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Gujarat High Court Case Information System Print CA/8881/2006 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 8881 of 2006 In FIRST APPEAL No. 2601 of 2006 ========================================================= DEPUTY GENERAL MANAGER - Petitioner(s) Versus MAFAJI HIRAJI & 1 - Respondent(s) ========================================================= Appearance : MS KJ BRAHMBHATT for Petitioner(s) : 1, UNSERVED-EXPIRED (N) for Respondent(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/07/2008 ORAL ORDER The learned counsel for the applicant will take appropriate action to serve the unserved respondent within ten days. List the matter on 11th August, 2008. [K.S. JHAVERI, J.] /phalguni/     Top

Author: Ks Jhaveri,&Nbsp;

Deputy vs Mafaji on 23 July, 2008

Gujarat High Court

Court No. - 2 Case :- WRIT - C No. - 27644 of 2010 Petitioner :- Rameshwar Singh And Another Respondent :- State Of U.P. And Others Petitioner Counsel :- Praveen Kumar,Pradeep Kumar Respondent Counsel :- C.S.C.,Arvind Mishra,Atul Mehra,M.K.S. Chauhan,V. Tripathi Hon'ble Ashok Bhushan,J. Hon'ble Virendra Kumar Dixit,J. Heard learned counsel for the parties. The petitioner is praying for impleadment of respondents no. 5 and 6 in this writ petition. Learned counsel for the petitioners opposed the application for impleadment. It is the case of the petitioners that applicants have right in Plot No. 476. The case of the applicants in the application and in the affidavit is that the dispute of writ of the petitioners, is in the part of land Khasra No. 476. The applicants are claiming rights on the land which is claimed by the petitioners, hence it is necessary to oppose in this writ petition. Impleadment application is allowed. Respondents is permitted to implead as respondents no. 5 and 6. Learned counsel for the newly respondents is allowed one week's time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter. Learned Standing Counsel may also file counter affidavit within three weeks. List on 30.08.2010. Interim order to continue till then. Order Date :- 2.8.2010 Amit

Rameshwar Singh And Another vs State Of U.P. And Others on 2 August, 2010

Allahabad High Court

JUDGMENT A.K. Mathur, J. 1. This is an appeal against the award given by the Motor Vehicles Accident claims Tribunal, Udaipur dt. 7-8-82 in the claim case No. 73/79, whereby claim petition of the claimant has been dismissed. 2. Aggrieved against this award dt. 7-8-82, claimants have filed the present appeal under Section 100-D, Motor Vehicles Act (herein-after referred as to "The Act"). 3. Brief facts giving rise to this appeal arc that on 31.1.79 on Batewar Mangalwar Road, one vehicle No. R.S.M. 1387 whose owner was Guru Bux Singh and the same was being driven by Kishan Lal over run deceased Naru and thereafter it struck against the tree. Thus, it is alleged that the vehicle was driven in rash and negligent manner by the driver. Deceased Naru died on the spot itself. Naru was aged 40 years and spending 5,00/- rupees on the family. Therefore, claim of Rs. one lakh for the loss of the income and one Lakh for the mental agony i.e. two Lakh was filed before the Tribunal by heir of deceased. The vehicle was insured with the National Insurance Company Limited Bapu Bazar, Udaipur. claim was contested by non claimants No. 1 and No. 2 as well as by non claimant Insurance Company No. 3. It was alleged that the vehicle was not driven in rash and negligent manner but because of the mechanical failure, the vehicle turned towards the field and in incidentally ran over the deceased. The Insurance Company supported the Non-claimants i.e. owner and driver of the vehicle. It further submitted that in view of stand taken by non claimant No. 1 and No. 2 that the. vehicle was not run in a rash and negligent manner therefore, Company is not liable to indemnify the claimant. 4. On the basis of the pleadings of the parties, two issues were framed. 5. The claimant examined about live witnesses and respondent did not examine any witness however, they relied on the first information report, post mortem report and mechanical report. The Learned Judge decided issue No. 1 against the claimant and held that the vehicle was not driven in rash and negligent manner. The Issue No. 2 was decided against the claimant that since the claimant have failed to prove the death by rash and negligent act, therefore the Insurance Company is not liable to indemnify the claimants. 6. Aggrieved against this claimants have filed present appeal Mr. Mehta learned Counsel for the appellant submits that the learned Tribunal has committed a serious illegality in deciding issue No. 1 against claimants. Learned counsel has taken me to the statement of witnesses and submitted that according to the testimony of p.w.4 Mangi Lal and p.w.5 Uda it clearly transpire that the deceased was hit by vehicle and he was over run. But learned Tribunal has found that the evidence which has been produced by the claimant is not consistent. On account of inconsistency in the statement of the witnesses, Tribunal came to the conclusion that the benefit of doubt should be given to the non claimant that the vehicle was not driven in rash and negligent manner. I lave gone J.S. Chouhan through statements of witnesses specially statement of p.w4 Mangi Lal and p.w-5 Uda, who have seen the occurrence. Mangi Lal has said that he witnessed the accident from 200 yards and Uda from 40-50 yards, both of them have deposed that the deceased was going on the right side when he was hit by the vehicle and vehicle over run the deceased, he has crushed to death. The plea of the respondent that there was mechanical failure therefore, the vehicle could not be kept under control. The situation like mechanical failure the driver and owner cannot be absolved of their liability. The act of mechanical failure is reject able to human negligence that vehicle was not properly kept. Thus, I hold that taking a vehicle which is not properly maintained resulting in death of victim is a rash & negligent act. The vehicle was insured with of Insurance Company there, the National Insurance Company cannot escape from its liability. Now coming to the quantum of compensation, the deceased was 40 years old and he was only doing the job of cycle reparis and his income cannot exceed Rs. 2,00/- out of that he would be spending at least 150/- rupees per month for maintaining his large family. On account of the death of the deceased and family was put to loss at least Rs. 150/- per month. The deceased was 40 years at the time of death and at least, he would have remained alive up to 60 years, therefore, it would be proper to employ multiplying of 20 years under 150x12x20 that comes to Rs. 36,000/-. The National Insurance Company, non-petitioner No. 3 shall pay a sum of Rs. 36,000/- to claimants. The out of Rs. 36,000/- two thousand may be paid cash to the widow smt. Lali and Rs. 2,000/- to the son of deceased Naru. No claimants No. 3 to No. 8 are minor children and non claimant No. 9 is Dasu, father of the Naru. since he was aged 75 years therefore, whether he is still surviving or not is not known. The claimants No. 3 to No. 8 are minor there fore, their interest can be protected by their natural guardian mother Smt. Lali. Thus, the amount of Rs. 32,000/- may be deposited in the fixed deposit for a period of five years in schedule Bank, the interest may be paid quarterly to Smt. Lali for a period of five years. After period of five years, the amount may be evenly distributed among all claimants except claimant No. 9 Das. 7. In the result, the appeal is allowed and parties are left to bear their own costs.

Author: A Mathur

Smt. Lali And Ors. vs Guru Bux Singh And Ors. on 28 October, 1987

Rajasthan High Court

Gujarat High Court Case Information System Print SCR.A/804/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 804 of 2008 ========================================== NARESHBHAI KIKUBHAI DESAI - Applicant(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================== Appearance : MR AD SHAH for Applicant(s) : 1, Mr. K. T Dave Addl. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 06/08/2008 ORAL ORDER Learned counsel Mr. A. D Shah appearing for the applicant submitted that in view of the decision of Sakiri Vasu Vs. State of U.P and Ors reported in 2008 AIR SCW 309, he would like to approach the concerned magistrate for appropriate relief under section 156(3) of the Criminal Procedure Code 1973. On instructions of his client he may be permitted to withdraw this application. Permission is granted. Application stands disposed of as withdrawn. (Anant S. Dave,J.) mary//     Top

Author: Anant S. Dave,&Nbsp;

Nareshbhai vs State on 6 August, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 823 of 2011(C) 1. M.V.SAJEV, JUNIOR SUPERINTENENT, ... Petitioner 2. SIMON THOMAS K., U.D.C., 3. RAMESH V.R., U.D.C., 4. MANI P.N., U.D.C., 5. V.K.NAMASIVAN, U..C., 6. NANDAKUMARAN C.G., L.D.C., 7. VINCENT P.A., L.D.C., 8. VIJAYAN P.K., SENIOR GRADE TYPIST, 9. MOHANAN P., UPPER DIVISION TYPIST, 10. MOHANDAS K.K., DRIVER GRADE - I, 11. BALAKRISHNAN T.S., DRIVER GRADE - I, 12. RAJAN C.I., DRIVER, 13. MOHANAN T.V., CHOWKIDAR II, 14. SHALIVAHAN E.B., LASCAR, 15. JANARDHANAN C., LAASCAR G II, 16. CHANDRAN C.M., PTS, Vs 1. STATE OF KERALA, ... Respondent 2. THE DEPUTY DIRECTOR GENERAL N.C.C., For Petitioner :SRI.T.R.JAGADEESH For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :11/01/2011 O R D E R S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 823 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th day of January, 2011. J U D G M E N T The petitioners in this writ petition entered Government service after putting in prior military service. For the purpose of granting of higher grade, they want the military service also to be taken into account. According to them, they are so entitled to in view of Ext. P5 judgment of this Court. In the above circumstances, the petitioners have filed Exts.P8(a) to P8(p) representations before the 2nd respondent. The petitioners seek a direction to the 2nd respondent to consider and pass orders on Exts.P8(a) to P8(p) representations in the light of Ext.P5 judgment expeditiously. 2. I have heard the learned Government Pleader also. In the facts and circumstances of the case, I dispose of this writ petition with a direction to the 2nd respondent to consider and pass orders on Exts.P8(a) to P8(p) representations, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. While passing orders, the 2nd respondent shall consider the applicability of Ext. P5 judgments and to the facts of the petitioners' case. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.

M.V.Sajev vs State Of Kerala on 11 January, 2011

Kerala High Court

CRM-M-49181 of 2019 #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-49181 of 2019 Date of decision: 29.11.2019 Subhash Chander ....Petitioner Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE HARINDER SINGH SIDHU Present: Mr. Aditya Sanghi, Advocate for the petitioner. Mr. Saurabh Girdhar, AAG, Haryana. HARINDER SINGH SIDHU, J. Prayer is for grant of regular bail in case FIR No.0017 dated 07.12.2018 under Sections 120-B,409,418,467,468,471,477-A/201/204 IPC and Sections 13 (2),13(1)(C), 13(1)(d)(1), 13 (1)(d) (II) of Prevention of Corruption Act, 1988 registered at P.S SVB Karnal. As per allegations, the petitioner along with co-accused had embezzled the Government money to the tune of Rs.24,84,745/- on the basis of forged and false bills and vouchers. Learned counsel for the petitioner contends that the petitioner has been falsely involved in the present case on the basis of disclosure statement suffered by co-accused. Except the disclosure statement of co- accused, there is no evidence to connect the petitioner with the alleged offence. The petitioner never put his signature on any of the said EPS or work bills. He was neither asked to do so nor the allegedly forged bills were in his knowledge. He is in custody since 15.07.2019. Opposing the petition, the learned State counsel has submitted that a huge amount was embezzled by the petitioner causing financial loss to the government. Without commenting anything on the merits of the case and also bearing in mind the custody period of the petitioner besides the fact that he is not wanted in any other case, in my opinion, no useful purpose 1 of 2 ::: Downloaded on - 08-12-2019 04:02:13 ::: CRM-M-49181 of 2019 #2# will be served by detaining the petitioner behind bars any further. The petition, as such, is accepted. The petitioner Subhash Chander is ordered to be released on bail on her furnishing bail bonds/surety bonds to the satisfaction of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned. However, in case the petitioner indulges in any activity akin to one for which he has been convicted, while on bail, the prosecution agency will be at liberty to seek the cancellation of the order granting bail to the petitioner. This present petition stands accepted accordingly November 29, 2019 (Harinder Singh Sidhu) manoj Judge Whether speaking/reasoned: Yes/No Whether Reportable: Yes/No 2 of 2 ::: Downloaded on - 08-12-2019 04:02:14 :::

Subhash Chander vs State Of Haryana on 29 November, 2019

Punjab-Haryana High Court

Gujarat High Court Case Information System Print CA/494220/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 4942 of 2009 In FIRST APPEAL (STAMP NUMBER) No. 4297 of 2008 ========================================================= KOKILABEN WD/O MANUBHAI PATEL & 2 - Petitioner(s) Versus PAVANKUMAR NARAYANDAS RAJWANI & 3 - Respondent(s) ========================================================= Appearance : MR CT JAGLAWALA for Petitioner(s) : 1 - 3. None for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 12/05/2009 ORAL ORDER1. Heard learned advocate Mr.C.T.Jaglawala for the applicants. 2. Rule returnable on 30.6.2009. (H.K.RATHOD,J.) (vipul)     Top

Author: H.K.Rathod,&Nbsp;

Kokilaben vs Pavankumar on 11 August, 2010

Gujarat High Court

CASE NO.: Appeal (crl.) 940 of 2004 PETITIONER: State of Haryana RESPONDENT: Daya Nand DATE OF JUDGMENT: 25/08/2004 BENCH: N.Santosh Hegde,S.B.Sinha & A.K.Mathur JUDGMENT: J U D G M E N T (Arising out of SLP(Crl.)No.5135 of 2003) SANTOSH HEGDE,J. Heard learned counsel for the parties. Leave granted. This appeal has been filed against the order of Punjab and Haryana High Court at Chandigarh dated 22nd of January, 2003, whereby the High Court set aside the judgments of the two courts below in a revision petition filed by the respondent herein. Brief facts necessary for the disposal of this appeal are as follows: On 6th of July, 1988 when respondent was carrying 20 liters of cow's milk in a bicycle he was intercepted by the Deputy Chief Medical Officer, Narnaul and a sample of 750 ml. of milk was collected from the container in which the respondent was carrying the milk and the same was sent to Public Analyst who in his report found the sample to be deficient in milk solid to the extent of 5% of the prescribed minimum standard. He also found solid fat as required under the law deficient. On receipt of the said report, a copy of the same was sent to the respondent by registered post but the same was returned by the postal endorsement "refused to accept". On the basis of the investigation made on 25th of August, 1988 a complaint under section 16(i)(a)(i) of the Prevention of Food Adulteration Act was filed against the respondent. In the trial, the prosecution examined PW-1 Dr.S.P.Singh and PW-2 Megh Nath, the Food Inspector, in support of its case. The respondent did not lead any evidence in defence except contending in his statement under Section 313 Cr.P.C. that he was innocent. The trial court as per its order dated 18th February, 1989 found the appellant guilty of an offence punishable under Section 16(i)(a)(i) of the Prevention of Food Adulteration Act and after hearing the respondent on the quantum of sentence taking into consideration he had no previous conviction and had three small kids to support, awarded the minimum prescribed sentence under the Act that is to undergo RI for six months and to pay a fine of Rs.1000/- in default of payment of fine the accused was directed to further undergo simple imprisonment for three months. Being aggrieved by the conviction and sentence, the respondent preferred an appeal before the Sessions Judge, Narnaul who by his order dated 28th of March, 1990 concurred with the finding of the trial court and confirmed the conviction and sentence. The respondent, as stated above, preferred a revision against the said orders before the Punjab and Haryana High Court at Chandigarh and the High Court by the impugned cryptic order dated 22nd of January, 2003 held that in the sample milk, non solid fat was found to be 8.1 % instead of 8.5% while solid fat was found to be 4.5% as against the requirement of 4%. It also observed that in the circumstances of the case, possibility of improper stirring could not be ruled out. On that assumption it gave the benefit of doubt to the respondent and allowed the appeal of the appellant setting aside the conviction and sentence imposed by the two courts below. Mr.Manu Sharma learned counsel appearing for the appellant-State contended that first of all the High Court in a revision petition could not have gone into the questions of fact decided concurrently by the two courts below. He also contended the assumption of the learned Judge that there is improper stirring while taking the sample was contrary to the facts on record and findings recorded by the two courts below. He submitted that on the basis of the material on record such an assumption could not have been drawn by the High Court. Hence, he contended that the impugned order of the High Court is unsustainable in law. Mrs.Laxmi Arvind, learned counsel appearing for the respondent, however, contended that the High Court was fully justified in coming to the conclusion that there could have been a possibility of improper stirring which, if true, would not give the proper result while analysing the sample product, hence, the order of the High Court is legally justifiable. She also placed strong reliance on the judgement of this Court in the case of Food Inspector, Municipal Corporation, Baroda vs. Madanlal Ramlal Sharma & Anr. (AIR 1983 SC 176). We will first deal with the assumption of the High Court that there is a possibility of improper stirring while taking the sample. In the trial court, the learned counsel for the respondent had raised this contention and the same was negatived by the trial court on the following basis : "Otherwise also the witnesses have categorically stated that the milk was properly stirred with measurement before taking the milk sample. Thus I hereby over rule this contention of learned defence counsel". This finding was given by the learned Judge while considering various judgments cited in support of the contention raised on behalf of the accused as well as the evidence found in this case as to the proper stirring of milk. Learned Sessions Judge while considering the similar arguments raised before him after considering the judgments cited before him held thus at para 11 of the judgement: "Regarding last contention, learned counsel seems to have been impressed by the word 'churning' mentioning in the complaint. A look at the complaint would show that both the words 'stirring' as well as 'churning' are mentioned. It appears that word 'churning' was not deleted in the complaint because that method is necessary in case of 'curd'. In any case it was stated by the witnesses that the sample was made representative and homogeneous by stirring and thus, no fault can be found on this account as well." Thus it is noticed that both the courts below have considered this question and on the material available on record have come to the conclusion that the sample milk in question was properly stirred as required by law and the sample was made representative and homogeneous. This finding is based on the evidence found on the record. In this background, in our opinion, the High Court rather casually has come to an erroneous assumption that there was improper stirring for which there is no foundation at all, as could be seen from the finding noticed by us herein above of the two courts below. We do not think the High Court could have substituted a factual foundation available on record, by an assumption, to give benefit of doubt to the respondent. As stated above, the learned counsel appearing for the respondent relied on a judgment of this court in the case of Food Inspector, Municipal Corporation, Baroda (supra), we do not think the above judgment will be of much assistance to the respondent because that was a case in which primary question was what should be the method by which "churning" of "curd" should be done. In that context, this Court held that the law does not provide for any specific method and the finding in this regard would depend upon the evidence on record. That apart in that case the court was considering the effect of "churning" of "curd", while in the present case, we are concerned with "stirring" of "milk" which on facts has been found to be properly done. For the reasons stated above, we allow this appeal setting aside the order of the High Court reducing the sentence and restore the conviction and sentence imposed on the respondent by the trial court as confirmed by the Sessions court and direct the respondent to serve out the sentence awarded by the trial court. The appeal is allowed.

Author: S Hegde

State Of Haryana vs Daya Nand on 25 August, 2004

Supreme Court of India

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Author: L.Narayana Swamy

New India Assurance Co Ltd vs Raghavendra Rao S/O Somanath Rao on 7 December, 2010

Karnataka High Court

JUDGMENT 1. This Rule is directed against an order passed by the learned District Judge of Birbhum, on an application made by the petitioner Bhabatarini Debi under Section 192, Succession Act, 1925, in regard to certain moveable properties left by her mother Kiran Sasi Debi and claiming a right by succession to the same, as the heir. The petitioner's case was that she was the only heir of her mother and as such, was entitled to the possession of the properties left by her. The application under Section 192 was opposed by opposite party Profulla Kumar Mukerjee, who claimed the properties as belonging to his two deceased wives, the sisters of the petitioner, who had predeceased their mother Kiran Sasi Debi, as also to his children by the two wives. The facts of the case giving rise to the application to this Court on which this rule was issued, have been set out in very great detail in the elaborate judgment recorded by the learned District Judge, and have been placed before us with great lucidity and clearness by Mr. A.N. Chaudhuri, the learned Counsel for the petitioner. On the facts of the case, it has to be determined Whether there has been any illegal exercise of jurisdiction by the Court, as it is sought to be made out, in the matter of the order passed by the Court. It is well settled that in order to meet the requirements of Section 192 it was necessary for the Court to consider whether the objector to the grant of the application had any title and whether the claimant was really entitled to the property: see Phul Chand Lal v. Kismish Koer [1910] 6 I.C. 630 and Sato Koer v. Gopal Sahu [1907] 34 Cal 1929. The statutory provisions themselves bearing upon the subject, speak of a person "claiming a right by succession" (Section 192) of the party in possession having "no lawful title," and of a person "really entitled" (Section 193), of the summary determination of "the right to possession" (Section 194), and of "the death of the proprietor whose property is claimed by right of succession" Section 205. 2. In view of the position as indicated above there can be no doubt that the learned Judge in the Court below directed himself rightly in stating in his judgment that he was "to decide the right of possession" of the properties which were the subject-matter of the claim made by the petitioner before him and that the Court was required to decide as to who amongst the rival claimants had a preferential claim. The learned Judge has given a decision upon the materials before him, keeping in view the scope of the inquiry, which was of a summary nature, and has held that the claim made by Profulla Kumar Mukerji in respect of some items of the moveables in dispute, was a preferential one: that he had a preferential right to claim them, and has given direction that those items of moveables should go to the possession of Profulla Kumar Mukerji, The order as made by the District Judge is one which cannot, and should not be interfered with by this Court in its revisional jurisdiction, unless it could be made out that there was no jurisdiction in the Court or that such jurisdiction was illegally exercised. In the view we have expressed above there was jurisdiction in the Court and that jurisdiction has been rightly and properly exercised. The remedy still open to the petitioner is the one expressly provided by Section 208, Succession Act; and nothing contained in the judgment of the learned District Judge in the case before us, shall be an impediment to the petitioner to the establishment of her title, if any, under the law to the properties, the possession of which has been ordered to be delivered to Profulla Kumar Mukerji, by a regular suit. 3. Reliance has been placed on behalf of the petitioner on the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Bhugwandeen Dobey v. Myna Baee [1868] 11 MIA 487 that a Judge had, in a case of the present nature, no jurisdiction to determine questions of title, and could only deal with the right to possession. It is only necessary to state that the obvious meaning of the observation so made was that there could be no final decision so far as the question of title was concerned in a summary proceeding by the Judge, in which the scope of inquiry was restricted to the right of possession subject to a regular suit in which the question of title as between rival claimants was to be finally decided. The observations mentioned above can therefore lend no support to the case of the petitioner before us, as the learned District Judge has strictly complied with the provisions of the law and has decided nothing beyond right to possession, as between the claimants, to the moveable properties, in respect of which the application was made by the petitioner under Section 192, Succession Act. A point has been made before us that in view of the provisions contained in Order 32, Rule 6, Civil P.C. the order for delivery of possession of moveables to Profulla Kumar Mukerji, without demanding any security from him was illegal. The special provisions of the Succession Act, 1925, under which the District Judge exercised jurisdiction in the case before us, contains no provision for demanding security from the person to whom property is ordered to be delivered under Section 194, and no question of demanding any security appears to have been raised before the District Judge, when the proceedings were pending before him. We are not prepared to hold that the substantive provisions of the law as contained in Section 194, Succession Act, could in any way be controlled by Order 32, Rule 6, Civil P.C., relating to the receipt of property by a guardian under a decree or order in favour of a minor. In our opinion the application of the provision in the Code of Civil Procedure, might, in cases, defeat the object of the statutory provision as contained in Section 194, Succession Act. 4. Some minor matters of detail such as the delivery of keys, etc., were brought to our notice, during the course of argument of the case before us on behalf of the petitioner. It is not possible for us to deal with such matters; it will be open to the parties concerned to apply to the District Judge for necessary directions if any further direction is really necessary in the matter of delivery of possession of properties, in pursuance of his order. In the result, the order of the learned District Judge passed on 27th January 1932, is affirmed, and this rule is discharged with costs. The hearing fee in the rule is assessed at 3 gold mohurs. 5. Let the record be sent down as early as possible.

Bhabatarini Debi vs Profulla Kumar Mukerjee And Ors. on 13 May, 1932

Calcutta High Court

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Sanjay Kaushik & Another vs Rakesh Dutt Tripathi & Another on 6 September, 2010

Allahabad High Court

ORDER Amareshwar Sahay, J. 1. Heard the parties. 2. The petitioner a Sub-Inspector of Police superannuated on 31.12.1999 while he was posted at Bokaro. It is stated that till the date of superannuation he was getting the monthly salary in the basic pay scale of Rs. 7,600/- and he was getting a total sum of Rs. 11,182-00/- per month. It is further stated that vide Memo No. 1760, dated 21.10.2000 (Annexure-4), the petitioner's provisional pension, provisional gratuity and other retiral benefits were revised to a sum of Rs. 3318/- with effect from 1.1.2000. The said fixation of pension was made considering the basic pay of the petitioner at Rs. 7425/-. 3. The petitioner filed a writ petition before this Court bearing CWJC No. 2692 of 2000 (R) which was disposed of on 13.2.2001 as contained in Annexure-5, remitting the matter back to the respondents directing the petitioner to move before the Superintendent of Police, Bokaro, regarding his grievance relating to fixation of pension and payment of other benefits. The Superintendent of Police, Bokaro, was directed to pass a reasoned order and ensure the payment of pension, gratuity, leave encashment, provident fund and group insurance in the revised scale of pay taking into consideration the last pay drawn by the petitioner. 4. It is stated that 'by issuance of Memo No. 515, dated 26.3.2001, as contained in Annexure-6, it was said that since the petitioner had not passed the Hindi Noting and Drafting Examination and, therefore, a sum of Rs. 71,859/- was deducted from his gratuity amount as the said amount was paid in excess on account of providing one more increment. Thereafter, by issue of an order contained in Memo No. 40, dated 12.1.2002 (Annexure-7), the District Order No. 3209/2000 was rectified, mentioning therein that on re-calculation it was found that a sum of Rs. 71,859/- was wrongly calculated and deducted, in fact a sum of Rs. 34821/- only should have been deducted, which was found to be paid to the petitioner in excess. 5. Subsequently, the District Order No. 2613/2000, dated 20.8.2000 (Annexure-8) was issued whereby the pension of the petitioner was fixed at Rs. 7425/after reducing the same from Rs. 7,600/-, since the petitioner had not passed the Hindi Noting and Drafting Examination. The petitioner has challenged the aforesaid tow orders as contained in Annexures-7 and 8 to the present writ application. The prayer of the petitioner, in this writ application, is to quash the aforesaid two orders contained in Annexures-7 and 8 and to direct the respondents to fix the pension of the petitioner on the basis of the basic pay last drawn by him at Rs. 7,600/-. According to the petitioner, he passed the Hindi Noting and Drafting Examination in the year 1993. 6. The learned counsel for the petitioner has submitted that the recovery of so called excess amount paid to the petitioner from his pensionery benefit is absolutely illegal and unjustified and the same could not have been done in view of the decision of the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp. (1) SCC 18, and the decisions of Patna High Court in the case of Ganesh Prasad v. State of Bihar and Ors., reported in 2000 (1) PUR 623, and followed by this Court in the case of Arjun Prasad Yadav v. State of Jharkhand and Ors., reported in 2002 (2) JCR 444 (Jhr.). 7. On the other hand on behalf of the State of Jharkhand it has been stated that the petitioner was promoted to the post of Assistant Sub-Inspector on 29.5.1980 and within one year of his promotion it was incumbent upon him to pass Hindi Noting and Drafting Examination in order to avail increment of salary but as it appears from his service records, the petitioner passed the said Hindi Noting and Drafting Examination only on 20th December, 1993 and as such it was found that he was wrongly withdrawing/given the increment of salary in between the period from 1981 to 1993. Therefore, a sum of Rs. 34881/- was rightly deducted, which was drawn by the petitioner in excess. 8. It is further started on behalf of the respondent State that a letter has been issued by the Personnel, Administrative Reforms and Rajbhasa Department, Government of Jharkhand, in which it has been stated that in the light of Article 309 of the Constitution of India a Notification was issued by the Government of Bihar, Patna, vide Notification No. 361/Ra, dated 15th June, 1968, wherein it was clearly stated that those Government servants/employees who have to draft Hindi Noting and Drafting must have to pass Hindi Noting and Drafting Examination within one year, failing which their increment will be held up and the services will not be confirmed as per Rule 2 of Bihar Government Servant (Hindi Examination) Rules, 1968. It is submitted that since the petitioner did not pass the aforesaid Hindi Noting and Drafting Examination within one year and, therefore, he was not entitled to the increment, which was given to him illegally. 9. On behalf of the Accountant General, Bihar and Jharkhand it has been stated by filing counter affidavit that the Office of the Accountant General received a letter from the Superintendent of Police, Bokaro, wherein it was mentioned that the petitioner is entitled to a basic pay @ of Rs. 7425/- which was admissible on 1.6.1999 and accordingly, the authorities for payment of pension etc. have been issued. 10. The learned counsel for the petitioner contended that in view of the decision of Patna High Court in the case of Ganesh Prasad, (supra) and followed by this Court in the case of Arjun Prasad Yadav, (supra) pension/gratuity cannot be curtailed or withheld on the ground of non passing of requisite department examination and no amount towards increment can be deducted from the pension and, therefore, the orders as contained in Annexures-7 and 8 to the writ petition and liable to be quashed and the pension of the petitioner has to be fixed on the basis of the last pay drawn by him. 11. On the other hand it has been contended on behalf of the respondents that the petitioner was promoted to the post of Assistant Sub-Inspector in the year 1980 with a condition that he has to pass the Hindi Noting and Drafting Examination within one year but the petitioner passed the Hindi Noting and Drafting Examination, only in the year 1993 and, therefore, the amount of increment paid to the petitioner in between the period from 1981 to 1993 was wrongly paid to him and, therefore, the said amount of Rs. 34881/which was paid in excess to the petitioner by way of increment was rightly deducted and as such there was no illegality in it. 12. It was further contended on behalf of the respondents that as per the Bihar Government Servant (Hindi Examination) rule, 1968 which was applicable in the case of the petitioner, it was mandatory for him to pass Hindi Noting and Drafting Examination for entitlement of the increment, because under the aforesaid regulation of 1968 such Government Servants, who have to pass the Hindi Reading and Writing Examination in Devnagri script or Hindi Noting and Drafting Examination in Devnagri script or both the Examinations, shall neither be given any increment nor be confirmed nor should they be allowed to cross the efficiency bar till such time as they pass the required Hindi Examination or Examinations. 13. In the present case there is no dispute of the fact that the petitioner was allowed and he was drawing the increment since 1981 though he had not passed the Hindi Noting and Drafting Examination, which was required under the aforesaid regulation of 1968. It is admitted that the petitioner passed the aforesaid examination only in the year 1993. It may be that the petitioner was given the increment not on his misrepresentation or collusion. It may be that the respondent-State might have given the said benefit of increment to the petitioner because of negligence or by mistake. 14. The Division Bench of this Court in LPA No. 256/2003, State of Jharkhand and Ors. v. Smt. Girish Kumari Prasad, disposed of on 9.3.2004, has held that the Accountant General being the guardian of the finance of the State can very well rectify the mistake committed either by omission or commission by someone in the Department. 15. Considering the facts and submission made on behalf of the respective parties, I am of the view that the pension of the petitioner has to be fixed on the basis of the fact that on the date of superannuation, what was the scale of pay to which the petitioner was entitled to and not on the basis of the scale of pay which was actually being drawn by the petitioner. If it is found that the salary which the petitioner was drawing on the date of superannuation, to which he was not entitled to the said scale then the petitioner cannot claim as a matter of right that his pension has to be fixed on the basis of the salary drawn by him on the date of his superannuation. 16. From Annexure-8 the District Order No. 2613/2000 it appears that earlier the pension of the petitioner was fixed on miscalculation, which was subsequently rectified after taking into consideration of the fact- that the petitioner passed the Hindi Noting and Drafting Examination in the year 1993. 17. In may view the rectification of mistake in calculation was correct and fully justified and the pension of the petitioner has rightly been fixed taking into his salary at the rate of Rs. 7425/- per month, which the petitioner was entitled to receive the same on the date of his superannuation. 18. Therefore, the claim of the petitioner that his pension has to be fixed on the basis of the last pay drawn by him on the date of his superannuation at Rs. 7,600/- per month cannot be said to be justified and hence rejected. 19. So far as the recovery of amount of Rs. 34,881/- which is said to have already been paid to the petitioner in excess, relying on the decision of the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp (1) SCC 18, in my view, the respondents were not justified in deducting the said amount from the retiral benefit of the petitioner. The respondents are directed to refund the amount of Rs. 34,881/- to the petitioner, if already deducted. 20. With the above observations and directions this application is disposed of.

Author: A Sahay

Syed Md. Hood Kabri vs State Of Jharkhand And Ors. on 24 August, 2004

Jharkhand High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13369 of 2008 DHIRENDRA KUMAR Versus THE STATE OF BIHAR ----------- sudip ( Dharnidhar Jha, J ) 3. 8.7.2008 Heard. The case is under section 366A/34 of the Indian Penal Code. Allegation is that petitioner enticed away 16 year old lady and the statement of the lady recorded under section 164 of the Code of Criminal Procedure and copied at paragraph-42 of the case diary indicates as if she was sexually assaulted by the petitioner, considering which the petition is dismissed.

Dhirendra Kumar vs The State Of Bihar on 8 July, 2008

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 16140 of 2010(N) 1. M/S. CUSTOMER LINE PRIVATE LTD., ... Petitioner Vs 1. KERALA STATE ELECTRICITY BOARD, ... Respondent 2. ASSISTANT EXECUTIVE ENGINEER, For Petitioner :SRI.ZAKEER HUSSAIN For Respondent : No Appearance The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :26/05/2010 O R D E R P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 16140 OF 2010 -------------------------------------------- Dated this the 26th day of May, 2010 JUDGMENT The petitioner has approached this Court with the following prayers: (i) Issue a writ of certiorari or any other appropriate writ order or direction to quash Exts.P6 and P8; (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Asst. Engineer to take a decision on Ext.P7 and P9; (iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents not to take any steps to recover amounts covered by the impugned bills at the LT 7 tariff, nor to disconnect the connection provided to the petitioner's premises for non payment of bills under the impugned bills; (iv) To declare that the petitioner is not liable to be treated as a call centre and therefore not liable to pay electricity tariff under LT 7 A. (v) Grant such other reliefs as are just and proper in the nature of this case. 2. The learned standing counsel appearing for the respondent submits that the petitioner is very much having an effective alternate remedy, if aggrieved in any manner, by approaching the Consumer Grievance Redressal Forum and hence that the Writ Petition is not maintainable at all. The learned counsel for the petitioner submits that the petitioner intends to avail the statutory remedy, but was constrained to  2 WP(C) No. 16140/2010 approach this Court by filing the Writ Petition because of the coercive steps stated as being pursued by the respondent, causing disconnection of electric supply. 3. Considering the facts and circumstances, the petitioner is permitted to avail the statutory remedy by filing necessary proceedings before the Chairman, CGRF, Ernakulam, against the impugned bills. If any such proceedings are filed within one week from the date of receipt of a copy of this judgment, the same shall be considered and appropriate orders shall be passed after hearing the petitioner as expeditiously as possible, at any rate, within two weeks thereafter. So as to enable the petitioner to pursue such exercise, the respondents are directed not to disconnect the electric supply in respect of the present cause of action, for a period of one month and it will be subject to the orders to be passed by the CGRF, Ernakulam. The Chairman CGRF, Ernakulam is 'suo-motu' impleaded as the additional 3rd respondent in the Writ Petition and the learned standing counsel entered appearance on the said additional respondent as well. The Writ Petition is disposed of as above. P.R.RAMACHANDRA MENON JUDGE dnc 

M/S. Customer Line Private Ltd vs Kerala State Electricity Board on 26 May, 2010

Kerala High Court

ORDER Padmanabhiah, J. 1. This is a revision petition preferred against the judgment of the learned Sessions Judge, Bellary, in Cr. App. No. 16 of 1955, confirming the conviction and modifying the sentence passed by the Sub-Divisional Magistrate, Hospet, in C. C. No. 56 of 1954. 2. The case for the prosecution was that the accused, who was a panchayatdar and a member of the Co-operative Society at Kuruvathi, was entrusted on 21-1-953 with a sum of Rs. 7,700/-by the Hospet Co-operative Central Bank, Ltd., for being credited to the Co-operative Society at Kuruvathi, that he did not credit the said amount till 21-2-1953, that he misappropriated the same temporarily and that he thereby committed an offence under Section 409, I.P.C. The learned Magistrate found the petitioner guilty of the offence with which he stood charged and sentenced him to undergo simple imprisonment for one month and also to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for a period of six months. The petitioner preferred an appeal as against this judgment to the learned Sessions Judge who confirmed the conviction but reduced the sentence of imprisonment to the period already undergone. The sentence of fine was also confirmed. As against that decision, this revision petition is filed. 3. The point that arises for consideration Is whether the conviction of the petitioner can be sustained. It appears to me that the guilt has not been brought home to the petitioner beyond all reasonable doubt. That the petitioner was a public servant at the relevant time and that he was entrusted with a sum of Rs. 7,700/- on 21-1-1953 is admitted on his side, and there is also both oral and documentary evidence adduced in the case in support of these contentions. It is also proved and admitted by the petitioner that the sum he drew from the Hospet Co-operative Central Bank was credited to the Co-operative Society at Kuruvathi on 21-2-1953 i.e. a month after he was entrusted with the money. But the contention of the petitioner was, and is, that after he withdrew the amount from the Co-operative Central Bank at Hospet he fell ill and had to stay at Dayangere upto 21-2-1953 and that he could not credit the amount earlier, and that he did not misappropriate the amount as alleged on the side of the prosecution. It may be pointed out, in this connection, that the illness set up by the petitioner has not been proved, as found by the Courts below. But the point that the Courts had to consider, and will have to consider, is, not whether the defence put forth by the accused was proved, but whether the prosecution has discharged the burden that initially lay on it. The Courts below appear to have been very I much influenced in their decision by the fact that the contentions urged by the petitioner have not been made out. In my opinion, the way in which the Courts below have proceeded to determine the guilt of the petitioner is not correct. 4. Section 409 I.P.C. prescribes the penalty for the offence of criminal breach of trust. What is criminal breach of trust is defined in Section 405 I. P, C. To sustain a conviction under Section 409 I.P.C. the prosecution, besides proving that the accused is a public servant and that he was as such public servant entrusted with property, has also to establish that the accused committed criminal breach of trust in respect of the money be entrusted. One of the most essential ingredients of that offence is the dishonest intention on the part of the accused for the commission of the alleged crime. What is criminal misappropriation is defined under Section 403 I.P.C. A person will be guilty of that crime only when it is proved that he dishonestly misappropriated the property or converted it to his own use. 'Dishonestly' is denned under Section 24 I.P.C. as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person. To 'appropriate' means 'setting apart or assigning to a particular person or use', and to 'misappropriate' means 'improperly setting apart for one's use to the exclusion of the owner'. 'Converts' means appropriation and dealing with property of another without right as if it is his own property. 5. In the present case, it appears to me that the prosecution has not proved that the accused misappropriated or converted the amount in question to his own use and that too dishonestly. Dishonesty may be proved by evidence or may be presumed from the circumstances but under no circumstances can it be assumed as a matter of course. In the present case, there is no evidence worth the name that the petitioner appropriated the amount in question dishonestly to his own use or that he dealt with it for some other purpose. The learned Magistrate has observed in the course of his judgment that the accused parted this money in favour of P. W. 6 which fact has been denied by the latter. Even the learned Magistrate is not definite as to whether the accused had paid this amount to P. W. 6 because the observes in the course of his judgment that the accused must have paid it to P, W. 6 or somebody else. This is not a correct view to have been taken under the circumstances, nor are there circumstances, to infer that the accused made use of this amount for himself or somebody else. What the accused did with the money during the period he was in possession of it is not clear from the evidence. We cannot assume, in the absence of evidence to show or circumstances to infer, that he misappropriated the amount dishonestly. The possibility of his not having credited the amount negligently and his having kept the amount with himself without being used for any other purpose cannot at all be excluded. He was not asked to deposit the money in the Co-operative Society at Kuruvathi within such and such a time i.e. no period was fixed within which he amount had to be deposited. This is not a case of a public servant not depositing the amount within a particular time fixed or within a particular time according to the departmental rules. In this connection, I would like to refer to a case in 'Nurul Hassan v. Emperor" AIR 1920 Pat 168 (2)(A). In that case also an accused was entrusted with money and he had to deposit a; certain amount to the treasury but no period was fixed as to during which time the amount had to be deposited. It is found in that case that the accused under those circumstances committed no criminal breach of trust. Again we have got another case reported to 'Muthuswami Udayan, In re.' AIR 1941 Mad 761 (B). In that case, a Village Munsifr collected some amounts on 15-3-37 and 17-4-1937 and he remitted the first collection on 21-5-1937 and the subsequent one on 24-4-1937. It was held therein that the mere retention of money was not itself sufficient to conclude that the accused was guilty of criminal breach of trust. This is contrary to the view taken by the learned Magistrate that even mere retention In this case had completed the offence of criminal breach of trust. In the present case, except that the accused retained money for one month, there is no other evidence to show that he has committed an offence under Section 409 I.P.C. At any rate, his complicity in the crime is full of suspicion and he is entitled to the benefit of doubt. 6. In the result, the conviction of the petitioner and the sentence passed on him are set aside and this revision petition is allowed. The fine, if already recovered, shall be refunded to him.

