussumat Sakeena Begum N.W.P. H.C. Rep. 1873, p. 70; Nadir Hossein v. Pearoo Thovildarinee 14 B.L.R. 425, Golam Yaheya v. Sham Soonduree Kooeree 12 W.E. 142, &c. We may add also that as to this point no question was raised nor any argument addressed to us at the hearing of this appeal. With the retransfer of the execution case to the Collector the decree-holder's troubles did not come to an end. The judgment-debtor early in January 1891, put in a petition before the Subordinate Judge in which, on various technical grounds, he objected to the continuance of the execution proceedings before the Collector. That petition was rejected on technical grounds on April 17th 1891. The judgment-debtor, however, persevered, and, on April 13th 1891, he again put in a petition in which on technical grounds he contended that the decree was not capable of execution, and prayed that the decree holder's application for execution might be disallowed. The Subordinate Judge there upon went into the matter, and by order dated June 8th, 1891, held that the pending proceedings in execution could not be maintained, and disallowed the application for execution. The Subordinate Judge held that the application was barred under Section 158 of the Code of Civil Procedure by reason of the in fructuous proceedings mentioned above, which took place between the orders of January 31st and November 19th, 1890. 3. The result of the decision of June 8th 1891, was that the decree-holder's execution proceedings before the Collector came to an abrupt termination, and the papers were returned to the Subordinate Judge. So after the expiration of more than five years from the date of his decree the decree-holder, through no fault of his own, found himself no nearer getting the benefit of his decree than he bad been in 1886. He, however, now appealed to the High Court against the order of June 1891, and prayed that Court to order execution of his decree to be proceeded with. The appeal was allowed by the High Court on December 15th 1892, the order of the Subordinate Judge was set aside, and it was ordered that "the proceedings in execution will proceed." Thereupon the decree-holder again applied to the Subordinate Judge on the strength of the order of the High Court and the case was on his application, by order of March 3rd 1894, again sent to the Collector for further execution. Even then the judgment-debtor was Dot satisfied. He again, on April 21st 1894, applied to the execution Court; objecting to the order for execution, and to the transfer of the proceedings to the Collector. It is not necessary to notice the reasons he gave for his objection. Here the appellant Bank for the first time came on the scene. It also, on May 4th 1894, practically supported the objections made by the judgment-debtor and called on the Court to compel the decree-holder to attach anew and to notify the terms of a mortgage it held from the judgment-debtor. Both objections were over-ruled by the Court, and an appeal to the High Court was dismissed in June 1896. 4. But meanwhile, i.e., between the orders of June 8th, 1891 and of December 15th 1892, the case had entered into a new phase. On the 4th of January 1892, the judgment-debtor, jointly with his son, Bijai Singh, borrowed Rs. 30,000 from the Bank of Upper India and, as security for the repayment of the loan, mortgaged six villages, among which are the two villages Atarra Mahal Ajit Singh and Bairipur which the decree-holder Sheo Bakhsh had? attached on June 22nd J 889, in execution of his decree, and in respect of which the execution proceedings had been twice transferred to the Collector. Hence the present suit, in which the plaintiff Bank seeks to enforce its mortgage by sale of all the mortgaged villages. The persons impleaded as defendants are Adhar and his son (who have not appeared) and the five sons of Sheo Bakhsh, the decree-Holder referred to above, now deceased. The lower Court gave the Bank a decree for recovery of the loan by the sale of the mortgaged property, with the exception of Atarra Mahal Ajit Singh and Bairipur. It held that, as these villages were under attachment to satisfy the decree held by Sheo Bakhsh's sons, the Bank could not bring them to sale unless it paid off that decree. The Bank appeals, contending that it is entitled to a decree for sale of the two villages just mentioned. 5. In the memorandum of appeal the Bank refers to what it calls a "finding" by the Subordinate Judge that Sheo Bakhsh was a consenting party to the mortgage of January 1892. We are unable to discover any such "finding" on the record. The Subordinate Judge in that which he calls "a short account of the case," but which clearly is no more than a historical resume of the case of each party, does say that "Sheo Bakhsh having joined the executants expressed his consent to the contents of the document." It is impossible to say where the Subordinate Judge got that statement. It is not mentioned in the plaint, nor referred to in the written statement, nor was it put in issue. Neither Adhar nor Bijai Singh put in an appearance, so the statement could not have been made by them, and the present respondents certainly did not make any such admission and do not admit it now. The Bank's mortgage deed also contains no assent whatever by Sheo Bakhsh nor any mention of his name; the only parties to it are the Bank, Bijai and Adhar. Probably the fact was asserted by the Bank's pleader when stating his case in the lower Court, and that would explain why--no evidence being produced to support it--the Subordinate Judge made no mention of it in his judgment. It is too large a draft on our credulity to ask us to believe that Sheo Bakhsh, who for years had been straining every nerve to obtain execution of his decree, and whose appeal was then pending in the High Court, could have taken such a fatal step as to assent to the mortgage of January 4th 1892. We notice that in its judgment of January 28th 1891, referred to above, the High Court treated with contempt a similar plea that Sheo Bakhsh had consented to the deed of gift. 6. Passing away from that matter, we have now to decide whether the appellant Bank is entitled to a decree for sale of the two villages under its mortgage, or whether the respondents have a prior lien. The Subordinate Judge has found in favour of the respondents. In our opinion his decision is right. The declaratory decree given by the Subordinate Judge on February 14th 1889 (affirmed by the High Court on January 28th 1891), decided finally that the two villages were liable to sale in execution of Sheo Bakhsh's decree, and that decree bound not merely Adhar and Bijai, but also their mortgagee the Bank, which claims title through them. It has been held by some authorities that the decree of February 14th 1889, had the effect of restoring the attachment which had been removed on May 12th 1888. It is unnecessary to decide that point, as the, two villages were again duly attached on June 22nd 1889, and undoubtedly remained subject to that attachment at least up to June 8th 1891, the date on which the Subordinate Judge disallowed the then pending application for execution, wrongly holding that that application was barred under Section 158 of the Code of Civil Procedure. Now it is in our opinion very doubtful whether that order had the effect of dissolving the attachment. The order did not formally withdraw the attachment, nor did it declare (as was incorrectly stated at the hearing of this appeal) that the decree was incapable of execution. It did no more than lay down that execution should not be allowed on that particular application. But if it be the case that the effect of that order was to dissolve the attachment, we are of opinion that the effect of the order of the High Court in appeal (December 15th 1892) was to wipe out the order of June 8th 1891, and to re-establish the position of the parties as it stood before that order was made. The argument for the appellant Bank is that the effect of the order of the High Court was to send the decree-holder back to the Subordinate Judge with a bare money decree in his hands, deprived of the security he had obtained by the attachment in June 1889, and of the benefit of the protection given by Section 276 of the Code of Civil Procedure. In short, it is contended that the only course open to this decree-holder, on succeeding in his appeal in the High Court, and on obtaining from that Court an order that the proceedings in execution should proceed, was to apply again for attachment and sale and to being de novo, subject to any alienation which his judgment-debtor might have made in the interval between the two orders. Admittedly the decree-holder was in no way in fault. It was the Subordinate Judge who made a wrong order, and, if the contention for the appellant be correct, the effect of that wrong order is to damnify the unfortunate decree-holder most disastrously by enabling Adhar successfully to swindle his creditor. We are unable to believe that the law can be as contended for by the appellant Bank. We are of opinion that when the High Court set aside the wrong order of the Subordinate Judge, it set it aside to the fullest extent, and that, if the effect of that order was to dissolve the attachment, the effect of the appellate order was to cancel that portion also of the Subordinate Judge's order. We fail to see why we should hold that that portion of the order was not affected by the appellate decree. We hold, therefore, that the two Tillages in dispute in this appeal were at the date of the appellant Bank's mortgage lying under a duly perfected and existent attachment in execution of Sheo Bakhsh's decree, and that under the provision of Section 276 of the Code of Civil Procedure the Bank's mortgage is void against any claims enforceable under that attachment, and therefore void against the decree held by the respondents. 7. It also was contended that the Bank's mortgage would, under the provision of Section 52 of the Transfer of Property Act, be inoperative as against the respondent's decree on the ground that the mortgage was entered into during the active prosecution of a contentious proceeding in which the right to sell the dispute villages was directly and specifically in question. We, however, consider it to be unnecessary to express any opinion on that question. 8. For the reasons given above we are of opinion that this appeal fails. We therefore dismiss it with costs.