Author: Padmanabhiah

P. Durugappa vs State Of Mysore on 19 December, 1955

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 777 of 2007() 1. RAJESH S/O RAVI, KOTTACKAL, ... Petitioner 2. THANKACHAN, S/O.MADHUSOODHANAN, 3. MAHENDRAN, S/O. JANARDHANAN, 4. BIJU, S/O.CHANDRAN, BANGLAVIL, 5. THAMPAN S/O.MADHUSOODHANAN, Vs 1. STATE OF KERALA REPRESENTED BY THE ... Respondent For Petitioner :SRI.A.K.ALEX For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :13/02/2007 O R D E R V. RAMKUMAR, J. ```````````````````````````````````````````````````` B.A. No. 777 OF 2007 B ```````````````````````````````````````````````````` Dated this the 13th day of February, 2007 O R D E R In this Petition filed under Sec. 438 Cr.P.C. the petitioners, who are accused Nos.1 to 5 in Crime No.713/2006 of Kayamkulam Police Station for offences punishable under Sections 143, 147, 148, 452, 427, 323 and 324 read with section 149 I.P.C., seek anticipatory bail. 2. I heard the learned counsel for the petitioners and the learned Public Prosecutor. The learned Public Prosecutor opposed the application submitting that the petitioners had trespassed into the house of the de facto complainant at about 11 p.m. on 17.12.2006 armed with iron rod, wooden stick, etc. and assaulted the de facto complainant. 3. In as much as the present occurrence is equal to an earlier crime registered as Crime No.714/06, which took place on the same day, eventhough I am not inclined to grant anticipatory bail to the petitioners, I am inclined to permit the petitioners to surrender before the Investigating Officer for interrogation and then to have their regular bail application ordered by the Magistrate concerned. Accordingly, the petitioners are directed to surrender before the Investigating Officer on  BA.777/07 2 any day between 19.2.2007 and 21.2.2007 for the purpose of custodial interrogation and recovery of incriminating materials, if any. The petitioners shall, thereafter, be produced on the same day before the Magistrate concerned, who shall release them on bail on appropriate conditions. This application is disposed of as above. (V. RAMKUMAR, JUDGE) aks 

Rajesh vs State Of Kerala Represented By The on 13 February, 2007

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/1123220/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 11232 of 2008 In CRIMINAL APPEAL No. 332 of 2007 ========================================================= HARESHKUMAR JAYANTILAL @ JAGJIVANBHAI SHRIMALI - Applicant(s) Versus THE STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR BM MANGUKIYA for Applicant(s) : 1. MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 17/10/2008 ORAL ORDER Heard Shri Vishal Shukla, learned counsel appearing for the applicant and Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the opponent-State. Rule. The formal service of notice of Rule is waived by Ms.D.S. Pandit, learned Additional Public Prosecutor, on behalf of the opponent-State. The Rule is fixed forthwith on consent. The applicant has prayed that the condition nos.(f) and (g) imposed upon the applicant vide order dated 09th May 2007 may be deleted and appropriate orders may be passed. On plain reading of the aforesaid two conditions, it emerges that vide Condition No.(f), the applicant is asked not to change his residence. As he is a tenant in the premises at present occupied by him, he can change the premises and go at new residence I the same town or within district. In such a case, the applicant shall furnish that new address to the Investigating Officer, but it would not be appropriate for the Court to delete this condition because the material alteration in this condition may tempt the applicant to abscond. So far as Condition No.(g) is concerned, the applicant is asked to surrender his passport, if any. If the applicant does not have any passport, he is not supposed to surrender the same. So there is no scope for this Court to delete the said Condition No.(g). On the contrary, the Court is of the view that in the event of applicant's obtaining passport, on receipt of the delivery of the original passport, he shall surrender the same forthwith to the police. It is clarified that if applicant is asked to go for training or another work and he has to stay outside, the same shall not be considered as change in address or violation of the said condition imposed if the period does not exceed 90 days continuously. In view of aforesaid, the present application is hereby partly allowed. The applicant is permitted to change his residence after intimating the concerned Investigating Officer one week in advance. Rule is made absolute accordingly. (C.K. Buch, J) Aakar     Top

Author: C.K.Buch,&Nbsp;

Hareshkumar vs The on 17 October, 2008

Gujarat High Court

[Complete Act]

Central Government Act

JUDGMENT D.N. Roy, J. 1. This second appeal by the plaintiff has been referred to a Bench because of certain conflict of decisions of this Court. The suit was one for possession over certain zamindari property in two villages Krishnagarhpur and Bhulaipur. The property originally belonged to one Ram Samujh. On 20th September 1938, Ram Samujh executed a deed of gift in regard to this property in favour of the defendants. Ram Samujh later on instituted a suit for the cancellation of the deed of gift on the ground that it had been obtained by fraud. The suit was decreed by the trial Court. The first appellate Court reversed that decree and dismissed tihe suit. Against that decision Second Appeal No. 79 of 1941 had been preferred in the Chief Court of Oudh at Lucknow. During the pendency of the Second Appeal Ram Samujh died. A question arose as to who should be substituted in his place as representative in order to continue the appeal. Ram Kalap Pande, the present plaintiff came forward as legal representative and he set up a will alleged to have been executed in his favour by Ram Samujh on 18th August 1944, i.e. only 9 days before the death of Ram Samujh. In the proceedings under Order 22, Rule 5 of the Code an order was passed by the Chief Court on 5th April 1946 to the effect that Ram Kalap be substituted for Ram Samujh deceased in the Memorandum of Appeal. The aforesaid appeal was finally decided by the Chief Court on 19th July 1946 and the decision of the first appellate Court was reversed and that of the trial Court restored. 2. Ram Kalap claiming to be the legatee of Ram Samujh under the will aforesaid instituted the suit out of which the present second" appeal has arisen for possession over the property aforesaid on the ground that he is entitled to it under the will and that subseqtient to the death of Ram Samujh he had been dispossessed from the property by the defendants. The due execution and the validity of the will had been assailed in the present suit. It was further contended that the order that was passed in the earlier case in proceedings under Order XXII, Rule 5 of the Code of Civil Procedure had not had the effect of res judicata. Both the courts below upheld the contention of the defendants and dismissed the suit as also the appeal. 3. It has been conceded by learned counsel for the appellant that there was no legal evidence on the present record to prove that the will had been duly executed and attested. Learned counsel has however argued that since in the earlier litigation which culminated in Second Appeal No. 79 of 1941 in the Chief Court of Oudh the present plaintiff was substituted in place of Ram Samujh as his legal representative on the strength of the will, the order passed in those proceedings would have the effect of res judicata, and it was not therefore necessary for the plaintiff, quite apart from that decision or rather independently of that decision, to produce additional evidence in order to prove due execution and attestation of the will. Counsel for the appellant relies upon the case of Raj Bahadur v. Narayan Prasad, 24 All LJ 546 : (AIR 1926 All 439) (A). In that case a Rench of this Court decided that where a party died during the pendency of a suit and the cause of action survived, the Court was entitled to decide the question of the legal representative of the deceased without referring the parties to a separate suit and the decision was binding upon the party and would operate as res judicata. In that case reference was made to an earlier case of this Court, namely Parsotam Rao v. Janki Bai, ILR 28 All. 109 (B) in which a contrary view was taken. The report of that case does not however clearly set out the facts but the Court did appear to have held that a decision in a summary proceeding that certain persons are entitled to be substituted as personal representatives of a deceased party to the suit is not a final determination of the matter and does not constitute a bar on the ground of res judicata. It will, therefore, be seen that the aforesaid two decisions of this court upon the question were conflicting. The question again came to be considered later on by a Bench of this Court in Antu Rai v. Ram Kinkar Rai, 1936 All LJ 622: (AIR 1936 All 412) (C). In that ease it was held that Order XXII, Rule 5 of the Code of Civil Procedure provides only a summary procedure for appointing a person to be the legal representative of the deceased party for the purpose of prosecuting the suit and the order appointing the legal representative does not operate as a final determination of the representative character of the person appointed, that is to say, it does not operate as res judicata. In that case the decision in Parsotam Rao v. Janki Bai, (B) was followed and the decision in Raj Bahadur v. Narayan Prasad (A) was dissented from. 4. There is a Bench case of the Madras High Court in Samsarivsa Sarvathi Pelekhan Erukkapakkan v. M. K. Pathumma, 20 Ind Cas 950 (D) in which it was held that the question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit cannot be regarded as one of the questions arising for the decision of the suit itself. That Bench expressly held that an order such as the order relied upon in the present case does not operate as a bar and does not amount to res judicata. A similar view was also taken by the Judicial Commissioner's Court, Nagpur in the case of Mst. Laxmi v. Ganpat, AIR 1921 Nag 23 (E). In that case it was held that an order rejecting an application to be brought on the record as the legal representative of a deceased appellant is not a decree and does not constitute res judicata. The same view has also been taken by a Bench of the Lahore High Court in the case of Chiragdin v. Dilawar Khan, AIR 1934 Lah 465 (F). In that case it was expressly laid down that where in a proceeding under Order XXII, Rule 5, C. P. C. a person is or is not held to be the legal representative of a deceased party the same question can be re-agitated in a separate suit and is not barred by the rule of res judicata. 5. From the above it will be seen that there is a preponderance of authority, both in this Court and in the other Courts, against the plaintiffs contention. The order passed under Order XXII, Rule 5 of the Code of Civil Procedure involved a summary enquiry as to who should be substituted in place of the deceased in the appeal during the pendency of which he died. A decision that was made under Order XXII Rule 5 of the Code would not, therefore, constitute res Judicata on the question which was expressly raised in the present suit as to whether the will had been properly executed and attested and on which question no evidence whatsoever had been produced on behalf of the plaintiff. The facts of the Allahabad case in Raj Bahadur v. Narayan Prasad (A), cited above, which appears to favour the present plaintiffs view, were very different from the facts of the present case. However, if it was intended to lay down in the case of Raj Bahadur v. Narayan Prasad (A), that a decision in the summary enquiry under Order XXII, Rule 5, Code of Civil Procedure for ever barred any one again claiming property as the heir of the deceased party in the suit then we respectfully dissent from it. In our judgment the view expressed in the earlier Allahabad case, namely Parsotam Rao v. Janki Bai (B), which was followed later on in Antu Rai v. Ram Kinkar Rai (C), is to be preferred. The view that an order passed under Order XXII, Rule 5, C. P. C. does not operate as res judicata, is supported by abundant authority in other High Courts, and that being so, we hold that since in the present suit the plaintiff failed to prove the due execution and the attestation of the will set up by him he was not entitled to a decree over the property as legatee of the deceased. 6. It is therefore unnecessary for us to go into the other question as to whether the will covered also the property which was detailed in the present suit. A controversy was raised about that question also and both the courts below held that the will did not cover this property. In view of our decision on the question as to whether the plaintiff could claim under the will, we refrain from expressing our opinion on the second question. In the result therefore we dismiss this appeal with costs to the respondents.

Author: D Roy

Ram Kalap vs Banshi Dhar And Ors. on 11 November, 1957

Allahabad High Court

ORDER Lajja Ram, Member (T) 1. M/s. Air Control & Chemical Engineering Company Limited, have filed the present appeal against the Order-in-Original No. 16/Collector/1989, dated the 17th Oct., 1989, passed by the Collector of Central Excise, Ahmedabad. 2. The appellants were engaged in the manufacture of compressors, falling under Item No. 29A(3) of the erstwhile First Schedule to the Central Excises and Salt Act, 1944 (the old Tariff), and under Heading No. 8414.10 of the new Tariff, with effect from 1-3-1986. On investigation, scrutiny of documents recovered from their premises, and the information gathered from the officials of the appellant's company, it was revealed that they were undervaluing the dutiable compressors, with an intent to evade payment of Central Excise duty, and at the same time were overvaluing the non-dutiable parts which were essential for the working of the compressors, and which were compulsorily supplied to the customers. In this process, while they were recovering their differential cost of the compressors, from the sale price of the parts, Central Excise duty otherwise leviable on the value of the compressors to the extent undervalued, was evaded. They were issuing two invoices - one for dutiable compressors and the other for the non-dutiable parts of compressors. Some of the essential parts of the compressors were taken out from the compressors and were packed and billed separately. It was alleged in the show cause notice dated 17-11-1987, issued by the Collector of Central Excise, Ahmedabad that the appellants had contravened the provisions of the Rule 173C of the Central Excise Rules, 1944 (hereinafter referred to as the 'Rules'), and Rule 173F, read with Rule 9(1) of the Rules, and were liable for action under clauses (a) and (b) of Sub-rule (1) of Rule 173Q of the Rules. It was further alleged that as they intentionally suppressed the value of compressors to evade the payment of Central Excise duty, the short levy of duty on the compressors was recoverable under proviso to Sub-section (1) of Section 11A of the Central Excises & Salt Act, 1944 (hereinafter referred to as the 'Act'), read with Rule 9(2) of the Rules and that the period of limitation of 5 years was applicable in the case. The differential Central Excise duty recoverable was calculated at Rs. 1,95,54,950.38. 3. In reply, the appellants challenged the calculations towards differential duty and denied the charge of suppression. They stated that their price pattern was known to the department. They did not, however, deny that the manufacturing cost of the compressor was higher than its selling price, but contended that the cost of production could not be the basis for levying Central Excise duty. 4. The appellants challenged the show cause notice in the Gujarat High Court. The Gujarat High Court ordered that the findings recorded by the adjudicating Collector should not be implemented without the express permission of that Court. 5. The Collector, Central Excise, Ahmedabad, who adjudicated the matter arrived at the assessable values for different models of compressors, based on the information supplied by the company and as gathered from the various records recovered from the premises of the appellants. He limited the demand for the period from 1-11-1982, and held that the demand for the period 1-4-1982 to 30-10-1982 was hit by limitation of 5 years. He confirmed the demand of duty to the extent of Rs. 1,55,22,150.60 (as against Rs. 1,95,54,950.38 demanded in the show cause notice), under proviso to Sub-section (1) of Section 11A of the Act. A penalty of Rs. 40 lakhs was also imposed on M/s. Air Control and Chemical Engineering, under Rule 173Q(1)(d) of the rules. 6. The matter was fixed for hearing on 8-10-1993 when Shri Ravinder Narain, Sr. Advocate with Shri Rajan Narain, Advocate and Ms. Amrita Mitra, Advocate appeared for the appellants. Smt. C.G. Lal, SDR represented the respondent. 7.1 Shri Ravinder Narain, the learned Sr. Advocate, in the beginning took up their miscellaneous application for consideration, and pleaded for taking on record the additional documents filed by them. Smt. C.G. Lal, the learned SDR did not object. The additional documents were taken on record, and it was ordered that they be treated as part of the paper book. 7.2 The main thrust of the arguments of the learned Sr. Advocate was that the show cause notice was hit by time bar. According to him, there was no suppression of any fact on the part of the assessee and that all the facts were within the knowledge of the department. 7.3 The learned Senior Advocate submitted that the price of their compressors, which were dutiable, was comparable to the price charged by the other manufacturers. He added that they could not have sold their goods at a price higher than the price at which their competitors were selling. The goods had to be sold in competition. As regards the accessories, which were non-dutiable, he stated that everybody was charging more and making profit thereon. A number of their customers were Government departments. 7.4 Contending that the demand was hit by limitation, the learned Sr. Advocate stated that all the facts were within the knowledge of the department. Their price lists had been approved. He referred to the earlier audit objections, show cause notices and the adjudication orders, and submitted that the substratum of the charge in the earlier notices was the same. In support of his arguments, the learned Sr. Advocate referred to the following citations : (1) 1992 (58) E.L.T. 76 (Tribunal); (2) 1990 (47) E.L.T. 295 (Tribunal); and (3) 1989 (44) E.L.T. 552 (Tribunal). 7.5 Shri Ravinder Narain, the learned Sr. Advocate continued his arguments on 12-10-1993. He submitted that no notice under Section 11A could be issued unless the order approving the price list was set aside. In this connection, he referred to the following citations : (i) 1991 (56) E.L.T. 718 (AP) and (ii) 1989 (44) E.L.T. 601 (Bom.) 7.6 On merits, he submitted that the cost of production could not be the basis for the sale price and added that the price at which the goods were sold was the real price. Their price was the sole consideration and that they had incurred losses. He also made the following points :- (1) Selling below cost does not mean that the price was not genuine and was a manipulated price. Assistant Collector's reliance on the Tribunal's decision in the case of Collector, Central Excise v. United Glass, 1989 (40) E.L.T. 488 (Tri.), was misplaced. (2) When the unit was incurring loss, the assessment could not be based on cost price; * (3) If the cost of production is taken as the asssessable value then the permissible deductions under Section 4 of the Act should have been given; (4) 'Capacity Control' like 'fan regulater' was not a necessary part. In any case, it could not be added to the entire quantity; (5) As there was no suppression, no penalty should have been imposed. He relied on the citation reported in 1991 (51) E.L.T. 619 (Tribunal); 8. Smt. C.G. Lal, the learned SDR made the following submissions :- (1) In the earlier notices/communications the allegations were different. On intelligence, their premises were raided, document recovered and the statements recorded; (2) There was no estoppal in law and there was no bar of raising the demand. She relied upon the following decisions :- (a) Continental Engineering Industries Pvt. Ltd. v. Collector, Central Excise, 1989 (42) E.L.T. 14 (CEGAT) - Department not estopped from reopening the matter on new materials coming to light in respect of the duty short paid or short levied. (b) Elson Machines Private Limited v. Collector, Central Excise, 1988 (38) E.L.T. 571 (SC) - There could be no estoppel against the law, and the excise authorities were not estopped from taking a view different than in the approved classification list; (3) The costing was based on the information supplied by the appellants. The calculations were made on the basis of the figures supplied by their own people. The cost of production was not the normal price but taken as assessable value and hence no deductions were permissible; (4) Proceedings under Section 11A could be initiated without challenging the price lists. Section 11A was independent of the assessments; (5) Value have to be determined under Section 4. If the competitors evade duty it does not mean that the assessee should also evade; (6) As the facts had been suppressed, the penalty was rightly imposed. Material facts were not disclosed. The accessories whose value was not included were not optional. She referred to the Tribunal's decision in the case of Ice and Diesel Engineering Works v. Collector, Central Excise, 1991 (53) E.L.T. 70 (Tribunal), wherein it has been held that extended period was applicable if assessee makes a mis-declaration or suppresses facts in the price list. (7) Flow-back in this case was in the form of inflated higher prices of non-dutiable accessories. (8) Normal price was something more than the cost of production and manufacturing profit. In this connection, she relied on the Supreme Court's decision in the case of Bombay Tyre International - 1983 (14) E.L.T. 1896 (SC). 9. On the conclusion of the arguments, both sides were directed to file written arguments with copy to other side.The appellants were to file written arguments within 15 days from 12-10-1993, and respondent within 25 days. The appellants filed written arguments on 27-12-1993. 10. We have carefully gone through the facts and circumstances of the case and have given our due consideration and thought to the submissions made by both the sides, and written submissions filed by the appellants. 11. The appellants were issued the show cause notice on 17-11-1987 by the Collector, Central Excise, Ahmedabad. They challenged the show cause notice in the Gujarat High Court. The Hon'ble Gujarat High Court on 22-9-1988 asked the appellants to file reply to the show cause notice, and allowed the adjudication proceedings to go ahead, subject to the condition that the findings recorded by the Collector shall not be implemented without their express permission. After the adjudication order was passed by the Collector, Central Excise, Ahmedabad, the Hon'ble Gujarat High Court on 21-2-1990 granted interim relief to the petitioners with certain conditions. On 10-9-1991, the Hon'ble Gujarat High Court permitted the petitioners to withdraw their petition. However, the interim orders granted earlier were allowed to continue upto 30-10-1991. 12. The Hon'ble Gujarat High Court directed the Tribunal to dispose of the appeal preferably within a period of 4 months from 10-9-1991. A stay application was also to be filed before the Tribunal as stay granted by High Court was only upto 30-10-1991. On 24-10-1991 the appellants' stay application was partly argued by the learned Advocate for the appellants, and the matter was adjourned to 13-11-1991. On 13-11-1991, the appellants sought the adjournment on the ground that their advocate had to attend some religious ceremony on that day at Ahmedabad. The case was fixed for 13-12-1991 when the stay application was heard by Tribunal, and stay was granted subject to certain conditions. The case was then listed for 6-2-1992. On 6-2-1992, a request was made on behalf of the appellants for adjournment on the ground that their advocate was tied up with some wedding in his family. The case was adjourned to 4-3-1992. On 4-3-1992, the case was adjourned to 18-5-1992 for nonavailability of time. On 18-5-1992, a request was made on behalf of the appellants that their advocate was having some personal difficulty and was not in a position to appear before the Bench. On 1-9-1992, the advocate for the appellants argued the matter, but the arguments were not concluded. The matter was adjourned to 15-10-1992 as part heard matter. On 15-10-1992, the matter was adjourned to 22-1-1993 on the request of the appellants on the ground that their advocate was held up before the Gujarat High Court. In the meanwhile, Ms. S.V. Maruthi, Member (Judicial) who had heard the case earlier left the Tribunal on her being elevated as a Judge of the Andhra Pradesh High Court, and the matter was released from the list of part heard matters. On 22-1-1993, again an adjournment was sought by the appellants on the ground that their advocate was not in a position to reach Delhi due to disturbed situation and dislocation of flights. On 14-4-1993, a request was received from the appellants for fixing the case after middle of June, 1993. The case was fixed for 25-6-1993. On 11-6-1993, adjournment was sought on the ground that their advocate was on summer vacation. On 1-9-1993, again a request for adjournment was made by the appellants on the ground that their advocate has to go abroad. On the request of the appellants, the matter was fixed on 8-10-1993, and finally the matter was heard on 8-10-1993 and 12-10-1993. 13. The Hon'ble Gujarat High Court while granting interim relief to the petitioners have made some observations with regard to the order passed by the adjudicating Collector of Central Excise. With due respects to the Hon'ble High Court, we find that the observations made by the Hon'ble High Court were with a view to grant interim relief to the petitioners. The interim relief was granted with certain conditions, laid down by the Hon'ble High Court in their order, which was in the nature of an interlocutory order. Subsequently, the petition on which the interim orders were passed, was withdrawn by the petitioner, and the permission for withdrawal was granted by the Hon'ble High Court. The interim relief itself expired on 30-10-1991, and for the subsequent period the appellants approached the Tribunal for grant of stay, and the Tribunal had granted interim relief with certain conditions as laid down by them in their stay order dated 13-12-1991. Accordingly, we proceed to decide the matter on merits. 14. The appellants were engaged in the manufacture of parts of refrigerating and air conditioning appliances and machinery, all sorts, falling under sub-item (3) of Item No. 29A of the old tariff upto 28-2-1986, and under Heading 84.14 of the Schedule to the Central Excise Tariff Act, 1985, with effect from 1-3-1986. While the tariff entry covered all parts of refrigerating and air conditioning appliances and machinery, all sorts, by an exemption Notification No. 80/62-C.E., dated 24-4-1962 (as amended), issued by the Central Government in exercise of the powers conferred on them by Sub-rule (1) of Rule 8 of the Rules, all parts other than the specified parts mentioned in that notification, were exempted from the duty leviable thereon. Compressor was one of the parts on which duty was leviable. 15. The appellants were manufacturing both the dutiable and non-dutiable parts. Both dutiable and non-dutiable parts were supplied to the same parties, and two bills were being issued simultaneously - one for the compressors, and the other for the parts. The prices of compressors were got approved from the Central Excise department. 16. In the case of Frick India Limited v. Union of India, 1990 (48) E.L.T. 627 (SC), the Hon'ble Supreme Court had occasion to discuss the scope of Item No. 29A(3) of the old tariff, and that of Notification No. 80/62-C.E., dated 24-4-1962 (as amended), and that of the trade advice dated 30-9-1969 given by the Central Board of Excise and Customs, in respect of the classification of refrigerating machinery and ice making plant which are not sold or offered for sale as ready assembled unit for purposes of countervailing duty under the Customs Act. The Hon'ble Supreme Court held that sub-entries (1) and (2) of Entry 29A could not control or restrict the meaning of sub-entry (3). They observed in para 5 of their judgment as under :- "The legislative history and the notifications of the Government shows that sub-item (3) of Item 29A is a comprehensive provision encompassing within it parts of all sorts of air conditioning and refrigerating appliances and machinery and the Government of India was issuing notifications and of exemption on the understanding that such parts are covered by sub-item (3). The language used in sub-item (3) is also wide and comprehensive in its application and could not be given a restricted meaning. Sub-items (1), (2) and (3) are independent of each other and mutually exclusive. The scope of sub-item (3) is neither restricted nor controlled by the provisions of sub-items (1) and (2)." 17. The emphasis by the Hon'ble Supreme Court in their historic judgment in the case of Union of India v. Bombay Tyre International, 1983 (14) E.L.T. 1896 (SC) has been on "the real wholesale cash price", "the true value of the excisable article", "the price should be the sole consideration for the sale" (Para 42), and that no "extra commercial considerations" should enter into the transaction (Para 31). Even in the cases of A.K. Roy v. Voltas Limited, 1977 (1) E.L.T. (J 177) (SC), and the Atic Industries v. Assistant Collector, Central Excise, 1978 (2) E.L.T. (J 444) (SC), the criteria is of "the real value" (Paras 19 and 20 of Voltas case, and para 13 of the Atic case). 18. The appellants have argued that the fact that their normal price may have been below cost price is irrelevant for the purpose of Secton 4 of the Act, and in support of their argument, have referred to the observations of the Hon'ble Supreme Court in the case of Bombay Tyre International. 19. The Hon'ble Supreme Court in their judgment in the case of Bombay Tyre International have very succinctly ruled that the value of an excisable article could not be limited to the manufacturing cost plus the manufacturing profit. They were of the opinion that" a broader based standard of reference may be adopted for the purpose of determining the measure of the levy." (Para 13). They held that "the price of an article is related to its value (using this term in a general sense), and into that value have poured several component including those which have enriched its value and given to the article its marketability in the trade. Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale which apparently would be the date of delivery are liable to be included. Consequently, where the sale is effected at the factory gate, expenses incurred by the assessee upto the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely after-sale service and marketing and selling organisation expenses including advertisement expenses cannot be deducted." (Para 49). It is in the light of these inclusions that the observations in para 40 of their judgment that the value of an article for the purpose of the excise levy must not be confined to the manufacturing cost and the manufacturing profit in respect of the article, have to be seen. 20. The matter has also been dealt with by the Allahabad High Court in the case of Geep Industrial Syndicate Limited v. Union of India, 1982 (10) E.L.T. 857 (All.) wherein it has been observed in para 18 as under :- "We are of the view that all costs which the manufacturer incurs for putting an article in a marketable condition so that it can be delivered at the factory gate to wholesale purchasers have to be included in the manufacturing costs. This would include charges for transporting the excisable goods from the factory to the factory gate, the cost of packing so as to render the article marketable in the wholesale market and may be certain other costs, which are necessary for putting it in a marketable condition." 21. In the case before us, the charge is that the additional consideration was equivalent to the extra price loaded on to the exempted goods. 22. During investigations, it was revealed that the appellants were manufacturing complete compressor, and after testing the complete compressor, were packing the compressor without stop valve, safety valve, oil stainer, electric heater, gauges and switches, which were packed and billed separately. It was seen that the compressors were sold at 20% to 30% of their cost price, and that the parts were sold at about 300% more than their cost price. 23. In the case of Collector, Central Excise v. United Glass, 1989 (40) E.L.T. 901 (Tri.), it was noticed that the prices declared by the respondents were much below the cost of production and that the cost data furnished to the department by the respondents, was incomplete and vague. The respondents appeared to be unwilling to come out with the full cost data including the overheads and the margin of-profit (Para 7). The Tribunal held that the value below cost could be either for inferior goods or were manipulated prices, and not bona fide, and hence not acceptable (Para 14). 24. The appellants have submitted that it was their business strategy to sell the compressors at any price, and to make profit on parts. 25. When setting the price of a product, most manufacturers start with their unit production cost, the expense of making one unit of the item (prime cost). Both direct and indirect (production overheads) costs are taken into account. They add a percentage of these costs to provide a profit for themselves. One of the chief reasons for carrying a business is to make a profit. Competition does not eliminate profits. There could be no marketing strategy to sell the saleable products without costing. 26. Splitting of the price as between the compressor and its parts, including those essential for the working of the compressor, could not be considered as for commercial considerations. In case of State of Uttar Pradesh v. Union of India, 1985 (20) E.L.T. 6 (All.) in para 12, the Allahabad High Court had observed that "where contrary to trade practices in the dealing of particular goods in wholesale the manufacturer enters into an agreement with the producer splitting up the consideration for which the property in goods are transferred with a view to reduce the amount of duty payable, he will be doing so for extra commercial consideration, and the price indicated in such agreement may not indicate the wholesale price, and the excise authority may not feel itself bound by such splitting." 27. The lower prices for the dutiable compressors were not for any commercial considerations, but for evading Central Excise duty leviable on such compressors, while at the same time, recouping their own loss by charging higher prices for the non-dutiable parts. They got whatever ex-duty price they wanted to get. The customer was benefited as he got his requirements of compressors and parts, taken together, at reduced price, to the extent of duty evaded on the compressors. Such a device could not be considered as in the normal course of business, and is obviously for extra commercial considerations, and the price charged for such sales would not be the wholesale cash price for levying Central Excise duty under Section 4 of the Act. 28. There is no doubt that as held by the Supreme Court in the case of A.K. Roy v. Voltas Limited, 1977 (1) E.L.T. (J 177) (SC), the wholesale cash price has to be ascertained only on the basis of transactions at arm's length (Para 18). The transaction should, however, be at arm's length, and the arms should be straight and not twisted. If the arms are twisted then the transaction could not be considered as fair and could not be considered for pure commercial considerations. 29. Thus, we find in the case before us that there was a single transaction in which the property in the compressor and parts was transferred to the customer. Although the transaction was one, the assessee splitted up the transaction in two parts - one for the compressor and the other for the parts. The assessee raised two invoices - one for the dutiable compressor and the other for the non-dutiable parts. A lower price was shown for the compressor while a high price was shown for the parts. In the process, while the assessee realised what he willed to realise, and the customer paid a lower price (on account of the dutiable compressor being undervalued), the public exchequer has alone been cheated. Parts being non-dutiable, no Central Excise duty was leviable irrespective of the higher price shown. A lower duty was, however, paid by under-valuing the dutiable compressor. The appellant has called it their business tactics and marketing strategy. But in these so called business tactics and marketing strategy, only the public exchequer has been cheated. The declared value of dutibale compressor was below its cost. It was not a case of distressed sale or sale of defective goods. The circumstances of the case establish that it was a manipulated price. Such a price could not be considered as the normal price for the purpose of Section 4 of the Act. The fact that some of the customers who got extra legal benefit were public sector undertaking, will make no difference to the legal issues. 30. Item No. 29A of the old Tariff covered refrigerating and air conditioning appliances and machinery, all sorts, and parts thereof. Sub-item (1) covered refrigerators and other refrigerating appliances; sub-item (2) covered air conditioners and other air conditioning appliances; sub-item (3) covered parts of refrigerating and air conditioning appliances and machinery all sorts. As held by the Hon'ble Supreme Court in the case of Frick India Limited v. Union of India, 1990 (48) E.L.T. 627 (SC), sub-item (3) of Item 29A is a comprehensive provision encompassing within it, parts of all sorts of air conditioning and refrigerating appliances and machinery. The language used therein is wide and comprehensive in its application and could not be given a restricted meaning. It was also added that the scope of sub-item (3) was neither restricted nor controlled by the provisions of sub-items (1) and (2). 31. Under sub-item (3) of Item No. 29A, read with Notification No. 80/62-C.E., dated 24-4-1962, among others, compressors, strating relay, controls (including expansion valve and solenoid valves) and pressure switches and overload protection/thermal relay were dutiable. As compressor as such was a dutiable part, no part of the value of any of its part, was excludible from the value of the compressor, for the purposes of arriving at its assessable value. Compressor is an identifiable, specific and a vital part in any refrigerating system, including low temperature refrigeration. In mechanical refrigeration, a compressor brings about the refrigeration cycle of refrigerating by changing a refrigerant from a liquid to a gas and back to a liquid again. In electric refrigeration the compressor pumps the refrigerant from the freezing unit, as a vapour, and raises its pressure. It, then, discharges high pressure gas into the air cooled condenser. The assessee with a view to misdeclare the value of compressor, declared some of the essential parts of compressor separately, and sought to avail of the exemption thereon. Refrigeration compressors were declared "without spares and accessories". It was not declared and specified as what parts were excluded. They had different models of their compressors and obviously no model could be complete if any of the essential parts were not fitted therein. Such parts as stop valves, safety valves, cut-off switches, gauges, heater, stainers etc. are essential parts of the compressors, and their separate listing for exempted parts and vague exclusion from the dutiable compressors, and thus splitting up the value, is obviously for evading the Central Excise duty. 32. The appellants have referred to their earlier disputes to plead that the department was aware of their modus operandi. Under half margin memo, dated 21-7-1976, reasons were sought as to why the prices of compressors have remained unchanged since 1973. Show Cause Notice dated 30-7-1976, read with communication dated 20-12-1976, related to the reduction of excisable value per compressor by Rs. 1000/-. In the earlier communications and disputes, the fact that certain parts of the compressors after fitting and testing, were packed and billed separately with a view to evade payment of Central Excise duty on the real value of the compressors, had not been noticed. In reply to the show cause notice vide their letter 7-9-1977, the appellants have themselves complained that "no grounds or evidences have been produced in support that declared prices were not based on cost prices". (Page 138 of the paper book). The facts came to light only after the searches and seizures leading to the present proceedings in which the impugned order before us was passed. The impugned order before us deals with the specific charges. On the basis of these half margin memo and the show cause notice, it cannot be said that the department was aware of the contraventions as alleged in the show cause notice dated 17-11-87, which has been adjudicated under the impugned order. As held by the Hon'ble Supreme Court in the case of Binod Bihari Singh v. Union of India, AIR 1993 SCW 475, Limitation Act is a statute of repose and bar of a cause of action because of undesirable lapse of time. In the case before us, there has been no undesirable lapse of time. Show cause notice could not have been issued without mustering and examining all the relevant facts and materials, and without establishing a prima facie case. 33. In the matter before us there has been no undesirable delay in issuing the show cause notice. Further, show cause notice has been issued with proper investigation/enquiry, and the appellants were associated with such enquiry/investigation. As per show cause notice the fresh facts had come to light, and they had been brought on record. The Tribunal in the case of Bramec Surie Pvt. Ltd. v. C.C.E., 1986 (25) E.L.T. 79 (Tribunal) had held that issues already concluded in earlier proceedings could be reopened in subsequent proceedings for another period of time if emerging fresh materials give a new dimension to the matter. It was added that limitation in such cases was to be computed from the date of issue of the last show cause notice. 34. Delhi High Court in the case of J.K. Synthetics Ltd. v. Union of India, 1981 (8) E.L.T. 328 (Delhi), and Metal Forgings Pvt. Ltd. v. Union of India, 1985 (20) E.L.T. 280 (Delhi), had held that the principle of res judicata or estoppel is not applicable to tax matters. 35. In the show cause notice it has been alleged in para 16 that various contraventions on the part of the assessee appeared to have been committed by them by reason of fraud, wilful misstatement and suppression of facts with an intent to evade payment of duty. The arguments of the assessee with regard to limitation were not found as tenable by the adjudicating Collector, Central Excise. 36. The appellants were working under the self removable procedure which reposes a good deal of trust in the tax payers. While filing of a price list in the prescribed form was obligatory under Rule 173C, the requirement of prior approval was limited to only few situations. The assessee was required to declare in the price list that the particulars furnished therein were true and complete to the best of their knowledge and belief. The Law does not protect the one whose actions are tainted, and no approval procured by false declarations could protect the guilty. We have to see on the basis of evidence on record whether the appellants honestly and reasonably believed that the prices declared by them were true. 37. The show cause notice dated 17-11-1987 is a very detailed one. It explains that enquiries had revealed that the assessee during the period 1982-86 had intentionally declared the lesser price of compressors without considering the cost of materials and overhead expenses on it, with an intent to evade payment of Central Excise duty, in a planned and systematic manner. The details of the differential Central Excise duty were shown in the work sheet annexed to the show cause notice. (Para 14 of the show cause notice). According to the assessee "there was no procedure to work out the cost of their compressor," and that "they had never been keen to work out the cost of production" (Para 6 of the show cause notice). It was noticed based on scrutiny of assessee's accounts/records, statements of their own officials, and the working of cost data in the presence of their own personnel, deputed by their Vice President, that the "Company had been undervaluing the compressors with an intent to pay lower duty and simultaneously, were recovering differential cost of the compressors from the sale price of accessories which were being compul-sorily supplied and which were much overpriced." (Para 8 of the show cause notice). According to Shri Manohar Lal Rattan Lal Gandhi, Section Incharge of compressor assembly "after completing the assembly, they were testing the compressors on test load; that after completing the said operation, they were undertaking a final look test during the said operation, that they were fitting stop valve for maintaining the air pressure during final look test; that they sent it for printing; that thereafter on receiving the packing list from their planning department, they packed their compressors after removing two valves; that in the packing list, they showed the accessories separately and packed it separately; that they were showing the two stop valves, safety valves, oil stainers, electric heater, different types of gauges and cut-off switches as accessories in their despatch advises so the same were not available to their department; that the production programme was also destroyed after completing the job so the same was also not available with them" (Para 3 of the show cause notice). Before the adjudicating Collector, Central Excise, they did not desire to cross examine any witness (page 13 of the Order-in-Original). It was also observed that the assessee were preparing two invoices - one for compressor and the second for the accessories of compressor (Para 4 of the show cause notice). On the basis of the material on record it appeared to the department that the assessee had intentionally suppressed the facts and had with an intent to evade payment of amount of Central Excise duty, deliberately undervalued the compressors manufactured and cleared by them (Para 15 of the show cause notice). 38. Having gone through the details briefly set out above, there could be no doubt that the notice issued was clearly the one on the basis of which a notice could be issued within the extended period of limitation under the proviso to Section 11A of the Act, as observed in similar circumstances, by the Hon'ble Supreme Court in the case of Union of India v. Maheshwari Woollen Mills, AIR 1993 SCW 483. With reference to the period of demand beyond the period of 5 years, the Hon'ble Supreme Court held in that case that "the effect of this will not be to invalidate the notice in its entirety. At worst the effect will be that the department will not be entitled to collect the duty beyond a period of 5 years from the date of issue of the Section 11A notice". (Para 9). In the case before us, the Collector, Central Excise, Ahmedabad had already held the demand beyond the period of 5 years i.e. 1-4-1982 to 30-10-1982 as time-barred. 39. The present show cause notice has been issued after examining the facts properly. There have been detailed enquiries and investigations by the department, and evidence in support of the allegations had been collected. The grounds and the evidence on which the allegations are based, have been fully explained in the show cause notice. The assessee was associated with the investigations leading to the calculations of differential duty demanded. 40. In the case - Creative Cosmetics v. Collector of Central Excise, 1993 (63) E.L.T. 348 (Tribunal), the Tribunal had observed that the second show cause notice in respect of the same goods but with different scope consequent upon new facts coming to light, was not barred. 41. The appellants had contested that after approval the price lists became final and it was not open for the department to reopen the issue and that no show cause notice could have been issued. The approval of assessable values was granted on the basis of the statements made in the price lists by the assessee. The Hon'ble Gujarat High Court have held in the case of Alembic Glass Industries v. Union of India, 1992 (59) E.L.T. 207 (Guj.) in para 24, 25 and 26 that the price list approved can be reopened under Section 11A of the Act, in case of short levy, non-levy or erroneous refund, and that it was neither necessary nor practical to have the price list approval set aside in appeal or revision first» 42. With regard to the scope and ambit to provision of Section 11A of the Act, the Calcutta High Court in the case of I.T.C. Ltd. v. Union of India, 1988 (34) E.L.T. 473 (Calcutta), did not accept the proposition that unless the price list is set aside on appeal, the question of refund will not arise. They observed that under the scheme of the Act, Section 11A of the said Act was provided as a substantive provision and a complete code for realisation of excise duty in case of short levy or short payment. 43.1 In the case of Neyveli Lignite Corporation Ltd. v. Collector, Central Excise, 1992 (58) E.L.T. 76 (Tribunal), on the same facts parallel proceedings had been initiated. In the case before us, neither the facts were the same in the instant show cause notice and the earlier proceedings, nor the proceedings could be considered as parallel proceedings. 43.2 In the case - Zenith Tin Works v. C.C.E., 1990 (47) E.L.T. 295 (Tribunal), the Tribunal's observations with regard to limitation were in the context of appellants stay application. 43.3 In the case of Collector, Central Excise v. Muzaffarnagar Steels, 1989 (44) E.L.T. 552 (Tribunal), it was observed by the Tribunal that extended period of limitation was not invokeable in the absence of deliberate suppression or misstatement of facts with the intention to evade duty or to avail of the benefit of exemption notification. In the case before us deliberate suppression and misstatement of facts with the intention to evade duty, have been alleged and established. 43.4 In the case of Swan Mills Ltd. v. Union of India, 1989 (44) E.L.T. 601 (Bom.), the matter related to the assessment orders under Rule 173-1 of the rules and the execution of those orders under Section 11A of the Act. While the issues before us are different, we may refer that the Bombay High Court in that case had held that merely because the authorities have under a mistaken view of the law or otherwise, issued notices under Section 11A, there was no reason why the revenue should be prevented from collecting the amount due under the assessment orders, which have already become final. 43.5 The issues before the Andhra Pradesh High Court in the case of CEAT Ltd. v. Assistant Collector, 1991 (56) E.L.T. 718 (AP) related to the revocation of the approved classification list and re-classification of the goods. The Andhra Pradesh High Court observed that there is no legal bar against issuing a show cause notice for revocation of an approved classification list in the first instance and after re-classification, issuing a show cause notice separately under Section 11A for the recovery of the excise duty. Here we are not concerned with the revocation of the classification list or the price list but with the demand of duty short levied on account of suppression of facts, for which the provisions of Section 11A of the Act are applicable, and have been invoked. 43.6 In the case of Electric Lamp Manufacturers India Ltd. v. C.C.E., 1991 (51) E.L.T. 619 (Tribunal), the Collector had found that there was no ground to allege suppression of facts by the appellants, and in those circumstances the Tribunal observed that the ground of suppression of facts not being established, personal penalty on assessee was not justified. In the case before us, the adjudicating Collector of Central Excise had not found tenable the party's arguments for limitation and the demand being time barred. 44. As observed by the Hon'ble Supreme Court in the case of Jaishri Engineering Company Pvt. Ltd. v. C.C.E., 1989 (40) E.L.T. 214 (SC), the question whether there was any fraud, collusion, wilful misstatement or suppression of facts for the department to be justified to claim duty beyond a period of 6 months, is a question of fact. The Hon'ble Supreme Court held in that case that having come to the conclusion that there was deliberate suppression or wrong statement it follows automatically that the Tribunal was justified in upholding the imposition of penalty. It was added that the quantum of penalty was a matter which the Tribunal was free to fix as they thought fit as the justice of the case demanded. The Hon'ble Supreme Court observed that "the fact that the department visited the factory of the appellant and they should have been aware of the production of the goods in question were no reason for the appellant not to truly and properly describe those goods." 45.1 As regards the calculations regarding costing as incorporated in the show cause notice, it has been argued that the prices ascertained were more than the invoice prices. In this connection, we find that:- (1) the cost of various models of compressors was worked out in the presence of the officials deputed by the Vice President of the company; (2) the various principles/factors adopted are discussed in detail in para 7 of the show cause notice; (3) the allocation of various expenses had been made with reference to the statement of allocation produced by the Assistant Manager (Accounts) of the company (Para 8 and 8A of the show cause notice); (4) the company could not supply data for the full period; (5) the company pleaded that they had no cost data of their compressors; (6) the various cost calculations were supplied to the appellants; (7) the appellants have not put up their version of the cost and had maintained that no costing was done by them; (8) in the grounds of appeal only general observations have been made in para 3.4, and no specific costing details have been furnished. 45.2 The Collector, Central Excise, Ahmedabad had discussed the costing in detail in his Order-in-Original. As regards the total price of compressor and accessories, we do not find that the assessable values adopted for compressors by the Collector, Central Excise are more than the invoice value, for both compressors and parts. As discussed in the show cause notice and in the Order-in-original, certain parts which were fitted with the compressors have been packed and billed separately, and value thereof had been added back to the value of the compressors. 45.3 Thus, this point made by the assessee had no force and we consider that the demand of Central Excise duty of Rs. 1,55,22,150.60 has been correctly confirmed by the adjudicating Collector of Central Excise. 46. Keeping in view the totality of the circumstances however, we reduce the penalty from Rs. 40 lakhs to Rs. 20 lakhs. 47. The Tribunal while disposing of the stay application of the appellants on 13-12-1991, although observed that they have got no power to order the payment of interest, had accepted the offer of the learned Sr. Advocate for the appellants, for payment of interest by the appellants, at the rate of 12 per cent in the event of their losing the appeal. We accordingly, exercising our inherent powers in view of the decision of the Hon. Supreme Court in the case of Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi, reported in AIR 1969 SC 430, accept the offer of the learned Senior Advocate as to the payment of interest at the rate of 12 per cent from the date of the order dated 21-2-1990 of the Hon. Gujarat High Court, on the duty demanded. 48. Subject to above, the appeal is otherwise rejected and the impugned order is confirmed.

Air Control And Chemical Engg. Co. ... vs Collr. Of C. Ex. on 2 February, 1994

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37473 of 2008(J) 1. THANKACHAN THOMAS, S/O.THOMAS, AGED 46 ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. THE TAHSILDAR, THODUPUZHA TALUK, 3. THE VILLAGE OFFICER, KARIMKUNNAM 4. THE WELFARE FUND INSPECTOR, For Petitioner :SRI.R.DIVAKARAN For Respondent : No Appearance The Hon'ble MR. Justice K.M.JOSEPH Dated :18/12/2008 O R D E R K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.37473 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2008 JUDGMENT Heard learned counsel for the petitioner, learned counsel for the Board and the learned Government Pleader. 2. Petitioner seeks permission to pay the amount in instalments. The writ petition is disposed of permitting the petitioner to pay the amount in six equal monthly instalments, the first of which shall be payable on or before 1.1.2009 and the further instalments on or before the first working day of the succeeding months. If the petitioner does not pay any single instalment, the petitioner will lose the benefit of this judgment and it is open to the respondents to proceed against the petitioner in accordance with law. (K.M. JOSEPH, JUDGE) sb 

Thankachan Thomas vs State Of Kerala on 18 December, 2008

Kerala High Court

CENTRAL INFORMATION COMMISSION D- Wing, 2nd Floor, August Kranti Bhavan, Bhikaji Cama Place, New Delhi - 110066 Appeal No.CIC/SS/A/2011/000379 PARTIES TO THE CASE: Complainant : Shri Ashok Kumar Choudhary (present in person) Respondents : Agriculture Scientists Recruitment Board, Krishi Anusandhan Bhawan-I, Pusa, New Delhi (Represented by Shri N.S. Randhawa, Secretary ASRB & Shri Vinod Kumar, CPIO) Date of Hearing : 22/06/2011 BACKGROUND OF THE CASE: 1. The Appellant through an RTI Application dated 27/10/2010 had sought the following information: ""1. Copy of question booklet of ICR NET 2010 Main Stream Agricultural Science (Krishi Nigam Samhu) - group crop protection 2. OMR Answer sheet - ICR NET 2010 Main Stream Agricultural Science (Krishi Nigam Samhu) - group crop protection. 3. Model Answer Sheet - ICR NET 2010 Main Stream Agricultural Science (Krishi Nigam Samhu) - group crop protection." 2. The CPIO vide letter dated 24/11/2010 denied the information sought under Section 8 (1) (j) of the RTI Act. Aggrieved by the CPIO's Order, the Appellant preferred first appeal before the FAA of the Respondent. The FAA vide its Order dated 05/01/2011 upheld the reply of the CPIO. The Appellant, aggrieved with the reply of the FAA, has preferred second appeal under the RTI Act before this Commission. 3. The Appellant had submitted during the hearing that the information sought by him was wrongfully denied to him by the CPIO and the FAA of the Respondent. The Respondent however submitted that they are a professional body whose function is only to conduct examination. They conduct examination on a very large scale and more than 30 thousand aspiring candidates appear every year for the examination. DECISION NOTICE: 4. The Commission has carefully perused through the written submissions placed before us by both the parties and have duly considered the arguments advanced by the Respondent during the course of hearing. 5. The Commission is reminded of its Full Bench decision in 'Shri Rakesh Kumar Singh and Ors vs. Shri Harish Chander, Assistant Director and Ors' dated 23/04/2007 where it was held as follows: 39. In regard to public examinations conducted by institutions established by the Constitution like UPSC or institutions established by any enactment by the Parliament or Rules made thereunder like CBSE, Staff Selection Commission, Universities., etc, the function of which is mainly to conduct examinations and which have an established system as fool-proof as that can be, and which, by their own rules or regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice and on the basis of the rationale followed by the Supreme Court in the above two cases, we would like to put at rest the matter of disclosure of answer sheets. We therefore decide that in such cases, a citizen cannot seek disclosure of the evaluated answer sheets under the RTI Act, 2005. 40. Insofar as examinations conducted by other public authorities, the main function of which is not of conducting examinations, but only for filling up of posts either by promotion or by recruitment, be it limited or public, the rationale of the judgments of the Supreme Court may not be applicable in their totality, as in arriving at their conclusions, the above judgments took into consideration various facts like the large number of candidates, the method and criteria of selection of examiners, existence of a fool-proof system with proper checks and balances etc. Therefore, in respect of these examinations, the disclosure of the answer sheets shall be the general rule but each case may have to be examined individually to see as to whether disclosure of evaluated answer sheets would render the system unworkable in practice. If that be so, the disclosure of the evaluated answer sheets could be denied but not otherwise. However, while doing so the concerned authority should ensure that the name and identity of the examiner, supervisor or any other person associated with the process of examination is in no way disclosed so as to endanger the life or physical safety of such person. If it is not possible to do so in such cases, the authority concerned may decline the disclosure of the evaluated answer sheets Under Section 8 (1) (g)." 6. The Commission is of the view that the present appeal before us squarely attracts the ratio of the above cited Full Bench decision (supra). Thus, so far as Point Nos.2 and 3 of the RTI Application are concerned, the Order of the CPIO of the Respondent is upheld. However, the Commission is of the view that the information on Point No.1 of the RTI Application is not exempted under the RTI Act. 7. The Commission therefore directs the CPIO of the Respondent to furnish the complete information on Point No.1 of the RTI Application to the Appellant within 10 days of receiving this Order. The Appeal is accordingly disposed of. Sushma Singh Information Commissioner 15.07.2011 Authenticated True Copies K.K. Sharma OSD & Deputy Registrar Address of the Parties:- Sh. Ashok Kumar Choudhary, H-2, Krishi Nagar, Bhandariya Road, Khandwa, (M.P.), PIN - 450 001 Sh. Vinod Kumar, PIO & Technical Officer, Agriculture Scientists Recruitment Board, Krishi Anusandhan Bhawan - 1, Pusa, New Delhi - 110 012 Sh. N.S. Randhawa Secretary & Appellate Authority, Agriculture Scientists Recruitment Board, Krishi Anusandhan Bhawan - 1, Pusa, New Delhi - 110 012

Mr.Ashok Kumar Choudhary vs Ministry Of Agriculture on 15 July, 2011

Central Information Commission

Gujarat High Court Case Information System Print SCA/208/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 208 of 2011 ========================================================= SANGITABEN BHUPENDRABHAI DALVADI - Petitioner(s) Versus DINESH MILLS LTD THROUGH MANAGING DIRECTOR - Respondent(s) ========================================================= Appearance : MR TR MISHRA for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 18/01/2011 ORAL ORDERNotice pending admission returnable on 11.2.2011. Sd/- (S.R. Brahmbhatt, J.) M.M.BHATT     Top

Author: S.R.Brahmbhatt,&Nbsp;

Sangitaben vs Dinesh on 18 January, 2011

Gujarat High Court

JUDGMENT B.N. Kirpal, J. 1. The petitioner in this writ petition is challenging the decision of the specified authority constituted under s. 72A(1) of the I.T. Act, 1961 (hereinafter referred to as "the Act"), who by its order dated 16th November, 1978, expressed its inability to recommend to the Central Govt. the acceptance of the scheme of amalgamation as proposed by the petitioner. 2. The petitioner is one of the leading manufacturers of bicycles in India. According to the averments made in the writ petition, the petitioner promoted a subsidiary company known as Atlas Auto-Cycles Ltd. The subsidiary company was incorporated in the year 1970, but it started manufacturing operations only in February, 1976. The said subsidiary company, however, did not make any profit. On the contrary, it has been suffering huge losses ever since it started manufacturing. Some time in the year 1977, the company sought expert advisers prepared a comprehensive report on the potentialities of the project of the subsidiary company and made its recommendations. The said recommendations postulated huge investment being made in order to make the said unit viable. 3. It was then decided that the two companies should be amalgamated. It was thought that this was the only way in which the subsidiary company could be saved from imminent and total collapse. Both the companies filed petitions in the High Court of Punjab and Haryana under ss. 391 and 394 of the Companies Act for the approval of the scheme of amalgamation of the companies. The requisite formalities under the Companies Act having been complied with, the said High Court, vide its order dated 27th February, 1978, accorded approval to the scheme of amalgamation. 4. In order to take the benefit of the provisions of s. 72A, the petitioner-company made an application on 7th June, 1978, to the Secretary, Dept. of Industrial Development, Govt. of India, for granting approval under the said section. The said s. 72A(1), which is relevant for the purpose of this petition, reads as under : "(1) Where there has been an amalgamation of a company owing an industrial undertaking or a ship with another company and the Central Government, on the recommendation of the specified authority, is satisfied that the following conditions are fulfillled, namely :- (a) the amalgamating company was not, immediately before such amalgamation, financially viable by reason of its liabilities, losses and other relevant factors; (b) the amalgamation was in public interest; and (c) such other conditions as the Central Government may, by notification in the Official Gazette, specify, to ensure that the benefit under this section is restricted to amalgamations which would facilitate the rehabilitation or revival of the business of the amalgamating company ...." 5. The Govt. of India in pursuance of the provisions of s. 72A have also laid down certain guidelines. These guidelines were issued on 2nd February, 1978. These guidelines were laid down so that if the conditions mentioned therein were fulfillled the Government would grant approval of the amalgamation of the units. The said guidelines, inter alia, provided that the declaration under s. 72A would be given if the following conditions were fulfillled : "Size of sick industrial units : The amalgamating company should have employed at least 100 workmen during the accounting year in which the amalgamation is effected and in each of the two accounting years immediately preceding that year. Alternatively the fair market value of the fixed assets (excluding land) as on the date of amalgamation should not be less than Rs. 50 lakhs. However, these general criteria can be relaxed if one of the following conditions is fulfillled :- (a) if the sick industrial unit is engaged in the manufacture of mass consumption goods or goods which have a high priority or new industrial capacity is required for manufacture of such goods; (b) special consideration will be given in cases where the sick industrial unit is located in any rural or backward area or in any city or town with a population not exceeding one million." 6. The petitioner was asked to appear before the specified authority by letter dated 4th September, 1978. The representatives of the petitioners were heard and the petitioner was thereafter communicated the decision of the specified authority contained in the letters dated 16th November, 1978. It was stated in the said letter that the authority regretted its inability to recommend to the Central Govt. the scheme of amalgamation of the subsidiary company with the petitioner-company. On a request being made for giving detailed reasons as to why the said decision had been taken, the specified authority communicated the said reasons along with its letter, dated nil, No. 3(34)/78-CUS. In the said letter it was stated that the specified authority was of the opinion that the conditions laid down in s. 72A had not been fulfillled in view of the following : "(i) The amalgamating company commenced production only in September, 1976. It has not yet been able to stabilise production because the product faces some technical problems and requires adaptation to the local conditions. Any new unit is likely to face such problems which should be solved without benefits of section 72A of the Income-tax Act. (ii) The amalgamation does not fully satisfy the guidelines as evolved by the specified authority as the number of employees is less than 100 persons and the written down value of fixed assets (excluding land) is less than Rs. 50 lakhs. (iii) The amalgamation scheme provides for issue of shares by the amalgamated company to the shareholders of the amalgamating company in the ratio of 1 : 1. This is not suggestive of financial non-viability of the amalgamating company. (iv) As the amalgamating company is a subsidiary of the amalgamated company, the amalgamation will not bring in any additional managerial expertise." 7. The petitioner in the present writ petition is challenging this decision of the specified authority. It is contended, in our opinion rightly, that the reasons given in the aforesaid impugned letter, dated nil, for not recommending to the Central Govt. the application of the petitioner are contrary to s. 72A and in fact are not in accordance with the guidelines laid down by the Government itself. It will be seen that s. 72A requires two conditions to be fulfillled. The first condition is that the amalgamating company was not immediately before the amalgamation financially viable. The financial viability had to be by reason of its liabilities, losses or other relevant factors. The other condition required to be fulfillled is that the amalgamation was in public interest. The Central Govt., we are informed, has not laid down any other conditions which are required to be satisfied. In the impugned decision it has not been stated that the provisions of s. 72A(1)(a) are not attracted. In other words, the contention of the petitioner that the amalgamating company was not financially viable has not in express words been controverter. It has no doubt been mentioned that the issuing of shares of the amalgamated company in the ratio of 1 : 1 is suggestive of the fact that the amalgamating company was financially viable. We are not able to agree with this contention. Merely because for every one share held by the member of the amalgamating company he is to get one share of the amalgamated company, it cannot possibly suggest that the amalgamating company was a viable unit. The financial viability of a company or an undertaking has to be judged having regard to its profitability, its profit and loss account, balance-sheet and other relevant factors. It has not been controverter that the amalgamating company has been incurring huge losses ever since it started operation. In any event, it does not appear that this aspect of the question has received much attention of the specified authority. The specified authority would, of course, be entitled to go into this aspect, as we are inclined to set aside the order and send the case back to it. 8. The first reason given in the aforesaid letter of rejection is not one which is contemplated by the guidelines at all, nor is it covered by s. 72A of the Act. It is quite clear that, as already stated hereinabove, the amalgamation company is facing acute problems. These problems cannot be solved in the present set up. It is not denied that the amalgamating company is a sick industry. The mere fact that in future it would be in a position to stabilise is not material because it is not denied that in order to stabilise the production huge investment is required plus some technical problems would have to be overcome. 9. It is correct that the number of employees which are employed by the amalgamating company is less than 100. The guidelines, however, postulate that in case the company employs less than 100 workmen, nevertheless permission can be granted if, in the alternative, the fair market value of the fixed assets excluding land on the date of amalgamation is not less than Rs. 50 lakhs. The specified authority has fallen into an error in referring to the written down value and not fair value of the assets is more than Rs. 50. If this be so, then the condition mentioned in the guidelines would be satisfied. Even otherwise, the guidelines provide that the general criteria of the amalgamating company employing at least 100 workers or having fixed assets of value of more than Rs. 50 lakhs can be relaxed if the conditions mentioned in the said circular are fulfillled. One of the conditions mentioned therein is if the sick industrial unit is engaged in the manufacture of mass-consumption goods. This aspect of the case has not been dealt with by the specified authority. Even if the specified authority comes to the conclusion that the fair market value of the assets are less than Rs. 50 lakhs, nevertheless the specified authority should apply its mind and take into consideration the fact that the goods which are being manufactured by the amalgamating company are such which may be regarded as mass-consumption goods. 10. The last reason stated in the said letter, namely, that the amalgamating company is a subsidiary of the amalgamated company and the amalgamation will not bring any additional managerial expertise can also not be a ground for not recommending the application of the petitioner. Neither s. 72A nor the guidelines empowered the specified authority not to grant approval for such a reason. In any event, this observation of the specified authority is a mere surmise which is not supported by any fact. It will be seen that the petitioner, namely, the amalgamated company, is being run efficiently and is making huge profits. With the amalgamation of the two units the managerial expertise as well as the financial resources of the amalgamated company would be utilised for making the unit viable. 11. We accordingly allow the writ petition, quash the decision contained in the letter No. 2(34) 78-CUS, dated 16th November, 1978, and direct the specified authority to deal with the application of the petitioner in accordance with law, keeping in view the observations made above. No order as to costs.

Author: B Kirpal

Atlas Cycle Industries Ltd. vs Union Of India And Another on 13 March, 1980

Delhi High Court

Court No. - 7 Case :- WRIT - A No. - 71794 of 2009 Petitioner :- Karan Singh & Another Respondent :- Vijay Kumar Petitioner Counsel :- Rakesh Srivastava,Deepak Jaiswal Hon'ble Ran Vijai Singh,J. Issue notice. In addition to normal mode of service, the learned counsel for the petitioner is at liberty to serve the respondent outside the Court for which dasti notices may be supplied by the office after taking steps by the learned counsel for the petitioner. Steps be taken within a week returnable at an early date. As an interim measure without prejudice to the right and contention of the parties, subject to payment of Rs. 500/- per month by seven day of each succeeding months, the operation of the impugned order dated 21.10.2009 passed by Additional District Judge Court No. 2, Ghaziabad dismissing the Rent Control Appeal No. 12 of 2004 and the order dated 11.2.2004 (Annexure no. 3) passed by Prescribed Authority/Judge Small Causes Court, Ghaziabad in P.A. Case No. 13 of 2001 shall remain stayed till the next date of listing. In case of default of payment the interim order granted today shall stand vacated. Order Date :- 19.1.2010 Pratima

Karan Singh & Another vs Vijay Kumar on 19 January, 2010

Allahabad High Court

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Author: B.S.Patil

Sri K S Ganesh Kumar vs The Commissioner Bangalore ... on 24 June, 2008

Karnataka High Court

ORDER 1. We have heard Learned Counsel for petitioner and learned Senior Standing Counsel for Union of India. Admittedly petitioner has filed an appeal which is still pending before competent authority. It is not disputed that stay application has been filed which is also pending. Without entering into merits of the matter we are of opinion that stay application should be decided expeditiously, if possible within two months, from the date a copy of this order is produced. Petitioner shall produce copy of order within ten days from today. Till disposal of stay application recovery proceedings, if any, against petitioner shall remain stayed. 2. Petition is disposed of accordingly. 3. Copy of this order may be given to Learned Counsel for petitioner on filing proper application within 24 hours.

Geep Industrial Syndicate Ltd. vs The Asstt. Collector, Central ... on 31 March, 1989

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9638 of 1997 K.E.C.INTERNATIONAL LIMITED through PSR Murali, Dy. Resident Engineer, Sri Krishnapuri, Patna, Anandpuri, Behind Himgiri Apartment, Patna -800 001 .....Petitioner Versus 1. STATE OF BIHAR 2. Commissioner of Commercial Taxes, Bihar, Patna 3. Union of India through the Ministry of Railways 4. General Manager, Core, Central Organisation, Railway, Electrification, Allahabad 5. Chief Project Manager Railways Electrification, Danapur 6. Deputy Chief Electrical Engineer, Railway Electrification, Danapur 7. Senior Accounts Officer, Railway Electrification, Danapur ....Respondents 07- 28/9/2010 Heard learned counsel for the petitioner, and Mr. Lalit Kishore, learned Addl. Advocate General no. III for the respondents. It appears on a perusal of the writ petition that the petitioner challenges the vires of section 25A of the Bihar Finance Act 1981. This issue has subsequently been considered and disposed of by a Division Bench of this Court in M/s Larsen and Toubro Ltd. V State of Bihar [1999(3) PLJR 960]. Learned counsel for the petitioner submits that he has no instruction to press this writ petition. 2. Accordingly, the writ petition is dismissed as not pressed. There shall be no order as to cost. ( S K Katriar ) ( Birendra Prasad Verma ) mrl 2

K.E.C.International Limited vs State Of Bihar &Amp; Ors on 28 September, 2010

Patna High Court - Orders

JUDGMENT 1. This appeal arises out of a suit brought by the daughter of one Anwar Ali to recover certain property as one of the heirs of her deceased father, and to set aside certain conveyances This appeal relates only to one of these conveyances which is said to have been executed in favour of Anwar Ali's wife, the first defendant. 2. The suit was decreed by the Munsif. The defendant No. 1, appealed to the Subordinate Judge of Chittagong and her appeal was dismissed by that Officer, on the ground that the document in her favour not having been duly registered, her defence to the plaintiff's suit, therefore, failed. 3. The widow appeals to this Court, and it is argued on her behalf that the learned Subordinate Judge was wrong in refusing to go into the merits of the case and in disposing of it on the finding that the appellant's conveyance was not duly registered. This document is said to have been executed by Anwar Ali on the day of his death and was presented for registration about three months later by the present appellant, who was only one of Anwar Ali's heirs. The Subordinate Judge considers that as all the heirs of Anwar Ali did not join in the application for registration, the registration was invalid and that, therefore, the document was not duly registered and cannot be treated as effecting a valid sale. 4. The appellant relies particularly on the case of Pakran v. Kunhamm 23 M. 380. In that case also the execution of the deed in suit was admitted before the Registering Officer by but one out of three representatives of the deceased. The learned Judges did not hold that such an application was sufficient in law to warrant registration, but they held that the error committed by the Sub-Registrar, if any, in registering the deed was merely a defect of procedure and did not render the registration invalid. They relied on certain quoted decisions of the Privy Council and other Courts. It appears to us that it may be open to question whether Section 87 of the Registration Act, 1877, which cures defects in the procedure of the registering officer, can be extended to cure also the shortcomings of persons who apply to have documents registered; and in this connection we may refer briefly to the case of Mujib-un-nissa v. Abdur Rahim 23 A. 233. 5. But having regard to the authorities cited in Pakran v. Kunhamma 23 M. 380 the learned pleader for the respondent considers that a document presented for registration after the death of the executant by one out of several of his representatives is not precluded by Section 49 of the Registration Act from affecting the immovable property specified in it. We feel ourselves bound to follow these authorities and to hold that the learned Subordinate Judge was wrong in treating the conveyance now under consideration as not duly registered. 6. It has been argued by the learned pleader for the respondent that the Subordinate Judge intended to find that the document was not a genuine one and was not executed by Anwar Ali at all. But after reading the whole judgment of the Subordinate Judge, we are unable to accept this as a correct description of his conclusions. We do not think that he applied his mind or intended to apply his mind to the question whether the document was duly executed by Anwar Ali or not. 7. This being our opinion we must allow the appeal and remand the case to the Subordinate Judge in order that he may dispose of the other points arising for determination. 8. The costs of this appeal will abide the result.

Srimati Sujan Bibi vs Srimati Asafa Khatun on 6 January, 1909

Calcutta High Court

Gujarat High Court Case Information System Print SCA/11831/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11831 of 2008 ========================================================= NABROS PHARMA PVT LTD - Petitioner(s) Versus INTELLECTUAL PROPERTY APPELLATE BOARD & 2 - Respondent(s) ========================================================= Appearance : MR YJ TRIVEDI for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, MR RM CHHAYA for Respondent(s) : 2, MR BR GUPTA for Respondent(s) : 3, MR RR SHAH for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 05/10/2010 ORAL ORDER This matter is tentatively fixed for final hearing on this side of vacation i.e. on 27th October, 2010. Let registry may notify this matter for final hearing on 27th October, 2010. [H.K. RATHOD, J.] #Dave     Top

Author: H.K.Rathod,&Nbsp;

Nabros vs Intellectual on 25 November, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24146 of 2010 PAWAN KUMAR SINGH Versus STATE OF BIHAR with Cr.Misc. No.26260 of 2010 DINESH SHARMA Versus THE STATE OF BIHAR with Cr.Misc. No.26390 of 2010 MD.RASHID Versus THE STATE OF BIHAR with Cr.Misc. No.26421 of 2010 MUNNA KUMAR SINGH Versus STATE OF BIHAR ----------- Shashi. (Samarendra Pratap Singh, J.) 2 09.08.2010. List all the four cases for orders on 13.8.2010.

Munna Kumar Singh vs State Of Bihar on 9 August, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print MCA/678/2010 2/ 2 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION No. 678 of 2010 In CIVIL APPLICATION No. 9444 of 2009 In SECOND APPEAL (STAMP NUMBER) No. 223 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= ASHIBEN AMIBHAI MATHAKIA - Applicant(s) Versus MAMADBHAI ALIBHAI BADI & 2 - Opponent(s) ========================================= Appearance : MR JL HAJARE for Applicant(s) : 1, S.P. MAJMUDAR for Opponent(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 - 3. ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/04/2010 ORAL JUDGMENT1. RULE. Shri S.P. Majmudar, learned advocate waives service of notice of rule on behalf of the opponents. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present application is taken up for final hearing today. 3. The present application has been preferred by the applicant-original plaintiff to restore Civil Application No. 9444/2009 to file, which came to be dismissed for non-prosecution vide order dated 15/02/2010. 4. Having heard the learned advocates appearing on behalf of the respective parties and considering the averments made in the application, the present application is allowed and Civil Application No. 9444/2009 in Second Appeal (Stamp) No. 223/2009 is restored to file. Rule is made absolute to the aforesaid extent. No cost. (M.R. SHAH, J.) siji     Top

Author: M.R. Shah,&Nbsp;

Ashiben vs Unknown on 21 April, 2010

Gujarat High Court

Court No. - 5 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15361 of 2010 Petitioner :- Raju @ Kalti Respondent :- State Of U.P. Petitioner Counsel :- Dhirendra Kumar Srivastav Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned Counsel for the applicant and learned A.G.A. It is submitted by learned counsel for the applicant that according to prosecution version 3 cases are shown in the gang chart against the applicant in which he has been released on bail. The applicant is in jail since 1.1.2010. After considering the facts and circumstances of the case and the submissions made by the learned counsel for the applicant and without expressing any opinion on the merits of the case, the applicant is entitled to be released on bail. Let the applicant Raju @ Kalti involved in Case Crime No. 01 of 2010, under Sections 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, Police Station Kasna Noida, District Gautambudh Nagar be released on bail on his furnishing a personal bond and two heavy sureties each of the like amount to the satisfaction of the Court concerned with the condition that the applicant shall not tamper with the evidence and he shall report to the court of C.J.M. concerned in the first week of each month till conclusion of the trial to show his good behaviour. In default of the above condition the bail granted to him shall be deemed cancel and he shall be taken into custody by the C.J.M. concerned. Order Date :- 18.6.2010 RPD

Raju @ Kalti vs State Of U.P. on 18 June, 2010

Allahabad High Court

[Section 6] [Complete Act]

Central Government Act

.1' IN THE HIGH coum' ore' KARNATAKA, DATED THIS THE 27TH DAY op' AUo*e:sT,;:oi'0e» PRESENT " THE HoN'BLs MR. J. s. eHi§=:FsIJs'fioE' THE HoN'sL}3 MR3, J1;sTI€,s u1§r':ANJU:,A CHELLUR BETWEEN: Lingappa.s S/0 RevéiI1x1a*»V ' . . : Aged about . ' R/af:"Mt:dd2;ia11r{.a Paiya Tavarekerew Hobli * ' ' .. Bangalore SouthfTaILIk" ~ « . ~' Bangalore " V VA " . (B3.{ SI"i~. I). I5; Advocate) 'I'h_e Tahasildar Bangéilore South Taluk V Bangalore '{Byt--S1'i. v. s. Hegde, AGA) coo bio; . . . COMPLAINANI' . . ACCUSED This contempt petition is filed under Sections 1 1 V' V8312 of Contempt of Courts Act 1971 by complainant wherein he prays that this Hon'ble Court be pleased to initiate contempt proceedings against the accused for willful disobedience of the order of this I-iorfble Court dated 12.10.2009 passed in W.P.No.27173/2009 {T ' émafl. . 2 . (KLR--RR/ SUR) vide Annexure-A, for non compliance of the directioxzs of the Hon'b1e Court. This C.C.C coming on for Orders Justice passed the following: _ J.s.:e:I-IEHAR, C.J. [0ral]:_. % Complainant / petitioner» approached Court by filing w.P. NO.§§fF..173.]é'Q§*§-._V_ The arcrésaid writ L petition was disposediwovf oz'def"5dai:ed 12. 10.2009. A perusal d.fo1?veSé|id":o1§der--.~:dated 12.10.2009 reveaisd'ti1aifj:tI1eiifiaccdiised/fe_Spo§1dents were directed to consider: ._ made by the conjxplaixdldazmt/"ddated 20.11.2007 and pass an o1ficler:'_A---dtherfieon H 3 months, from the date of . the certified copy of the order dated .2...mog. Hari Shilpa, accused/respondent is in Court in person. She has informed us, that furtherance of the directions issued by this Court in W.P.Nof'27173/2009 a notice was issued to the complainant] petitioner requiring him to appear before -mg' . 3 . the accused] responcient on 18.8.2010. it is pointed out that a similar notice was issued to the opposite party. It is also pointed out that the aforesaid nofice was" upon the complainant] petitioner by tfoe Accountant It is further submitted' jtltle K V' complainantf petitioner nor the _ for the hearing fixed for .It'.iei " L» out, that the aforesaid been..dei'e1Ted to 8.9.20 10, and that, petitioner as also toe' before the accused] speaking order will 3?...' ' me fact, that the accused] respondent steps for the compliance of the by this Court on 12.10.2009 in we No.27 Q3/2009, and in View of the statement made by taccused/respondent, that a final oréer shall be ' after hearing the rival parties, We are satisfied that it is not appropriate to retain this petition on the board any further. The instant petition is accordingly disposed of with a direc:t;'1on to the accused] respczgdsnt to oemply with the undertaking given. to expeditiously as possible. V Disposed of accordingly. fiC'}:1i'é4f Justice 11 ge

Author: J.S.Khehar(Cj) And Chellur

Lingappa vs Smt. Hari Shilpa on 27 August, 2010

Karnataka High Court

Court No. - 26 Case :- WRIT - A No. - 30252 of 1995 Petitioner :- Lal Chand Prajapati Respondent :- Director Ayurvedic And Unani Services & Others Petitioner Counsel :- I.R. Singh Respondent Counsel :- Ramesh Rai/C.S.C. Hon'ble Anil Kumar,J. Matter is taken in the revised cause list. None present on behalf of the petitioner. Heard learned Standing Counsel and perused the record. By means of present writ petition, petitioner has challenged the impugned transfer order. Due to efflux of time, present writ petition has become infructuous, accordingly the same is dismissed as infructuous. Interim order, if any, is hereby discharged. Order Date :- 14.7.2010 Krishna/*

Lal Chand Prajapati vs Director Ayurvedic And Unani ... on 14 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38828 of 2010 JANARDAN THAKUR Versus STATE OF BIHAR & ANR ----------- 3. 10.03.2011 It has been submitted that now the matter has been compromised between the parties but one of the terms of the compromise was that the petitioner would pay Rs. 1,200/- per month to the Opposite Party No. 2, his wife, which unfortunately he is doing after a lot of difficulties. On the other hand, the petitioner contends that the Opposite Party No. 2 was required to withdraw the present Criminal Case which he has not done, so, both the parties have defaulted in adhering to the terms of compromise. Considering the nature of dispute between the parties, the Controlling Officer of the petitioner is directed to debit a sum of Rs. 1,200/- per month to be credited to the account of the Opposite Party No. 2 which is numbered as 0152000-101871460 of Punjab National Bank, Dumraon. The application will be heard. In the meanwhile, the further proceeding in Complaint Case no. 117C of 2008, Tr. No. 1407 of 2010 pending in the court of Sub Divisional Judicial Magistrate, Buxar, shall remain stayed. ( Anjana Prakash, J.) S.Ali

Janardan Thakur vs State Of Bihar &Amp; Anr on 10 March, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 2748 of 2011 Murli Singh @ Murli Prasad Mahto ...... Petitioner Versus The State of Jharkhand ...... Opposite Party ..... CORAM: HON'BLE MR. JUSTICE D.N. UPADHYAY For the Petitioner : Mr. M. B. Lal, Advocate. For the Opposite Party : A.P.P ----------- 03/11.10.2011 Kamlesh/- (D.N. Upadhyay, J) Heard learned counsel for the parties. Petitioner is accused in a case registered under Section 414 of the Indian Penal Code. The fact emerges from the self statement of Sub-Inspector Umesh Kumar Thakur is that after receiving secret information the premises of M/s. Maa Janki Coke Plant situated at Saldaha was raided and police party have succeeded to recover coal collected through illegal mining from the premises. The cyclist, who had been present at the place with coal extracted through illegal mining were also apprehended. The petitioner happens to be Munsi of the said M/s Maa Janki Coke Plant. It is submitted that petitioner was not at all present at the place of occurrence. The petitioner could not be held liable for coal seized from the premises of said M/s Maa Janki Coke Plant. Learned counsel for the State opposed the prayer for anticipatory bail. Considering the submissions advanced by the learned counsel, petitioner, above named, is directed to surrender in the Court below within a fortnight and on such surrender or in the event of his arrest he shall be released on bail by the Court below on furnishing bail bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of learned Chief Judicial Magistrate, Dhanbad in connection with Rajganj P. S. Case No. 27 of 2011 corresponding to G. R. No. 1859 of 2011 subject to the conditions as laid down under Section 438 (2) of the Cr.P.C.