Author: Burkitt

The Bank Of Upper India vs Sheo Prasad And Ors. on 7 May, 1897

Allahabad High Court

Court No. - 32 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16236 of 2010 Petitioner :- Galib And Others Respondent :- State Of U.P Petitioner Counsel :- Anil Mullick Respondent Counsel :- Govt Advocate Hon'ble Surendra Singh,J. Applicants-Galib, Aameer, Shibbu and Wasim seeks bail in Case Crime No. 113 of 2010 under Sections 323, 325, 352, 504, 506 and 308 I.P.C., Police Station Mawana, District Meerut. Heard learned counsel for the applicants, Sri S. Shahnawaz Shah, Advocate who have filed their parcha on behalf of the informant which is taken on record as well as learned AGA for the State and perused the material placed on record. Learned counsel for the applicants has argued that four persons are said to have sustained injuries and their injuries were kept under observation and X- ray was advised. As per the supplementary medical report, all the injuries were found to be simple in nature except injury no. 1 of one Dilshad. He further contends that it has not been specified as to who was the author of the said fatal injury. He further contends that the applicants who are in jail since 23.5.2010, having no criminal history to their credit, deserve to be released on bail at this stage. The bail is, however, vehemently opposed by the learned A.G.A. and learned counsel for the complainant by contending that seven persons were named in the F.I.R. and are alleged to have assaulted the injured persons but it has not been disputed that all the injuries were found to be simple in nature except injury no.1 of Dilshad. The points pertaining to nature of accusation, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie, satisfaction regarding proposed evidence and genuineness of the prosecution case were dully considered. Considering totality of circumstances of the case, I consider it a fit case to enlarge the applicant on bail. Without expressing any opinion on the merits of the case, let the applicant- Galib, Aameer, Shibbu and Wasim involved in aforesaid crime be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Order Date :- 30.6.2010 MN/-

Galib And Others vs State Of U.P on 30 June, 2010

Allahabad High Court

JUDGMENT M.Y. Eqbal, J. 1. In this writ application the petitioner has prayed for issuance of an appropriate direction upon the respondents not to levy any charge for the period 5.2.2000 to 12.5.2000 during which period his electric line was disconnected by the Board and also for quashing the bill for the month of May, 2000 so far as it relates to maximum demand charges. 2. Petitioner is a High Tension consumer having contract demand of 1067 KVA, Petitioner's case is that earlier it had a contract demand of 900 KVA but because o the capacity of the transformer installed in the factory premises of the petitioner the contract demand was increased. It appears that on 17.9.1999 a routine inspection was made in the factory premises of the petitioner and the meter was paper sealed on that day by the inspecting team. A second inspection was also made one week thereafter i.e. on 23.7.1999 and it was found that during the period between 17.3.1999 to 28.7.1999 the consumption was 54,602 units. The respondent-Board, therefore, lodged FIR against the petitioner under Section 379 of the IPC and Sections 39 to 40 of the Indian Electricity Act, 1910 alleging, inter alia, that the petitioner is indulging in theft of electricity. The respondent- Board raised supplementary bill of Rs. 1,38,28,593/- and the line was disconnected on 29.7.1999. The petitioner challenged the action of the Board in raising the bill by filing CWJC No. 2290/99. This Court, by order dated 2.9.1999, quashed the impugned bill and remanded back the matter to the General Manager-cum-Chief Engineer, Dhanbad Electricity Board to hear the matter afresh and pass orders after giving opportunity of hearing to the petitioner. It is stated by the petitioner that immediately thereafter, the petitioner requested the Board to restore the electric line but the same was not restored. The petitioner, thereafter, filed CWJC No. 3062/99 (R) and this Court, vide order dated 14.10.1999, directed the Board to restore the supply of electricity and, accordingly, it was restored on 23.10.1999. Petitioner's case is that after its line was disconnected on 5.2.2000 the petitioner received current monthly bill for the month of April, 2000 in which the respondent-Board charged maximum demand charge for the entire month. The electric line of the petitioner was restored on 13.5.2000 but in the bill for the month of May, 2000 the respondents charged maximum demand charges for April, 2000. 3. Mr. Mittal, learned counsel for the petitioner mainly contended that the Board has charged maximum demand charges on the basis of KVA reading of 1280 which was for the month of February, 2000 when the line of the petitioner was disconnected. The Board illegally levied KVA charges for the entire period although line was restored only on 13.5.2000. Learned counsel submitted that the Board is not entitled to levy maximum demand charges for the period when there was no supply of electricity in the premises of the petitioner. 4. On the same set of facts the petitioner filed CWJC No. 1380/2000 for quashing the order dated 12.5.2000 passed by the General Manager-cum-Chief Engineer by which he has disposed of the representation filed by the petitioner in terms of the order dated 2.9.1999 passed in CWJC No. 2290/99 (R). The petitioner also challenged the bill raised by the Board for Rs. 1,18,39,891/-. However, the petitioner has filed the present writ application challenging the demand of maximum guarantee charges for the period when there was no supply of electricity. The aforementioned CWJC No. 1380/2000 has been dismissed by this Court by a reasoned judgment dated 28.6.2001 [See 2001 (2) Jhr CR 228 (Jhr)] upholding the correctness of the bill raised by the Board. This case is, therefore, squarely covered by the reasons recorded by this Court in the said judgment. Now the only question that falls for consideration is as to whether the petitioner is liable to pay maximum demand charges for the period when there was no supply of electricity. Admittedly the petitioner entered into an agreement with the Board under which the latter provided H.T. connection in the premises of the petitioner under certain terms and conditions and also under terms and conditions provided in the Act and the Tariff. No where in the writ application the petitioner has said that the Board, in violation of the terms of the agreement, has been charging maximum demand charges for the period when the petitioner did not consume electricity. It is also not the case of the petitioner that the H.T. agreement stood terminated by notice issued from the side of the petitioner or the respondent-Board. 5. In the case of Bihar State Electricity Board. Patna v. Green Rubber Industries and others, reported in AIR 1990 SC 699, the question which fell for consideration before the Apex Court was as to whether the conditions imposed in the agreement for payment of minimum guarantee charges irrespective of the fact whether energy was consumed or not, would be valid and justified. Their lordships in the concluding paras of the judgment held as under :-- "It is true that the agreement is in a standard form of contract. The standard clauses of this contract have been settled over the years and have been widely adopted because experience shows that they facilitate the supply of electric energy. Lord Diplock has observed : "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms and fair and unreasonable". A Schroeder Music Publishing Co. Ltd. v. Macaulay, (1974) 3 All ER 616 (624). In such contracts a standard form enables the supplier to say: "If you want these goods or services at all, these are the only terms on which they are available. Take it or leave it." It is a type of contract on which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract which frequently contains many conditions is presented for acceptance and is not open to discussion. It is settled law that a person who signs a document which contains contractual terms is normally bound by them even though he is ignorant of the precise legal effect. In view of clause 4 having formed one of the stipulations in the contract along with others it cannot be said to be nudum pac-tum and the maxim nudum pactum ex quo non oritur actio does not apply. Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not until the agreement comes to an end. Every contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavouring to collect the intention of the parties even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with the stipulation of minimum guaranteed charges cannot be held to be ultra vires on the ground that it is incompatible with the statutory duty. Difference between this contractual element and the statutory duty has to be observed. A supply agreement to a consumer makes his relation with the Board mainly contractual. Where the basis of supply is held to be statutory rather than contractual. In cases where such agreements are made the terms are supposed to have been negotiated between the con- sumer and the Board, and unless specifically assigned, the agreement normally would have affected the consumer with whom it is made, as was held in Northern Ontario Power Co. Ltd. v. La Roche Mines Ltd.. (1938) 3 All ER 755. For the foregoing reasons we have no hesitation in holding that the agreement was reasonable and valid and it was not determined with the disconnection of supply to the respondent-firm by the board on 28th September, 1981 but only according to the stipulations in clause 9 (b) of the agreement as discussed above. The liability to pay the minimum guaranteed charges, therefore, continued till the determination of the contract. The Board was, therefore, entitled to submit the bill and make the demand on that account and recover the same according to law." 6. In another case of G.M.-cum-Chief Engineer, B.S.E. v. Rajeshwar Singh, AIR 1990 SC 706, a similar view was taken by the Apex Court following the earlier decision in the case of M/s. Green Rubber Industries (supra) their lordships held as follows :-- "The first question, therefore, is whether the firm was liable to pay the minimum guaranteed charges for the period during which the supply remained disconnected. In Civil Appeal No. 22O/87 (reported in AIR 1990 SC 699) we have held that the firm would be liable to pay the minimum guaranteed charges unless it could be shown that the contract itself was terminated. The mere disconnection of the electricity supply would not amount to termination. If there was no application for restoration within seven days of disconnection that would be deemed to be a notice for termination and the contract would be terminated either at the end of this period of notice or the tenure of the agreement whichever was longer. In the instant case the fresh agreement was entered into on 30.5.1977 and connection was restored on 15.6.1977. Earlier the connection given on execution of the agreement was on 12.8.1974 and supply was disconnected on 1.1.1975. The earlier agreement must be deemed to have come to an end on execution of the fresh agreement and restoration of the connection if it did not terminate earlier under the terms of the agreement. The firm's liability, had therefore, to be determined on the basis in view of what has just been held in the judgment in Civil Appeal No. 220 of 1987. 7. Mr. Mittal learned counsel for the petitioner put heavy reliance on the decision of this Court dated 10.3.2000 passed in CWJC No. 3472/99 (R). In the said decision this Court never held that a consumer would not be liable to pay maximum demand charges and minimum demand charges for the period when there was no consumption of electricity, rather, this Court held that the respondent-Board would be entitled to raise fresh bill after disposal of LPA. The LPA has been disposed of simply with a direction to restore supply of electricity subject to payment of certain amount to the Board and till the claim of the petitioner is finally disposed of by the General Manager-cum-Chief Engineer. 8. As noticed above, the claim of the petitioner was disposed of by the General Manager-cum-Chief Engineer vide his order dated 12.5.2000 and the said decision has been upheld by this Court in the Judgment passed in CWJC No. 1380/2000 [See 2001 Jhr CR....(Jhr)]. 9. In the facts and circumstances of the case, no relief can be granted to the petitioner. This writ application is, therefore, dismissed. 10. Petition dismissed.