Murli Singh @ Murli Prasad Mahto vs State Of Jharkhand on 11 October, 2011

Jharkhand High Court

Court No. - 24 Case :- SERVICE BENCH No. - 4280 of 1986 Petitioner :- Ram Narain Singh Respondent :- State Of U.P. Through The Secretary, Panchayat Raj Civil Sec Petitioner Counsel :- S.C. Mishra Respondent Counsel :- C.S.C Hon'ble Rajiv Sharma,J. Hon'ble Dr. Satish Chandra,J. Heard Mr. U. K. Srivastava, learned Counsel for the petitioner. By means of instant writ petition, the petitioner prays for quashing the Uttar Pradesh Zila Parishad Regularization of Ad hoc Appointment (On Posts Within the Purview of Public Service Commission) Rules, 1985 on the ground that the cut off date for regularization of ad hoc appointments, was arbitrary inasmuch as it denied the benefits to the petitioner who were also working as Karya Adhikari but were appointed subsequent to cut off date. During pendency of the aforesaid writ petition, the relevant Rules have been amended in the year 1992 and the cut off date has been extended upto 1.1.1986. As a consequence, all the ad hoc appointees including the petitioner being fully covered under the aforesaid Second Amendment Regularization Rules of 1992 were considered for regularization and were regularized on the post of Karya Adhikari vide Government Order of Regularization dated 28.5.1993. Therefore, the writ petition has rendered infructuous. Accordingly, the writ petition is dismissed as infructuous. Order Date :- 18.1.2010 lakshman

Ram Narain Singh vs State Of U.P. Through The ... on 18 January, 2010

Allahabad High Court

CENTRAL INFORMATION COMMISSION Room No.296, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066. Telefax:011-26180532 & 011-26107254 website:cic.gov.in Date : April 05, 2011 Complaint No. : CIC/AT/C/2010/001364-DS Complainant : Smt. Sumitra Devi, Gharauli Extension (Delhi). Public Authority : State Bank of Patiala, Lodhi Road (New Delhi). ORDER The Commission has received an appeal petition, dated 25/10/2010 (Diary No:74231/2010) from Smt. Sumitra Devi in respect of his/her RTI-application on 07/07/2010 filed with the CPIO, Office of the Deputy General Manager, State Bank of Patiala, Zonal Office, Lodhi Road (Near Sai Baba Temple), New Delhi-110003. 2. On Perusal of the papers submitted by the appellant, it is observed that appellant's RTI- request was replied to by the CPIO, letter No.:DGM(D)/RTI/981/2055, dated 05/08/2010. 3. The Appellant preferred his/her first-appeal on 31/08/2010 before the First Appellate Authority, which has not been decided by FAA (Copy of First Appeal is enclosed). 4. In order to avoid multiple proceedings under section 19 and 18 of the RTI Act, viz. appeals and complaints, the matter is remitted to the First Appellate Authority, with the following directions: i. In case the first appeal dated 31/08/2010 has not been disposed of by FAA, he should dispose of the first appeal by passing a speaking order in the matter, within 2 weeks of receipt of this order. ii. In case FAA has already disposed of the first-appeal, he should furnish a copy of his order to the Appellant within one (1) week of receipt of this order. Page  1 iii. A copy of First Appellate Authority order will be endorsed to the Commission clearly indicating the case number and reason for delay, if any, in providing information. 5. In case, the Appellant still feels aggrieved by the decision of FAA, he/she shall be free to approach the Commission in second appeal under section 19(3), along with complaint under section18, if any, within the prescribed time limit. (Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy: (T. K. Mohapatra) US & Dy. Registrar Tele. No. 011-26105027 [email protected] Copy to:- 3. First Appellate Authority under RTI Office of the General Manager, State Bank of Patiala, Zonal Office, Lodhi Road (Near Sai Baba Temple), New Delhi-110003. -:- Page  3

Smt. Sumitra Devi vs State Bank Of Patiala on 5 April, 2011

Central Information Commission

JUDGMENT Manmohan Sarin, J. Page 3122 1. The above writ petitions are being decided by this common judgment since the legal plea sought to be raised in assailing the transfer orders is the same. 2. Petitioners impugn and assail inter-divisional transfers pursuant to the Circular/Policy dated 2.11.1998 in relation to the Ticketing and other Staff in mass contact, found to be indulging in malpractices. Transfers without completion of the departmental enquiry or notice to show cause are assailed as being illegal and in violation of principles of natural justice. 3. Two of the petitioners namely Sudhir Kumar, petitioner in WP(C) No. 17165/2005 and Ganesh Din, petitioner in WP(C) No. 6082/2005 assail the common judgment dated 15.3.2005, passed by the Central Administrative Tribunal deciding O.A. No. 1405/2004 and O.A. No. 1670/2004 and O.A. No. 2743/2004 by one Devinder Singh, who is not one of the petitioners in this batch of writ petitions. By the said judgment, the Tribunal had dismissed the above O.As challenging the inter-divisional transfer orders. For facility of reference, the facts of individual writ petitions and specific pleas, if any, raised other than the common ground as noted above, are summarized hereinafter. 2. WP(C) No. 6082/2005 (Ganesh Din) (i) Petitioner Ganesh Din had joined Railways as a Luggage Porter in October, 1973. He was promoted as Parcel Clerk, a Group 'C' post, on 1.11.1987 and Senior Parcel Clerk in 1993. On 19.10.2003, the Vigilance Inspector conducted a raid using a decoy passenger. It is alleged against the petitioner that he charged Rs. 20/- in excess over and above the normal freight from the decoy. The excess amount is alleged to have been recovered from Ganesh Din. A charge-sheet was issued to the petitioner and disciplinary enquiry was initiated on 5.3.2004 Petitioner was transferred from Ferozpur Division to Ambala Division. Petitioner assailed the said transfer in the O.A., which was dismissed. Hence, the present writ petition. Ganesh Din contended that he had been falsely trapped and Rs. 60/- were thrust into his pocket and before he could react, the Vigilance Inspector had pounced upon him and proceeded with the allegations. It appears that subsequently, the explanation given was that he had received Rs. 20/- for arranging a license porter, which was not found plausible. (ii) On 21.4.2005, the respondents' statement regarding retention of status quo with regard to the service of the petitioner till the next date was recorded. The interim order was directed to be continued till 16.9.2005. It appears that no formal orders extending the interim orders were passed thereafter till the matter was heard on 30.8.2006. 3. WP(C) No. 17165/2005 (Sudhir Kumar) (i) Petitioner Sudhir Kumar was posted as the Head Traveling Ticket Examiner. On 16.1.2002, a charge-sheet was issued alleging that he had demanded and accepted Rs. 100/- from a decoy passenger Page 3123 and also created artificial shortage of cash. An Inquiry Officer was appointed and the Inquiry Officer held one of the charges as proved and the other two partially proved. Reduction in pay by two steps in the same scale for three years with cumulative effect was the penalty imposed. The Appellate Authority rejected the appeal of the petitioner. A notice was issued for enhancement of penalty and the Revisional Authority enhanced the penalty of reduction in pay for three years. On 21.5.2004, he was transferred from Ambala Division to Ferozpur Division and since then, petitioner has been transferred to the Delhi Division at his request. Petitioner challenged the inter-divisional transfer. Petitioner contended that resort to the circular in his case could not have been had as this disciplinary authority had exonerated him from any charge of malpractices, mala fides and had found him responsible for negligent conduct only. The circular was challenged as being void ab initio otherwise. (ii) Notice to show cause was issued on 6.9.2005 and the respondents undertook to maintain status quo with regard to the service of the petitioner till the next date. The interim order was extended up to 12.1.2006. However, formal orders extending the interim order were not passed till 30.8.2006 when the matter was heard. 4. WP(C) No. 36-37/2006 (Shiv Raj Singh and Sat Pal Singh) (Shiv Raj Singh) (i) Shiv Raj Singh was initially appointed as a Booking Clerk and posted at Ambala Cantt. on 26.12.1996. In 1998, he was promoted as Senior Booking Clerk and in 2002, as the Head Booking Clerk. A raid was conducted by Vigilance Inspector on 25th May, 2004 Rs. 179/- were alleged to have been found in excess. A charge-sheet dated 1.10.2004 was issued for defrauding the Railways and holding excess amount in Government cash without convincing reasons. Petitioner contends that neither enquiry had been conducted nor opportunity of hearing given but he was transferred on 11.10.2004 from Ambala Division to Delhi Division on the basis of the Circular dated 2.11.1998. The Vigilance raid was also assailed as having been conducted in contravention of the Rules without employing independent witnesses. Sat Pal Singh (i) Sat Pal Singh had been initially appointed as Luggage Porter in the year 1979, promoted as Parcel Clerk and Senior Parcel Clerk in 1995 and 1999 respectively. While being posted as Senior Booking Clerk, Ambala Cantt., he was transferred vide impugned order dated 2.7.2003 from Ambala to Delhi Division on administrative ground in public interest. A charge-sheet was issued dated 22.5.2003, alleging that he had committed serious irregularities and had accepted extra amount over the actual fare from decoy passenger. The excess amount was found with him at the time of checking. The sum of Rs. 23/- being excess in a total amount of Rs. 42,788/- was claimed by petitioner to be well within the limits laid down by the Railway Board. Limit of Rs. 30/- in shortage/excess of cash on hand is permissible Page 3124 because there was an acute shortage of coins and small currency notes. Petitioner contends that being a Group 'C' category employee, he should not have been transferred from one Division to the other till the disciplinary proceedings against him were finished. Apart from challenging the vigilance action as being contrary to the rules, the Circular of 2.11.1998 was assailed as illegal. It was claimed that the earlier Circulars of 25.3.1967 and 30.10.1998 still held the field. Accordingly, transfers on inter-divisional basis till completion of the disciplinary proceedings were not to be done. This was the harmonious interpretation to be given on a combined consideration of all the circulars as per the Petitioner. 5. WP(C) No. 3942/2006 (M.P. Kushwaha) (i) Show cause notice in this writ petition was issued, returnable on 30.8.2006 and respondents were directed to maintain status quo. (ii) Petitioner was posted as the Head Booking Clerk under Station Master Delhi. He was alleged to have accepted Rs. 8/- in excess from a decoy passenger on 24.1.2003 and was awarded a major penalty of reduction in pay by two stages in the same time scale of pay for a period of two years vide orders dated 21.12.2004 In appeal, the Appellate Authority held that charge No. 1 relating to demand of Rs. 8/- in excess amount from decoy passenger was not conclusively proved. The second charge was of Re.1/- being found in excess. The penalty of reduction of pay by two stages in same time scale for two years with cumulative effect, was reduced to reduction of pay by two stages, in same time scale for six months with cumulative effect. Thus, after 9.8.2005, nothing in terms of disciplinary action survived. On 21.10.2005 when the penalty had ceased to have any effect and his conduct was not under investigation, he was transferred from Delhi Division to Ferozpur Division. Petitioner claims that the transfer was contrary to Railway Board's letter No. E(NG)I/68/SR6/28 dated 25.1.1969. It affected his seniority among the other booking clerks. He claims that the present facts and circumstances did not warrant an inter-divisional transfer. It has inflicted hardship on the petitioner and his aged parents of 86 and 82 years with his son in class 11th. This, the petitioner urges was not a case where transfer was either absolutely necessary or was inescapable. Petitioner, therefore, challenges the order of the Tribunal in O.A. No. 2580/2005 dismissing the said O.A. assailing the transfer. The transfer order is also assailed as being violative of Articles 14 and 16 of the Constitution of India. It is alleged that there was no public interest sub-served or any administrative exigency of service warranting transfer of the petitioner to a different Division. 6. Let us first consider the common grounds raised in these writ petitions in assailing the transfers. Firstly, it is contended that the transfers are punitive and rest on the foundation of misconduct of the employee. Reliance is placed on State of Uttar Pradesh v. Sughar Singh reported at 1974 (1) SLR 435 to urge Page 3125 that if the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be done by way of punishment no matter whether he was a mere probationer or a temporary servant. It is further submitted that the punishment cannot be arbitrarily meted out without holding initial enquiry and giving an opportunity of hearing to the concerned employees. 7. Mr. Rajiv Shakdhar, learned senior counsel for the petitioner made submissions in the lead case of Ganesh Din on behalf of the petitioners, which are adopted by the other petitioners. Mr. Shakdhar urged that the foundation of the transfer orders rested on the allegations of acceptance of illegal gratification while discharging duties. He submitted that till the enquiry was pending, employee should not have been visited with a penal transfer. He submitted that Rule 226 as well as the Circulars of 29.3.1962 and 25.3.1967 itself provide that non-gazetted staff whose conduct is under investigation for charges meriting dismissal, removal from service, should not be transferred from one Railway to another till after the finalization of the departmental or criminal proceedings against them. He submits that the harmonious interpretation of the said Rules as also the Circular of 2.11.1998 on which reliance is placed by the respondents, would be that while resort can be had to transfer in cases of Ticketing Staff and employees who are in mass contact being found to be indulging in malpractices, the same should await the outcome of the departmental enquiry and this would be the most reasonable way of harmoniously interpreting the various provisions. 8. For a proper appreciation of the matter in controversy, it would be appropriate to reproduce the relevant extracts from these provisions: Rule 226 Ordinarily, a Railway servant shall be employed throughout his service on the Railway or Railway establishment to which he is posted on the first appointment and shall have no claim as of right for transfer to another Railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the Railway servant to any other department or Railway or Railway establishment including a project in or out of India. In regard to Group 'C' Group 'D' Railway servants, the power of the President under this Rule in respect of transfers within India could be exercised by General Manager or by the lower authority to whom the power may be re-delegated. Copy of Board's letter No. E(DandA) 65 RG 6-6 dated 25.3.1967 addressed to the G.Ms., All Indian Railways and others. Transfer of Railway staff whose conduct is under investigation ------- Reference Board's letter No. E(DandA) 62 RG6-15 dated 29.3.1962 wherein it was laid down that non-gazetted staff whose conduct is under investigation for charges meriting dismissal/removal from service, including those under suspension should not be transferred from one Railway administration to another till after the finalisation of the departmental or criminal proceedings against them. Page 3126 The Board have considered the matter further and have now decided that non-gazetted staff against whom a disciplinary case is pending or is about to start, should not normally be transferred from one Railway/Division to another Railway/Division till after the finalisation of the Departmental or criminal proceedings, irrespective of whether the charges merit imposition of a major or a minor penalty. GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) ------- NO. E(NG)I-98/TR/11 NEW DELHI, dated 2.11.1998 The General Manager, All India Railways. (As per standard list). Sub.: Inter-divisional transfer of ticket checking staff and other staff in mass contact areas. ------- 1. In terms of existing instructions ticket checking staff detected to be indulging in malpractices, are required to be invariably sent on inter-divisional inter-railway transfer as a matter of policy. 2. The question of feasibility of effecting inter-divisional transfer of staff in mass contact areas including ticket checking staff, was discussed in the Conference on Malpractices and Corruption in Mass contact areas organized by the Ministry of Railways on 10.7.98. 3. Pursuant to the above discussion, it has been decided that while the existing policy of inter-divisional/inter-railway transfer of ticket checking staff detected to be indulging in malpractices shall continue, other staff in mass contact areas detected to be indulging in malpractices should also be transferred on inter-divisional basis. Please acknowledge receipt. Sd/- Join Director Estt.(N), Railway Board. GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) ------- NO. E(NG)I-98/TR/11 NEW DELHI, dated 30.10.1998 The General Manager, All India Railways. (As per standard list). Sub.: Inter-divisional transfer of staff repeatedly figuring in Vigilance cases. ------- 1. The question of effecting inter-divisional transfer of staff repeatedly figuring in vigilance cases and where penalties have been imposed, was discussed in the Conference on Malpractices and Corruption in mass contact areas organized by the Ministry of Railways on 10.7.1998. 2. It has been decided that the cases of staff who have repeatedly figure in substantiated vigilance cases and where penalties have been Page 3127 imposed, should be reviewed at appropriate level and such staff transferred on inter-divisional basis. Please acknowledge receipt. Sd.: J.S. Gusain. Joint Director Estt. (N), Railway Board. 9. Let us consider the said Rule and Circulars. Rule 226 contemplates the retention of a Railway employee in the Railway or Railway establishment in which he is first posted. The Rule excludes any claim or right on the part of the employee to seek transfer to another Railway or another establishment. Provision is, however, made for transfer to another Railway or another establishment in the exigency of service by the President or by the General Manager or his delegatee in case of Group 'C' and Group 'D' employees. Transfer is thus, provided for only in the exigency of service. It would show that the exigency of service which was contemplated was something more than a usual administrative transfer. 10. Coming next to the circular of 25.3.1967 which dealt with the transfer of non-gazetted staff whose conduct was under examination. the circular provides that non-gazetted staff against whom a disciplinary case was pending or was about to start should not be transferred from Railway or one division to another till after the finalization of the departmental or criminal proceedings. This was applicable irrespective of whether the inquiry was in respect of a conduct which invited either a major or minor penalty. 11. Circular No. E(NG) I-98/TR/11 dated 30.10.1998 covered inter- divisional transfer of staff figuring repeatedly in the vigilance cases. The circular records the decision taken in the conference that staff, who repeatedly figures in substantiated vigilance cases, where penalties have been imposed, should be reviewed at appropriate level and such staff can be transferred on inter-divisional basis. 12. Mr.Shakdhar submitted that Circular of 2.11.1998, which provides for inter-divisional, inter-Railway transfer of ticket booking or other staff, who are posted in mass contact areas and found to be indulging in malpractices really does not override the other circulars referred to hereinbefore. A harmonious interpretation of the circular of 2.11.1998 would be that while resort can be had to transfer in cases of staff in the ticket booking or in postings of mass contact as are found to be indulging in malpractices, the same should, however, await the outcome of the departmental enquiry. This, he submits, would be the most reasonable way to harmoniously interpret the circulars by giving effect to the intent of the policy as also securing adherence to principles of natural justice and excluding arbitrary exercise of powers. He submits that transfers, which are founded on misconduct, attach a stigma and hence, compliance with principles of natural justice prior to taking action was necessary. 13. Rule 226 and the above circulars have been carefully perused by us. We have also gone through the judgment of the Full Bench of the Central Administrative Tribunal in O.A.Nos. 1670/2004, 2743/2004 and 1405/2004 Page 3128 covering the cases of Sudhir Kumar and Ganesh Din as also the judgment of the learned Single Judge of this Court in CWP No. 14596/1997 titled Union of India v. Shri A.K. Gandhi and Ors. where the validity of inter-divisional transfer was considered. He was considering a challenge to the judgment of the Tribunal, where an inter-divisional transfer had been quashed. Learned single Judge rejected the plea that the transfer was in violation of the statutory Rules. He held that Rule 226 of the Indian Railway Establishment Code (Volume-I), which gives power to the authority to transfer a Railway servant to inter-zonal Railway in the exigency of service to be valid. The transfer made was in public interest, to provide clean administration in mass contact areas and was in the exigency of service. Power was also vested in the Competent Authority to pass an order of transfer in the case of a Railway employee detected to be indulging in malpractices in mass contact areas on inter-divisional basis in terms of circular of 2.11.1998. The circular read with provisions of Rule 226 of the Indian Railway Establishment Code (Volume-I) supports the action taken in transferring the employee. 14. We are fully in agreement with the judgment of the learned Single Judge in CWP. No. 14596/97, titled Union of India v.A.K.Gandhi and others and the reference as answered by the Full Bench of the Central Administrative Tribunal. 15. We are of the view that the circulars of 25.3.1967 and 30.10.1998 deal with the transfer of non-gazetted staff of the railways, whose conduct is under investigation. These circulars dealt with the non-gazetted staff in general, while the circular of 2.11.1998, is specifically dealing with ticket checking staff and other staff posted in mass contact areas, who are detected to be indulging in malpractices. While in the case of non-gazetted staff whose conduct is under investigation, the Board's letter dated 29.3.1962 as also the Circular of 25.3.1967, provide that they should not be transferred from one Railway administration to another till conclusion of the departmental proceedings. In fact, a Model Time Schedule as it appears at page 67 of the paper book seeks to reduce the earlier Model Time Schedule of 202 days to 150 days so as to achieve expeditious completion of departmental enquiries within a period of five months so that following the enquiry and its results, action can be taken. 16. The Railways as a matter of policy and in their wisdom have carved out a different treatment for employees, who are either posted in the ticket checking or other areas of mass contact and are found to be indulging in malpractices. Inter divisional transfer for these persons has been provided by the circular dated 2.11.1998. The transfer need not await the completion of departmental inquiry as for the other non-gazetted staff whose conduct is under examination. The objective is to root out corruption totally from the posts, which are in public contact or having public dealings. The different treatment is clearly justifiable based on a reasonable classification and an intelligible differentia. The railways cannot be faulted with for taking strong and vigorous steps to project a clean image and towards that end to effect transfer necessary in public interest. Transfer is an incidence of service and unless the transfer is vitiated by mala fides or by extraneous considerations, the Courts are loathe to interfere. Courts are not expected Page 3129 to interdict the working of the administrative system by interfering in transfers as held by the Supreme Court in the State of Madhya Pradesh and Anr. v. Sri S.S. Kourav and Ors. . No Government servant or employee has a legal right to be posted at a particular place. Transfer apart from being an incidence of service is also a condition of service necessary in public interest for maintaining efficiency in public administration as held in National Hydro Electric Power Corporation Ltd. v. Shri Bhagwan and Anr. . 17. In view of the foregoing discussion, we reject the challenge to the Circular of 2.11.1998 as being discriminatory and violative of Article 14 of the Constitution of India or being arbitrary and punitive in nature. As noticed earlier, the Circulars dated 25.3.1967, and 30.10.1998 prescribing a restraint on transfers pending the disciplinary or departmental enquiry are intended for the general non-gazetted staff of railways, while the circular of 2.11.1998 deals specifically with the railways staff posted in ticketing and the areas of mass contact. 18. In view of the foregoing discussion, writ petitions are disposed of as under: WP(C). No. 6082/2005 Petition preferred by Ganesh Din is dismissed as being devoid of merit and the interim order regarding retention of status quo stands vacated. The respondents are directed to expedited the disciplinary inquiry and complete the same by 31.12.2006. WP(C). No. 17165/2005 Petition preferred by Sudhir Kumar challenging the transfer from Ambala Division to Ferozpur Division for the reasons as recorded in this judgment is liable to be dismissed and is dismissed. The interim order stands vacated. WP(C). No. 36-37/2005 Petitions preferred by Shiv Raj Singh and Satpal, challenging their transfer pending departmental enquiry as being violative of Article 14 of the Constitution of India and Circulars also fails and is dismissed. The departmental inquiry in respect of Shiv Raj Singh be expedited and concluded before 31.12.2006. WP(C). No. 3942/2006 The challenge to the orders dated 30.1.2006 passed in OA No. 2580/2005 as well as the transfer order dated 21.10.2005 fails for the reasons discussed above. The writ petition is liable to be dismissed and is dismissed for reasons recorded earlier. Status quo order passed on 30.6.2006, stands vacated. Respondent, therefore, would have the power and right to effect inter-divisional transfer of ticketing and other staff in mass contact, if found indulging in malpractices. The Page 3130 punishment or penalty imposed on ground of proven mis-conduct would be independent of the right of the respondent to effect a transfer. In the instant case, the transfer orders were passed after conclusion of the departmental enquiry and in fact even after the penalty awarded had been given effect to. In these circumstances, it would be entirely in the discretion of the respondent authorities to consider whether inter-divisional transfer would still be expedient and in the interest of administrative exigencies and for maintaining probity in administration. We find from Annexure A-2 filed by the respondent that the representation made by the petitioner seeking cancellation of the transfer was considered and rejected by Order No. 729-E/24/9059/P-2 dated 15th June, 2006. In these circumstances, nothing survives in the matter. Writ petition is dismissed.

Author: M Sarin

Ganesh Din vs Union Of India (Uoi) And Ors. ... on 15 September, 2006

Delhi High Court

[Section 5] [Complete Act]

Central Government Act

Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 8 of 2010 Petitioner :- Chatthu Respondent :- State Of U.P. Through Chief Secretary And Others Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- C.S.C.,Afshan Shafaut,Anuj Kumar Hon'ble Chandramauli Kumar Prasad,Chief Justice Hon'ble Pankaj Mithal,J. List it along with Special Appeal No. 18 of 2010 on 18th of January 2010. Order Date :- 13.1.2010 SKS (Pnakaj Mithal,J.) (C.K. Prasad, C.J.)

Chatthu vs State Of U.P. Through Chief ... on 13 January, 2010

Allahabad High Court

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Author: Ravi Malimath

Sri Dharmaraja Alva S/O. Lachumu ... vs The Regional Transport Authority on 10 February, 2009

Karnataka High Court

Gujarat High Court Case Information System Print FA/290620/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2906 of 2008 With CIVIL APPLICATION No. 7687 of 2008 ========================================================= SUNDARAM FINANCE LTD. - Appellant(s) Versus SHIV SHAKTI TRANSPORT CO. PROPRIETOR MR. B.R.YADAV & 1 - Defendant(s) ========================================================= Appearance : MR DHARMESH V SHAH for Appellant(s) : 1,MR LALIT M PATEL for Appellant(s) : 1, None for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/07/2008 ORAL ORDER Admit. Learned advocate for the appellant shall supply paper book. It will be open to the appellant to move for early hearing after paper book is supplied. (K.S. JHAVERI, J.) ORDER IN CIVIL APPLICATION NO. 7687 OF 2008 Learned advocate for the applicant does not press this application at this stage. Civil application therefore stands disposed of as not pressed. (K.S. JHAVERI, J.) Divya//     Top

Author: Ks Jhaveri,&Nbsp;

Sundaram vs Shiv on 22 July, 2008

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 559 of 2008() 1. THOMAS @ PAPPACHAN, S/O. THOMAS, ... Petitioner Vs 1. STATE OF KERALA, REP. BY ... Respondent For Petitioner :SRI.GRASHIOUS KURIAKOSE For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :31/01/2008 O R D E R R.BASANT, J. ---------------------- B.A.No.559 of 2008 ---------------------------------------- Dated this the 31st day of January 2008 O R D E R (R.BASANT, JUDGE) jsr // True Copy// PA to Judge  B.A.No.559/08 3  B.A.No.559/08 4  R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007  Application for anticipatory bail. The petitioner is the sole accused in a crime registered under Section 452 I.P.C. The crux of the allegations against the petitioner is that he had trespassed into the residential building of the de facto complainant at 10 p.m on 19/01/2008 having made preparations to commit offences. Crime has been registered. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. According to him, allegations are being raised vexatiously. He is actually the victim of aggression and not the offender. A counter case has been registered also. Copy of the F.I.R in the counter case has been produced as Annexure 1. 3. The learned Public Prosecutor opposes the application. I have considered all the relevant inputs. The perusal of the F.I.R in the counter case clearly shows that even the petitioner in the F.I.statement concedes that he had gone into the house of the de facto complainant on that night - obviously for the purpose of questioning the de facto  B.A.No.559/08 2 complainant for certain alleged conduct of his. 4. The learned counsel for the petitioner hastens to submit that the said F.I.statement has not been correctly recorded and the petitioner has already made objections against the improper recording in the F.I.statement in that case. Be that as it may, I shall not embark on a detailed discussion about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that after considering all the relevant inputs I am unable to perceive any features in this case which would justify invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 5. In the result, this petition is dismissed. Needless to say, if the petitioner surrenders before the investigating officer or the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously.

Thomas @ Pappachan vs State Of Kerala on 31 January, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM ITA.No. 426 of 2009() 1. THE COMMISSIONER OF INCOME TAX, ... Petitioner Vs 1. M/S.VARTHAKAKSHEMAM HIRE PURCHASE & ... Respondent For Petitioner :SRI.JOSE JOSEPH, SC, FOR INCOME TAX For Respondent : No Appearance The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR The Hon'ble MR. Justice C.K.ABDUL REHIM Dated :03/08/2009 O R D E R C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... I.T. Appeal No.426 of 2009 .................................................................... Dated this the 3rd day of August, 2009. JUDGMENT Ramachandran Nair, J. Since the questions raised i.e. liability for interest tax on hire charges and on default interest charged thereon are covered by judgments in COMMISSIONER OF INCOME TAX V. KERALA STATE FINANCIAL ENTERPRISES LTD. (220 CTR 286) and in I.T.A. No.57/2009, following the said judgments we set aside the orders of the Tribunal and that of the first appellate authority and remand the matter to the Assessing Officer for recomputation of liability based on judgments abovereferred, after issuing notice and after serving a copy of this judgment on the assessee. So far as interest on Kisan Vikas Pathra is concerned, the same cannot be assessed to interest tax as a deposit in the Post Officer under  2 this scheme is only an investment and not a loan or advance. The appeal is allowed in part as above. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms 

The Commissioner Of Income Tax vs M/S.Varthakakshemam Hire ... on 3 August, 2009

Kerala High Court

Gujarat High Court Case Information System Print CR.A/636/2006 8/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 636 of 2006 With CRIMINAL APPEAL No. 227 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= Whether Reporters of Local Papers may be allowed to see the judgment ? To be referred to the Reporter or not ? Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? Whether it is to be circulated to the civil judge ? ========================================================= (CRIMINAL APPEAL NO. 636 OF 2006) BIPINBHAI DESAIBHAI PATEL - Appellant(s) Versus THE STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : HL PATEL ADVOCATES for Appellant(s) : 1, MR HL JANI, APP for Opponent(s) : 1, ===================================================================== (CRIMINAL APPEAL NO. 227 OF 2006) MANUBHAI RAVJIBHAI PATEL VERSUS THE STATE OF GUJARAT Appearsnce : MR SUNIL JOSHI for APPELLANT(S) : 1 MR HL JANI, APP for Opponents ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 12/05/2009 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 Both the above Appeals arise out from the cross cases filed by the parties in connection with one and common incident and, therefore, both the Appeals are heard and disposed of by this common Judgment. Appellant Manubhai Rayjibhai of Criminal Appeal No.227 of 2006 is the original accused of Sessions Case No.177 of 2005, whereas appellant Bipinbhai Desaibhai Patel of Criminal Appeal No.636 of 2006 is the original accused No.1 in Sessions Case No.124 of 2005. 2.0 Criminal Appeal No. 636 of 2006, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction dated 21.1.2006 passed in Sessions Case No. 124 of 2005 by the learned Additional Sessions Judge, 5th Fast Track Court, Panchmahals at Godhra, sentencing the appellant accused to under-go 10 years' R.I. and fine of Rs.2,500/- i/d to undergo further imprisonment of one year for the offence under Section 307 I.P. Code and to under-go imprisonment of one year and fine of Rs.500/- i/d to under-go further imprisonment of 3 months for the offence punishable under Section 135 of Bombay Police Act. 2.1 Criminal Appeal No. 227 of 2006, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction dated 21.1.2006 passed in Sessions Case No. 177 of 2005 by the learned Additional Sessions Judge, 5th Fast Track Court, Panchmahals at Godhra, sentencing the appellant accused to under-go 05 years' R.I. and fine of Rs.1,500/- i/d to undergo further imprisonment of 6 months for the offence under Section 326 I.P. Code, to under-go three years imprisonment and fine of Rs.1000/- i/d to under-go further imprisonment of three months for the offence punishable under Section 324 of I.P. Code; and three month's imprisonment and fine Bombay Police Act, to under-go three months' imprisonment and fine of Rs.500/- i/d to undergo 15 days' imprisonment for the offence under Section 504 I.P. Code and to under-go one year's imprisonment and fine of Rs.600/- i/d to under-go imprisonment of three months for the offence under Section 135 of the Bombay Police Act. 3.0 The brief facts of the prosecution case are as under: 3.1 In Criminal Appeal No. 636 of 2006, it is the case of the prosecution that the complainant filed complaint alleging that she along with her husband had gone to agricultural land from village Morva and the accused No.2 Patel Desaibhai Jethabhai was admonished by her husband as to why the name of her daughter was referred to in an application, when she had come there as guest for a day. It is alleged that there was altercation and free fight and she had gone to temple to save her life. It is also alleged that the appellant inflicted Dhariya blow and, therefore, right hand of her husband was cut down. The other accused had also beaten her husband. Thereupon the complainant had gone to Morva Police station and lodged complaint. The husband of the complainant was shifted to Government Hospital at Shahera in a tempo and thereafter he was shifted to Civil Hospital, Godhra. 3.2 The appellant of Criminal Appeal No.227 of 2006 has also filed cross complaint to the effect that the house of present appellant is adjoining to that of the complainant and for last 1 year or so, there was dispute between the complainant and the present appellant with regard to the land of backyard i.e. Vada land and complaints have been filed by them against each other. It is alleged that the day on which the incident took place the complainant, his father, his sister and son Sunil had gone to their field for yielding crop. It has been further alleged that at about 11.00 hours in the morning, while they were returning to their house, the present appellant holding Dhariya in his hands and his sister Bharti had met them and asked them as to why they have made an application against them. It is alleged that father of the complainant asked them to stop giving abuses with the result that the appellant got excited and alleged to have given a blow of Dharia on elbow of left hand of the father of the complainant and thereupon many persons from the nearby assembled there. It is alleged that father of the complainant has also got angry and attempted to give blow to the appellant, but the appellant alleged to have raised his hand to ward off the blow with the result that hand of the appellant was amputed and another hand was amputed from the wrist. Therefore, the complaint was lodged before the police. 4.0 On the basis of complainant, the Investigating Officer had followed the necessary procedure and conducted the investigation. Thereafter, the statement of witnesses were recorded, necessary panchnamas were drawn and the accused were arrested . After thorough investigation, as there was sufficient evidence connecting the respondent with the alleged offence, charge-sheet was filed in both the cases against the accused before the Court of learned Judicial Magistrate First Class, Shehra, for the offence alleged against the accused. As the offence alleged against the appellants in both the cases were exclusively triable by a Court of Sessions, the learned Judicial Magistrate First Class, Shehra, committed the case to the Court of Sessions, which were numbered as Sessions Case No. 124 of 2005 and 177 of 2005 respectively. 4.1 Thereafter the charge was framed against the accused respondents in both the above Sessions Cases by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.5, Panchmahals at Godhra. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the accused respondents. 5.0 To prove the case against the appellants accused in both the cases, the prosecution has examined various witnesses and relied upon number of documents in each case. 5.1 Thereafter, the statement of the accused under Section 313 Cr. P. C. was recorded in which also the accused in both the cases have denied the charges leveled against them and stated that they have been falsely involved in the commission of offence. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.5, Panchnamahals at Godhra, has convicted and awarded sentence as narrated herein above by Judgment and order dated 21.1.2006. 6.0 Being aggrieved by and dissatisfied with the Judgment and Order dated 21.1.2006 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.5, Panchmahals at Godhra, in Sessions Cases No. 124 of 2005 and 177 of 2005, the accused appellants have filed both these Appeals. 7.0 During the course of hearing both the learned counsel appearing on behalf of their respective appellant in above Criminal Appeals have placed on record the consent terms arrived at between both the parties and contended that both the parties have compromised the matter out-side the Court. Both the parties have signed the compromise. In the said compromise it is stated that both the parties are of a same community and related to each other and residing in the same village. They are neighbourers. The disputes with regard to open Vada land was going on since long. The quarrel took place all of a sudden. Both the appellants accused at present are in Vadodara Central Jail. Now they have realised the true facts and considering their future, they have arrived at amicable settlement. They have forgotten enmity, grudge, vengence against each other. Due to conviction and sentence their family members have become helpless and without shelter. They have decided to live peacefully henceforth. 8.0 Learned Counsel for the appellants have also submitted that appellants accused are in jail. However, while proving the case before the trial Court, a contention has been raised that the prosecution has not explained the injury and in view of decision of Apex Court in the case of LAKSHMI SINGH & ORS. V/S. STATE OF BIHAR, reported in (1976) 4 SCC 394, since the prosecution has not explained the injury, the case against the accused in both the above cases are not proved beyond reasonable doubt and therefore the Judgment and order passed by the trial Court may be quashed and set aside and the accused may be set at liberty forthwith. 8.1 We have also heard learned APP Mr. Jani on behalf of respondent State. We have also gone through the papers produced before us. 9.0 In view of above, both the appellants of above Criminal Appeals have compromised the matters and to that effect they have filed compromise purshis. Looking to the compromise purshis, as also the contention of the learned Counsel for the appellant as to non-explanation of injury by the prosecution before the trial Court, we are of the opinion that interest of justice would be served if the Judgment and order passed by the trial Court is quashed and set aside, on this count alone especially parties when have settled the dispute amicably. 10.0 In view of above both the Appeals are allowed. The Judgment and order dated 21.1.2006 passed in Sessions Case Nos.124 of 2005 and 177 of 2005 by the learned Additional Sessions Judge, Fast Track Court No.5, Panchmahals at Godhra, are hereby quashed and set aside. The appellants accused in both the above Appeals are ordered to be set at liberty forthwith if not required in any other case. Fine, if paid be refunded. R & P to be sent back to the trial Court. (K.S.JHAVERI,J.) (Z.K.SAIYED, J.) sas     Top

Author: Ks Jhaveri,&Nbsp;Honourable Z.K.Saiyed,&Nbsp;

Bipinbhai vs Both on 11 August, 2010

Gujarat High Court

[Complete Act]

Central Government Act

[Section 3] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.919 of 2009 Narayan Prasad Yadav & Anr Versus State of Bihar & Anr ----------- 02. 24.06.2011 Mr. R. K. Singh Pankaj appearing on behalf of the petitioners, on instruction, submits that during the pendency of this application petitioner no.1 (Narayan Prasad Yadav) died and, as such, an appropriate application would be filed in the present case within three weeks. Let such affidavit/application be filed within the aforesaid time, failing which the application as a whole shall stand rejected without further reference to the Bench. ( Kishore K. Mandal ) hr

Narayan Prasad Yadav & Anr vs State Of Bihar & Anr on 24 June, 2011

Patna High Court - Orders

ORDER K. Gnanaprakasam, J. (Chairperson) 1. This Appeal is directed against the order dated 4.2.2005 passed by the DRT Ernakulam, in IA-460/2004 in OA-366/ 2002. 2. The appellants are the defendants in the OA and they have filed an application in IA-460/2004, to condone the delay of 446 days in filing the reply statement arid the same came to be dismissed by the DRT by its order dated 4.2.2005 and the same is under challenge in this Appeal. 3. I have heard the learned Advocate for the appellant and respondent and also perused the relevant papers placed before this Tribunal. 4. The appellant in the Affidavit filed before the DRT had stated that they were directed to file the written statement within two weeks from 20.11.2002 and they did not do so. The written statement was filed on 24.2.2004 and there was a delay of 446 days in filing the written statement. The delay was explained in the Affidavit by stating that the defendants were trying to settle the claim with the applicant Bank and the defendants were optimistic of settling the claim and unfortunately the defendants could not raise sufficient funds from the expected sources and hence they were constrained to file the written statement and only in the said circumstances there was a delay and the said delay was neither wilful nor wanton. 5. The respondent Bank herein filed a Counter opposing the said petition stating that the defendants after receipt of the summons appeared through their Advocate on 7.10.2002 and four weeks time was given to file the written statement and the case was posted on 20.11.2002. Subsequently, the case was posted to 24.4.2003, 18.7.2003, 17.10.2003, for filing the written statement of the defendants. The case was then posted to 1.12.2003 for want of time and it was adjourned to 9.2.2004 for the proof Affidavit of the applicant Bank and the Bank also filed the proof Affidavit on 15.10.2003 and finally the case was posted on 25.2.2004 and only in the meanwhile, the defendants filed the written statement. The Bank does not admit the effort said to have taken by the defendants to settle the matter. The defendants have also not filed any application for extension of time as provided under Rule 12 of the DRT (Procedure) Rules, 1993 and hence prayed for the dismissal of the petition. 6. The learned Presiding Officer of the DRT after taking into consideration all the aspects and after having heard both sides, came to the conclusion that Order 8 Rule 1 of the Code of Civil Procedure (CPC) as amended with effect from 1.7.2002 states that, "The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence." The proviso thereto says that "Where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons." The Tribunal was also guided by the decision of the three Judge Bench of the Hon'ble Supreme Court in the case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi , wherein it was held that, "Under Rule 1 of Order 8 of the Code, there is a legislative mandate that written statement of defence is to be filed within 30 days and if there is failure to file the written statement within the stipulated time, the Court can at the most extend further period of 60 days and no more." After having observed so, the DRT came to the conclusion that it has no power to extend the period for filing written statement beyond 90 days from the date of service of summons on the defendant. Reliance was also made to Sub-section (4) of Section 19 of the RDDB&FI Act, 1993 and Sub-section (5) of the said Act was also taken into consideration. The DRT ultimately placing reliance upon the case of Dr. J.J. Merchant & Ors. (supra), held that time beyond 90 days from the date of service of summons cannot be granted to the defendants to file the written statement and dismissed the petition of the defendants. Aggrieved by the same the 2nd defendant has preferred this appeal. 7. The learned Advocates for the appellant would contend that they have been under the bona fide impression that the matter could be settled and they have been approaching the respondent Bank and as they could not settle the matter, they have filed the written statement and only in the said circumstances, there was a delay and the said delay was neither wilful nor wanton. It is further submitted that the post of Presiding Officer was kept vacant somewhere from November, 2002 upto August, 2003. It is also one of the reasons which prevented them from filing the written statement. But, however, it is prayed that the appellant have filed the written statement along with the application to condone the delay and they may be given an opportunity to defend the case, as they have got a good and valid defence. 8. On the contrary, the learned Advocate for the respondent Bank would contend that the appellant was not at all diligent in defending the case. When the Tribunal granted two weeks' time on 20.11.2002, the defendants could have filed the written statement or at least within a reasonable time thereafter, but they have not done so. The defendants have deliberately delayed filing of the written statement with a view only to protract the proceedings. It is also further submitted that the reason given by the appellant that just because the post of Presiding Officer was vacant for some time they did not file the written statement, cannot be a good and valid ground for non-filing of the written statement. Nothing prevented the defendants from filing the written statement. 9. After having heard the learned Advocates for the appellant and respondent, it is made out that no doubt, Order 8 Rule 1, CPC states that the defendant shall present a written statement of his defence within 30 days from the date of service of summons on him. This amendment was introduced to the CPC by the amended Act 46 of 1999, which came into force on 1.7.2002. Though Section 22(1) of the RDDB&FI Act, 1993 states that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the CPC, 1908 (5 of 1908), but shall be guided by the principles of natural justice, it is well settled, as it has been rightly observed by the DRT also that the Tribunal can act upon the provisions contained in the Code and can even go beyond the Code so long as it passes orders in conformity with the principles of natural justice, as it has been held in the case of Allahabad Bank, Calcutta v. Radha Krishna Maity and Ors. . The 30 days period as provided under Order 8 Rule 1, CPC, could be extended up to a period of 90 days as stated in the proviso to Order 8 Rule 1, which states, "Where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons." Following the proviso and also the judgment rendered by the Hon'ble Supreme Court in Dr. J.J. Merchant's case (supra) the DRT came to the conclusion that the appellant filed the written statement after a period of 90 days, and, therefore, that cannot be entertained and dismissed the petition. 10. Now the learne'd Advocate for the appellant relies upon the case of Kailash v. Nanhku and Ors. , wherein the Hon'ble Supreme Court considered the judgment delivered by the Supreme Court in the case of Dr. J.J. Merchant v. Shrinath Chaturvedi (supra) and had held, "A careful reading of the judgment shows that the provisions of Order 8 Rule 1, CPC did not directly arise for consideration before the Court and to that extent the observations made by the Court are obiter." It was further observed that the attention of the Court was not invited to the earlier decision of that Court in Topline Shoes Ltd. case . Ultimately, Their Lordships came to the conclusion that, "A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised in well settled parameters the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist." Ultimately it was held (Paras 44 and 45), "The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. In no case, shall the defendant be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his Counsel.The Court may impose costs for dual purpose : (i) to deter the defendant from seeking any extension of time just for the asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. Howsoever, no strait-jacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure therefrom an exception made for satisfactory reasons only. We hold that Order 8 Rule 1 though couched in mandatory form, is directory being a provision in the domain of procedural law." This judgment was not placed before the DRT, Ernakulam, when it passed order on 4.2.2005 and only in the said circumstances, the DRT based upon the earlier judgment of Dr. J.J. Merchant & Ors., (supra) held that time for filing the written statement cannot be extended beyond 90 days from the date of service of summons on the defendants. But now, the pronouncement in Kailash's case, (supra), enables the Court to extend the time for filing of written statement even beyond 90 days of course, for valid reasons: In the given case, the appellant has stated they were optimistic of settling the claim and only on that ground they were not able to file the written statement in time. Though it does not appear to be satisfactory, but however, taking note of the lenient view taken by the Hon'ble Supreme Court, I am inclined to condone the delay in filing the written statement, but however, on cost, as the appellant was not diligent in filing the written statement not only within the time stipulated, but even thereafter also. 11. In the above said circumstances, the appeal is allowed on condition that the appellant shall deposit a sum of Rs. 10,000/- (Rupees ten thousand only) by way of costs before DRT, Ernakulam, by Demand Draft taken in the name of "Prime Minister's National Relief Fund", on or before 16.11.2005, failing which the order passed today shall stand erased and recalled. On such deposit, the DRT, Ernakulam, is directed to send the Demand Draft to the Prime Minister's National Relief Fund, at Delhi.

N.S. John vs State Bank Of Travancore on 26 October, 2005

Debt Recovery Appellate Tribunal - Madras

Gujarat High Court Case Information System Print FA/848/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 848 of 2007 ========================================================= STATE OF GUJARAT & 1 - Appellant(s) Versus BHARAT VIJAY CONSTRUCTION CO. - Defendant(s) ========================================================= Appearance : MS TANUJA KACHCHI, LD.ASST.GOVERNMENT PLEADER for Appellants. RULE NOT RECD BACK for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 23/09/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE C.K.BUCH) Heard Ms.Tanuja M. Kachchi, learned Assistant Government Pleader, appearing on behalf of the appellants. ADMITTED. The notice/intimation of admission of the appeal be served to the respondent. (C.K. Buch, J) (H.B. Antani, J) Aakar     Top

Author: C.K.Buch,&Nbsp;Honourable Mr.Justice H.B.Antani,&Nbsp;

State vs Bharat on 23 September, 2008

Gujarat High Court

Z 1 - IN THE HIGH counm or KBRNAIAKA Am fiéfiééfibaz DATED nus 'THE 10" am or !~I.35.l1;C.?1'-I,, §I.';-:'x"il";':i E F in "RE. A_ B THE HON'BLE MR.JUSTiQfig§fiBHfi$fi*B:Afii * $'a-".39. HG. 1fl38%:'2$05 r}$'mlfl3.'§»?G;'E'G05{I:K', In M. No. 1uaa'a%x2o'cs»sL%=%i H.K. Kahhu;=. 4 _u¢ ,VV_, E3.-"0 ., Aged aiboutt :5r'e»s§;«--.1;a"'; ' E:::-KSP;I?¢''»-I3;:V:i1re..r:,.V ' Hnfig§*H§g5E%£;"KERIC;"*"" Rf: Heh:u1Hafiar¢*-_ ' L?'a.I'V:.'.A'-_.';..':',._ *3.-..*.,'a=%.:_:."~;'_\..=:t. ...PETITI£':&%'ER is: M»? mmmsnnmtait, "'c';.a'":=1-*3': : %%%%% 14 « Thi-a. _I3::i;v:'§:ei*~iona1 Gontmllez, ._ "-'.__I*.fii*u*ii=:.;i_.c:»z:ga'.1 fiffice, K"SR"i'=C, A V . .. ..RESPONDENT *~ ?',;En'.II 5__l= E_l;I_:Elil1'!IULL_A_'fi SLTAZELIEE; "in:-it Ea *-- -'-* file un......"-3 Eirticlea 226 and 22"! aafi tha Cenatitution of India; praying to meat aside the -order dated {IE-.1fJ..2DI35 passed on I.I).A.. No.'I1f199"I by the I~Io:m'Zb1-a Laban: Caurt, Chifkzmagalur Wide %.:~.1'-.a.--.:'-.1.*.'e- J} ; qaaah the era; 2: Ne . I':5T.H$N.DS.2816.*'8.r'6'?00 dated 16.8.1997 passed by the x-aspondent mun-a' xurm Hi"); to direct reinstatement or the petitioner with all conaequantial benefits. .§fldia¢ Ffiayihg BETWEEN : In W.P. um. 10390/2006: B.K. Kabbur 9.3% Sab; ' 4 H.-g-ad -'.=a.bc:'ut SCI ye-arm, Ex-ESRTC 1':u:i'u'm:, _ Badge: I~To.5E'?1_.. K3RTC.',.__ E-L."-:::« Neahru Iiagar Belay, Hgaaan piat;igt;} 'a_ *@;§BfiTITIcNER gay 33:. H.§-- Egamgééaaéfigx, ADVGCATE} AND : "" The niviai$§a1*¢Qfi::e11¢£, "$ NEBamm;»3e1;a:y5._ '.Ww_f ...RESPONDENT _:aY.$fiI} EAiRfifiULiAH SHARIFF, ADVOCATE) u'E'hi:*.s_ E'.'f:=_."."i..tt.;"".'LV£?e:a7_:ii:i<:>11 ii: filed under: 3:_:»:,ti.r:1':a'.s_' E25 " 2 ':2:-I§_1:he Canatitzution at E1: M -4 4.... 'A +-1.. :. a q":u_..-'5 I..a.u'5 Charge meme 0 'E - A "'L----dat'ed 115:' 23.9.2002 hearing Na. _'aEe,Ka;3a,5a.Bavi.sihbandi.Gai Haaf2SO7f@01 de:1:fe:.;;1'% 2*'3_,_j9.E-:D05 passed against the yetitianer "--.€'.=";n:i~42I':+:--u':.€:e 'G"} in order No. 423/2005; direct . ...._.'-_.... *.... ...............L.. ....|:.' 1... _ ' ' ' ' -.,;.e.-u.zu.a«.t;:ute:::.u=:u» w. 'cue §-'%'%t.1.'C1Gn%E lnt-.-'; aemlces ._Fr £1' nu. kzufiifheu raspun-slant - Corporation. V' These Warit Petition Corning on for valiminary Hearing in 'B' Group this day, the rt '.E|.':E..dIé'a the .1Eeli:.:n;ei%:- E': F. B E F. Writ. Petition No.1038EIf20Dfi is directed against the award dated 05.10.2005 in I.D.A. Nm.7lfl997. 5§&g£' --\ pa'. . an-3-an 2. The petitiazmer alleges Charge Sheet datad Gigfiérléfié,{ aii@gifig,}anW.V assault: on tha Aaai.ss't§I1t Ws:_'«'.f3s. this regard an s-Ifis-. and the Enquiry Dffi-:':neaAv::r.,4":'~ ;:eport: on 1o;o9.19a3, 1h§;a$#§$&; °gg 716.09.1933 an -Easier §«". m..:'£:,;:_ fig}; Eaased. 'rha P'5'*3it3;l«'5!¥§'§4--'+--51".;_:.»» éiiaputa in I.B.fi. C-ourt held that, the -sra.:i£1.i_4i§-* and prcsper and also held. is net proved, accordingly t:11'm£:e;L;15t:a:ttement with 75% backwagea. maid award was called in question by .. fimianangaamant, as wall as by the petitioner Eeforme this Court in W.P. Na. 3014811999 and Ii.P. }~Iuc::.ED63'H'19B9. This Court allowed. the writ: petitigzl filed M the ,a.;na;gement and set Labour Cnaurt. at para 8 this Court *'h@a§'L:'-Vf'qund as under : fir firm: that : ,de*ec3u. "-1f.I'i:--;-* ast~.a.+.~,.';.:.~...*.s.' 5. I211 enquiry ____;'.~.1:'<:a<:e;e;_¢iVV'.:J."».*.1_r:;_:'a_,» _ _ ss:rui:in.rL.aifi5§fA'-- ch-tent'..§§1£1g;?,Ti::.o;r:ing' to the srnzan-::.Eus:iz:In ba.s§_a§'1f":E:f2az_t¥'r;5§j~,ii__jtzhe liabour I'.'."ct:-11.gf*15:l'tZ«"1..i'g.I":::i'Lt;i§..__I';é1t?5; passed the . 4.,» """ "113";1,V§3L!'-.'thfi't';~~'flth.5 award is not well raaeuiriing .V Einft Jfamafld, afii'm.e..e«1r:itnas3a5s arm. while: considering ' --thsa,4V'=&vv.itiss=nce of three witneaaes the Labour: ."C'.'I:l'l1.1".'_'C.v'V'.:':_-!'.iL.:Lz§-'Slit cmnsiderad the evidence produced in-'a:fc_rhé< the Enquiry Ctffiacm: and found that, the V Eh.-3:'-,;'& i .=.. pi.-r.:~.rad an... cunf i mad the Drier of puniahxfuant . 5 = Laaggiegl 59431531. for the petitioner fair and propar, it is for the management to 5 /. rra/", 0 m5-.- provs the charge and it wan nut gpéfi fig tha managament ta refer ta the evidefice»ph&dfieéd bafora tha Enquiry 0ffi;et;- HE alé¢tfififimitt€d~t that, the evidence Qrodfic9& EQtfiétmafiggtfiégt aid net grave tu§ltchat§%,';t§0fi§""dt the witnesses tuxngfixhoatiit fififi otter witneaa was nut a yarty to tfié ifitfidtfltlfing there was no ether m§tatialié#t§@t_th§uh@t;rial before the dctmea submit tad that, the charga_havIfig-not=ptfiv3d} the Labour Court was rs» _. £3 nst_3usL1i aa._ Ha_alsa railed n a judgment It ¢f tH®.fipaxg¢¢firt3:eported in iii iii? if if m.§'tm::.~o: Inna llI!'1'.1fil vs. namzmm Luann. coon an uarnm and tA éuhmittéfl that, in case the enquiry is held as' mat; fair and prayer it is opsn to the "'5: ' man=~%ment to laad evldense. In such circumstances, the Labour fiourt was hat justified in relying on the evidence prednced befora the Enquiry Gffiaan. sggg, $6: 6. Learnad Counsal appearing "fdfffikthe Managament wuhmittad that, it is-$bt-fi§@t§p¢m to tha petitimner to contend that; Cnurt cannot uanaider thdt@§iflefidaAEfi§$fiéad H$h;¥F court 1+' I I b%£cr%= thg IEnquizy earlier procaadipga,"ht§=tcatefifiricaily f6u'd and directed x£fi§t;gi£h%Fm:§bQur Court to cwnaidst,~th£ i§§id%n§§3tptb&ttad before tha Enquirzj? in the light or the chaervgttfifigfimafigtfiy"thia court. The Labour cmfigt hag ééfisifiégéfi the evidence prad_ced _y tha Hanagement before the Labour Court as well §é5tthg afiidsnce before the damastic enquiry. Vst fie filfifi auhittad that, the urder paaaad by tAtthis't@urt was nat questioned in an appeal at @£Q:w any other Forum and the said order is '.I....+--1-.+- .. '1 Hflbu hhfi partiea. Having acceyted; it is nut opan tn the petitianar to argue tnis groud. He alga submitted that, the learned Single Judge cansidering all the aspects found that. the order of the Labour Court was not t§hé'@E5Qfitjt -.n_ , . K game .ieaue' again. based on any reaeen and the Labefiriffiaurt should have eeneider the merit. aside the earlier wh:_=.,1;ier_; this Court has ebeerve'c1.:thet,a"t1fie":Leheur Ceurt eheuld. have Satttieieei*tfie>_material placed before the_demeetie enquiry before coming ta 1. H. ('4? fififiéiufiififljafifiithit.ttfifif has between age §a;;;¢$;%e it is not open to the against the said order not itie2efieerte"thie Court to cenaider the Since the parties have eeeggted the eid_; and in tetme at the said exfiei, th" Laheur fleurt h*a exercised its 'power 59 considering the evidence before the V"x;LEfiqfiiry Officer as well as evidence produced -diixing the course ef proceedings before the Laban: Ceurt. It is net in dispute that, the Management hag examined tuzee witneeeee Though one witneee "ae turnefi hostile but he alae admitted that the incident has happened. .?. It is net in dispute thet[1tfiieeCautt,eet* is n Further, two witnesses have apaien ah$fi§ the innidant they may not be party to Ehg ififiiafifit but Ihave stared about ithfi-_infii§éfit4xEhd¢'tfi§;i evidence of those two fiitfi§§$e&=§i@afiiy{Q$pw i (ff -.~a=.1.:; the incident g:g;¢..i1%1;;p:;rgn:e;;' V-.§sg'-;1é.1"""i1ii:idar1t fling Efifiéfifi ii ; U.' another amlayeé'fii$tufi®i£§iihe,pub1ic peace. a. hav.-am; feund +;h.=.=~..,. the chargé id gififiafi 5n the ®éSis af t a 9via=nca. I #0_fi@fifi#&ifi$&%3 tfigie is any juatificaticn tn iifiterf%fi%jifiifhfi the award. The only gontan£i¢g"itfi&ti:waa urged by the learned gfifigéi far £55 yetitioner is that, the Labour riv aura fiught mat ta ua¥e ceneidered the , F "evidfififié adduced before ths Enquiry Gfficer. V"n, I find that, thara is nn justification in the v°--$aid contantion in viaw 9f the earlier order paasad by this Court. 9._ ficcardingly, W.P. Na. 10338f2U06 is diamiaaed. fiince the other writ petition (W? ug- filed is the consequence to the of punimwaruent aubesaquently passed petitioner. In view <:s§J ""'t1:«a vf:<'>r;a;f'."j:L;iV:i:u;»=.=.VV1:vii<2JnVL'v-.&<:-ff the award, the 19.19. No.af1L3_3'9Df2'OvCIfi.. %g]'s.. "n.ot %ur'..*i'.*e fa:-r. monaider'-a}{:'i.cn. V. the awe is also r:§.i.*.a31jeiaa:«w:i'.--."L_:'-- V' , , % S.-3/.:v

Author: Subhash B.Adi

B K Kabbur vs The Divisional Controller ... on 10 March, 2008

Karnataka High Court

Gujarat High Court Case Information System Print CA/1089/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR AMENDMENT No. 1089 of 2010 In SPECIAL CIVIL APPLICATION No. 6593 of 2005 ========================================================= MANHARBHAI R.AGRAWAL - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD THRO.CHAIRMAN-CUM-MANAGING & 1 - Respondent(s) ========================================================= Appearance : MR AJ SHASTRI for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 03/02/2010 ORAL ORDER Heard. In view of the averments made in the application, the same is allowed in terms of Paras 4(A) & (C). The application stands disposed of accordingly. The main matter to be listed for hearing on 24.02.2010. [K.S.JHAVERI, J.] Pravin/*     Top

Author: Ks Jhaveri,&Nbsp;

Manharbhai vs Gujarat on 3 February, 2010

Gujarat High Court

ORDER Miller, J. 1. The only cases so far as I know. in which a Magistrate is authorized by the Criminal Procedure Code to discharge a person whose conduct is under enquiry before him are those provided for in Sections 209, 253, 259, 119 and 484 of the Code. 2. I am not concerned with Section 484, but if might be difficult, I think, to hold that Section 437 is applicable to the case of a person discharged under that section. 3. The discharge under Sections 209, 253 and 259 is made before the accused is called on to establish his defence before a Court which is competent to try and determine the case, and in cases in which a charge must be drawn up before any order can be made against the accused or penalty imposed upon him. Section 437 undoubtedly applies to disposals under Sections 253 and 259, arid may be applicable to a disposal under section: 209 also The discharge under Section 119 is a different matter. It may be made after the defence has been fully heard, no charge need be drawn up before the case is disposed of under Section 118, and if the accused (as I call him for convenience) is in custody there is no discharge but an order of release. 4. The question is does Section 437 apply to this case? 5. I think not For the reasons which I am about to give, I think I shall give effect to the real intention of the legislature if I read the word 'discharged' in Section 437 as equivalent to discharged within the meaning of Sections 209, 253 and 259 of the Code. It is clear to me that the legislature would not have made a distinction between an order of release and a discharge, if they had not intended that the two should be regarded as different things. They have not made any such distinction in Sections 209, 253 and 259. If then these two things are different it is impossible I think to apply Section 437 to the 'discharge.' The Code does not authorize its application to a release which is not a discharge and it would be absurd to make the jurisdiction under Section 437 depend upon the question whether or not the accused (I use the expression again for convenience only) was in custody at the time of the disposal of the case by the Magistrate. I am not prepared to attribute such an absurdity to the framers of the Code, especially when as here it is easy by giving a non-technical sense to the word 'discharge' to bring the procedure in regard to inquiries under Chapter VIII into harmony with the provisions of the Code in analogous cases. 6. There is no difficulty in holding that the discharge of Section 119 is merely a 'permission to depart'; the word 'charge' as applied to offences is used in two senses in the Code. In Chapter XIX and in Sections 210 and 254 it is the formal statement of the case which the accused has to meet, in Section 253 it is used in the popular sense of 'accusation.' 7. Similarly 'discharge' may have two meanings and Section 119 indicates that its meaning in that section is non-technical. The record is completed by the entry required by the section: the Magistrate then permits "the person in respect of whom, the enquiry is made" to depart if he is not in custody and if he is in custody directs the custodian to give the necessary permission. 8. Now this may be done after the Magistrate has been satisfied after hearing evidence for the defence that the execution of a bond is unnecessary, and it seems to me that it would be wrong in principle to permit a further inquiry' in such a case. The inquiry is into conduct and so is analogous to an inquiry into an offence; and it is to be made in the manner prescribed for conducting the trial of an offence [Section 117(2)]. 9. When a person accused of an offence has, by evidence adduced on his behalf, satisfied a Magistrate competent to try him and punish him if he is guilty, that he ought not to be convicted, the Code does not contemplate a 'further enquiry' by order of a superior Magistrate. The High Court alone can interfere in that case. 10. I am unable to see any reason why a difference should be made in the analogous case of an enquiry under Chapter VIII. When after hearing the defence evidence the Magistrate is satisfied that the execution of a bond is unnecessary, a further inquiry into the case is to my mind an inappropriate remedy if the Magistrate is thought to be wrong. 11. It may be that the law does not prohibit the taking of new proceedings under the Chapter on the same materials, but this is a different matter on which I need not express an opinion. 12. I am thus fortified in the conclusion at which I had arrived by the process of reductio, ad absurdum by a consideration of the matter on the general principles of the Code, and I have no doubt that the legislature did not intend and that I ought not to hold that the jurisdiction given by Section 437 should be applied to cases under Chapter VIII, at any rate where before making an order under Section 119 the Magistrate has called on the person into whose conduct the inquiry is made to establish his defence. It might perhaps be possible by analogy to apply Section 437 to disposal under Section 119, made in circumstances resembling those in which a discharge is made under Section 253, but the case before me is not such a case. The defence has been heard and the Magistrate is satisfied that a bond is unnecessary. 13. I must, therefore, set aside the order of the District Magistrate as made without jurisdiction. 14. I am asked on behalf of the original complainant (so to style him) to interfere under Section 439 but the Public Prosecutor does not support this request, and I agree with him that it is unnecessary to order a de novo inquiry. There is clearly nothing to prevent the taking of fresh action under Chapter VIII if the conduct of the petitioners perhaps is such as to render that course necessary or desirable.

Author: Miller

Velu Tayi Ammal And Ors. vs B. Chidambaravelu Pillai on 24 August, 1909

Madras High Court

[Section 302] [Complete Act]

Central Government Act

JUDGMENT Sen, J. 1. The Ondal Investments Co. Ltd., the assessee, has initiated the above reference No. 10 of 1971. The other reference No. 19 of 1971 is at the instance of the CIT, West Bengal-II, Calcutta. In these references this court has directed the Tribunal to draw up a case under Section 256(2) of the I. T. Act, 1961, and refer the following questions : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in treating the sum of Rs. 1,47,090 or any portion thereof as the income of the assessee ? 2. Whether there is any evidence for the Tribunal to come to the conclusion that Sonepur Coalfields Ltd. was in possession of the coal mines and/or seams in the area referred to in the Tribunal's order ? 3. Whether, on the facts and in the circumstances of the case, and particularly in the face of the finding that re-entry into possession by the Ondal Coal Company Ltd. took place pursuant to their letter to Sonepur Coalfields Ltd., dated the 20th January, 1960, the Tribunal was justified in law in holding that the assessee was liable to be assessed during the relevant year on the income based upon the minimum royalty contemplated during the negotiations as also one year's interest at the rate of 12 per cent. on the unpaid amount for the earlier years?" Income-tax Reference No. 19 of 1971 : "(a) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that even though entry has been made in the books of account of the assessee for the accounting year 1961, crediting the amount of Rs. 1,47,090 as income from minimum royalty and interest thereon, it cannot be held that the whole of the amount represented assessable income for the year 1961 ? ' (b) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that out of the sum of Rs. 1,47,090 only such sum as related to the accounting year based on the minimum royalty contemplated during negotiation and one year's interest should be brought tinder tax for the year, and not the whole of the sum of Rs. 1,47,090 which had been credited in that year as income of the assessee ? " 2. The admitted facts and/or facts found are as follows: The assessee, originally known as the Ondal Coal Co. Ltd., was the lessee of extensive lands in Mouzas : Sonepur, Nabagram, Hansdia and Jote Khankhan and was entitled to the mining and mineral rights therein, 3. During the year 1945-46, the assessee entered into negotiations with one Business Development Ltd. for sub-lease of mineral and mining rights in respect of coal in specified areas of the demised land. 4. In the course of such negotiations between 1946 and 1955, several amounts were received by the assessee from the said Business Development Ltd. on account of salami for the proposed sub-lease aggregating Rs. 2,55,625 which was shown in the balance-sheet of the assessee under the head "Current liabilities" and described as "property sales suspense". 5. Due to certain difficulties the documents for the sub-lease could not be drawn up and executed. In January, 1960, the assessee served notice of re-entry on Sonepur Coalfields Ltd. on whose behalf the said Business Development Ltd. had been negotiating for the sub-lease and purportedly took back possession of the land in question. 6. The assessee, thereafter, apprehended that the amount received on account of salami might have to be repaid. As possession of land had been made over, the assessee thought that it could claim from the proposed sublessee some compensation on the basis of minimum royalty up to the date of re-entry. Accordingly, the assessee recorded its claim in a letter and posted an entry in its books for Rs. 1,47,089.82 debiting Sonepur Coalfields Ltd. with a corresponding credit entry in the suspense account. The debit was shown in the balance-sheet under the sub-head "Sundries" against the "Current liabilities and provisions". 7. In the assessment year 1962-63, the corresponding previous year ending on the 31st December, 1961, the ITO found that as the land had been in the possession of the proposed sub-lessee a "minimum royalty" had become chargeable thereon. The assessee who following the mercantile system having credited its accounts on the basis of a contingent claim he held that the said Rs. 1,47,089.82 should be included in the assessee's income. 8. Being aggrieved by this decision, the assessee preferred an appeal to the AAC who held that the disputed entry was merely a book entry and had been made by way of a counter claim. The said amount could not be regarded as income of the assessee as a dispute had been raised in respect thereof by Sonepur Coalfields Ltd., who had filed a writ application in the court challenging the right of the assessee to re-enter the said land. He noted further that the entire sum of Rs. 1,47,089.82 could not in any event be held to be the "minimum royalty" payable for the year but should be spread over from 1945. Accordingly, he allowed the appeal of the assessee and directed that the said sum of Rs. 1,47,089.82 be deleted from the total income. 9. The revenue went up on further appeal from this order to the Income-tax Appellate Tribunal. It was contended before the Tribunal that as the assessee maintained its accounts on mercantile basis and had brought in its accounts a sum representing "minimum royalty" and interest the same must be held to form part of its income. 10. It was contended on behalf of the assessee that the amount had not been treated as income in the accounts but had been both credited and debited. The entry merely represented a counter claim in the event the salami collected was directed to be refunded. 11. The Tribunal agreed with the AAC that a mere book entry would not give rise to an income. Following the decision of the Supreme Court in the case of CIT v. Shoorji Vallabhdas and Co. [1962] 46 ITR 144 the Tribunal held that an entry made in respect of a "hypothetical income", which did not materialise could not be taxed as income. The Tribunal observed as follows : "What amount the assessee could rightly claim in spite of no lease document or sub-lease being executed and registered remained uncertain and was a matter that might be ultimately decided through litigation. It cannot be denied that the mouzas were handed over to the sub-lessee or otherwise there can be no question of the assessee's re-entering into the possession of the mouzas after due notice. This would mean that even though the negotiations for the Sub-lease had failed, the assessee had made over the possession of the mouzas to the party and could accordingly claim the payment of a reasonable amount for the period for which the party was in possession. The assessee claimed this at the rate that was to have been paid as minimum royalty and it cannot be said that this is an unreasonable rate. It is also not unreasonable for the assessee to claim interest on the outstanding amount at a fair rate. The assessee considered that it was entitled to receive the amounts. Since the assessee's method of accounting is mercantile, the income has to be taken on accrual basis. The assessee cannot claim before the I.T. authorities that the amount which it considered recoverable from the party was not its true income. We cannot agree, in the circumstances of the case, that the book entry here is for a 'hypothetical income'. However, even though the entry Has been made in the books of account for the assessment year 1961, it cannot be treated that the whole of the amount represents the income for the year 1961. We hold that only such income as is related to the accounting year based on the minimum royalty contemplated during negotiations should be brought under tax in the year as also one year's interest at the rate of 12% on the unpaid amounts for the earlier years. The Income-tax Officer will work out the amount accordingly." 12. Dr. Debi Pal, learned counsel for the assessee reiterated before us that the said amount of Rs. 1,47,089.82 could never be considered as income of the assessee inasmuch as it was a mere book entry and nothing more. The amount was introduced as a debit in the balance-sheet under the head "Sundries" on the asset side and there was a corresponding credit under the head "Suspense" in the balance-sheet on the liability side. 13. Dr. Pal submitted further that the claim of the assessee against the proposed sub-lessee was in any event a tentative claim, not followed by any legal proceedings and was raised by way of a counter-blast against the anticipated claim for return of the amounts paid on account of salami. The claim, therefore, was an inchoate one. In support of his contentions, Dr. Pal cited several decisions as follows : (a) CIT v. Associated Commercial Corporation [1963] 48 ITR 1 (Bom). This case was cited for the following proposition (p. 18): "In our opinion, a profit could be said to have accrued or a liability or loss could be said to have been incurred only when the profit is either actually due or the liability becomes enforceable. A mere claim to a profit or to a liability is not sufficient to make the profit to accrue or the liability to be incurred for the purposes of the Income-tax Act." (b) CIT v. A. Gajapathi Naidu . The facts in this case were that the assessee having supplied bread to a Government hospital between 1st April, 1948 and 31st March, 1949 under a contract, represented to the Government after the close of the year that he had incurred loss. The Government directed payment of a certain sum to the assessee by way of compensation for the loss claimed. The amount of compensation was received in the accounting year 1950-51. On these facts, the Supreme Court observed as follows (pages 118, 119): "When does the right to receive an amount under a contract accrue or arise to the assessee, i.e., come into existence ? That depends upon the terms of a particular contract. No other relevant provision of the Act has been brought to our notice--for there is none which provides an exception that though an assessee does not acquire a right to receive an income under a contract in a particular accounting year, by some fiction the amount received by him in a subsequent year in connection with the contract, though not arising out of a right accrued to him in the earlier year, could be related back to the earlier year and made taxable along with the income of that year. But that legal position is sought to be reached by a process of reasoning found favour with English courts. It is said that on the basis of proper commercial accounting practice, if a transaction takes place in a particular year, all that has accrued in respect of it, irrespective of the year when it accrues, should belong to the year of transaction and for the purpose of reaching that result closed accounts could be reopgned. Whether this principle is justified in the English law, it has no place under the Indian I.T. Act. When an ITO proceeds to include a particular income in the assessment, he should ask himself, inter alia, two questions, namely : (i) what is the system of accountancy adopted by the assessee ? and (ii) if it is the mercantile system of accountancy subject to the deemed provisions, when has the right to receive that amount accrued ? If he comes to the conclusion that such a right accrued or arose to the assessee in a particular accounting year he shall include the said income in the assessment of the succeeding assessment year. No power is conferred on the Income-tax Officer under the Act to relate back an income that accrued or arose in a subsequent year to another earlier year on the ground that the said income arose out of an earlier transaction." (c) CIT v. Swadeshi Cotton & Flour Mills . In this case, the assessee had paid an amount as profit bonus to its employees for the calendar year 1947 in terms of an award made on the 13th January, 1949, under the Industrial Disputes Act and debited the amount in its profit and loss account for the earlier year 1948. The Supreme Court held that as the claim of profit bonus was settled by the award of the Tribunal in 1949, the liability for this payment was incurred in 1949. (d) CIT v. India Discount Co. Ltd. . This decision was cited for the following proposition laid down by the Supreme Court (page 195): "...it is well established that a receipt which in law cannot be regarded as income cannot become so merely because the assessee erroneously credited it to the profit and loss account." (e) CIT v. Nadiad Electric Supply Co. Ltd. [1971] 80 ITR 650 (Bom). The facts in this case were that the assessee carried on the business of supply of electricity at Nadiad and one of its consumers was the Nadiad Municipality. Up to the 31st August, 1960, the assessee supplied electricity to the Municipality at a stipulated rate of 19 paise per unit whereas the rate charged by the assessee to its other consumers was 30 paise per unit. After expiry of the agreement, the assessee continued to supply electricity to the Municipality and billed the Municipality at its usual rate of 30 paise per unit. The Municipality disputed the assessee's right to. charge at that rate, paid the bills at the earlier lower rate and within a few months filed a suit for renewal of the earlier agreement on the same terms and conditions. The suit ultimately succeeded in favour of the Municipality in the Gujarat High Court. The assessee maintained its books of account on the mercantile system. In respect of the electricity supplied after the expiry of the said agreement the assessee had credited the amount actually received at the rate of 19 paise per unit and the balance claimed, i.e., 11 paise per unit was shown as an asset under "doubtful creditors". For the assessment year in question, this balance amount was sought to be taxed in the hands of the asses- see. On these facts, the Bombay High Court observed as follows (page 652): "An amount can accrue or arise to an assessee when the assessee acquires a legal right to recover that amount, that is, conversely, that amount becomes legally due to the assessee by the assessee's debtor. What has happened in this case was that on the expiry of the agreement the assessee-company only sent its bills to the municipality made out at the rate of 30 paise per unit. Sending the bills amounts to merely making a claim for the amounts mentioned in the bill. The mere sending of bills does not create a legal enforceable right in the assessee-company, nor a corresponding legal enforceable obligation on the municipality. There would be a legal enforceable claim or obligation only if there was an agreement, express or implied, in that behalf or there was some statutory or similar right or obligation,...there appears to be nothing to show that there was any right or obligation in the assessee-company to charge the municipality for the electrical energy supplied to it at the rate of 30 paise per unit. The sending of the bills at 30 paise per unit was merely an attempt made by the assessee-company to recover from the municipality amounts calculated at that rate. On the record there is nothing to show that the assessee-company had any such legal right. What the assessee-company in fact recovered was at the rate of 19 paise per unit. In the circumstances, in our opinion, the assessee-company was under no obligation to credit in its books of account, even though they were maintained on the mercantile system, any amount for the electricity supplied by it to the municipality calculated at any rate other than the rate of 19 paise per unit and the only amount which could be brought to tax in this connection would be the amount calculated at the rate of 19 paise per unit. " (f) CIT v. Smt. Sankari Manickyamma . In this case, the facts were that the land of the assessee had been acquired by the Government under the Land Acquisition Act in 1933. The compensation determined was considered by the assessee to be inadequate and legal proceedings were instituted. A compromise decree was ultimately passed for a larger amount in the assessment year 1964-65. Under the terms of that decree, the assessee was entitled to receive an extra compensation along with a further sum on account of interest on the amount of such compensation. The entire amount was paid to the assessee during the same assessment year. The assessee claimed that only that part of this interest which had accrued in the previous year was liable to tax. The Tribunal held that the right to compensation having accrued to the assessee in 1933 the contentions of the assessee should be sustained. On a reference, the Andhra Pradesh High Court distinguished between the right to receive and right to claim and held that the right to receive compensation and interest accrued from the date when the statutory authority determined the same. Till then the assessee had only a right to claim compensation. The entire amount of interest was held liable to be taxed in the assessment year in question. (g) CIT v. Hindustan Housing and Land Development Trust Ltd. . The facts in this case were that lands belonging to the assessee were first requisitioned and then acquired permanently by the Government of West Bengal under Section 5 of the Requisition of Land (Continuance of Powers) Act, 1947, and a sum of Rs. 24,97,249 was awarded as compensation by the Land Acquisition Collector, to the assessee. On further proceedings an award was made in favour of the assessee fixing the amount of compensation at Rs. 30,10,875 and on the enhanced amount interest was allowed at 5% per annum. Against this order, the State Government preferred an appeal to the High Court and deposited a sum of Rs. 7,36,691 in the appeal. The assessee after furnishing a security bond withdrew the said amount. The ITO assessed the said amount as income of the assessee accrued in the relevant year. The Tribunal held that the assessee had withdrawn the amount furnishing security in a sub-judice claim and as such had no absolute right to receive the said amount till the appeal was decided. Therefore, it held that this amount did not accrue during the relevant year. On reference, this court also held that the compensation amount could only be considered to have accrued or arisen when the same would be determined and payable and not before and observed as follows (page 394) : "In the instant case the claim for the said further amount is in jeopardy and the right of the assessee to receive any further amount is also clearly unsettled. Unless the question of payment of any enhanced compensation is decided and the amount of enhanced compensation becomes determinate and payable, the said amount cannot, in our opinion, be said to accrue or arise. The further amount awarded by the arbitrator forms in reality at this stage the subject-matter of a mere claim or an assertion on the part of the assessee to receive the said amount, but the said claim has yet to be accepted by the court. The fact that the assessee was allowed to withdraw the said amount after furnishing the security bond, does not, in our opinion, affect the position and does not make the amount of compensation either determinate or payable.......the right of the assessee to receive any further compensation or the amount of the further compensation has not yet been adjudicated upon and decided. The said receipt is really the receipt of a particular sum pursuant to an order of court on the security bond executed by the assessee and on the basis of terms and conditions mentioned in the said bond." 14. Mr. Suhas Sen, learned counsel for the revenue, contended on the other hand that in the instant case, it has been found as a fact that the mining lands which were the subject-matter of the proposed sub-lease had been made over to Sonepur Coalfields Ltd. and further that there was no binding agreement for the sub-lease." On the basis of the aforesaid the assessee itself contended that it was out of possession of its properties from 1946 to 1948 and, therefore, was entitled to some compensation. This compensation was calculated by the assessee on the basis of the "minimum royalty" payable under the proposed sub-lease and was claimed along with interest. 15. Mr. Sen submitted that it cannot be said that the claim of the assessee was without any basis whatsoever and as the assessee maintained its account on mercantile basis, the amount claimed must be deemed to have accrued when the claim was made. 16. In support of his contention Mr. Sen cited the following decisions: (a) CIT v. Thiagaraja Chetty & Co. [1953] 24 ITR 525 (SC). Here, the assessee as the managing agent of a limited company was entitled to a monthly remuneration, a commission of 10% on the net profits of the managed company and a small percentage on sales and purchases. Under the managing agency agreement, the assessee was also entitled to reimburse itself of its dues out of the funds of the managed company. During the accounting year ending 31st March, 1942, the assessee became entitled to a commission. On the 30th March, 1942, the assessee wrote to the managed company requesting that another debt due to the managed company from the assessee should be written off as a bad debt. A dispute arose therefrom and the commission due to the assessee was retained by the managed company in suspense but claimed as its revenue expenditure in that year. The question arose whether in the same assessment year the assessee was liable to pay tax on the said amount. On these facts, the Supreme Court observed that accrual of profits did not depend on their computation and held that the quantification of the commission in that case was not a condition precedent to its accrual. 17. The next case cited was E. D. Sassoon & Company Ltd. v. CIT . In this case, the Supreme Court in its majority judgment held that where remuneration or commission became due to a managing agent on the completion of a definite period of service such remuneration constituted a debt only at the end of such period of service and nothing was payable to the managing agent for any broken period. 18. Last cited was CIT v. Chunilal V. Mehla & Sons P. Ltd. . In this case, under an agreement the assessee was to continue as managing agents for 21 years and was entitled to a minimum remuneration of Rs. 6,000 per month and further that if at the end of any year the remuneration was less than 10% of the gross profits the assessee would receive an additional sum to make up the difference. In 1951, the shares of the managed company were acquired by a hostile group and pursuant to a resolution dated the 23rd April, 1953, the managing agency agreement was-terminated. The assessee refused to accept the amount offered as compensation calculated at Rs. 6,000 per month and filed a suit claiming Rs. 28 lakhs for unlawful termination of the agency. Ultimately, the suit was decreed for the sum originally offered as compensation and it was held that the assessee was entitled to stipulate liquidated damages at the rate of Rs. 6,000 per month. The assessee received the amount of compensation in December, 1955, and credited the same in its profit and loss account for that year. The question arose in which year the amount accrued to the assessee. 19. On these facts, the Supreme Court held that the compensation became due to the assessee in 1951 though actually received in December, 1955. It was sought to be contended on behalf of the revenue that as the assessee disputed the quantum of compensation to which it was entitled, the right to get the amount arose when the dispute was determined by the court. The Supreme Court negatived this contention and held that the right of the assessee to get compensation for the unlawful termination of its services and the quantum of such compensation was clearly prescribed in the agreement and was upheld in the suit. The fact that the assessee was claiming an exorbitant sum to which it was not entitled could not convert the assessee's accrued right into a contingent right. 20. The controversy in the present case before us is whether the claim of the assessee which it sought to raise on the basis of minimum royalty resulted in the accrual of any right in the assessee to receive the amount of claim. 21. It has been found as a fact that the intended sub-lessee failed to complete the sub-lease and the assessee was on of possession of its land since 1946. But the Tribunal has also found that the amount which the assessee could rightly claim was uncertain and might ultimately be decided through litigation. The Tribunal has further found that the assessee's claim was in the nature of a counter-claim which the assessee intended to press if the amounts received by it on account of salami in the proposed sub-lease had to be refunded. 22. It appears to us from these facts that the assessee was not preferring a straight claim but was seeking to set up a tentative defence against an anticipated demand for refund. The assessee could not claim "minimum royalty" as such as no sub-lease had been executed and the claim of the assesses had no contractual basis or foundation. It is not clear on what basis interest was being claimed by the assessee on this amount. 23. The assessee's claim was a claim for compensation. The basis of this claim appears to be the alleged user of the assessee's land without consideration by a third party with whom negotiations for a sub-lease were proceeding. 24. There is no finding that the intending sub-lessee was clearly at fault because of which the sub-lease could not be effected. If due to the fault of the assessee the sub-lease failed to be executed then the assessee's claim for compensation loses force. There is also no finding that the claim of the assessee followed the accrual of any lawful right in favour of the assessee to receive the amount claimed. 25. Even the entries in the books of the assessee were tentative. It is on record that the dispute between the parties have continued and appeal from the writ proceedings are still pending. 26. For the reasons stated above it appears to us that no part of the said sum of Rs. 1,47,090 can be held to have accrued as the income of the assessee. 27. Accordingly, we answer the questions as follows : Income-tax Reference No. 10 of 1971: Question No. 1 is answered in the negative and in favour of the assessee. Question No. 2 is answered in the affirmative and in favour of the revenue. Question No. 3 is answered in the negative and in favour of the assessee. Income-tax Reference No. 19 of 1971: By reason of the answers to questions raised in the Income-tax Reference No. 10 of 1971, these two questions do not call for any answer. 28. The references are disposed of accordingly. There will be no order as to costs. Banerji, J. 29. I agree.