Author: M Eqbal

Sheo Shakti Cement Industries-Ii vs Bihar State Electricity Board And ... on 4 July, 2001

Jharkhand High Court

JUDGMENT P.B. Mukharji, C.J. 1. The Tribunal referred this question as in its opinion a question of law arises on the facts of this case. The question of law in the statement of the case referred to is as follows : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the reassessment proceedings under Section 34(1)(a) of the Indian Income-tax Act, 1922, were not validly initiated ? " The facts of the case may be stated briefly at the outset. It relates to the assessment year 1955-56 and the corresponding previous year ended on the 30th June, 1954. The only question before the Tribunal relates to the validity of reassessment under Section 34(1)(a) of the Income-tax Act of 1922 for the assessment year 1955-56. The original assessment was made by the Income-tax Officer on a total income of Rs. 83,606. This was reduced in appeal to Rs. 67,092. Subsequently the Income-tax Officer reopened the assessment and in the reassessment that followed he included the sum of Rs. 61,353 as "exchange profit". The profit arose out of remittance made from Pakistan in respect of two bank drafts dated 12th March, 1954, and 23rd April, 1954, drawn by the Muslim Commercial Bank Ltd., Karachi, and payable by the Allahabad Bank Ltd. at Calcutta. In the balance-sheet of the assessee-company as at 30th June, 1954, the assessee had shown the sum of Rs. 61,352-12-6 as " Reserve for exchange--Being exchange surplus on remittance from Pakistan " and the balance-sheet was laid before the Income-tax Officer when the original assessment was made. The Income-tax Officer, however, did not tax the exchange surplus in the original assessment. Subsequently, the Income-tax Officer in the course of the proceeding for the assessment year 1961-62 noticed that the said amount had escaped assessment and he issued a notice under Section 34(1)(a) to bring the amount to tax after obtaining the sanction of the Commissioner of Income-tax. 2. In response to the notice issued by the Income-tax Officer the assessee filed a return showing the same income as that which had been originally assessed. The assessee's contentions before the Income-tax Officer were: (1) that the proceeding in reassessment under Section 34(1)(a) was invalid as there was no non-disclosure of facts on the part of the assessee. (2) that the surplus arising on exchange was receipt of a casual nature which arises in consequence of the decision of the Government of India to devalue its currency and it was, therefore, not a receipt of revenue nature assessable to tax. The Income-tax Officer rejected both the contentions of the assessee. The Appellate Assistant Commissioner confirmed the reassessment. The Tribunal, however, accepted the contention of the assessee. The Tribunal held that the assessee cannot be said to have failed in its discharge of duty to disclose fully and truly primary facts and in doing so appears to have followed the case of Calcutta Discount Co. Ltd. v. Income-tax Officer, of the Supreme Court. The Tribunal's reasoning on the point may be stated in their own words: " In the present case, when the assessee had specifically referred to the existence of the exchange surplus in its balance-sheet which was laid before the Income-tax Officer, it cannot be said that there was any failure or omission on the part of the assessee in the disclosure of the primary facts. It is possible that the Income-tax Officer who made the original assessment had accepted the case of the assessee that the receipt was of a casual and non-trading nature ; it is also possible that the Income-tax Officer had just shut his eyes to the relevant entry in the balance-sheet. In any case, it is not possible to say that the assessee omitted to make a full and truthful disclosure of the relevant facts. That being the case, we are of the view that the Income-tax Officer had no jurisdiction to issue the notice under section 34(1) of the Income-tax Act, 1922, and, therefore, the reassessment made of the total income is illegal. " Section 34(1)(a) of the Income-tax Act, 1922, provides as follows ; " If the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed,....he may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. " The basic requirements under that sub-section are that the income, profits or gains chargeable to income-tax should have: (a) escaped assessment for the relevant year, (b) been under-assessed, (c) been assessed at too low a rate, (d) been made the subject of excessive relief, or (e) excessive loss or depreciation allowance have been computed. The condition is satisfied that this income or profit escaped assessment. 3. The other requisites which must be satisfied before the Income-tax Officer acts under this section are that the Income-tax Officer should have reason to believe that the income escaped assessment by reason of the omission or failure on the part of the assessee: (a) to make a return of his income under Section 22 for that year ; or (b) to disclose fully and truly all material facts necessary for his assessment for the year. Now, the whole question here is that has the assessee failed to make a return or " disclose fully and truly all material facts necessary" for his assessment for the year ? 4. For that purpose the Explanation to the section is material. The Explanation to Section 34(1) provides as follows: " Explanation.--Production before the Income-tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of this section." What are the facts of this case? The record is clear. In the course of the original assessment proceeding there was no disclosure by the assessee of this receipt of the sum of Rs. 61,353 either in the return or in the statement filed. The return of the statement has got to be full and true. Again, this amount was not passed through the profit and loss account. Hence, there was no occasion to consider it as profit. The assessee cannot take shelter under the plea that there was an item in the balance-sheet as " reserve for exchange " and had the Income-tax Officer made enquiry regarding this item, he would have found for himself the real nature of the receipt. But, it is precisely this that the Explanation to Section 34 is intended to cover where it says that mere production of account books and other evidence from which materials could, with due diligence, have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of that section. Disclosure within the meaning of that section is quite clear. He has to disclose fully and truly all material facts necessary for assessment for that year. Full and true disclosure requirement has not been made, in our opinion, by the facts of this case. 5. We do not think that the Tribunal read Calcutta Discount Co's. case correctly. It is no doubt true that the duty of the assessee does not extend beyond a full and true disclosure of the material facts and it was not the duty of the assessee to decide what inferences of facts and law would reasonably be drawn therefrom. But, it is not so much a question of primary fact. The language used in Section 34(1)(a) is not "primary" but "material ". The language is " to disclose fully and truly all material facts necessary for the assessment for the year ". In the decision of the Supreme Court in Calcutta Discount Co. v. Income-tax Officer there was a difference of opinion with three learned judges against two. What the majority judgment in the Supreme Court in the Calcutta Discount Company's case held was : " Does the duty, however, extend beyond the full and truthful disclosure of all primary facts ? In our opinion the answer to this question must be in the negative. Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else --far less the assessee--to tell the assessing authority what inferences, whether of facts or law, should be drawn. " The Supreme Court, however, in a later case, has qualified the law and in construing Section 34 of the Indian Income-tax Act of 1922, which lays down the following principles. In Kantamani Venkata Narayana and Sons v. First Addl. Income-tax Officer, Rajahmundry, , the Supreme Court says that the assessee does not discharge his duty to disclose fully and truly material facts necessary for the assessment of the relevant year by merely producing the books of account and other evidence. He has to bring to the notice of the Income-tax Officer particular items in the books of account or portions of documents which are relevant. Even if it be assumed that from the books produced the Income-tax Officer, if he had been circumspect, could have found out the truth, he is not on that account precluded from exercising the power to assess income which had escaped assessment. 6. It is necessary for the assessee to make a return or the statement. Making of a return is not a mechanical job. The statement should be clear and intelligible. It must highlight the necessary features in the income and expenditure in the profit and loss. That is what is called making a return or a statement. The obligation to make a return is not satisfied by handing over to the Income-tax Officer the books of account as such or statement of account as such. 7. The assessee is a company. It is M/s. Hoosen Kasam Dada (India) Ltd., Calcutta. It is governed by the Indian Companies Act. The Companies Act provides in Section 210 that at every annual general meeting of the company the board of directors shall lay before the company,-- (a) a balance-sheet as at the end of the period; (b) a profit and loss account for that period. What a profit and loss account shall contain is provided for in Part II of Schedule VI of that Companies Act. In paragraph 2 it is said that the profit and loss account,-- (a) shall be made out so clearly as to disclose the result of the working of the company during the period covered by the account; and (b) shall disclose every material feature including credits or receipts and debits or expenses in respect of non-recurring transactions or transactions of an exceptional nature. It shows clearly that the profit and loss account should disclose " clearly " the result of the working and disclose " every material feature including credits or receipts in respect of non-recurring transaction or transactions of an exceptional nature ". If it was the case that it was an exceptional item of exceptional nature and casual in character, then it should have been shown as such and not lumped up in the manner that it was done in the balance-sheet: " Being exchange surplus on remittance from Pakistan " in the balance-sheet. 8. When this reference was argued out by the counsel for the income-tax department, the attorney for the respondents said that his counsel was Mr. Sukumar Mitra, who happens to be out of Calcutta. His junior was un-named. We even wanted to give the attorney liberty, who was making his submission before us, to argue the matter on behalf of M/s. Mukherjee and Biswas, who were the attorneys for the respondents. Then he revealed that he was not the person in charge. On our asking him as to who was in charge, the reply was Mr. Sunil Mitra. On our enquiring again from him whether Mr. Sunil Mitra would be available he said that he was not in the office. This is a very irresponsible way of conducting a reference. This matter has been on the list for many days. This matter was put on the top of the list yesterday in order to give notice to all the parties to be ready. This reference is of 1967 ; four years have already passed and it is the fifth year that this is pending. We have considered the records of this case as fully as we could. 9. In the circumstances, the answer to the question asked in this referrence is in the negative. No order as to costs. The order of the Tribunal is set aside. B.C. Mitra, J. 10. I agree.

Author: P Mukharji

Commissioner Of Income-Tax vs Hoosen Kasam Dada (India) Ltd. on 6 January, 1972

Calcutta High Court

Court No. - 18 Case :- WRIT - A No. - 42484 of 2010 Petitioner :- Arvind Kumar Chauhan Respondent :- State Of U.P. And OthersPetitioner Counsel :- Madan Singh Respondent Counsel :- C. S. C. Hon'ble Arun Tandon J. Put up this matter on 28th July, 2010 in order to enable the learned counsel for the petitioner to assist the Court. (Arun Tandon, J.) Order Date :- 23.7.2010 Sushil/-

Arvind Kumar Chauhan vs State Of U.P. And Others on 23 July, 2010

Allahabad High Court

[Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 21058 of 2010(F) 1. DILEEP KUMAR, AGED 28 YEARS, ... Petitioner Vs 1. THE SUB INSPECTOR OF POLICE, ... Respondent 2. THE DISTRICT COLLECTOR, 3. THE STATE OF KERALA, REPRESENTED BY For Petitioner :SRI.K.SUNILKUMAR For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :07/07/2010 O R D E R S.SIRI JAGAN, J. ------------------------------------ W.P.(C). NO. 21058 OF 2010 ---------------------------------- Dated this the 7th day of July, 2010 JUDGMENT Petitioner has filed Ext.P3 application before the 2nd respondent for interim custody of the vehicle seized on allegation of illegal transport of river sand. He seeks disposal of Ext.P3 expeditiously. The learned Government Pleader points out that petitioner is not the registered owner of the vehicle. After having heard both sides I dispose of this writ petition with following directions:- mns 

Dileep Kumar vs The Sub Inspector Of Police on 7 July, 2010

Kerala High Court

[Section 28(3)] [Section 28] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25..11.2010 CORAM THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRP.NPD.No.4134 of 2010 and M.P.No.1 of 2010 1. Jameela Bibi, 2. S.Umar Farook ..Petitioners/Respondents 1to4/Judgment Debtors ..Vs.. 1. S. Vijayalakshmi ..1st Respondent/Petitioner/Decree Holder 2. S.Mohamed Rafi 3. S.Ajeez 4. S.Fathima Bibi 5. S.Mariam Babi ..Respondents 2to5/Respts.2,3,5 & 6/Respondents 2,3,5 & 6 (Respondents R2 to R5 given up) Prayer :-This Civil Revision Petition has been filed under Section 115 of Civil Procedure Code against the fair and decreetal order dated 30.07.2010 made in E.A.No.28 of 2010 in E.P.No.64 of 2008, on the file of the Principal District Court, Coimbatore. For Petitioners : Mr.N.Manoharan For Respondent-1 : Mr.Kalyana Sundaram O R D E R This Revision has been filed against the order passed by the Principal District Court, Coimbatore, in E.A.No.28 of 2010 in E.P.No.64 of 2008 in O.S.No.330 of 2005. 2. Heard Mr.N.Manoharan, the learned counsel appearing for the petitioner, and Mr.K.Kalyana Sundaram, the learned counsel appearing for the respondent. 3.The learned counsel for the petitioners/judgment debtors would submit in his arguments that the the market value of the property brought for sale under the Execution Petition was Rs.30,00,000/- and the Government value was at a sum of Rs.20,00,000/-, but, the lower Court had fixed the upset price from Rs.14,00,000/- to 12,00,000/- by accepting the contentions of the decree holder, which is not correct. He would further submit his arugment that the fixation of the value of the petition mentioned property by reducing the upset price has not reflected the correct value of the property and, therefore, the said application for reduction of the upset price should have been dismissed. He would also submit that the decree was for a sum of Rs.6,20,548/- with subsequent interest and costs, for which the property worth of Rs.30,00,000/- need not be brought for sale and, therefore, the reduction of upset price from Rs.14,00,000/- to Rs.12,00,000/- is not sustainable. Therefore, he would request interference of this Court with the said price and to pass suitable orders. 4.The learned counsel appearing for the first respondent/decree holder would submit his arguments that the value of the property was referred as Rs.10,00,000/- in the sale documents and the Court Amin, who had inspected the property, had fixed the value at Rs.15,00,000/- but, there was no bidder for the said amount when the property was brought in auction on 06.10.2009. An application was filed by the first respondent for reducing the upset price from Rs.15,00,000/- to Rs.10,00,000/- and it was reduced to Rs.14,00,000/- and, on the subsequent date fixed for the sale, there was no bidder for the said price of Rs.14,00,000/-. Therefore, it has become necessary for the first respondent to apply once again in E.A.No.28 of 2010 to reduce the upset price from Rs.14,00,000/- to Rs.10,00,000/- and the lower Court after considering the circumstances of the case, had passed an order reducing the upset price from Rs.14,00,000/- to Rs.12,00,000/-. Thereafter, the auction was held and the sale was knocked down by a third party and he had also deposited the sale price into the Court and the petitioner has also filed an application to set aside the sale under Order XXI Rule 66(2) CPC in E.A.No.230 of 2010 and the same is posted on 10.12.2010 and, therefore, the present contentions of the petitioner cannot be adjudicated at this stage as it became infructuous. Therefore, he would request this Court to dismiss the revision. 5. I have heard the arguments advanced by the learned counsel on either side. Undisputedly, the property was brought to sale in the subsequent auction and the same was sold to a third party as Auction Purchaser and the said sale has been questioned by the petitioner before the Execution Court in E.A.No.230 of 2010 and the same is posted on 10.12.2010 for adjudication. Under such circumstances, the contentions raised by the petitioner in this revision cannot be considered or adjudicated by this Court which would be detrimental to the disposal the said application and therefore, the contentions now raised should be considered by the Execution Court in E.A.No.230 of 2010 filed by the petitioner. Accordingly, the petitioner is at liberty to raise these contentions at the time of hearing of the said application, which shall be disposed of by the lower Court after giving sufficient opportunity to the first respondent on merits. It is made clear that the present disposal of the revision will not stand in the way of the petitioner in raising such contentions in E.A.No.230 of 2010 6. Accordingly, the Revision is disposed of with the said direction. Consequently, the connected miscellaneous petition is closed. There is no order as to costs. kal