Author: Sen

Ondal Investments Co. Ltd. vs Commissioner Of Income-Tax on 6 February, 1978

Calcutta High Court

Gujarat High Court Case Information System Print CA/1025/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR ORDERS No. 1025 of 2010 In CIVIL APPLICATION No. 13433 of 2008 In SPECIAL CIVIL APPLICATION No. 2532 of 2008 ========================================================= YUSUF NOORMOHAMMED DINATH - Petitioner(s) Versus NAFISAKHATUN NOORMOHAMMAD DINATH HEIR OF DECEASED & 12 - Respondent(s) ========================================================= Appearance : MR AMIT V THAKKAR for Petitioner(s) : 1, None for Respondent(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3,2.3.1 - 13. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 03/02/2010 ORAL ORDER1. This application has been filed with a prayer to permit the applicant to delete the amendment carried out in the petition, pursuant to the order dated 12.03.2009, of this Court, by which notice has been issued to the proposed respondent No.2(C)(1), Tabassum Zakir Saikh. Thereafter, an amendment has been carried out in the petition, before the application for joining the said respondent could be allowed. It is, therefore, prayed that the applicant may be permitted to delete the amendment, and to amend the cause title accordingly, if the application for impleadment of the said respondent, as heir and legal representatives of the deceased Rabiya Wd/o. Mehmud Dinath, is allowed. 2. In view of the statement made by the learned Counsel for the applicant that the said amendment has been wrongly carried out, by misreading the above-mentioned order, the application is allowed. The learned Counsel for the applicant is permitted to delete the amendment carried out, pursuant to the order dated 12.03.2009. (SMT. ABHILASHA KUMARI, J.) Umesh/     Top

Author: Abhilasha Kumari,&Nbsp;

Yusuf vs Nafisakhatun on 16 August, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM LA.App..No. 2106 of 2008() 1. K.K.JAYAKESAN, S/O.LATE KALARIKKALVEETTI ... Petitioner 2. K.K.RAJU, S/O.LATE KALARIKKALVEETTIL Vs 1. SAROJAM, W/O.RATNAKUMAR, 45, R/AT.THAIKK ... Respondent 2. STATE OF KERALA, REP. BY SPECIAL For Petitioner :SRI.A.BALAGOPALAN For Respondent :SRI.M.A.ABDUL HAKHIM The Hon'ble MR. Justice M.N.KRISHNAN Dated :01/12/2009 O R D E R M.N. KRISHNAN, J. ........................................... L.A.A.Nos.2106 & 2291 OF 2008 ............................................. Dated this the 1st day of December, 2009 J U D G M E N T These appeals are preferred by the rival claimants in LAR.No.184/2000. The short point that arises for determination by the court is to find out who is the title holder of the property. Smt. Sarojam is respondent No.2 in the land tribunal reference and applicants therein are Sri.K.K. Jayakesan and Sri.K.K. Raju. The rival contentions of the parties are that 1 acre and 28 cents of land comprised in Sy.No.650/5 of Mulavukad village was taken on lease by Kunjan from Kottram Pappootty and on his death, the property had devolved upon the applicants before the land tribunal reference and therefore,they are claiming exclusive right over 1 acre and 28 cents of property as lessees. 2. On the other hand, respondent No.2 namely Smt. Sarojam would contend that she had purchased the property by virtue of a registered instrument- Ext.B1 dated 16.7.1965. According to her, she is in possession of the property on the strength of that document and therefore, she is the  : 2 : L.A.A.Nos.2106 & 2291 OF 2008 exclusive title holder of the property. 3. I am made to understand that the applicants before the land tribunal, who are the legal heirs of Kunjan, are claiming tenancy right under one Kottram Pappootty and not under anybody else. Whereas, Smt.Sarojam is claiming right to the property by virtue of a registered instrument - Ext.B1. In order to have a resolution regarding the tenancy dispute, unless the landlord is in the party array, one cannot decide the question of tenancy. A question of reference to the land tribunal arises when there is a dispute regarding the tenancy. For example, when a plaintiff claims tenancy under the defendant or the defendant claims tenancy under the plaintiff, then by virtue of the provisions of the Land Reforms Act, especially under Section 125, the civil court jurisdiction is barred and the matter has to be referred to the land tribunal for a proper adjudication on that issue. Therefore unless there is a dispute regarding the landlord and the tenant in a proceedings, really the question of tenancy does not arise for determination in such a case. Suppose A is claiming tenancy under B and the defendant in the suit namely C is claiming an independent right over the  : 3 : L.A.A.Nos.2106 & 2291 OF 2008 property, consideration of that has to be done by the court as to whether A has got title to the property or C has got title to the property and for that purpose, there is no point in referring the matter to the land tribunal to adjudicate the tenancy right of A under B for the reason that, B is not a party to the proceedings at all. Therefore, in this case really the scheme and scope of consideration is whether as legal heirs of Kunjan, Sri.K.K. Jayakesan and Sri.K.K.Raju are having title to the property or whether Smt. Sarojam is having title to the property as per Ext.B1. For that purpose, the land acquisition court can permit the parties to adduce evidence and then consider the question of title between the two and arrive at a decision that who is having a better title to the property and that will govern the field. Therefore, a reference to the land tribunal was totally uncalled for. If there is any certificate of purchase issued, that may be the relevant piece of evidence. The binding nature of which would depend upon various factors. I am conscious of the fact that when a certificate of purchase is issued under Section 72 K of the Kerala Land Reforms Act, it is a conclusive proof of tenancy. Similarly there is a well  : 4 : L.A.A.Nos.2106 & 2291 OF 2008 settled decision that when a certificate of purchase is obtained without proper issuance of notice as contemplated under Section 72 F (3) of the Kerala Land Reforms Act, since it is not a notice in person, it will not have any binding effect. 4. So, these are all matters which the civil court may have to consider in order to appreciate the rival titles of the parties. Therefore, the award passed is set aside and the matter is remitted back to the land acquisition court with a direction to consider the question of rival title set up by Sri.K.K Jayakesan and Sri. K.K.Raju as well as Smt. Sarojam with the materials available and also by permitting the parties to adduce evidence on that regard and then decide the matter in accordance with law. The parties are directed to appear before the land acquisition court on 8.01.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl  : 5 : L.A.A.Nos.2106 & 2291 OF 2008 

K.K.Jayakesan vs Sarojam on 1 December, 2009

Kerala High Court

1 S.B. CIVIL WRIT PETITION NO.6308/2010 Alka Khoja vs. State of Rajasthan and Anr. DATE OF ORDER : 19.7.2010 HON'BLE MR. GOVIND MATHUR, J. Mr. Vinit Sanadhya, for the petitioner. Dr. G.R.Kalla, Government Counsel. By this petition for writ a direction is sought by the petitioner for the respondents to issue certificate in her favour for participation in the State Level Tournament conducted from 15.10.2008 to 20.10.2008 under the Co-ordination of Principal, Govt. Girls Senior Secondary School, Sheoganj, Distt. Sirohi. It is pointed out by the learned counsel for the petitioner that a request in this regard was also made by the Principal of the school where the petitioner was undergoing studies, but of no consequence. Issue notice, under instructions of the Court the notice issued is accepted by Dr. G.R. Kalla, learned Govt. Counsel. With the consent of the parties, the matter is heard finally. 2 From the contents of the petition it appears that the petitioner is claiming for issuance of participation certificate for her participation in 53rd District Level (Girls) Athletics, Cultural and Literary Competition (Tournament), 2008-2009 held under the Co-ordination of Principal, Govt. Girls Senior Secondary School, Sheoganj, Distt. Sirohi. Before approaching this Court, the petitioner submitted a notice for demand of justice to the respondents through her counsel Shri Vinit Sanadhya. The notice for demand of justice is available on record as Annexure-4. No response is given by the respondents to the notice aforesaid. Having considered all aspects of the matter, I deem it proper to direct the respondents to take appropriate action in the matter by dealing with contents raised by the petitioner in notice for demand of justice dated 15.5.2010. Such action is required to be taken within a period of three weeks from today. With the above directions, the petition for writ stands disposed of. (GOVIND MATHUR)J. RM/

Alka Khoja vs State Of Raj. & Ors on 19 July, 2010

Rajasthan High Court - Jodhpur

ORDER M.L. Singhal, J. 1. Gurdial Kaur instituted suit for permanent injunction restraining The Ludhiana Primary Co-operative Land Mortgage Bank, Ludhiana (hereinafter referred to as "the Bank") from recovering the alleged loan amount from her as she had never been paid the alleged amount of loan nor any tractor was delivered to her by M/s. Roy Tractors & Engineering Company, Ludhiana (hereinafter referred to as "the Company"). M/s Roy Tractors and Engineering Company, Ludhiana was liable to repay the loan amount to the Bank. It was alleged in the plaint that she approached the bank for advancement of loan for purchase of a tractor. She was told by the Manager of the Bank that the tractor could be supplied to her by the Company and for that purpose, she would have to deposit a sum of Rs. 16500/-with the bank as margin money which would be utilised towards the sale price of the tractor to be paid to the company and for payment of balance amount of the price of the tractor, she would be granted loan against the mortgage of her land. She was told that the company would supply her tractor on being instructed by them (Bank) and also get it registered from the Registering Authority. ..... Civil Revision No. 443 of 1998 . Authority under the Motor Vehicles Act, Ludhiana in the name of the plaintiff. She deposited a sum of Rs. 16500/- with the Bank as proposed and also signed blank documents. Bank got her land mortgaged. She paid Rs. 5000/- to the Company on the advice of the Bank. Tractor was not supplied to her. On 16-7-87, she gave in writing to the Bank that she was not to purchase tractor and the amount of Rs. 16500/- be refunded to her and the amount of Rs. 5000/- deposited by her with the Company be also got refunded to her. She filed this suit when the Bank started recovery proceedings against her and a notice to this effect was received by her. 2. Company made an application to the learned trial Court whereby it prayed for permission to them to lead secondary evidence of receipts dated 6-10-1987 for Rs.15000/-; dated 24-10-1987 for Rs.10000/-; dated 26-10-1987 for Rs.15000/-; dated 29-10-1987 for Rs. 15000/- and dated 2-11-1987 for Rupees 15000/-. It was alleged in the application that these receipts got lost near District Courts, Ludhiana and notice to this effect was published in the Daily Rohjan, Ludhiana dated 15-5-90 but the Company had got photostat copies of these receipts attested from Bhag Singh Oath Commissioner, on 5-5-90. The said receipts were important piece of evidence and could be proved only if permission was granted to them to lead secondary evidence. Civil Revision No. 443 of 1998 3. This application was opposed by Smt. Gurdial Kaur urging that no payment had been made to her and these receipts had been fabricated with the object of fastening liability on her. Loss of these receipts in the District Courts, Ludhiana was denied. Vide order dated 19-11-1997 Civil Judge (Junior Division) Ludhiana allowed the Company to lead secondary evidence of these receipts subject, however, to the proof of loss of original receipts. 4. Aggrieved from this order dated 19-11- 97 passed by the Civil Judge (Junior Division) Ludhiana, Smt. Gurdial Kaur has come up in revision to this Court. 5. I have heard the learned counsel for the parties and have gone through the records. 6. Learned counsel for the petitioner submitted that in the written statement filed by the Company, there is no mention of these receipts to have been executed by Smt. Gurdial Kaur. 7. Impugned order has to be set aside. Learned trial Court should have insisted upon the proof of the existence of the of original receipts and then loss thereof before it could allow the Company to lead secondary evidence thereof. Section 65 of the Evidence Act lays down cases in which secondary evidence may be given. "Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-- (a) & (b) xx xx xx (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) to (g) xx xx xx 8. It was held in Krishna Kumar v. Pal Singh (1989) 95 Pun. PLR 55 that "it was incumbent upon the respondent to lead evidence to prove existence of the original will." Impugned order could not be passed without evidence to that effect had been led. "Learned trail Court could not have allowed the Company to lead secondary evidence without the Company having proved that original receipts had come into existence and they got lost after they had come into existence. Learned counsel for the petitioner submitted that when receipts had not been pleaded in the written statement, no permission to lead secondary evidence thereof could have been asked for. In Gurditta v. Balkar Singh (1989) 95 Pun. LR 418 it was observed that "where agreement to sell was never pleaded in the written statement application to lead secondary evidence by way of photostat copy was filed after more than two years, there was no occasion for the trial Court to allow the defendant to lead secondary evidence particularly when the existence pf the original document was not proved." It was held that the observations made by the trial Court that secondary evidence is allowed subject to his proving the due execution of the agreement and loss thereof was wholly irrelevant because the secondary evidence could be allowed only if the existence of the original document was proved in the first instance. In Ved Prakash v. Smt. Kartar Kaur (1994) 1 RRR 361 it was held that " in order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document." 9. In my opinion, learned trial Court should not have allowed the Company the permission to lead secondary evidence of the said receipts without the proof of the said receipts having been executed by Smt. Gurdial Kaur. So, this revision is accepted and the impugned order is set aside. Learned trial Court is directed to dispose of the prayer of the Company for leading secondary evidence after complying strictly with the provisions of Sections 63 and 65 of the Indian Evidence Act, 1872. Trial Court will also take account whether these receipts had been relied upon in the written statement and if they had not been relied upon what is the explanation for their not relying upon and whether that explanation is reasonably plausible.

Author: M Singhal

Gurdial Kaur vs Registrar, Co-Operative Society ... on 8 October, 1999

Punjab-Haryana High Court

Gujarat High Court Case Information System Print CR.MA/2719/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2719 of 2010 In CRIMINAL APPEAL No. 470 of 2010 ========================================================= STATE OF GUJARAT - Applicant(s) Versus AADIVASI (KHER) ANDABHAI RAMABHAI & 8 - Respondent(s) ========================================================= Appearance : MR RC KODEKAR, ADDL.PUBLIC PROSECUTOR for Applicant(s) : 1, None for Respondent(s) : 1 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 13/07/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) Having heard Mr.R.C.Kodekar, learned A.P.P., for the appellant - State of Gujarat and on perusal of the impugned judgment and order acquitting the respondents of the offences under Sections 307, 332, 337, 342, 147, 148 and 149 IPC and Section 135 of Bombay Police Act, according to us, this is a fit case for grant of leave to file appeal. Hence, leave to file appeal is granted. This application stands disposed of accordingly. (A.M.KAPADIA, J.) (J.C.UPADHYAYA, J.) (binoy)     Top

Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;

State vs Aadivasi on 13 July, 2010

Gujarat High Court

' C5)" M.F.A.NO.2997gf2909 IN THE HIGH COURT OF KARIWETAKA AT DATED 11113 THE 25": DAY or MAY 2% . ' Q fiEFORE was aonrsm MKJUSTICE « BETWEEN: SMT. VANAJAKSHAMMA AGE: ABOUT 49 YEARS W I O LATE SRIRAM R/AT NARAYHPsNAMUi?I'H'?' 3L:§LD_::€$Gv if " * SHRINIGARA 323:} '- _ 5 1 MALUR _ " 1 . ,.APPE§LANT (BY SR1 ;v;.12A<3}i%svI§§14I'x}1eA"'1[eAl:>; '}\1)$§*§;:(i2a?i'I::'.';"' MD: 1 _ _, _ ._ 1. sRE;aéLAKéH:;}i:. H _ _ _ « HUSBAN-:0"sVNAM'L?:_N , "a«;N'awN TO THE APPELI4A1'fl 'v. 2. MUNIRATHNA' Dj;0"sR:;ELAz:$HMx ,é£3 B1é:i5.';*ss;;;~é; """ H we S_F<'EE;L_A'i{SHMi ~. fi1§«;s:$é)§é'_I3EN;:'S.'1 TO 3 ARE '1i__/M' i3Ai>I:;AK0'rHuR VILLAGE SGGADUBALLA P031' SHA~.NTE~_§iPUR MANDAL V' n KUPPAM 'TALUK V C'HIfI'1'0R E¥iS'FR§C.1°'E' -- fil¢IS1ONAL MANAGER 1~:sm<:, KOLAR DIVISION " KOLAR 5. SUDE-§A.B.S. AGE: ABOUT 18 YEARS E/O B.N.SRERAiVi 6. B.S.SAMPATBl.&KSHMI AGE: ABOUT 21 YEARS D/O B.N.SR'IRAM 7. sawruospz KUMAR AGE: ABOUT 16 YEARS S/O B.N.SR1RAM MINOR' REPRESENTED BY HIS MOTHER mg APPELLANT RESFONDENTS 5 TO 7 ARE j; R/AT NARAYHANAMURTHY BUILDHJG " snmzxearea BEEDI , '- MALUR " _ V" ..Rne;¥d:§a.m§+r§s THIS M.F.A. IS 911.53) UNl3 E'R smm&j3s4 (fix? 'i'i.~iE INDIAN succgssxon ACT AG.é\.'i'N&'* 'I"i~§E OR£)'ER~" I}A'1'ED 04.04.2009 PASSED BYVTHP3 c.1v1:,.qu;)(32:.%(sR.DN.) 85 PRL. J.M.F'.C., ¥{.G.F. IN P83 SC N6.iO]'2_QE}¢§, THIS APPEAL' COMING"Oi§ 99<x2j"%.::)1"eii1E,r$§fSs""m1s pm', THE coum MADE TjE§E'«.Ef{;=--LLC%WENG:" ' 'V ' The imp'ug::xéc:A§:'c1:e1+% %§1at§d 04.04.2009 passed by the court 5:'-ms (Sr.Dn.), K.G.F., in P & so ~~.Ne.:fc3/ 23045 x~ej;ectiug review of the order dated '_.n0t ajppealable under any of the pfovfisicns' the Indian Succession Act, 1925. Hence, - '-the appgcii is dismissed as not majntainahle. " - 1Appeal dismissed. Sd/-fa" Iudge 3111/-

Author: H.G.Ramesh

Smt Vanajakshamma vs Sreelakshmi on 25 May, 2009

Karnataka High Court

JUDGMENT A. Sambasiva Rao, Acting C.J. 1. This writ petition has travelled from a learned single Judge to a Division Bench and then to us sitting in a Full Bench. That is because of the objection raised by the 1st respondent, viz., the Visakapatnam Port Trust as to the maintainability of the writ petition against it. The highest Court of the land has itself spoken on the subject very many times, but not always uniformly. After several pronouncements on the question, the Supreme Court held in Sirsi Municipality v. C.K.F. Tellies 1973--I L.L.J. 226 : AIR 1973 SC 855, that though an ordinary relationship of master and servant is governed by contract, there are certain exceptions to that rule. If a dispute arises under the industrial law or if it is the case of a servant in the employment of State or public or local authority or bodies created under statute, the Court can step in if the dismissal is contrary to rules of natural justice or the provisions of the statute or mandatory procedural requirements and declare the dismissal to be a nullity. It was further held that such implication of public employment is thus distinguished from private employment in the case of master and servant. While rendering the decision the Supreme Court has distinguished its earlier decisions in Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi 1970--I L.L.J. 32 and Indian Airlines Corporation v. Sukhdeo Raj 1971--I L.L.J. 496 : (1971) 2 SCC 192 and followed its earlier decision in S.R. Tiwari v. Dish Board, Agra (1964) 2 SCJ 300 : AIR 1964 SC 1680. Even this decision did not give a quietus to the controversy. Many High Courts including this Court took different views. It was at that stage this writ petition came up for hearing and in view of the maze of these conflicting decisions, the Division Bench referred to the writ petition to a Full Bench saying "that an authoritative pronouncement is necessary as to the applicability of the Sirsi Municipality's case (supra). This reference was on 5th November, 1974. Fortunately a Constitution Bench of the Supreme Court has given an authoritative pronouncement on this ticklish point in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi 1975--I L.L.J. 399, on 21st February, 1975. 2. Before we examine what exactly are the implications of Sukhdev Singh's case (supra) let us have a look at the facts of the writ petition. The petitioner claims to be an approved candidate and to have been appointed as a temporary typist with [effect from 17-5-1965. He was declared to have satisfactorily completed the period of probation with effect from 3-7-1965. On his request he was transferred as a trains clerk in the Traffic Department. The Traffic Manager approved and appointed him as a temporary typist in the service of the Visakapatnam Port Trust (Rule 1). The Traffic Manager declared on 17-4-1969 that he was suitable to be appointed in a quasi permanent capacity under the Visakapatnam Port Employees (Temporary Service) Regulations, 1964. He applied to the secretary of Port Trust for confirming him in the category of typist on Port Trust seniority basis. The petitioner again applied to the Chairman that his transfer to the Secretary's Office or to any other department preserved his seniority. He specifically requested that the period of service put in by him as trains clerk should be taken into account in fixing his seniority as typist. His request was acceded to and he was posted as typist in the Office of the Chief Engineer (Project). When five posts of typists were upgraded as senior typists, respondents 2 and 3, who were juniors, to him were promoted and his seniority was fixed after one Venkataraju. This decision was rested on his service in the category of typist only. His representation was rejected holding that his service as trains clerk could not be reckoned for the purpose of determining seniority in the category of typist. The Employees' Union took up his cause but their representations also met with the same fate. Consequently, the present writ petition is filed to quash the proceedings of the secretary dated 16-6-1971, to issue a consequential direction to the 1st respondent to restore his order of confirmation in the category of typist, to reckon his service as trains clerks for the purpose of seniority in the category of typist and to promote him as senior-typist with retrospective effect from 10-5-1971 with all consequential benefits. 3. This claim of the petitioner is opposed by the Port Trust represented by its Secretary not only on merits but also on the basis of the contention that a writ petition is not maintainable against the Visakapatnam Port Trust since it is neither a State within the meaning of Article 12 of the Constitution or any other authority contemplated by that Article or Article 226 of the Constitution. It is no better than a company authorised to carry on certain functions assigned to it under the provisions of the Major Port Trusts Act. The relationship of the petitioner with the port trust is purely that of a master and servant and thus contractual and no writ can lie for the alleged violation of purely contractual obligations. 4. The petitioner on the one hand contends that he was not given any notice before cancelling the order of his confirmation in the post of typist nor was that order of cancellation served on him. The procedure followed by the Port Authorities in this regard is against all principles of natural justice. Also the promotion of respondents 2 to 4 who are juniors to him, as senior typists is violative of Articles 14 and 16. These contentions are in addition to the merits of his claims. The 1st respondent's objection to the maintainability of the writ petition is that the Visakapatnam Port Trust is not a State or authority within the meaning of Articles 12 and 226 of the Constitution. It is no better than a company incorporated under the Companies Act. So, no writ petition is maintainable against it. They dispute the correctness of the petitioner's claim on merits as well. But with that we are not now concerned because the question that is referred to us, as we have stated, is as to the applicability of Sirsi Municipalities case (supra) to statutory bodies like the Visakapatnam Port Trust. 5. Prior to Sirsi Municipality's case (supra) the Supreme Court struck a different note from its earlier decisions in Warehousing Corporation (supra) and Air Lines Corporation, (supra) cases. Dealing with the case of termination of the service of an employee of U.P. Warehousing Corporation constituted under the Agricultural Produce (Development and Warehousing) Corporation Act of 1956, it found that the termination of the respondent's service was under Regulation 16 and the procedure prescribed by Regulation 16(3) was not followed by the enquiry officer. Then it was held that the Court's interference with personal service is not normal and there are only three exceptions to that normal rule. Those exceptions are: (i) When a public servant is dismissed from service in contravention of Article 311; (ii) when there is dimissal of workers under industrial and labour law and (iii) when a staturory body has acted in breach of a mandatory obligation imposed by a statute. Though in the case before the Court there was a breach of the regulations while conducting the enquiry, it was not a breach of any statutory obligation as the act did not guarantee any statutory status to the respondents. In other words, the Supreme Court took the view that regulations formulated by the Warehousing Corporation had no statutory force. In the Airlines Corporation's case (supra) it adopted that view having noticed that it was an admitted fact that the employee's service was terminated in breach of the procedural safeguards provided in the regulations made by the Indian Airlines Corporation constituted under the Air Corporation Act of 1953. 6. Then came the Sirsi Municipality case (supra). It arose out of a suit by a municipal employee, in addition to other reliefs, for a declaration that her dismissal was contrary to Rule 143 framed under Section 46 of the Bombay District Municipalities Act which required the Municipality to give an employee reasonable opportunity of defence against the charges. This contention was opposed by the Municipality saying that those rules were merely for guidance of the Municipality and not mandatory. Distinguishing the Warehousing Corporation, and Indian Airlines Corporation cases (supra) and following Tiwari's case (supra) the Supreme Court laid down the well accepted principles relating to Court's non-interference in regard to the relationship between master and servant and the exceptions to the general rule. At the same time, it took the view that where a State or a Public Authority dismisses an employee in violation of mandatory procedural requirements, or on grounds which arc not sanctioned or supported by statute, the Court may exercise juridiction to declare the act of dismissal to be a nullity. Public employment is distinguishable from private employment. Beg. J. in a separate but concurring opinion further held that neither the rules nor bye-laws of the Municipality could be made or altered unilaterally. Both operated as the laws which bound the local authority. Still the controversy ranged in different High Courts and so, the Supreme Court found it necessary to examine the question afresh and in detail in Sukhdev Singh's case (supra). Three Corporations constituted under statues, viz., the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation were either the appellants or respondents in three civil appeals brought up before the Supreme Court. Certain employees were either removed or dismissed from services of these Corporations. The employees filed suits challenging the validity of their dismissal or removal as being contrary to certain rules and regulations framed by the Corporations. They maintained that the regulations were made under the statute and the origin and source of the power to make them is statutory. In consequence, regulations are binding on the Corporations. So much so, they have the force of law and the Corporations, which are statutory authorities as they have been constituted under statutes, have no right to make any departure from the regulations. On the other hand, the Corporations argued that the regulations were framed under powers given by the statute and they affect only matters of internal arrangement. So, they do not have a statutory binding character. Terms and conditions of employees as laid down in the regulations are not a matter of statutory obligations, since those regulations are binding on the Corporation not as law but only as contract. They have no force of law at all. They merely furnish the terms and conditions of employment and thereafter the employment of each person is contractual. Four of the Jive learned Judges accepted these contentions of the employees but one learned Judge repelled them. 7. Ray, Chief Justice, speaking for himself and two of his learned brothers posed two questions for consideration in the appeals. They are, (1) Whether the Acts, under which the Corporations came into being, would enable the employees to a declaration against the statutory corporation for continuance in service or would only give rise to a claim for damages and (2) whether an employee of such corporation is entitled to claim protection of Articles 14 and 16 against the Corporation. The learned Chief Justice's opinion summarised the core of the two questions as to whether these statutory corporations are authorities within the meaning of Article 12 and whether the regulations framed under the statutes have the force of law. Referring to the provisions of the Acts under which the Corporations were constituted, the learned Chief Justice found that they are bodies corporate having perpetual succession and a common seal. The Central Government may appoint one of the members as Vice-Chairman of the Commission. The functions, terms and conditions of service of their employees shall be such as may be provided by regulations made under the Acts. There were already existing organisation and their employees became employees of the Corporations. The Central Government may itself make rules to give effect to the provisions of the Act. Every such rule shall be laid down before each House of the Parliament and the Houses may agree to or annul the rule or modify it. The Corporation, with the previous approval of the Central Government may make regulations inconsistent with the Act and the rules made thereunder for enabling it to discharge the functions under the Act. The regulations provide, among other things the terms and conditions of appointment and service and the scales of pay of the employees. The Central Government is given the power to vary or rescind any regulation which it has approved. With some insignificant variations the provisions of the three Acts are similar. In the judgment of Ray, C.J. it was held that the Corporations are required by the statute to frame rules, also for the purpose of the duties, conduct and conditions of service of officers and other employees. Those regulations impose obligations on the statutory authorities and they cannot deviate from those conditions of service. If there is any such deviation they will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The very purpose of the rules and regulations under the statutes is to ensure regular conduct and they give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. The case may be different in respect of ordinary relationship of master and servant arising out of a contract, but in cases of statutory bodies, there is no personal element whatsoever. That is because of the impersonal character of statutory bodies. In the case of statutory bodies the element of public employment or service is present and the statute requires observance of rules and regulations. If their requirements are not observed, then the Courts declare such dismissal as being in violation of rules and regulations and so void. These legal conclusions are based on the basic concepts that the State may undertake commercial functions in addition to the Governmental functions under the constitution and in the course of pursuing its commercial function, the State undertakes commercial- activities and constitutes statutory bodies. Those bodies are authorities within the meaning of Article 12 of the Constitution. The rules and regulations are in the nature of subordinate legislation made by the Corporations to which the power to make them is delegated. Such delegation is justified under the Constitution. At the same time the learned Chief Justice made a distinction between statutory bodies and those which come into existence in accordance with the provisions of a particular enactment. A clear distinction is drawn between statutory corporations of this nature and a company which is incorporated in accordance with the provisions of the Companies Act. A company is not created under the Companies Act but only comes into existence in accordance with the provisions of the Act. So, it is not a statutory body. But these Corporations are created by statutes. Mathew, J., in a separate but concurring opinion has gone a step further and opined that these Corporations are agencies or instruments of the State and are, therefore, ("State") within the meaning of Article 12. It may be noted that the other three learned Judges took the view that they are authorities within the meaning of that article. Alagiriswamy, J., however, dissented from the majority views expressed by the four learned Judges and held that the regulations have no statutory force. 8. It is at once seen that the majority view of the four learned Judges answers all the objections raised by the Visakapatnam Port Trust in this case, provided the Major Port Act is substantially the same as the three Acts that were under consideration before the Supreme Court. The question whether it is a State or an authority within the meaning of Article 12 is an exercise in futility in this case. Relying on the opinion of Mathew, J., Sri Suryanarayana for the petitioner argues that the Port Trust is not merely an ("authority") but ("State") itself. Whether it is State as such or an authority under Article 12 the consequences in this case will be the same. Moreover Article 12 gives an inclusive definition for the expression ("the State") so far as Part III of the Constitution is concerned. Unless the context otherwise requires, it includes the Government and Parliament of India, the Government and the Legislature of each of the States, and all local or other authorities within the territory of India or under the control of the Government of India. Be it the Government and Parliament of India, or the Government and the Legislature of a State, or local or other authority in India or under the control of the Government of India, it comes within the amplitude of the expression ("the State") in so far as Part III is concerned. So, we do not propose to go deeper into this question which, in our opinion, is wholly unnecessary at least as far as this case is concerned. Consequently, we do not express any opinion thereon. 9. As we have said, the same consequences would follow whether the Port Trust is a ("State") as such or ("other authority"). 10. Now we will notice the material pro visions of the Major Port Trusts Act (XXXIII of 1963). The preamble, makes the intendment of the Act clear by saying that it is made to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith. According to Section 1(3) it applies to in the first instance to the major ports of Cochin, Kandla and Visakapatnam and it may be later applied by the Central Government to other major ports. In exercise of its power, the Central Government extended the Act to Marmogoa Port with effect from 1-7-1964. It may be noted here that these three major ports mentioned in Section 1(3) were existing for a long time and the Parliament thought that port authorities should be constituted for each port, obviously with the intention of providing for more effective management and control. Until then these ports were directly under the control of a department of the Central Government. We may also point out here that three other major ports in the country viz., Bombay, Calcutta and Madras were already under the control of separate Trust Boards constituted under three Acts relating to them. Section 3 provides for the constitution of Board of Trustees. The Central Government is given the responsibility to cause the constitution of Board of Trustees. Its Chairman and also a Deputy Chairman if one is required are to be appointed by the Central Government. In addition, that Government had to appoint not more than 10 persons as members of the Board. The Government shall notify their appointments. Section 4 confers power on the Central Government to constitute the first Board of Trustees and that Board holds office during the pleasure of the Central Government until such time the Board is constituted under Section 3. Under Section 5 the Board is a body corporate having perpetual succession and a common seal with power to acquire, hold or dispose of property and may sue or may be sued. The Central Government, in exercise of its powers under Section 8, has power to remove trustees if certain events take place. The conditions of service of Chairman and Deputy Chairman, if any, are to be determined by the Central Government as laid down by Section 15. Under Section 29, all the assets, properties and funds relating to the port and vested in the Central Government will vest in the Board. Likewise debts, obligations and liabilities also would be transferred to the Board. The employees, who have been working under the Central Government in the ports, become employees of the Board. Sections 31, 35, 36, 40, 66, 67, 77, 89, 92, 96, 98, 99 and 100 to 105 arc some of the provisions which confer extensive powers on the Central Government over the affairs of the Trust Board and they relate to capital, budgets, loans, amounts, etc. Chapter IX consisting of Section 106 to 111 deals with supervision and control of Central Government. Section 112 treats persons employed under the Act to be public servants for certain purposes. The other provisions of Chapter X provide for penalties for contravention of some provisions. It is thus seen that the Trust Boards, right from the beginning of their first constitution, are under the aegis supervision and control of the Central Government and for every thing important the Central Government's sanction will have to be obtained. 11. We must then refer to certain provisions which relate to making of regulations and rules by the Trust Board as well as by the Central Government, Section 28 confers on the Board to make regulations, which are not inconsistent with the Act, to provide for the matters mentioned therein. All these matters relate to the appointment, promotion, suspension, removal and dismissal and other service conditions of the employees. Under Section 76 the Board can also make regulations relating to loans and securities. Under Section 126 the Central Government has power to make the first regulations. The Central Government by itself may make rules regulating the meetings, perquisites, etc., of the members of the Board of Trustees. Such rules shall be placed before each House of Parliament. If the Houses agree with those rules, then they become enforceable rules. If they reject them or make amendments, the rules will have no force or have force accordingly. Under Section 123 the Board itself has the general power to make regulations in regard to the holding of meetings and affairs of the port. Very significant is the provision in Section 125 under which whenever the Central Government considers necessary in the public interest so to do it may, by order in writing together with a statement of reasons therefor, direct any Board to make any regulations for all or any of the matters specified in Section 28 or 76 or Section 123 or to amend any regulations within such period as the Central Government may specify in this behalf. The Board is bound by those regulations. It should be noticed that even in respect of matters specified in Section 28, i.e., matters relating to the appointment and services of the port's employees also, the Central Government may make regulations if it considers necessary in the public interest. When such is the irresistible force of all these provisions, it is wholly untenable, in our opinion to argue that the regulations relating to the service conditions of the employees have no statutory force. They are clearly made under the provisions of the Major Port Trusts Act either by the Board itself or by the Central Government. They, therefore, certainly have the force of law, that is to say, statutory force. That is what the Supreme Court held by overwhelming majorty. There is no escape from this consequence. 12. Sri Srinivasamurthy for the port trust, while accepting the absolutely binding nature of the decision in Sukhdev Singh's case 1975--I L.L.J. 399, attempts to wriggle out of its ambit by contending that the Visakapatnam Port Trust is not a Corporation constituted under the Major Port Trusts Act, but a port trust which came into being in accordance with that Act just like a company comes into existence under the Companies Act. We have already referred to the preamble Section 1(3) and Section 5. We have also noted the fact that there were already three major ports which formed part of the Central Government department. It is only when the Act came into force these port trusts are constituted under that Act. The preamble itself makes it clear by saying that the Act is for the purpose of making provision for the constitution of port authorities. Section 5 makes that trust a body corporate and under Section 29 all the properties and assets vested in the Government relating to the port stood transferred to the Trust Board along with the then existing employees. Therefore, it is unquestionable that the Visakapatnam Port Trust has come into being under the Major Port Trusts Act. 13. The consequence is that the employees of the Visakapatnam Port Trust are employees of a statutory body and have a statutory status and they are entitled to declaration of being in employment if their dismissal or removal is in contravention of the statutory provisions which, it is obvious, include not only the actual provisions of the Act but also the regulations made thereunder. They are also consequently entitled to raise the question of discrimination under Article 14 and 16 of the Constitution. This is the answer we give to the question that is referred to us by the Division Bench. 14. A full Bench cannot expend its valuable time on considering the actual merits of the writ petition which can easily be disposed of by a learned single Judge. So, after answering this important question, we direct that the writ petition be posted before a learned single Judge for disposal on merits.