Jameela Bibi vs S. Vijayalakshmi ..1St on 25 November, 2010

Madras High Court

JUDGMENT 1. Two points have been discussed before us in this second appeal The first point is whether the Courts below were right in holding that the waj b-ul-arz of 1863 was evidence of a custom. 2. It is contended before us that because the wajib-ul-arz it question is so framed as to refer to matters other than pre-emption it ought not to foe treated as a record of custom but merely as a record of contract. 3. It has no doubt been held in a number of cases which have been consistently followed that, if a wajib-ul-arz contains matters which could not possibly be the subject of a custom then the ordinary presumption that the wajib-ul-arz is a record of custom is overturned. That principle is laid down in the case of Fazal Hussain, v. Muhammad Sharif 24 Ind. Cas 464 : 36 A. 471 : 12 A.L.J. 800. It was also enunciated in another case reported as Surajbali S ngh v. Mohammad Nisar 48 Ind. Cas 220 : 16 A.L.J. 879. In this latter case We may observe the wajib-ul-arz upon which reliance was placed in addition to providing for pre-emption made provisions for other matters such as redemption of property mortgaged by a person who had no interest in the right to edeem Clearly in eases of this latter description the wajib-ul-arz does contain matters which cannot possibly be the subject of custom. 4. Coining, now to the wijib-ul-arz with which we are concerned in this case there can be no doubt that "other matters as well as pre-emption are referred to. We find a reference to the manner of inheritance. We find reference to the powers of the widow who is in possession after her husband s death. There are declarations as to how property descends when a deceased. Co sharer had left two widows. There are also provisions for the exclusion of daughters and daughters sons from inheritance. It cannot however be said that the matters which we have just referred to cannot be the subject of custom for it is notorious that there is a widespread custom, for example of the exclusion of daughters and daughters sons from inheritance another well-known custom is the custom of stri bant or the division of property in accordance with the number of wives. 5. Looking at this wajib-ul-arz we are unable to hold that it falls within the purview of the rulings to which we have referred and we consider there fore that the Courts below where just find in holding that the wajib-ul-arz was a record of custom. 6. The only other point raised is with regard to certain findings of feet of the Courts below. 7. The sale in this case purported to be for a sum of Rs. 1,2oo. It was recited in the sale-deed that a sum of Rs. 550 was being left with the purchaser to redeem a prior mortgage and the balance of Rs. 650 was to be paid before the Registering Officer. Both the Courts below are agreed that the money was handed over to the vendor before the Registering Officer but they are also agreed that after it had teen so mace over it was returned again to the purchaser. On the findings there fore of the Counts below this transfer was made for a sum of Rs. 550 only. 8. In these circumstances it has been argued by the learned Counsel for the appellant that there was Rule sale at all inasmcuh as the vendor got nothing. We see however that the learned Judge of the Court below has recorded a finding that 1he market value of the property sold was not more than Rs. 500. If, therefore, by this transfer the vendor was getting rid of the liability to pay a sum of Rs. 550 it cannot be said that there was no consideration for the transfer. We may observe that the prior mortgage in respect of which Rs. 550 was left with the purchaser was of the year 1917 and that the suit to enforce the personal obligation of the mortgagor WES well within time It seems to us that the argument that this transfer does not amount to a sale cannot succeed. 9. The result is that we dismiss this appeal with costs including in this Cost fees, if any, on the higher scale.

Alama Chand vs Chhajju on 20 April, 1923

Allahabad High Court

> Title: Regarding need to review the decision of proposed sex education in schools. DR. SEBASTIAN PAUL (ERNAKULAM):  Sir, the Comprehensive School Health Programe and Adolescence Education, introduced by the Central Board of Secondary Education in all CBSE schools from Class-VI to Class-XII, is nothing but objectionable sex education. The adolescent education programme handbook is being implemented at the national level by the NCERT and it was proposed by the UNICEF as a measure to prevent AIDS in the Third World countries. The module, prepared by the SCERT, however, followed a western approach  with explicit content. For example, girl students of Class-VI will be taught about the condom usage, including a mock demonstration from the class teacher using an actual condom. Class-VII students will be taught lessons in sexual intercourse. One of the new modules is about tackling molestation and sexual abuse. This will require students to perform molestation scenes whereby they will learn practical lessons on dealing with outrage. Class-VIII students will have to write essays on bizarre topics like “if there were no clothes for anybody”, “if there were no condoms”, and “if men had a uterus”. The Minister of Human Resource Development is requested to direct the CBSE to withdraw this objectionable module.

Regarding Need To Review The Decision Of Proposed Sex Education In ... on 14 March, 2007

Lok Sabha Debates

Gujarat High Court Case Information System Print CA/1456020/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 14560 of 2008 In FIRST APPEAL (STAMP NUMBER) No. 994 of 2008 To CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 14581 of 2008 In FIRST APPEAL (STAMP NUMBER) No. 1015 of 2008 ========================================================= MITABEN ANILABHAI PATEL & 4 - Petitioner(s) Versus SHRIRAM EDUCATION TRUST & 9 - Respondent(s) ========================================================= Appearance : MR HASMUKH C PATEL for Petitioner(s) : 1 - 5. None for Respondent(s) : 1 - 10. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE MD SHAH Date : 29/12/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) Notice, returnable on 16th January, 2009. Direct service is permitted. (R.P.DHOLAKIA,J) (M.D.SHAH,J.) radhan/     Top