Author: A S Rao

V. Appalanarasimham vs Visakapatnam Port Trust And Ors. on 23 June, 1975

Andhra High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.131 of 2011 Shiv Nandan Yadav, son of Ram Gulam Yadav, resident of Village-Dumarkola, P.S. Khaira, District-Jamui. ..................................................................Appellant. Versus 1. The State Of Bihar. 2. Tilo Yadav. 3. Mato Yadav. Both sons of Late Huro Yadav. 4. Upendra Yadav, son of Sri Mato Yadav. 5. Ravindra Yadav, son of Salaldeo Yadav. All resident of village-Dumarkola, P.S. Khailra, District- Jamui. ......................................................Respondents. ----------- 4. 6.7.2011. Heard learned counsel for the appellant and the State. The appellant is aggrieved by the judgment dated 23rd of September, 2010 passed in Sessions Case No.491 of 1996 relating to G.R. Case No.790 of 1999 under Khaira P.S. Case No.81 dated 12.8.1994, whereby the Respondent Nos.2 to 5 were acquitted for the charges under Sections 148, 149, 323, 324 and 307 of the Indian Penal Code and also under Sections 3/4 of the Explosive Substance Act by the Additional Sessions Judge, Fast Track Court No.IV, Jamui. It appears that there was a case and counter 2 case. Though the prosecution case does not mention anything about the counter version but the judgment discusses the case and counter case. The counter case has resulted in Sessions Case No.601 of 1995 and it relates to Khaira P.S. Case No.80 of 1994. The Investigating Officer of the case in course of investigation has found that the alleged occurrence took place near the paddy seedling lands of accused- Respondent No.2, Tilo Yadav. Further, it has also come in the evidence that Tilo Yadav was arrested in Khaira Hospital in injured condition. This fact was not brought on record by the prosecution. There was allegation of assaulting the informant and others and of exploding bombs and causing injury to them against the Respondent Nos.2 to 5 but the I.O. who has visited the place of occurrence has also not found any remnants of explosive device at the place of occurrence and he has also not found any blood there. These are the enough grounds to disbelieve the prosecution case. The court below under such circumstances has given a correct judgment in disbelieving the case of the prosecution. 3 As a result, we find no merit in this appeal and it is, accordingly, dismissed. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) P.S.

Shiv Nandan Yadav vs The State Of Bihar & Ors on 6 July, 2011

Patna High Court - Orders

JUDGMENT Dr. B.P. Saraf, J. 1. Both these writ petitions are directed against the award of the Third Labour Court at Bombay dated 29 February, 1988 on a reference under Section 10(1) of the Industrial Disputes Act, 1947. By the said award it was held that the petitioner in writ petition No. 3047 of 1988, Narsinha Anant Joshi, whose services had been terminated by the employer was not a workman and hence the reference was not maintainable. Despite that, the Labour Court also considered the merits of the case and spelt out the relief that it would have granted, had the employee concerned been a workman within the meaning of Section 2(s) of the Act. The employee has challenged the finding of the Labour Court that he is not a workman by filing writ petition No. 3047 of 1988. The employer, Century Shipping, has filed writ petition No. 2500 of 1993 challenging the latter part of the order which relates to the observations of the Labour Court on the merits of the case. Both these writ petitions are therefore taken up together for hearing and disposal. 2. Petitioner in writ petition No. 3047 of 1988, Shri Narsinha Anant Joshi (employee), was working with M/s. Century Shipping (Company as a Technical Officer since 17 September, 1982. He was confirmed on the said post on 1 January, 1984. His services were, however, terminated by a letter dated 21 January, 1985 without holding any enquiry. A dispute arose between the employee and the company in regard to the termination of services. The dispute was referred to the Labour Court under Section 10(1) of the Industrial Disputes Act, 1947. Before the Labour Court, a preliminary objection was taken by the company that the petitioner-employee was not a workman within the meaning of Section 2(s) of the Act and hence the reference was not maintainable. The Labour Court considered the nature of duties of the petitioner-employee and all other circumstances and came to a finding that he was not a workman and hence the reference was not maintainable. The Labour Court, however, proceeded to examine other aspects of the matter assuming that the employee was a workman and a reference was maintainable and made certain observations as regards relief that might have been given to the workman had the reference been maintainable. The employee has challenged the first part of the award holding that he was not a workman and the employer has challenged second part of the award wherein the Labour Court after going into the facts of the case has made observations in regard to the relief that it might have given to the employee had the reference been maintainable. 3. Mr. Grover, learned counsel for the employee submits that the finding of the Labour Court holding that the petitioner was not a workman within the meaning of Section 2(s) of the Act is perverse, as it is contrary to the evidence on record. According to him, a careful perusal of the nature of duties and functions of the petitioner-employee will clearly go to show that he was a workman doing clerical work within the meaning of Section 2(s) of the Act. None of duties and functions of the petitioner, according to the counsel, can popularly be termed as administrative in nature. Reliance is placed in this connection on the decision of the Supreme Court in S. K. Verma v. Mahesh Chandra & Ors. 1983 II LLJ 429 and AIR 1958 SC 130. 4. Mr. Cama, learned counsel for the respondent-employer, on the other hand, submits that the finding of the Tribunal that the employee was not a workman is based on proper appreciation of evidence and material on record and same is therefore unassailable. 5. I have carefully considered the rival submissions. 'Workman' has been defined in Section 2(s) of the Industrial Disputes Act as under : "'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - (i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934; or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature". From a reading of the above definition of workman, it is obvious that persons employed mainly in managerial or administrative capacity are specifically excluded from the definition besides some other categories of employees. The question that falls for determination in the present case is whether the petitioner-employee was employed mainly in a managerial or administrative capacity and falls in the excluded category of persons specified in sub-clause (iii) of clause (s) of Section 2 or not. 6. Before proceeding to decide the legal issue on interpretation of the Section 2(s) of the Act, it may be expedient to set-out some of the facts having a bearing on the determination of the controversy : The petitioner was appointed as a Technical Officer in the shipping division of the company by a letter of appointment dated 17 July, 1982. He was confirmed on the said post on 1 January, 1984. On 22 August, 1984 he was issued a show cause notice and thereafter his services were terminated by a letter dated 21 January, 1985. According to the petitioner, though he was designated as Technical Officer, he was performing the duties of a clerk. According to the company, he was mainly engaged in administrative work and any clerical work casually done by him was only incidental to his employment as a Technical Officer. To dominant work of the petitioner, according to the company, was administrative. He was handling the work entrusted to him independently which included inviting quotations for spares, processing of invoices, maintaining inventories, subordinate control and liaison with Government departments in various matters regarding the work of the company. The main function of the office of the company in which the petitioner-employee was employed was to provide export service for the vessels on the high seas and the work in relation to ships was administrative and co-ordinative in nature. According to the employee, the nature of work performed by him was purely clerical which included filing of papers, maintenance of filing system, making entries relating to receipts of spares on board, consumption and balance stocks etc., and preparing other statements. All these works, according to him, were purely of clerical nature. The employee as well as the Technical Manager of the company were examined by the Labour Court. It was stated by the Technical Manager in his deposition that the nature of duties of the concerned employee, who was appointed as Technical Officer, was to assist him in exercise of his managerial powers. It was also stated that as Technical officer, the employee was scrutinising bills, recommending them for payment, selecting the material to be purchased and supplied. It was also observed that in the absence of the manager, his functions were also performed by him. It was further stated that there was a difference in the service conditions of the staff and the officers. The staff was not getting any free lunch which the officers were. As a Technical Officer, the concerned employee was also provided with a cabin which was not the case with the clerical staff. The petitioner-employee, who deposed before the Labour Court, stated that before joining the company he had held various executive posts in other companies. He also categorically stated that he was second in rank to the Technical Manager in his department and was assisting him in all possible manner. In regard to the preparation of statement etc., it was admitted that such work was required to be done generally once in two days. 7. I have carefully considered the evidence of the Technical Manager as well as the petitioner-employee. On careful consideration of the same it is clear that the petitioner-employee was not workman or a clerk. In fact, he was working in an administrative capacity. His job was not to do the filing of the papers himself but "he was responsible for ensuring proper filing of papers and maintenance of filing papers" as is evident from the show-cause notice given to him (which is Exh.'E' to the writ petition No. 3047 of 1988). It appears that the Labour Court has carefully scanned the entire evidence on record and only on a careful appraisal of the same, arrived at a conclusion that the dominant nature of the duties of the petitioner-employee was administrative. I do not find any infirmity in the said finding which might justify interference by this Court in exercise of powers under Article 226 of the Constitution. 8. I have carefully perused the decision of the Supreme Court in S. K. Verma v. Mahesh Chandra & Anr. AIR 1958 SC 130. In this case the Supreme court while interpreting the definition of workman in Section 2(s) of the Act, has observed in no less clear terms that : "Quite obviously the broad intention is to take in the entire "labour force" and exclude the "managerial force". That, of course, is as it should be". 9. The sole question for determination, in the present case, therefore, is whether the petitioner-employee can be called a workman employed to the clerical work a employed mainly in administrative capacity. The nature of work of the petitioner-employee, the various duties performed by him, his status and position in the company, his ranking - all clearly go to show that he was employed mainly in the administrative capacity and any work which can be termed as work of clerical nature done by him was only incidental to his employment in the administrative capacity. In that view of the matter, in my opinion, the Labour Court was justified in holding that the petitioner was not a workman and, hence, the reference was not maintainable. Writ Petition No. 3047 of 1988 has, therefore, no merit and is dismissed. 10. So far as writ petition No. 2500 of 1993 filed by employer is concerned, I find merit in the submission of Mr. Cama that having held that the petitioner-employee being not a workman under Section 2(s) of the Act the reference was not maintainable, it was not proper on the part of the Labour Court to proceed on the part of the Labour Court to proceed to examine the merits of the case and to make observations as to what relief it would have given had the reference been maintainable. I have considered the above submission. I am of the clear opinion that in view of its own finding that the reference was not maintainable as the employee was not a workman within the meaning of Section 2(s) of the Act, it was not proper on the part of the Labour Court to enter into the merits of the cases to decide what relief it might have given if the petitioner-employee would have been a workman. Apparently this act of the Labour Court was purely academic. In fact it was an exercise in futility. The Labour Court should have refrained from such unnecessary and futile exercise, I, therefore, set aside the latter part of the order of the Labour Court wherein it has gone into the merits of the case and made observations in regard to the relief might have given if the petitioner had been a workman. 11. In the result, the writ petition No. 2500 of 1993 filed by the employee is allowed to the extent indicated above. The writ petition No. 3047 of 1988 is dismissed. 12. Under the facts and circumstances of the case, there shall be no order as to costs.

Author: . B Saraf

Narsinha Anant Joshi vs Century Shipping & Ors. on 9 February, 1994

Bombay High Court

W.P.No.562 of 2011 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE In the matter of: Debi Prasad Chaudhuri Vs. The State of West Bengal & Ors. Before : The Hon'ble Justice SOUMITRA PAL 20TH MAY, 2011. Mr.Kishore Dutta,Advocate for petitioner. Mr.Tapan Kumar Banerjee,Advocate with Mr.S.K.Pal, Advocate for state. The Court: Let the matter appear as "Court Application" on 6th June, 2011. It is submitted by the learned advocate for the respondents on instructionfrom the officers present in Court that garbage shall be removed within seven days from date. So far as repair is concerned, as evident from the submission advanced on behalf of the respondents as recorded in the order dated 2nd December, 2010, since I find that the premises are in urgent need of strengthening/repair for which notices have been issued by the Kolkata Municipal Corporation and as it is submitted by the learned advocate for the respondents that an inspection is necessary, the respondent authorities after 2 removing the garbage shall make inspection and shall apprise this Court on the next date of hearing as to when repair shall be undertaken at the earliest. The respondents are at liberty to file affidavit in opposition in the meantime. All parties concerned are to act on a signed photocopy of this order on the usual undertakings. (SOUMITRA PAL, J.) ssaha AR(CR)

Author: Soumitra Pal

Debi Prasad Chaudhuri vs The State Of West Bengal & Ors on 20 May, 2011

Calcutta High Court

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Aslam Khan, Sadar Waqf Committee, ... vs Ibrahim Khan & 9 Ors. on 30 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 10-01-2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL WRIT PETITION NO.5819 OF 2001 AND W.P.M.P.NO.8238 OF 2001 P.Vaithianathan ... Petitioner Versus 1. The Chief Judge District court Pondicherry 2. The High Court, Madras represented by its Registrar-General Chennai  600 104 3. The Secretary to Government Department of Law Government of Podnicherry Pondiherry 4. S.Singaravelu .. Respondents For Petitioner :: Mr.P.V.S.Giridhar For Respondents :: Mr.S.Gopnath,AGP(R2) Mrs.N.Mala for Mr.T.Murugesan,Govt. Pleader(Pondicherry)(R.3) No Appearance (R4) Prayer: This Writ Petition is filed under Article 226 of The Constitution of India for the relief of issuance of a writ of certiorarified mandamus to call for the records of the first respondent relating to Order No.532/JD/A/2000 dated 14.02.2000 as confirmed by Order No.3720/JD/A/1999-2000 dated 13.3.2000 passed by the first respondent, quash the same in so far as the promotion of the fourth respondent is concerned and direct the first respondent to promote the petitioner to the post of Senior Clerk with effect from 14.02.2000 with all consequential benefits including arrears of pay and allowances and seniority in the said post. ORDER (Order of the Court was made by S.J.MUKHOPADHAYA,J.) The petitioner has challenged the Order No.532/JD/A/2000 dated 14.02.2000 as confirmed by Order No.3720/JD/A/1999-2000 dated 13.3.2000 passed by the first respondent and further prayed for promotion to the post of Senior Clerk with effect from 14.02.2000 i.e., from the date of his juniors were so promoted. 2. The brief facts of the case are: that the petitioner joined as peon in the Judicial Department, Pondicherry on 22.11.1976. He was promoted to the post of Attender on 1.8.1980 and thereafter to the post of Copyist on 5.8.1982 and to the post of Junior Clerk on 26.12.1986. He passed the requisite common general Departmental tests for Ministerial staff, which is one of the two pre-requisite conditions for completing the period of probation in the post of Junior Clerk and for promotion to the next higher post of Senior Clerk. Apart from passing the common general departmental tests, the person is also required to pass typewriting test to become eligible for next higher post of Senior Clerk. 3. The Department of Personal and Administrative Reforms (Personal Wing) of the Government of Pondicherry issued G.O.Ms.No.24/93-DP&AR (Exam) dated 11.3.1993 where under provisions have been made to grant exemption from passing Departmental test in typewriting to Group 'D' employees promoted to the post of Lower Division Clerk and to the Lower Divisional Clerk appointed on compassionate grounds, which have been indicated below: "(a) If above 45 years of age on the date of their appointment may be granted exemption from the date of their appointment. (b) If between the age of 35 years and 45 years at the time of appointment may be granted exemption on attaining the age of 45 years. (c) If below 35 years of age on the date of appointment may be given exemption after 10 years of service as Lower Division Clerk provided they have made two genuine attempts to pass the Departmental Test in Typewriting otherwise they may be granted exemption after attaining the age of 45 years. (d) Those Lower Division Clerks who have made two genuine attempts for passing the Departmental Test in Typewriting prior to the issue of this G.O. but have not completed 8 years' service as Lower division clerk may be granted exemption from passing the Departmental Test in Typewriting after completion of 8 years of service or on attaining the age of 45 years whichever is earlier." 4. Admittedly, the petitioner was appointed below the age of 35 years and had completed ten years of service as Junior Clerk (Lower Divisional Clerk), but had not passed the requisite typewriting test. He having attained the age of 45 years on 12.2.1999 preferred a representation before the first respondent to grant him exemption from passing typewriting test pursuant to Clause (c) of G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993. The first respondent rejected the claim of the petitioner by the impugned order dated 13.3.2000 by stating the following grounds: "You are hereby informed that taking into account the nature of the work attached to the post of Senior Clerk and the serious repercussions that would have on the litigant public if there is lapse or inefficiency on the part of the incumbent in the post of Senior Clerk, no exemption could be granted in respect of the tests which a Junior Clerk should pass so as to be eligible to be promoted to the post of Senior Clerk. The Hon'ble High Court of Madras as per the Official Memorandum No.ROC.357/93/C1, dated 14.06.1994 and ROC.1490/95/Pondy, dated 24.4.1995, mandated that no such relaxation can be granted." 5. In the mean time, the respondents considered the cases of promotion of the following juniors to the petitioner and promoted them to the post of Senior Clerk, vide order dated 14.2.2000 "(1) R.Cujandaisamy (S.No.105) (2) R.Raman (S.No.106) (3) S.Kengadaran (S.No.107) (4) S.Murugavel Gurunathan (S.No.108) (5) S.Gowri (S.No.109) (6) S.Singaravelu (S.No.110)" The Serial Number given against each name shows their position in the seniority list published on 1.8.1989, wherein the petitioner has been shown at Serial No.103. 6. Learned counsel appearing on behalf of the petitioner has submitted that a wrong order has been passed by the first respondent rejecting the prayer of the petitioner for exemption and that the petitioner is entitled for exemption being codified as per Government Order in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993. Further, according to him, the non-consideration of the case of petitioner for higher post while cases of his juniors were so promoted is violation of Articles 14 and 16 of the Constitution of India. 7. Learned counsel appearing on behalf of the respondent  Government of Pondicherry referred to the counter affidavit and submitted that the petitioner was not eligible for promotion while cases of juniors were promoted, he having not passed the requisite typewriting test. So far as the relaxation of typewriting test is concerned, learned counsel referred to the impugned order to show the ground for such rejection. 8. We have heard the learned counsel for the parties and also perused the relevant orders and guidelines relating to relaxation of qualification. 9. It is not in dispute that the petitioner had entered in the service of the respondent below the age of 35 years and had completed more than ten years of service in 1999 when he attained the age of 45 years and claimed for relaxation. Under Clause (c) of Government Order in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993, a person can claim exemption from passing Departmental test in typewriting if he fulfills the following conditions: (i)he was below 35 years of age from the date of appointment, which the petitioner fulfils, (ii) he has completed 10 years of service as Lower Divisional Clerk (Junior Clerk), which the petitioner completed in 1996; and (iii) he has made two genuine attempts to pass the Departmental Test in Typewriting; otherwise attaining the age of 45 years. 10. The petitioner though made no attempts to pass Departmental Test in Typewriting, otherwise, having attained the age of 45 years, we hold that the petitioner is eligible for consideration of his case for exemption under clause (c) of the Government Order in G.O.Ms.No.24/93-DP&AR(Exam) dated 11.3.1993. 11. It has been brought to the notice of the Court that in fact the respondents subsequently agreed that the petitioner is entitled for exemption. For the said reason, he has been granted promotion to the post of Senior Clerk, vide Office Order No.532/JD/A/2004 dated 13.8.2004 issued from Judicial Department, Government of Pondicherry during the pendency of the writ petition. In the aforesaid background, while we reject the stand taken by the respondents, we hold that the impugned order of rejection dated 13.3.2000 is illegal and it is accordingly set aside. 12. As the respondents have not disputed the fact that the persons named above are juniors to the petitioner and when their cases were considered for promotion to the post of Senior clerk and promoted vide order dated 14.02.2000, the case of the petitioner was not considered. In the present case, as we have already held that the petitioner is entitled for exemption of passing typewriting test and Government has actually exempted and granted him promotion from subsequent date, we are of the view that the respondent authorities should consider the case of the petitioner for promotion to the post of Senior Clerk with effect from 14.2.2000 i.e., from the date of his juniors were promoted. On such consideration, if he is found fit, then the respondents should shift back the date of promotion from 13.08.2004 to 14.02.2000 and notionally fix the salary of the petitioner though he may not be entitled to the benefit of arrears. 13. The case is accordingly remitted to the respondents with a direction to consider the case of the petitioner for promotion to the post of Senior Clerk with effect from 14.02.2000 and communicate its decision within a period of three months from the date of receipt of copy of this order. 14. The writ petition is allowed with the aforesaid observations and directions. But in the facts and circumstances, there shall be no order as to costs. Consequently, the connected W.P.M.P. is closed. (S.J.M.,J.) (M.V.,J.) 10.01.2008 Index: Yes Internet: Yes To 1. The Chief Judge District court Pondicherry 2. The High Court, Madras represented by its Registrar-General Chennai  600 104 3. The Secretary to Government Department of Law Government of Podnicherry Pondiherry S.J.MUKHOPADHAYA,J. AND M.VENUGOPAL,J. usk W.P.NO.5819 OF 2001 10-01-2008

P.Vaithianathan vs The Chief Judge on 10 January, 2008

Madras High Court

JUDGMENT Arun Madan, J. 1. The short question which arises for consideration of this court in this writ petition filed under Article 226 of the Constitution of India, is as to what should be the authentic proof for determining the correct date of birth of an employee : of the State Government or of any corporate body functioning on behalf of the State Government which should be a relevant factor of an employee at the time of his appointment. The date of retirement on attaining the age of super- ] annuation by an employee is also to be reckoned from that date. 2. The petitioner who is an erstwhile employee of Rajasthan State Road Transport Corporation, has filed this petition on the ground interalia that the petitioner initially joined the service of the State Government on the post of Lower Division Clerk (for short 'LDC') in Village Panchayat Department vide order, dated; August 10, 1953 and was posted in their Divisional Office at Kota. In continuation of the said appointment and while discharging his duties as substantive Upper Division Clerk (for short 'UDC') in the erstwhile Roadways Department, the State Government placed the services of the petitioner on deputation to the respondents w.e.f. October 1, 1964 and these arrangements continued till October 30, 1966. It has further been contended that during the intervening period of deputation the State Government vide its Notification dated April 15, 1966 invited option from the petitioner either to remain in Government service of the State or to continue to serve the Corporation as he may deem fit. The petitioner in pursuance of the option notice with reference to para 4 of the terms and conditions of the option, and with particular reference to Regulation 7(a) of the R.S.R.T.C. Regulations, 1965, submitted his option within the stipulated period exercising his option in favour of continuity of his services with the Corporation. Consequently the State Government vide its order, dated June 30, 1966 transferred the services of the petitioner to the said Corporation and the Corporation vide its letter, dated July 15, 1967 also accepted the said transfer with a specific mention that the services of the petitioner henceforth will he governed by R.S.R.T.C. Employees Service Regulations, 1965 (hereinafter referred to as 'the Regulations') which came into force w.e.f. August 15, 1965. Consequently the-services of the peti- ; tioner in the State Government were brought to an end w.e.f. October 30, 1966. 3. It will be pertinent to refer to Regulation 7of the Regulations which reads as under: "7. Unless there be something repugnant in the subject or context the terms defined in this chapter are used in the Regulations in the sense here explained:- (1) Age-(a) For the purposes of these Regulations age shall be computed from the date of birth of an employee, who shall be required to produce authentic proof thereof at the time of his employment or within three months from the date of his employment. (b) The following proofs may be accepted as authentic date of birth in order of prefer-ence:- (i) date of birth given in the School Certificate. (ii) date of birth given in the Municipal Birth Certificate. (iii) date of birth given in the horoscope provided it was prepared soon after the date of birth stated by the employees. (c) If an employee is unable to state his exact date of birth but can state the year, or year and the month of birth, July 1, or the 16th day of the month respectively may be treated as the date of birth. (d) If an employee is unable to state even the year of birth, a certificate from a Medical Officer approved by the Corporation specifying the approximate year may be accepted for the purposes of computing age. (e) When an employee is required to retire on attaining a specified age the day on which he attains that age is reckoned as non- working day, and he must retire with effect from and including that day." 4. It will also be relevant to refer to the con-litions of the above notice which are as under: - (1) Any permanent employee of the State Government who is either directly appointed with RSRTC or who has been selected for appointment by the Corporation shall cease to be an employee of the service of the Corporation. 2) After his appointment an employee of the State Govt. who has been absorbed in the service of the RSRTC shall be governed by the service Rules of the Corporation. He shall be provided with the copy of the service Rules of the Corporation so as to be apprised of the terms of the service in the Corporation. 5. The petitioner has further contended that in pursuance of para 4 of the terms and condi-tions of option notice as aforesaid and after carefully having read the Regulations with a particular reference to Regulation 7(a), the petitioner submitted his option within the stipulated period with the Corporation on May 12, 1966. Consequently the State Government vide its order, dated June 30, 1966 transferred the services of the petitioner to the Corporation and the Corporation vide its order, dated July 15, 1967 also accepted the said transfer with a specific mention that the services of the petitioner henceforth will be governed by the Regulations of the Corporation w.e.f. August 15, 1965 which came into force w.e.f. August 15, 1965 although the petitioner has ceased to be an employee of the State Government w.e.f. July 15, 1967, i. e., the date of acceptance of the services of the petitioner by the Corporation. 6. It has been contended that soon after joining the service of the Corporation, the petitioner represented to the Corporation for change of his date of birth as the same had been incorrectly recorded in the service records as January 13, 1934 instead of September 13, 1934. As a result of this incorrect entry in the service record of the petitioner, he was made to retire prematurely on January 31, 1992 instead of September 31, 1992. An inquiry was initiated into the matter but with no results. The petitioner again represented for change in the date of birth on May 26, 1979 and the Additional General Manager (P) of the Corporation vide his letter dated December 21, 1979 informed the petitioner that as per the Govt. Notification dated January 24, 1979 it was not possible to change the date of birth in service book because in the Matriculation Certificate furnished by the petitioner the date of birth has been mentioned as January 13, 1934. 7. The petitioner has further contended that inspite of the aforesaid representations the respondent Corporation did not communicate its decision to the petitioner and had arbitrarily verified the date of birth of the petitioner from the service records as January 13, 1934 in his service book. That on the basis of incorrect entry in the service book of the petitioner, i.e., January 13, 1934, the petitioner was made to retire from service of the Corporation on January 31, 1992 as General Manager, Law and Secretary to the Board and was prematurely retired from service since he was eligible to continue in service upto September 30, 1992, i.e., 8 months prior to his attaining the age of superannuation. The petitioner has sought a direction from this Court for reinstatement in service on the post of General Manager, Law and Secretary to the Board which he held on January 31, 1992 and has further sought a direction that the intervening period i.e., February 1, 1992 to date be taken as the period spent on duty and has further sought the payment of full salary emoluments and all consequential benefits pertaining to pay etc. 8. The above contentions of the petitioner have been controverted by the respondents on the grounds interalia that the date of birth which has been mentioned by the petitioner on the basis of Middle School Certificate is not authentic and correct, since the authentic proof of date of birth which has always been accepted as correct is the Matriculation Certificate and not the Middle School Certificate. In the Matriculation Certificate the correct date of birth of the petitioner has been recorded as January 13, 1934, whereas in the Middle School Certificate it is mentioned as September 13, 1934. The petitioner was initially appointed by the State Government on the basis of High School Certificate in which his date of birth was shown as January 13, 1934. It has further been contended that if the petitioner was having any grievance against incorrect recording of his date of birth in the service book he should have raised this grievance at the very outset of his initial appointment but instead he chose to remain silent and raised this grievance after having joined the services of the Corporation, at the time of joining the service with the State Government on the post of LDC on August 10, 1953, the petitioner had submitted his High School Certificate in which the date of birth is shown as January 13, 1934. It is thereafter that the petitioner's services were transferred to the respondent Corporation and earlier he was treated as on deputation and an option was invited from the petitioner as to whether he would like to remain with the Corporation or to revert back to the State Government and the petitioner exercised his option for his continuity in service with the Corporation. The records from the State Government were called for and in the said records the date of birth of the petitioner which was shown as January 13, 1934 continued to be the same with the Corporation and hence there was no change in the records of the Corporation and even in pursuance of Regulation 7(a) of the Regulations an authentic proof of date of birth is the High School Certificate which is always accepted as authentic version with regard to the proof of age at the time of his appointment. As per Regulation 7(a) of the Regulations it has to be submitted within three months of the date of joining the employment. It is only when the said proof is not available, then the employee concerned may be required to furnish alternative proof such as Municipal Birth Certificate, horoscope, certificate from the Medical Officer of the Corpo-ration etc. as per the said Regulations. 9. I have examined this Rule with the assistance of the learned counsel for the parties. I am of the considered opinion that the petitioner is not entitled to any benefit on account of date of birth, since the date of birth of the petitioner which has been correctly recorded in the service book of the petitioner at the time of his initial appointment as LDC on the basis of his Matriculation Certificate obtained from the Board of Secondary Education; Madhya Pradesh of the year 1952 is January 13, 1934 which is the correct date of birth. In accordance with the said Certificate the petitioner has been correctly retired from the services of the Corporation on attaining the age of superannuation, i.e., January 31, 1992 and hence he was not eligible to continue in service upto September 30, 1992 as so contended by the petitioner. Hence it is not a case of premature retirement of the petitioner from service of the Corporation but the petitioner has been rightly made to retire after having attained the age of superannuation, i.e., January 31, 1992, hence it cannot be said that the retirement of the petitioner was directed by the Corporation contrary to Regulation 7(1) (b) of the Regulations as so contended by the petitioner according to which the authentic proof which may be accepted by the employer as on the date of joining the service is the date of birth given in the Matriculation Certificate. 10. I am fortified in my observations from the judgment of the Apex Court in the matter of Collector of Madras and Anr. v. K. Rajamanickam (1995-II- LLJ-677), wherein on the basis of recorded date of birth, the respondent was retired from service on attaining the age of superannuation on January 31, 1993 which he had disputed. The State Administrative Tribunal allowed his claim and under threats of contempt proceedings, the department was compelled to reinstate petitioner on February 7, 1994. The Tribunal's order was challenged before the Apex Court and the Apex Court had examined all the records, found that the Tribunal's order was passed on improper evidence. The Apex Court while allowing the appeal of the department held that it was not open to the Respondent to challenge the date of birth which was recorded in the service records at the time of joining the service, since it was not open to the employee to have challenged the same at a belated stage either on the basis of horoscope evidence or oral submissions which were held unbelievable. In the matter of S.S. Sandhu v. Union of India 1983 SLJ 475 (Delhi), the High Court observed as under: "Onus would fall heavily on anyone who wanted to say that the date of birth entered in the Matriculation Certificate was wrong." The High Court accordingly rejected the petitioner's contention who had challenged the date of birth which was correctly recorded by the department on the ground that the authentic evidence with regard to the proof of age was what was recorded in the Matriculation Certificate. Likewise in the matter of Devidas Banerji v. Bank of India 1991 (4) SLR 590 (Cal), the High Court held as under:- "Unless there is cogent reason to reject the Matriculation Certificate, it would ordinarily be accepted as reflecting correct date of birth." Likewise in the matter of R. S. Mittal v. Union of India and Ors. 1992 WLR 83 (Raj), it was held that "there is presumption of correctness of an entry as to the date of birth in Matriculation Certificate and the service book and this presumption must be rebutted by reliable and unimpeachable evidence failing which the existing entry is presumed to be correct and cannot be altered." 11. I have heard learned counsel for the parties at length and also perused the relevant documents on the record. I am of the opinion that the petition deserves to be rejected. The petitioner has failed to furnish any cogent and reliable evidence with a view to challenge the date of birth which has been correctly recorded in the service record of the petitioner which he had himself submitted at the time of joining his service earlier with the State Government as LDC and subsequently with the Corporation respondent, the respondents have not committed any illegality in retiring the petitioner on his attaining the age of superannuation, i.e. January 31, 1992 which was absolutely in accordance with the Regulations. Since the petitioner has challenged the intended date of his retirement on the ground that he has been prematurely retired, the presumption to rebut the same by reliable and unimpeachable evidence was heavily on the petitioner and since he has failed to rebut that presumption, I am of the opinion that the petition deserves to be rejected. 12. The writ petition is accordingly dismissed with no order as to costs.

Author: A Madan

Bhanwar Lal Verma vs Rajasthan State Road Transport ... on 8 November, 1996

Rajasthan High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20075 of 2008 RAZAQUE ANSARI Versus STATE OF BIHAR ----------- U.K. (Sheema Ali Khan,J) 3. 10.7.2008. Heard the counsel for the petitioner and counsel appearing on behalf of the State. The petitioner is an accused in a case under Section 302 of the Indian Penal Code. Learned counsel for the petitioner submits that due to certain provocation over cutting of a tree, the petitioner who was armed with a 'Lathi' gave a single blow to the deceased which hit him on the head. It is further submitted that there is no repetition of blow on the deceased. The petitioner has remained in custody since 22.7.2006. Considering the aforesaid fact, the petitioner Razaque Ansari is directed to be released on bail on furnishing bail bond of Rs.10,000/-(Ten Thousand) with two sureties of the like amount each to the satisfaction of the Additional Sessions Judge, F.T.C., East Champaran, Motihari in connection with Sessions Trial No.45 of 2007 arising out of Paharpur P. S. Case No. 86 of 2006.