Author: R.P.Dholakia, Honourable Shah,

Mitaben vs Shriram on 14 November, 2011

Gujarat High Court

FAO No.217 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.217 of 2009 Date of decision: 21.7.2009 Pushpa Devi and others ......Appellant(s) Versus Krishan Murari and others ......Respondent(s)CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.K. Garg, Advocate for the appellants. Rakesh Kumar Garg, J.(Oral) This is claimants' appeal challenging the award dated July 21, 2009 (RAKESH KUMAR GARG) ps JUDGE 19.9.2008 passed by the Motor Accident Claims Tribunal, Patiala whereby claim petition filed by the appellants for grant of compensation on account of death of Surjit Singh caused by rash and negligent driving of respondent No.1 while driving car bearing Registration No.RJ-14-C-7349, was dismissed. As per the claim petition, brief facts of this case are that Surjit Singh deceased suffered injuries on 10.11.2000 in a motor vehicular accident caused by respondent No.1 who was driving his car bearing Registration No.RJ-14-C-7349 in a rash and negligent manner. After the accident, respondent No.1 ran away along with his car. Surjit Singh was taken to Rajindra Hospital, Patiala where he was given treatment and thereafter, he was shifted to PGI, Chandigarh. Ultimately, Surjit Singh died on 31.8.2004. It was further averred that Surjit Singh was a young man of 30 years at the time of his death and was earning Rs.10,000/- per month being a driver with the transport company. Despite service, respondents No.1 and 2 did not turn up and were proceeded against ex parte. Respondent No.3 contested the claim petition by filing written statement taking preliminary objections regarding maintainability of the claim petition as the claimants have earlier received compensation to the tune of Rs.1,00,000/- in claim petition No.86T/FTC/10/2.01/13/10/2003 decided on 7.1.2004 by the Motor Accident Claims Tribunal, Patiala. The Tribunal after considering the evidence on record and hearing the arguments, dismissed the claim petition holding that the claimants had failed to prove that Surjit Singh had died due to rash and negligent driving of respondent No.1 while driving Car No.RJ-14-C-7349 on 10.11.2000. It was also held by the Tribunal that injured Surjit Singh had received Rs.1,00,000/- as compensation on account of injuries suffered by him in the accident in question and the claimants have failed to prove that the death of Surjit Singh occurred due to injuries suffered in the accident dated 10.11.2000 and therefore, the claimants were not entitled to claim any compensation. Challenging the impugned award, learned counsel for the appellants has vehemently argued that the factum of accident as well as rash and negligent driving by respondent No.1 has already been proved in the award dated 17.1.2004 and the claimants have proved on the file that Surjit Singh injured had died because of the injuries suffered by him in the aforesaid accident and thus, the appellants are entitled to the compensation on account of death of Surjit Singh as his death was due to the injuries suffered by him in the accident that took place on 10.11.2000. I have heard learned counsel for the appellants and perused the impugned award. While dismissing the claim petition, the Tribunal on FAO No.217 of 2009 3 appreciation of evidence has recorded a finding of fact that there is no evidence to prove that the death of Surjit Singh on 31.8.2004 had occurred due to injuries suffered in the accident that took place on 10.11.2000. Learned counsel for the appellants was unable to point out any material evidence in support of his case which was ignored by the Tribunal while passing the impugned award. In fact, this is a case of absolutely no evidence and there is certainly no evidence to connect the injuries suffered by deceased Surjit Singh in the accident on 10.11.2000 with his cause of death on 31.8.2004. Thus, I find no merit in this appeal. Dismissed.

Pushpa Devi And Others vs Krishan Murari And Others on 21 July, 2009

Punjab-Haryana High Court

THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Pronounced on: 17.08.2011 + CS(OS) 712/2006 M/S CENTURY PULP AND PAPER & ANR...... PLAINTIFFS Through: Mr A.K. Singla, Sr. Adv with Mr. J.K. Sharma, Adv. VERSUS M/S SHIV GANGA PAPER ..... DEFENDANT Through: Mr Manish K. Saryal, Adv. for D-4 CORAM:- HON'BLE MR JUSTICE V.K. JAIN 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? V.K. JAIN, J. (ORAL) 1. The learned Senior Counsel appearing for the plaintiffs states that he will file an amended memo of parties giving the name of plaintiff No. 1 as M/s Century Textiles and Industries Limited. The Registry will take the amended memo of parties on record. CS(OS)No. 712/2006 Page 1 of 9 2. This is a suit for recovery of Rs 1,90,07,000/-. Plaintiff No. 1 is a leading manufacturer of Paper and Pulp, whereas plaintiff No. 2 is one of its authorized dealers. Under an arrangement between the plaintiffs, plaintiff No. 1 used to execute the sale orders negotiated by plaintiff No. 2, by delivering the same to the purchaser, identified by plaintiff No. 2. The sale consideration used to be paid by the purchaser to either of the plaintiffs. The case of the plaintiffs is that in April, 2004, defendant No. 4 (whose name has since been deleted from the array of defendants) Shri Prashant Jhunjhunwala negotiated the Paper Rate and Supply Terms Agreement, on behalf of defendant No. 1 Shiv Ganga Paper Converters P. Ltd. for the year 2005-2006 at Delhi. The agreement envisaged lifting of a minimum quantity of 4000 MT +/- 5% bagasse & wood based paper during the period 01.04.2005 to 31.03.2006. The agreement stipulated a special discount called "Shiv Ganga Discount/Contractual Discount" of Rs 750/- per MT, which was reversible in the event of either non-liftment of the contracted quantity of 4000 MT +/-5% or breach of contract by any means. The amount of the invoice was to be paid within 30 days and overdue payments attracted interest at CS(OS)No. 712/2006 Page 2 of 9 the rate of 18% per annum from 31st day, till payment. The supplies were effected to defendant No. 1-company in terms of the above-mentioned agreement. A separate account was maintained with respect to the supplies made to the defendant-company and the payment received from it. The plaintiffs were receiving payments without delay until November-December, 2005. However, difficulties surfaced thereafter since the first week of January, 2006 when the defendant represented to the plaintiffs that payment of Rs 12,57,636/- was sent by them to Kota branch of Corporation bank, whereas only one cheque of Rs 5,70,722/- was deposited by it. Last supply of the paper was made to the defendant-company vide invoice dated 22st January, 2006. At that time, the amount outstanding against the defendant-company was Rs 2,88,77,705/-. This amount represented the supplies made to the units of company to four separate units of defendant-company. Realizing the liquidity crunch faced by it, the defendant- company desired the plaintiffs to take back the material lying at their various establishments. The plaintiffs in terms of the authorization from the defendant-company lifted 101.034 MT of the paper form Daman Unit on 02nd CS(OS)No. 712/2006 Page 3 of 9 February, 2006 and 64.363 MT of paper from Rudrapur Unit on 08th February, 2006, valued in aggregate at Rs 58,26,428/-. 3. The defendant-company made payments of Rs 20 lakh, Rs 10 lakh vide cheque dated 31.01.2006 and another Rs 10 lakh vide cheque dated 02.02.2006 against the supplies of Rs 2,88,77,705/- made up to 22nd January, 2006. Goods worth Rs 68,69,018/- were also seized from the premises of the defendant-company pursuant to an order dated 08th February, 2006 passed by the Court on the complaint of plaintiffs. After giving credit for the payments, Rs 58,26,428/- for the material lifted from Rudrapur and Daman Units and Rs 68,69,018/- for the material received in proceedings initiated before Chief Judicial Magistrate, Daman, a sum of Rs 1,41,82,259/- is stated to be due to the plaintiffs from the defendant-company towards unpaid price of goods supplied to it. Since the defendant-company committed breach of clause 3.5 of the agreement by not lifting contracted quantity of 4000 MT and also failed to make payment in terms of the contract between the parties, the discount of Rs 750 per MT tones, which had already been passed on to the defendant in the invoices, was CS(OS)No. 712/2006 Page 4 of 9 reversed by the plaintiff. The amount of discount reversed in the account of defendant-company comes to Rs 18,71,738/-. The plaintiff also claims to have incurred expenditure of Rs 13,74,697/- in defending various legal proceedings filed by the defendants against it in Courts at Daman. The total amount claimed by the plaintiff from the defendant-company thus comes to Rs 1,90,06,609.00/- (rounded off to Rs 1,90,07,000/-), which includes Rs 15,77,915 towards interest at the rate of 18% per annum. 4. The defendant-company was proceeded ex parte on 26th May, 2011. 5. The plaintiffs have filed affidavit of Mr K.K. Bagla, constituted attorney of plaintiff No.1 by way of ex parte evidence. In his affidavit by way of evidence, Mr Bagla has supported, on oath, the case setup in the plaint and has stated that the plaintiff No. 1 maintains account of supplies made by it. According to him, plaintiff No. 2 was also maintaining similar account. He has further stated that amounts received from defendant-company, whether direct or through plaintiff No. 2, were credited in the account and the last payment from the defendant-company was received vide letter dated 31st January, 2006. He has further stated CS(OS)No. 712/2006 Page 5 of 9 that credit was given to the defendant-company in respect of the goods lifted by the plaintiffs pursuant to the request received from the defendant. 6. Ex. PW-1/6 is an affidavit filed by Mr Arun Kumar Kejriwal, Director of the defendant-company. In his affidavit, he has stated that the letter dated 27th November, 2006 was sent by him in the name of defendant-company and was faxed to the plaintiffs on the same date. He has further stated that defendant-company admits liability to the extent of amount stated in the letter dated 27th November, 2006 and has no objection, if part decree for the aforesaid amount is passed in favour of plaintiff No. 1 and against the defendant-company. 7. Ex. PW-1/5 is the agreement between plaintiff No. 1 and defendant-company for supply of 4000 MT +/- 5% bagasse & wood based paper except copier paper. Clause 3.5 of the agreement which deals with the discount reads as under: 8. Clause 7 of the agreement deals with the terms of the payment and it provides that if payment is not made within 30 days, interest at the rate of 18% per annum will be charged from 31st day till the date of payment. 9. Ex.PW-1/6 is the statement of account which shows that as on 09 th November, 2005, a sum of Rs 5,56,766.00/- was due to the plaintiff No. 1 from the defendant-company. Separate bill-wise details in respect of the papers supplied to various units of the defendant- company forms part of this statement of account. A sum of Rs 2,67,66,779.00/- was due to the plaintiff No. 1 from the defendant as on 31st January, 2006, in respect of Daman Unit-I. Rs 11,38,407.00 in respect of Daman-II Unit, Rs 4,44,444/- in respect of Rudrapur Unit, Rs 5,28,075/- in respect of Kota unit, making a total of Rs 2,88,77,705/-. Two payments of Rs 10 lakh were received by plaintiff No. 1 vide cheques, copies of which are Ex.PW-1/7. Ex.PW-1/13 and Ex.PW-1/14 are the credit note of Rs 58,26,428/- in respect of the material lifted by the plaintiffs from Daman CS(OS)No. 712/2006 Page 7 of 9 and Rudrapur Units. After giving benefit for the aforesaid amount and benefit of Rs 92,30,210/- towards price of the material received by the plaintiff in judicial proceedings, the balance amount comes to Rs 1,41,82,259/-. Since the defendant-company defaulted in lifting the contracted quantity of 4000 MT +/- 5% of the paper, the plaintiff was entitled, in terms of the agreement, to reverse the discount of 750 per MT tones which it had given in the invoices. The amount of discount reversed in this manner comes to Rs 18,71,738/-. The plaintiff is, therefore, entitled to recover of a sum of Rs 1,60,53,997/- towards price of the goods sold by it to the defendant-company, after reversal of the discount. 10. The learned Counsel for the plaintiffs state that they are not pressing the claim for Rs.13,74,697/- towards litigation expenses. 11. The learned counsel for the plaintiff states that the interest amount of Rs 15,77,915/- has been claimed by the plaintiff only on the principal sum of Rs 1,41,82,259/- at the agreed rate of 18% per annum. The plaintiff, therefore, is entitled to recovery of Rs 1,76,31,912/- from the defendant-company. CS(OS)No. 712/2006 Page 8 of 9 12. During pendency of the suit, a sum of Rs 40 lakh was paid by the defendants No. 2 and 3 to the plaintiffs towards discharge of the liability of the defendant-company; adjustment of that amount needs to be given to the defendant. ORDER For the reasons given in the preceding paragraphs, a decree for recovery of Rs.1,36,31,912/- with proportionate costs on Rs.1,76,31,912/-, interest @ 12% p.a. on Rs.1,76,31,912/- from the date of filing of the suit till 18th January, 2011 and interest on Rs.1,36,31,912/- w.e.f. 19th January, 2011 till realization is hereby passed in favour of plaintiff No.1 and against the defendant. Decree sheet be drawn accordingly. (V.K. JAIN) JUDGE AUGUST 17, 2011 bg CS(OS)No. 712/2006 Page 9 of 9

Author: V. K. Jain

M/S Century Pulp And Paper & Anr. vs M/S Shiv Ganga Paper on 17 August, 2011

Delhi High Court

Gujarat High Court Case Information System Print SA/51/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 51 of 2010 ========================================================= MANJULABEN AMARCHAND SHAH & 3 - Appellant(s) Versus VIKRAMBHAI CHOTUBHAI SHAH & 1 - Defendant(s) ========================================================= Appearance : MR AM PAREKH for Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3 - 3, 3.2.1, 3.2.2,3.2.3 - 4, 4.2.1, 4.2.2,4.2.3 None for Defendant(s) : 1, MR DAKSHESH MEHTA for Defendant(s) : 1.2.1,1.2.2 ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 15/02/2011 ORAL ORDER Learned Advocate Mr. AM Parekh is appearing for appellants, learned advocate MR.Dakshesh Mehta is appearing for respondents. Considering joint request, matter is adjourned to 16.3.2011. Ad interim relief, if any, granted earlier shall continue to operate till 16.3.2011. (H.K. Rathod,J.) Vyas     Top

Author: H.K.Rathod,&Nbsp;

Manjulaben vs Vikrambhai on 15 February, 2011

Gujarat High Court

In the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow. (A.F.R.) Court No. - 19 Case :- CONSOLIDATION No. - 503 of 2010 Petitioner :- Rayees & Ors. Respondent :- Deputy Director Of Consolidation Bahraich Camp Balrampur &O Petitioner Counsel :- N.N. Jaiswal Respondent Counsel :- C.S.C.,Atul Kr. Singh,Jay Prakash Singh,R.N. Gupta Hon'ble S.C. Chaurasia,J. 1. Heard Sri N.N.Jaiswal, learned counsel for the petitioners, Sri G.S.Misra, learned Standing Counsel, Sri Jai Prakash Singh, learned counsel for opposite party no. 3, Sri R.N.Gupta, learned counsel for opposite party no. 4 and perused the record. 2. This writ petition under Article 226 of the Constitution of India has been filed with the prayer that a writ, order or direction in the nature of certiorari may be issued quashing the impugned order dated 07-04-2010 passed by the opposite party no. 1, contained as Annexure No. 13 to the writ petition. 3. Learned counsel for the petitioners has submitted that the order passed by the Deputy Director, Consolidation in the month of December 1971 in favour of the petitioners' grand-father, Musahib was incorporated in C.H. form no. 45 i.e. the final record of consolidation. Thereafter, the notification under section 52(1) of the U.P. Consolidation of Holdings Act was issued and consolidation operations were closed. Learned counsel for the petitioners is not in a position to disclose the exact date of notification issued under section 52(1) of the said Act. He has further submitted that an application dated 04-02-2009 under section 48(3) of the Consolidation of Holdings Act moved on behalf of opposite party no. 3, Kasim Ali in the court of Deputy Director, Consolidation, Balrampur for cancelling the said entries made in C.H. from No. 45, on the ground of alleged fraud, was not maintainable and hence, the Deputy Director, Consolidation has committed an illegality in exercise of its jurisdiction by allowing the said application and cancelling the said entries. His contention is that the impugned order dated 07-04-2010 passed by Deputy Director, Consolidation, Bahraich camp at Balrampur is without jurisdiction and hence, it deserves to be quashed. He has further submitted that section 48(3) of the Consolidation of Holdings Act relates to making reference, but, no reference was made by the competent authority and hence, the impugned order deserves to be quashed. 4. Learned counsel for opposite party no. 3 has submitted that the mutation in the record in pursuance of the order passed in the month of December 1971 by the Deputy Director,Consolidation was made after about 35 years. On getting information about it, he moved an application under section 48(3) of the U.P. Consolidation of Holdings Act for cancelling the said entries, because, the said entries were obtained by petitioners' predecessor by practising fraud on the court. His contention is that since the fraud was practised in obtaining the said entries, learned Deputy Director, Consolidation was perfectly justified in entertaining the application under section 48(3) of the Consolidation of Holdings Act and cancelling the said entries and there is no valid ground to quash the impugned order. 5. Learned Standing Counsel has submitted that the land in dispute was acquired by the State and it was recorded as road, but, by practising fraud on the court, the said entries were obtained in favour of petitioners' predecessor. He has further submitted that learned Deputy Director, Consolidation has not committed any illegality in exercise of its jurisdiction in cancelling the said entries. 6. Section 48 of the Consolidation of Holdings Act, 1953 may be quoted as under :- 48. Revision and reference-(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order(other than interlocutory order) passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3) (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1) Explanation (1)-For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2)-For the purposes of this section the expression 'interlocutory order' in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding. Explanation(3)-The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence. 7. It has not been disputed at Bar that the powers of Director of Consolidation have been delegated to the Deputy Director, Consolidation, for exercising jurisdiction under section 48 of the U.P. Consolidation of Holdings Act and the Director of Consolidation and the Deputy Director, Consolidation are the contemporary authorities as far as section 48 of the said Act is concerned. Explanation (1) appended to section 48 of the said Act provides that the Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. It indicates that an application under section 48(3) of the said Act can be moved before any of the courts subordinate to the Director of Consolidation, as mentioned in Explanation (1) as referred to above. 8. In view of section 48(3) of the said Act, any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).Thus, it is clear that any authority subordinate to the Director of Consolidation only can refer the record of any case or proceedings to the Director of Consolidation for action, as provided in sub-section (3) of Section 48 of the said Act. Admittedly, the Deputy Director, Consolidation exercising powers of Director of Consolidation under section 48 of the said Act was not an authority subordinate to the Director of Consolidation and hence, the Deputy Director, Consolidation had no jurisdiction to entertain the application under section 48(3) of the said Act, moved on behalf of opposite party no. 3, Kasim Ali. Since, the Deputy Director, Consolidation lacks jurisdiction to entertain the said application, the order passed thereon, on any ground whatsoever, is also without jurisdiction and hence, it cannot be sustained. 9. Section 48(3) of the Consolidation of Holdings Act provides for making a reference for action in appropriate cases, but, in the instant case, no reference was made for taking action under sub- section (1) of Section 48 of the said Act. Instead of it, application under section 48(3) of the said Act was allowed and the entries in question were cancelled. 10.From the perusal of sub-section (2) and (3) of Section 48 of the said Act, it is clear that powers under sub-section(1) of Section 48 of the said Act can be exercised only when a reference is made by the competent authority in accordance with sub-section (3) of section 48 of the said Act. 11. Since, the impugned order dated 07-04-2010 passed by Deputy Director, Consolidation on the application under section 48(3) of the said Act moved on behalf of opposite party no. 3 is without jurisdiction and it cannot be sustained and deserves to be quashed. 12.It is made clear that this court has not entered into the merits of controversy between the parties. 13. A writ of certiorari is issued quashing the impugned order dated 07-04-2010 passed by the opposite party no. 1, contained as Annexure No. 13 to the writ petition. However, the opposite parties nos. 2 to 4 are at liberty to approach the appropriate forum for redressal of their grievances, if any. 14. With these observations/directions, the writ petition stands disposed of finally at the admission stage. Order Date:4.8.2010. AKS

Rayees & Ors. vs Deputy Director Of Consolidation ... on 9 August, 2010

Allahabad High Court

Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16788 of 2010 Petitioner :- Kishan Respondent :- State Of U.P. Petitioner Counsel :- Devesh Singh Respondent Counsel :- Govt. Advocate Hon'ble Bala Krishna Narayana,J. Heard learned counsel for the applicant and learned A.G.A. for the State. It has been contended by learned counsel for the applicant that the applicant was merely working as an employee in the establishment and since the owner of the establishment Nilesh Kumar @ Anoop Kumar has been granted bail by this court vide order dated 23.06.2010 passed in Criminal Misc. Bail Application no. 15809 of 2010, the applicant is also entitled to bail on the ground of parity. It has next been contended that although the allegation is that the applicant was found preparing Masala but chemical examination report has not been received till date. It has lastly been contended that the applicant who has no criminal antecedents to his credit is in jail since 22.05.2010. The prayer for bail has been vehemently opposed by the Learned A.GA. Keeping in view the nature of offence, severity of punishment, reasonable apprehension of tampering with the evidence, prima facie satisfaction regarding proposed evidence and genuineness of the prosecution case, submissions made by learned counsel for the applicant and the fact that the applicant has no criminal antecedents, this court is of the view that the applicant is entitled to be enlarged on bail during the pendency of the trial. Let the applicant Kishan son of Late Banarasi involved in Case Crime No. 134 of 2010, under Sections 272 and 273 I.P.C., registered with P.S. Chetganj District Varanasi, be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. Order Date :- 20.7.2010 YK

Kishan vs State Of U.P. on 20 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.42 of 2011 IN CWJC No.8937/2009 With I.A.No.212 of 2011 With I.A.No.211 of 2011 ================================================== The State of Bihar & Ors-Appellants Versus Sri Ram Das-Respondent ================================================== Appearance : For the Appellants : Mr. Bipin Kumar, Advocate ================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3 31.01.2011 In view of the strike call given by the Bar Council of Bihar, none is present. Stand over to 21st February 2011. ( R.M. Doshit, CJ.) (Jyoti Saran, J.) Bibhash

The State Of Bihar &Amp; Ors vs Sri Ram Das on 31 January, 2011

Patna High Court - Orders

Title : Need to declare the entire hilly area of Uttaranchal as drought prone and to provide food, fodder and potable water to the affected people in the State. श्री बची सिंह रावत ‘बचदा’  (अल्मोड़ा) : माननीय उपाध्यक्ष जी, मैं कल ही अपने क्षेत्र का दौरा करके आया हूं। उत्तरांचल के पर्वतीय क्षेत्रों में सिंचाई के साधन नहीं हैं और वर्षा के जल रुाोतों पर ही वहां की खेती निर्भर करती है। सितम्बर २००५ से २१ फरवरी तक वहां कोई वर्षा नहीं हुई। इससे पेयजल के रुाोत सूख गए हैं और सिंचाई के साधन नहीं बचे। दिसम्बर और जनवरी की बरसात भी नहीं होने से सारी फसल समाप्त हो गई है। पशुओं के लिए चारा उपलब्ध नहीं है और पेयजल भी वर्षा पर निर्भर होने के कारण उपलब्ध नहीं है। पहले ही लोग महंगाई से त्रस्त हैं[h71] ।सूखा राहत का कार्यक्रम सर्वे कराने के बाद तत्काल शुरू नहीं किया गया है। लोगों के लिए सूखा राहत, पेयजल और पशुओं के लिए चारे की तीनों व्यवस्थाओं काह सरकार से आग्रह करने के बावजूद न सर्वेक्षण हुआ और न उस दिशा में सरकार की कोई नीति बनी। मेरा इतना कहना है कि "औसत पूरा ज्यों का त्यों, फिर भी कुनबा डूबा क्यों" - वही परिस्थिति बन रही है। चारों तरफ सैंसेक्स बढ़ रहा है, लेकिन हमारे यहां सूखे से, महंगाई से, पेयजल की कमी से, पशुओं के चारे की कमी से लोग त्रस्त हैं। मेरी सरकार से मांग है कि तत्काल इसका संज्ञान ले और पूरे पर्वतीय क्षेत्रों का, उतरांचल तथा इससे लगा हुआ हिमालय का जो दूसरा क्षेत्र है, उनकी ओर ध्यान दे।

Need To Declare The Entire Hilly Area Of Uttaranchal As Drought Prone ... on 21 February, 2006

Lok Sabha Debates

Gujarat High Court Case Information System Print MCA/1155/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION No. 1155 of 2009 In SPECIAL CIVIL APPLICATION No. 11783 of 2008 ========================================================= HADMATIYA GRAMPANCHAYAT - Applicant(s) Versus BABULAL MAVJIBHAI KALSARIYA - Opponent(s) ========================================================= Appearance : MR JEET J BHATT FOR MS SEJAL K MANDAVIA for Applicant(s) : 1, MR NC THAKKAR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 19/02/2010 ORAL ORDER Leave to amend. Heard Mr. Bhatt for Ms. Mandavia, learned advocate for the applicant. Any objection against the prayer made in the application has not been filed by the opponent. Considering the reasons mentioned in the application, the relief prayed for in paragraph 4(A) is granted. The order dated 17.03.2009 is recalled. The Special Civil Application No.11783 of 2008 is restored to file. Civil application stands disposed of. [K.M.Thaker, J.] kdc     Top

Author: K.M.Thaker,&Nbsp;

Hadmatiya vs Unknown on 19 February, 2010

Gujarat High Court