Razaque Ansari vs State Of Bihar on 10 July, 2008

Patna High Court - Orders

[Section 2(1)] [Section 2] [Complete Act]

Central Government Act

ORDER Madan B. Lokur, J. 1. The Respondent, in this appeal under Clause X of the Letters Patent, joined the Central Reserve Police Force (for short the CRPF) as a Constable sometime in 1964. He was subsequently appointed as a Lower Division Clerk in 1967. He worked in several stations and in May, 1971 he was transferred to Avadi near Madras city. 2. On 5th July, 1971 he applied for earned leave for the period from 12th to 26th July, 1971. This leave was not sanctioned to him. The Respondent then applied for casual leave on 22nd July, 1971 for attending to some urgent work in Madras. Even though no decision was communicated to him on this application, the Respondent proceeded on leave on 22nd July, 1971 and returned back to Avadi the same evening. The next day, that is, 23rd July, 1971 he again applied for casual leave for a day since he was not wall. He did not turn up for his duties on that date and rejoined on 24th July, 1971. 3. On 26th July, 1971 the Respondent was issued a memorandum wherein it was stated that he had availed two days earned leave (for 22nd and 23rd July, 1971) without prior sanction. The Respondent replied to this memorandum stating that he had taken casual leave and not earned leave. 4. On 27th July, 1971 the Respondent was again absent from duty allegedly due to some eye problem, which we were told was conjunctivitis, which was apparently rampant in Madras at that time. The Respondent continued to remain absent from duty and on 30th July, 1971 he sent an application for grant of earned leave on medical grounds unto 2nd August, 1971. This application was not accompanied by a medical certificate of an authorised medical attendant, although the Respondent had submitted a medical certificate issued by a registered medical practitioner. 5. Thereafter, on 3rd August, 1971 the Respondent applied for extension of his leave and he stated in his application that he would produce a medical certificate on resumption of duty. 6. The Respondent resumed duty on 6th August, 1971 when he produced a fitness-cum-medical certificate. 7. On these facts, the Respondent was issued a charge-sheet dated 7th September, 1971. Broadly, the allegation against the Respondent were that he had availed earned leave on 22nd and 23rd July, 1971 without prior, sanction ; that he had remained absent from duty form 27th July, 1971 for which he sent an application only on 30th July, 1971 but this was not accompanied by a medical certificate of an authorised medical practitioner; that he had remained absent during this period without forwarding his leave address; and that he had again remained absent from duty from 3rd August, 1971 to 5th August, 1971 without a medical certificate and leave address. It was alleged that the Respondent had wilfully absented himself from duty and created grounds to avoid a second medical opinion. 8. On 23rd September, 1971 the Respondent sent his reply to the charge sheet denying the various allegations levelled against him and also stating that he was not aware that he was not entitled to any casual leave. In view, of the response given by the Respondent, a departmental enquiry was held and the Enquiry Officer submitted his report dated 11th December, 1971 finding the Respondent guilty of the allegations levelled against him. 9. On 8th/14th April, 1972 the Deputy Inspector General in the CRPF passed an order dismissing the Respondent from service. As per the dismissal order, what weighed with the Deputy Inspector General was that the Respondent had remained absent from duty on 22nd and 23rd July, 1971 with out prior sanction and that he was absent without leave from 27th July, 1971 without a medical certificate from an authorised medical practitioner and that he sent his application quite late so that it was not possible to take a second medical opinion. 10. The Respondent filed an appeal against his dismissal but the Inspector General of Police in the CRPF rejected his appeal. A subsequent representation by the Respondent was also rejected by the Director General of the CRPF on 29th January, 1973. This led to the Respondent filing Civil Writ Petition No. 1023 which was ultimately allowed by a learned Single Judge of this Court by the impugned order dated 7th January, 1982. 11. The learned Central Government Standing Counsel made rather elaborate submissions before us on behalf of the Appellants. His first contention was that there were no procedural irregularities in the conduct of the inquiry. This position was conceded before us by learned counsel for the Respondent. Indeed, he had very fairly conceded this even before the learned Single Judge. 12. The second submission made by learned counsel for the Appellants was that the Respondent had not taken prior sanction for his leave on 22nd and 23rd July, 1971. The third contention was that the Respondent had created a situation whereby the Appellants could not take a second medical opinion when he went on leave from 27th July, 1971. It was submitted that a medical certificate was furnished by the Respondent only on 30th July, 1971 along with a letter/application for leave till 2nd August, 1971. This did not give the Appellants sufficient time to seek a second medical opinion; moreover, it was submitted that even if the Appellants had sufficient time to take a second medical opinion, they could not have done so because the Respondent did not give his contact address while on leave. It was submitted that even thereafter the Respondent was on leave from 3rd August, 1971 till 5th August, 1971 without any medical certificate or leave address. This clearly that the disciplinary authorities had not come to any perverse conclusion; on the contrary, their conclusion was not only eminently reasonable but, in any case, it was a possible view that could have been taken. 13. So far as the second submission made by learned counsel for the Appellants is concerned, this proceeds on a slight misconception. It is true that the Respondent did not take prior sanction before availing leave on 22nd and 23rd July, 1971. But, the necessity of taking prior sanction arises only in a case where earned leave is applied for and not in a case where casual leave is applied for. In the present case, the Respondent had applied for casual leave but since he was not entitled to causal leave, his application was converted into an application for earned leave. Because of this conversion he was required to obtain prior sanction. Since this convention was done by the Appellants without any reference to the Respondent, there could not have been any occasion for him to have obtained prior sanction. It was not the case of the Appellants that even for taking casual leave, prior sanction was necessary. If this was so, then the Appellants would have been justified in contending that the Respondent was obliged to take prior sanction and it was of no relevance whether the application was for casual leave or for earned leave. However, as this was not the case set up by the Appellants, they could not have penalised the Respondent for not taking prior sanction before proceeding on casual leave on 22nd July, 1971, which leave was later on converted into earned leave. 14. The second aspect of this submission is that the leave of the Respondent for these two days was unauthorized. We do not agree with learned counsel. By converting the "unauthorized absence" into earned leave, the Appellants washed away the sin, as it were, committed by the Respondent. We see no reason to differ with the learned Single Judge on this aspect of the case and we affirm his finding in this regard. 15. So far as the third contention concerned, we are of the view that there is some substance in what learned counsel for the Appellants has submitted. Admittedly, the Respondent absented himself from 27th July, 1971 without any intimation. His whereabouts were not known even when he submitted a leave application on 30th July, 1971. In this application, he suggested that he would be rejoining duties on 3rd August, 1971. This gave the Appellants only a couple of days time to obtain a second medical opinion, which they say was insufficient. Even if it is assumed that the Appellants had sufficient time to seek a second medical opinion, they could not have done so without knowing the whereabouts of the Respondent who did not disclose his leave address. 16. The learned Single Judge took the view that the Appellants were not able show that they wanted to take a second medical opinion, nor were they able to show what efforts they had made to take a second medical opinion. We are of the view that the question whether the Appellants wanted to take a second medical opinion or not would arise only if it was possible for them to take a second medical opinion. In the absence of the leave address of the Respondent, even if the Appellants wanted to take a second medical opinion, they could not have done so. In other words, the Appellants were "prevented" from exercising their option of taking a second medical opinion. Taking steps to exercise an option which is not there is really a meaningless exercise. Quite apart from this, the Appellants did not have sufficient time to take a second medical opinion, even if they wanted to do so. Effectively, the Appellants had hardly two or three days time in which to take a second medical opinion. Knowing the speed at which the government agencies work, this period was not sufficient. One cannot (and should not ) be unmindful of hard realities. 17. The position with regard to the period from 3rd August to 5th August, 1971 is even worse. The Respondent did not even bother to send a medical certificate. He merely stated in his leave application that when he resumes duty, he will produce the medical certification, which he did. There is nothing to suggest why he could not furnish a medical certificate along with his leave application. Surely, the Appellants are entitled to expect a greater degree of responsibility from their officer. For this period, in any case, therefore, the Appellants were completely prevented from taking a second medical opinion because the fitness-cum-medical certificate was furnished by the Respondent only after he resumed duty. 18. It must not be forgotten that in this appeal, we are concerned with a member of one of the armed forces of that Union. Such persons are, quite naturally, obliged to maintain a higher degree of discipline that most others. The conduct of the Respondent shows that he absented himself from 27th July, 1971 and did not even bother to inform anybody about anything till 30th July, 1971 when he suggested that he would be rejoining duties on 3rd August, 1971. Then on 3rd August, 1971 he extended his absence but this time without any medical certificate which he produced only after he re-joined duties on 6th August, 1971. As we have held above, for the first period, he effectively precluded the Appellants from taking a second medical opinion but for the second period he made it completely impossible for the Appellants to take a second medical opinion. This sort of a conduct is totally unbecoming of a member of the armed forces of the Union. 19. There was much debate on the question whether the Respondent was obliged to give his contact address while on leave. The learned Single Judge come to the conclusion that there was no such obligation cast upon the Respondent. Learned counsel for the Appellants was not in a position to show any rules which required the Respondent to forward his leave address. After the conclusion of the hearing, learned counsel of the Appellants filed an affidavit relying on the CRPF Manual. The photocopy of the CRPF Manual annexed to the affidavit is of 1973, which is much after the events that we are dealing with. That will, therefore, not lead us anywhere. 20. However, Chapter X of the CRPF Rules, 1955 does deal with leave and leave concessions. Rule 90 of the CRPF Rules reads as follows : "90. Recall from leave, (a) Members of the Force on leave may be recalled at any time by authority empowered to sanction their leave. (b) They may be directed to report for duty either at headquarters or to proceed direct to the place at which their services are required. (c) In either case, they will be entitled to travelling allowance as on tour (by the shortest route) for the return journey. If a free railway pass is in the possession of a member of the Force and it can be used for the return journey, it should be so used. In that case, the member of the Force will be entitled to the balance if any of the travelling allowance admissible. If the pass cannot be utilised, it should be surrendered, whereupon it shall lapse. The member of the Force concerned in that case will be entitled to the full travelling allowance admissible." 21. This rule clearly states that a member of the CRPF can be recalled while on leave. This is possible only if it is known where that person is residing while on leave. The inarticulate premises, therefore, is that such a person should indicate his contact address while going on leave so that the leave sanctioning authority can recall that person from his leave, if necessary. We are, therefore, of the view that the Respondent, when he absented himself from 27th July, 1971 onwards, was under an obligation to give his contact address so that he could be recalled, if necessary. He failed to do this. In any case, conjunctivitis, from which the Respondent was allegedly suffering, is not such a debilitating disease which could make it impossible for the Respondent to disclose his whereabouts. 22. Learned counsel for the Respondent did submit that his client had instructed a friend on 27th July, 1971 to inform the Appellants about his absence but unfortunately the intimation was given only on 30th July, 1971 for which the Respondent cannot be blamed. The Respondent did not produce any such evidence before the inquiry officer and this merely appears to be a self serving statement made by him. 23. Learned counsel for the Respondent submitted that his client was residing near the Group Centre, Avadi and the Appellants could have very easily verified the ailment of the Respondent. This assertion by learned counsel does not appear to be correct in view of what has been stated in the counter affidavit filed to the writ petition. (No rejoinder was filed to this). It is stated in reply to paragraphs 7 to 8 as follows : "............It may be pointed out that Group Centre, Avadi maintains a well-equipped hospital which is attended by a number of doctors daily. The petitioner was entitled to treatment at this hospital. The petitioner, if he was actually ill, could have gone to the medical centre and obtained a certificate from the authorised medical attendant. On the contrary, he obtained a medical certificate from a private physician of Madras City which place is at a distance of nearly 20 miles from avadi where the petitioner admitted that he was residing during his alleged illness. It is surprising that the petitioner could not attend a hospital which was so close to him nor could he submit his leave application in time but could travel 20 miles for his treatment". 24. Learned counsel for the appellants submitted that the medical certificate was not of an authorised medical attendant. As such, the Respondent had violated the provisions of S.R. 229 (a) which reads as follows : "S.R. 229 (a) Every application for leave on medical certificate made by a non-gazetted Government servant shall be accompanied by a medical certificate in the form prescribed below this rule given by a registered medical practitioner defining as clearly as possible the nature and probable duration of the illness, or by a request for the issue of a requisition for examination by a medical officer of Government. (b) -(c) XXX XXX XXX XXX" 25. A bare perusal of this provision shows that a medical certificate is required to be given by a registered medical practitioner. The form prescribed below this rule also mentions "Government Medical Attendant or other registered practitioner". The learned Single Judge had seen the original records of the case and had come to the conclusion that the medical certificate submitted by the Respondent was that of a registered medical practitioner. We have no reason to doubt this and, therefore, we find no fault with the medical certificate furnished by the Respondent since it was in accordance with S.R. 229 (a). 26. For the reasons given above, we are in respectful disagreement with the learned Single Judge. The Appellants were entitled to take the view that the absence of the Respondent (and the manner in which he acquitted himself) from 27th July, 1971 to 5th August, 1971 amounted to grave misconduct. We are of the view that the findings arrived at by the appellants in this regard were not perverse. For the reasons indicated by us above, we are satisfied that since the Appellants were entitled to view the absence of the Respondent as a grave misconduct, they were also entitled to conclude that this warranted his dismissal from service. In any event, we cannot sit in Judgment over the quantum of punishment imposed on the Respondent. 27. By an interim order dated 19th October, 1982, a Division Bench of this Court had directed that the arrears of pay and allowances will be paid to the Respondent and as regards the future, the Respondent will be entitled to payment of half the salary and other allowances month by month till the disposal of the appeal. While we are not interfering with the dismissal of the Respondent from service, we do not think it would be appropriate to direct the Respondent to refund the amounts already received by him. But, hereafter, the Respondent will not be entitled to the benefit of the interim order dated 19th October, 1982. 28. Accordingly, we set aside the order of the learned Single Judge dated 7th January, 1982 and restore the order of dismissal passed by the Appellants. The appeal is allowed but there will be no order as to costs.

Author: M B Lokur

Union Of India & Ors. vs N.N. Mishra on 10 March, 2000

Delhi High Court

JUDGMENT Shamsul Huda, J. 1. The defendants Nos. 3 to 6 are the appellants before us. The plaintiff brought his suit for a declaration that defendants Nos. 1 to 3 have no ganti interest in the disputed Mehal, that the entry in the Record of Rights was incorrect and that such entry, so far a it recognises the existence of a ganti right in the names of defendants Nos. 1 to 3 and the predecessors of defendants Nos. 4 to 7, may be ordered to be expunged. He made other prayers in the plaint to which it is unnecessary to refer. 2. The facts of the ease are set forth in the judgment of the Court below and need only be briefly stated. It appears that the Mehal in respect of which the suit is instituted was settled for a term of years with one Prannath Dhar. Prannath had created a ganti interest in favour of some of the defendants or their predecessors. His interest in the Mehal was sold on the 10th January 1906 by reason of his default in payment of Government revenue and was purchased by the plaintiff in the present suit. 3. It appears that shortly after the plaintiff's purchase on the 23rd June 1906, the Settlement Officer settled the rent payable for the Mehal and the settlement was made on the basis of the rent payable by the gantidars. The settlement holder, that is, the plaintiff in this suit, executed a kabuliyat in the year 1908 and in that kabuliyat he agreed to respect the recorded rights possessed by the under-tenure-holders, rights of the village headman and Ors. in the said estate. It cannot be denied that the right of the gantidars was a right that was at the time recorded. 4. The question that arises for our considerations is this:-- Can the plaintiff, having agreed to respect the right of the gantidar tenants, now ask for a declaration that no ganti right existed? It seems to me that on the authority of the two cases, Tapanidhi Raghunath Puri v. Pitambar Gajendra Mahapaty 5 C.L.J. 67 and Chandramoni Mohanti v. Manmatha Nath Mitter 5 Ind. Cas. 301 : 11 C.L.J. 68 he is bound to recognise the ganti tenure and cannot question its existence. 5. The learned Judge has decreed the plaintiff's suit on the findings that the gantidars were never in possession and exercised no right as gantidars. In my opinion that finding does not dispose of the question. It is not said that the plaintiff has acquired any title by adverse possession. If he cannot question the title of the gantidars by reason of the kabuliyat which he executed, it seems to me that he cannot get a declaration that the ganti right does not exist. 6. It has been argued before us that some of the gantidars did on certain occasions renounce all claim to the ganti. The answer is that the suit is not based on the ground of abandonment. There could be no abandonment by some of the gantidars only. No issue was raised on this point. 7. On behalf of the respondents reliance has been placed on the cases of Gour Chandra Saha v. Mani Mohan Sen 32 C. 463; Jahandar Baksh Mallick v. Ram Lal Hazra 5 Ind. Cas. 565 : 11 C.L.J. 364 : 11 C.W.N. 470 : 37 C.449 and Jamna Das v. Ram Autar Pandey 13 Ind. Cas. 304 : 16 C.W.N. 97 : 11 M.L.T. 6 : 9 A.L.J 37 : (1912) M.W.N. 32 : 15 C.L.J. 68 : 14 Bom. L.R. 1 : 21 M.L.J. 1158 : 34 A. 63 : 39 I.A. 7. (P.C). We have examined these cases and, in our opinion, they do not affect the present question. 8. It has also been argued before us that the original gantidars have parted with their ganti interest in favour of defendants Nos. 8, 9 and 10 ans. therefore, the original gantidars have no rights to prefer any appeal to this Court as they have no longer any interest left in the ganti. In my opinion that question cannot be gone into. The defendants explain in their written statements that these sales were merely colourable transactions and the purchasers were mere benamdars. No issue was raised on the question and such controversy cannot, for the first time, be raised in second appeal. I, therefore, think that the decision of the Courts below decreeing the plaintiff's suit cannot be supported and must be set aside. I would accordingly decree this appeal with costs and dismiss the suit of the plaintiff with costs of all the Courts. Walmsley, J. 9. I agree.

Author: S Huda

Jarip Sardar And Anr. vs Jogendra Nath Chatterjee And Ors. on 20 June, 1919

Calcutta High Court

ORDER Jyoti Balasundaram, Vice President 1. The issues for determination in the above appeal are whether the concessional rate of duty as per notification 16/97-CE dated 1.4.1997 (for small scale units) is admissible to chocolates cleared by the appellants herein during the period March to July, 1997 and whether the extended period of limitation is applicable against them. 2. The benefit of SSI exemption has been denied to the appellants on the ground that the chocolates bore the brand name "ASSORTED TAJ CHOCOLATES" owned by the Indian Group of Hotels Co. Ltd. and not owned by the assessees, while the extended period has been invoked on the ground that in the classification declaration No. 1/97-98 dated 1.4.1997 under Rule 173B of the Central Excise Rules, they claimed the benefit of exemption and declared that that they do not manufacture the product under the brand name of any other person or company, thereby leading to suppression of vital facts from the Revenue authorities. 3. We have heard both sides. 4. The finding that the name "ASSORTED TAJ CHOCOLATES" is the brand name of some other company is based upon the statement of Shri Krishna M. Jorkar, chief executive and production in-charge of the assessee and Shri Ajay Bardhan, accounts manager of the assessee. Shri Jorkar has stated that in addition to their own brand name "Birdys by Taj" which they put on cartons meant for product manufactured by them, they are clearing chocolates bearing brand name "ASSORTED TAJ CHOCOLATES" belonging to Indian Hotels Co. Ltd. and produced samples of packing cartons used for "ASSORTED TAJ CHOCOLATES" and also deposed that these cartons are sealed with the golden stickers which have the wordings "Taj Group of Hotels India" printed thereon and that the Taj Mahal Hotel Bombay is one of the hotels of Indian Hotels Co. Ltd. and was manufacturing their own "ASSORTED TAJ CHOCOLATES" and other Taj branded products in their own hotel premises for sale. Shri Bardhan has confirmed that "ASSORTED TAJ CHOCOLATES" was the brand name of another person. It is significant to note that these statements have not been retracted, and therefore constitutes sufficient evidence to hold that the goods in question bore a brand name not belonging to the assessees. The contention of the learned Counsel for the appellants that the burden of proof cast upon the Revenue to show that the name "ASSORTED TAJ CHOCOLATES" belonged to another person, has not been discharged for the reason that the Taj Hotels Group has not confirmed that the above mentioned name belonged to them, is not tenable in the light of the statements of Shri Jorkar and Shri Bardhan which we held are sufficient to establish the case of the Revenue regarding use of someone else's brand name so as to disentitle the appellants to the benefit of the SSI notification. 5. The contention that since the chocolates in question were not sold by The Indian Hotels Co. Ltd., there is no connection in the course of trade between the goods and the person owning the brand name so as to debar the appellants from the benefit of exemption under SSI notification is not tenable in view of the statement of Shri Jorkar that Taj Mahal Hotel soils chocolates bearing their brand name "ASSORTED TAJ CHOCOLATES" in view of the fact that an MRP is printed on the labels of the cartons used for packing chocolates, filed by the appellants along with the appeal and which have not been disputed to be the relevant labels. In any event, in the light of the recent judgment of the apex court in Kohinoor Elastics Pvt. Ltd. v. CCE, Indore 2005 (188) ELT 3 (SC), that SSI exemption is available only to goods not bearing a brand name or trade name of another person and that the exemption is lost even if such goods are manufactured for captive consumption, we hold that the exemption is not available for the goods in question even if the appellants have manufactured the chocolates and delivered them to that customer for the reason that the course of trade for such manufacturer is such manufacture and sale as seen from paragraph 7 of the apex court's judgment cited supra. Although learned Counsel attempts to persuade or to take a view that the above judgment is not applicable in the case of goods which are not sold and would apply only to cases where intermediate products are used in the manufacture of final products which are admittedly sold (in that case the goods in question were elastics which were affixed on undergarments which were then sold) and to final products cleared and sold as such, we are not so persuaded as no such restriction appears in the judgment. 6. In the light of the above, we hold that the benefit of notification 16/97-CE is not admissible for the goods in question. 7. The proviso to Section 11A(1) of the Central Excise Act is available to the department as the appellants had misdeclared that they were not manufacturing the product in the brand name of any other person and thus suppressed the fact of use of brand name of another person on their goods. The intention to evade payment of duty can be gleaned from this deliberate misdeclaration. The submission that the declaration of non-user of someone else's brand name is only in respect of bakery items other than chocolates is devoid of merit as the relevant declaration in which the appellants have stated that they are manufacturing products in their brand name and not in the brand name of any other person or company is only for two products, viz. chocolates in any form whether or not containing "nuts, fruits..." and "cakes and pastry of different sizes of different flavours." 8. In the result, we uphold the duty demand. However, in the totality of the facts and circumstances of the case, we reduce the penalty to Rs. 3,00,000/- (Rupees three lakhs only). 9. The appeal is thus partly allowed.

Taj Birdys Food Services Ltd. vs Commissioner Of Central Excise on 2 March, 2006

Customs, Excise and Gold Tribunal - Mumbai

Central Information Commission ***** No.CIC/OK/A/2007/00033 Dated: 22 January 2009 Name of the Complainant : Shri V.M. Thareja GG-111/30, Vikas Puri New Delhi-110018 Name of the Public Authority : Delhi Development Authority Background: Shri V.M. Thareja of New Delhi filed an RTI-application with the Public Information Officer, Delhi Development Authority, on 31 July 2006, seeking information regarding the distance criteria between the H.S. School (Oxford Public School) Bodella Village and the Outer Ring Road as per the DDA scale and whether the Tot-lot land mentioned in the blue print of Bodella Residential Scheme was included in the Group Housing Scheme Plots. The PIO vide his letter dated 20 September 2006 replied to the RTI-application. In the meanwhile, the Appellant on not getting any reply within the stipulated period of 30 days, filed an appeal with the first Appellate Authority on 19 September and thereafter approached the Central Information Commission with a Second Appeal on 9 January 2007. The Bench of Dr. O.P. Kejariwal, Information Commissioner, heard the matter on 17 May 2007. 2. During the above hearing, the Appellants stated that they wanted two pieces of information: first the distance criteria between the Oxford Public School, Village Bodella and the Outer Ring Road as per the DDA scale. The Respondents stated that they had showed to the Appellants the plan of the area. However, this distance was a part of the detailed plan which was not available with them. Actually, the Appellant said that they had themselves measured this distance (836 meters approximately). What the Appellants wanted was an official confirmation of the fact. The Commission directed the Respondents to measure this distance by scale on their map and confirm. The second piece of information related to the Tot-lot land mentioned in the blue print of the Bodella Residential Scheme in Group Housing plots. The Commission directed the Respondents to make available to the Appellant the information map showing the Tot-lot land in that Scheme. The Commission further directed that the compliance of both these orders should be done by 15 May 2007. 3. Not satisfied with the information supplied by the PIO after the Commission's orders, the Appellant approached the Commission with a request to hear the case again. The Bench of Dr. O.P. Kejariwal, Information Commissioner, heard the matter on 7 May 2008. 4. The Commission heard both the sides in a case which had not only been heard earlier but action also had been taken on a complaint of non-compliance of the Commission's orders by the Respondents. However, it was obvious that the case was still not settled. The issue related to the measurement of a distance between the Oxford School, Vikas Puri and the Outer Ring Road in the first instance and the status of a Tot Lot area in the land allotted to a Cooperative Group Housing Society. During the hearing, the Appellant stated that in response to the Respondent's letter, he had gone to the office to get the information but was treated very shabbily and in fact was even threatened. He stated that now he was even afraid of going there again. Under the circumstances, the Commission directed the Respondents to provide the technical expertise to the Appellant who would bring his own technical hand and the two technical persons would sit down and reconcile the two different pieces of data regarding the measurement of the distance as stated above. 5. During the hearing, the Appellant stated that in view of the behaviour of the officials concerned, he was now very hesitant to go to the office again and wanted the Respondents to call them on the site as per their convenience so that this exercise could be carried on at the site itself. The Commission sees no reason why this request of the Appellants should not be agreed to. (The Appellant wanted their phone numbers to be included in the Order. These are 9818758484 & 9811399540). The Commission ordered that this exercise should be completed by 5 June 2008. 6. The Commission also warned the Respondents that in case this complaint of misbehaviour on the part of them was repeated, the Commission it would be treated extremely severely and heavy penalties imposed upon the erring officials. After all, it was often seen that the Government Servants who were also called 'Civil Servants' were anything but civil and the Commission saw no reason grounds to doubt what the Appellant had stated. It was incumbent on the Public Authorities not only to disclose information but also to treat all RTI- applicants with respect and consideration. 7. The Commission noted that as regards the status of the Tot-lot land in the area allotted to the Cooperative Group Housing Society, the Appellant stated that he merely wanted a confirmation from the Respondents that whatever piece of land was allotted for the particular Group Housing Society did or did not contain the Tot-lot land, and the reasons why this land had been allotted after the finalization of the Group Housing Society Scheme. He has sought information on two Group Housing Societies, namely, Engineers India Group Housing Society and Gujranwala Cooperative Group Housing Society, Bodhela, Vikaspuri. 8. During the hearing, the Respondents said that as far as the information regarding the status of a Tot-lot land in the area allotted to Group Housing Societies was concerned, it would take them time to collect the information from the Department of Land and Architect Wing. The Commission accepted the submission and granted them time upto 20 June 2008 to collect the information and supply it to the Appellant. 9. The Appellant, however, approached the Commission again with a non- compliance of the Commission's orders, and the Commission decided to hold another hearing in this case. 10. The Bench of Dr. O.P. Kejariwal, Information Commissioner, heard the matter on 12 January 2009. 11. Shri R.K. Jain, Director (Plg), represented the Respondents. 12. The Appellant, Shri V.M. Thareja, was represented by Shri G.L. Nagpaul and Shri Devinder Singh. Decision: 13. The Commission heard both the sides and found that part of the information had been provided to the Appellant. According to the Respondents, the part of information which could not be provided by them did not pertain to their office but to the Building Department of the DDA who approved the Cooperative Group Housing Layout Plan, and in this specific case, Engineers India Group Housing Society and Gujranwala Cooperative Group Housing Society, Bodhela, Vikaspuri. 14. The earlier Order of the Commission dated 29 May 2008 provided for the Appellant to send a technical hand to the Respondent's office and for the Respondents to provide the technical expertise to the Appellant so that both the technical experts could jointly look into the documents and get the correct information. This has not been done so far. 15. The Appellant has desired that the area specifications of both the sites, that is, Engineers India Group Housing Society and Gujranwala Cooperative Group Housing Society, Bodhela, Vikaspuri should be mentioned in detail giving length of each site. 16. Under the circumstances, the Commission now directs: (i) the Respondents to clarify the information received from the Department mentioned above so that the Appellant does not have to run from office to office to get that information. It is only natural for a Section of that the same office to get the information which is under the custody of another Section in the same Department. This they should do by 17 February 2009; (ii) after this date, the Appellants will get in touch with the Respondent's office to fix up a date when the two technical experts - one from the side of the Appellant and the other from the Respondents ― to go over all the documents and to also physically visit the site so that the correct information is provided to the Appellant; and (iii) in case of a dispute, the Appellant, after having the contradictory pieces of information, may approach the senior authorities in the DDA for reconciliation of the difference. Sd/- (O.P. Kejariwal) Information Commissioner Authenticated true copy: Sd/- (G. Subramanian) Assistant Registrar Cc:

Shri V.M. Thareja vs Delhi Development Authority on 22 January, 2009

Central Information Commission

JUDGMENT S.B. Sinha, J. 1. The petitioner, an officer of the Bihar State Export Corporation Limited (respondent No. 2) seeks for issuance of an appropriate writ for quashing a memo dated 7.4.1989, as contained in Annexure-1 to the writ application, whereby and whereunder the petitioner was informed that he would be holding the rank of Assistant Branch Manager with effect from the date of his appointment and was further directed to return the sum of Rs. 38,102.50 paise in instalments as mentioned therein. 2. The facts of this case are not much in dispute. 3. The petitioner was appointed as technical officer of the Export Inspections Council of India. On and from 2.7.1983, the petitioner was sent on deputation to the respondent No. 2 as it appears from letter dated 2nd July, 1973 issued by the Industries Department of the State of Bihar. It appears that the State of Bihar communicated a decision to appoint a petitioner in the post of Senior Export Executive-I. It was further directed that if the same was not possible and the vacancy may be filled by direct recruitment. The aforementioned fact appears from a letter dated 2nd July, 1983 issued by the State of Bihar to the Chairman-cum-Managing Director (respondent No. 2) which is contained in Annexure-2 to the writ application. From a letter dated 22nd August, 1983 it appears that the petitioner was deputed to the respondent No. 2, the corporation, in the scale of pay of Rs. 1350-2000 and other allowances admissible to him, for a period of two years. From a letter dated the 8th November, 1983, as contained in Annexure 4 to the writ application, it appears that the Export Council of India also conveyed to respondent No. 2 that it had no objection to allow Sri Narain to draw the aforesaid scale of pay of Rs. 1350-2000, which scale of pay is attached to the post of Senior Export Executive-I. By another letter dated 23rd January, 1984, the Export Inspection Council of India also communicated that it had do objection if the petitioner was absorbed permanently in the respondent No. 2 corporation subject to the conditions mentioned therein. By a letter dated 3rd February, 1984, which is contained in Annexure-6 to the writ application, Sri R.R. Prasad, the then Chairman-cum-Managing Director of respondent No. 2 brought to the notice to the Industrial Department, Govt. of Bihar, the proposal of respondent No. 2 to confirm the services of the petitioner in the post of Senior Export Executive-I. By a letter dated 29th/30th March, 1984, the State of Bihar, as contained in Annexure-7 to the writ application, in reply to the respondent No. 2's aforementioned letter dated 3rd February, 1984, conveyed to respondent No. 2 that the Industries Department had no objection to the absorption of the petitioner in the respondent-Corporation. However, it was stated therein that with regard to the payment of pay scale etc. a final decision may be taken with the approval of the Board of Directors, Industries Department and the Bureau of Public Enterprises. Thereafter, the proposal to absorb the petitioner permanently was placed in the meeting of the Board of Directors on 30th November, 1984 and the Board approved the said proposal. By a letter dated 21.12.1984, as contained in Annexure-9 to the writ application, the petitioner was directed to be absorbed as Senior Export Executive-I with effect from 30.11.1984. It was contended therein that, however, the pay and emoluments payable, which had been fixed by the Accountant General, Bihar, and approved by the Board of Directors, would be admissible to the petitioner after obtaining the approval thereof by the Bureau of Public Enterprises, Bihar, Patna. 4. It appears from a letter dated 25th August, 1987, issued by the Deputy Secretary, Industries Department, State of Bihar, that the Industries Department of the State of Bihar accorded approval of the scale of pay admissible to the petitioner in terms of the decision of the Board of Directors i.e. the scale of pay of Rs. 1340-1000 with the basic pay of Rs. 1925 payable from 1.12.1984. From an office order dated 9.11.1957 it appears that respondent No. 8 fixed the scale of pay of the petitioner of Rs. 1350-2000 with the initial basic pay of Rs. 1925 per month. To the utter surprise of the petitioner, however, the Board of Directors of the respondent No. 2 in its 37th meeting held on 1st October, 1988 decided to reduce the scale of pay of the petitioner from Rs. 1350-2000 to Rr. 1000-1820 and gave him the post of Assistant Branch Manager, instead of Marketing Manager, which was the lower in rank to the post of Senior Export Executive The petitioner thereafter filed a writ application in this Court challenging the aforementioned decision of the Board of Directors being C.W.J.C. No. 7905 of 1988 and the said order was quashed by a Division Bench of this Court by an order dated 17.2.1989, as contained in Annexure-1 to the writ application. By reason of the aforementioned order this Court directed the respondent No. 2 to give to the petitioner reasonable opportunity to show cause and to decide the case by passing a speaking order and in accordance with law. 5. Thereafter, a show cause notices were issued to him by the Chairman-cum-managing Director of the respondent No. 2, by notices dated 23.2.1989 and 2.3.1989, as contained in Annexures 17 and 17-A to the writ application. Pursuant to the aforementioned notices the petitioner showed cause. By reason of an office order dated 7.4.1989, the impugned order, which is contained la Annexure-1 to the writ application, was issued. 6. A counter affidavit has been filed on behalf of the respondent No. 2 wherein, inter alia it was urged that the petitioner was drawing the salary of Rs. 550-900 in his parent department and the purported proposal to absorb him in the scale of pay of Rs 1350-2000 was done by Sri R.R. Prasad, the then Chairman-cum-Managing Director of respondent No. 2 by way of an act of nepotism and or favouritism. It has further been contended that the decision to put the petitioner in the scale of pay of Rs. 1000-1820 was taken in view of the directions given in this behalf by the Beareau of Public Enterprises, It was further alleged that full facts had not been placed before the Board of Directors. It has further been alleged that the petitioner had been allowed to handle his own ills in the matter of making communication to the Industries Department, Accountant General of Bihar and other authorities, who had vital roles to play in the matter of absorption of the petitioner in the respondent No. 2 corporation. It has further been averred in the counter-affidavit that the petitioner was appointed against a reserved post, which was illegal. It was further alleged that the agenda of Item No. 33/22, which was placed before the Board of Directors on 30th November, 1984, was manipulated and a misleading one. It has further been asserted that in the matter of fixation of pay the recommendation of the Accountant General was brushed aside. 7. Before proceeding with the case further it may be stated that although along with the original writ application, a copy of the reserved order dated 7.4.1989 issued by the Chairman-cum-Managing Director of respondent No. 2 was not annexed, the same was purported to have annexed with a supplementary affidavit. It appears from the records of the case that a copy of the said affidavit was served upon the other side and the same was also filed in the Court, However, the said supplementary affidavit appears to have been misplaced. In this situation, the learned Counsel for the petitioner has placed on record a true copy of the supplementary affidavit which contains the aforementioned reasoned order passed by the Chairman-cum-Managing Director of the respondent No. 2. 8. Mr. Jawed Anwar, the learned Counsel appearing on behalf of respondent No. 2. has also placed on records a copy of the aforementioned order dated 7th April, 1989. Mr. Chandramauli Prasad, learned Counsel appearing on behalf of the petitioner, submitted that the impugned order is wholly illegal and without jurisdiction in as much as the petitioner was validly appointed in the post of Senior Export Executive in the scale of pay of Rs. 1350-2000, the Board of Directors could not have reduced his scale of pay as also the rank. According to the learned Counsel, reduction in the rank as also in scale of pay h permissible only in case of such employee, who had been promoted which is not applicable in this case. The learned Counsel in this connection has relied upon the decision of the Supreme Court in Hussain Saran Saheb Kaladgi v. State of Maharashtra . 9. The learned Counsel appearing on behalf of the petitioner further submitted that no illegality was committed by the Board of Directors in appointing the petitioner in the post of Senior Export Executive in the scale of pay of Rs. 1350-2000, which was commensurate with the direction of the Accountant General, Bihar, as contained in Annexure-B to the counter-affidavit and as the same was also approved by the Industries Department of the State of Bihar, as is evident from Annexure 12 to the petition, the learned Counsel submitted that once the Board of Directors of the respondent No. 2 passed a resolution appointing the petitioner in a particular scale of pay, it had no jurisdiction to resile from the said decision. The learned Counsel further submitted that the Corporation fixed the pay of the petition nor in the aforesaid pay scale according to the recommendation of A.G. Bihar (Annexure-B). 10. From a perusal of the purported reasoned order dated 7th April, 1989 it appears that the Chairman-cum-Managing Director had taken into consideration various nothings in the file without giving an opportunity to the petitioner to know the contents thereof and as such the said purported order is wholly illegal and without jurisdiction when violative of the principles of justice. The learned Counsel, in this connection, placed strongly reliance upon a decision of this Court in Ambika Devi v. State of Bihar and Ors. . 11. Mr. Jawed Anwar, the learned Counsel appearing on behalf of respondent No. 2, on the other hand, submitted that from a perusal of the letter of appointment issued to the petitioner, as contained in Annexure-9 to the writ application it would appear that the fixation of scale of pay of the petitioner was a conditional one to the effect that the same would be subject to the approval of the Bureau of Public Enterprises and the Bureau of Public Enterprise by its letter dated 30th September, 1988, as contained in Annexure-P to the counter-affidavit, gave its approval for absorption of the petitioner in the scale of pay of Rs. 1000-1820 only and thus the Board of Directors had no other option but to put the petitioner in the said scale of pay. The learned Counsel further submitted that the Dy. Secretary of the State of Bihar in issuing the letter dated 25.8.1987 exceeded its jurisdiction in as much as he being only an officer of the State of Bihar have no jurisdiction to approve the proposal of absorption of the petitioner as also to direct fixation of his scale of pay. The learned Counsel further submitted that the said letter apparently contains an error in view of the fact that although therein it was mentioned that in the matter of absorption of the petitioner as also fixation of his scale of pay, the Bureau of Public Enterprises has been consulted the said fact does not appears to be correct. 12. It appears that the entire action after passing of the order of this Court in C.W.J.C. No. 7905 of 1988 was talcum by the Chairman-cum-managing Director of the responded No. 2. Unfortunately the earlier decision of the Board of Directors being Item No. 37/17 of the proceeding of the 37th meeting of the Board of Directors held on 1st October, 1983 is not on record, although the said order was annexed in the aforementioned writ application as Annexure-15 thereof. It is neither doubt nor in dispute that the respondent No. 2 is 'State' within the meaning of Article 12 of the Constitution of India. It is further not in dispute that the respondent No. 2 being a company incorporated under the companies Act ; its affairs are to be managed by the Board of Directors. From the facts stated hereinbefore, it is evident that the matter in relation to the permanent absorption of the petitioner had to be placed before the Board of Directors in its meeting dated the 30th November, 1984 and the petitioner could be absorbed permanently only upon the acceptance of the said proposal by the Board of Directors. Mr. Jawed Anwar, when questioned could not dispute that the Board of Directors was the appointing authority of the petitioner. By reason of the aforementioned order dated 17.2.1989, a division Bench of this Court in C.W.J.C. No. 7905 of 1988 while quashing of the decision of the Board of Directors held is its 37th meeting on 1st October, 1988, passed the following order: We heard the learned Counsels for both the parties at some length. We do not propose to go into the merits of this case at this stage. We find some substance in the argument of Sri Basudeo Prasad that before passing the impugned resolution, as contained in Annexure-15 the petitioner should have been given an opportunity to show cause After all the Board had passed certain resolution earlier and the petitioner had started drawing salary of Rs. 1925 when this was sought to be withdrawn the Rules of Natural Justice required that the petitioner should have been given at least an opportunity in his case. In view of the matter, we feel that the matter should go back to the respondent-Corporation for a fresh decision. Impugned resolution of the Board, as contained in Annexure-15, is accordingly, quashed and we give the following direction to the respondent-Corporation in this Case. The petitioner should be given a notice within 2 weeks from today, asking him to show cause as to why the benefits, if any, given to him consequent upon the earlier Board's resolution, contained in Annexure-8, he not withdrawn. Petitioner shall file his show cause within two weeks from the receipt of the said notice. The Corporation (Respondent) shall consider the show cause of the petitioner and decide the case within one month thereafter, by a reasoned order. We wish to make it clear that this will not be in the nature of any departmental proceeding. It will only be a show cause notice giving the petitioner a reasonable opportunity to show cause. The learned Counsels have also taken notice of this fact. If the petitioner does not file his show cause within 2 weeks from the receipt of the notice by him the Respondent Corporation shall be entitled to proceed ex-parte and decide the case and pass any appropriate order in accordance with law. We hope that the petitioner will receive the show cause notice from the office of the Corporation within the appointed time. It is further agreed that the copy of the show cause shall also be served upon the learned Counsel for the petitioner. Similarly a Copy of the show cause should be served upon Mr. Jawed, learned Counsel for the respondent-Corporation, by the petitioner or his counsel within the time fixed. During this period of 8 months the petitioner shall continue to get salary which he was getting on 30th September, 1988. No recovery shall be made from the petitioner during this period. All these payments shall be subject to the final decision which the Board shall ultimately take. No arrear shall be paid to the petitioner during this period. 12. From the impugned office order as contained in Annexure-1 to the writ application as also the reasoned order dated 7.4.1989 passed by the Chairman-cum-Managing Director, it is evident that the Managing Director himself took a decision as against the petitioner, inter alia, on the ground that it was act possible to convene the (illeg) the Board of Director within such time limit and as such the order was passed in anticipation of approved by the Board. In my opinion, this Court in the earlier writ application while directing the Corporation to give an opportunity to the petitioner, meant that such an opportunity should be given by the Board of Directors. Nothing has been brought on the record in show that the Managing Director was empowered by any resolution of the Board of Directors of issue the notice to show cause to the petitioner and pass an order in anticipation of the approval of the Board of Directors. 13. Mr. Jawed Anwar submitted that this course of action had been taken by the Chairman-cum-Managing Director, in view of the peculiar circumstance of the case, namely, the time schedule fixed by this Court during which period it was not possible to convene a meeting of the Board of Directors. 14. If the Chairman-cum-Managing Director of respondent No. 2 Corporation, has no jurisdicion to consider the show cause filed by the petitioner alone pursuant to the decision by this Court as also in view of the fact that the appointing authority of the petitioner was the Board of Directors of the respondent No. 2. the Corporation and also in view of the fact that even the earlier resolution, which was the subject matter of the aforementioned C.W.J.C. No. 7905 of 1988, was passed by the Board of Directors and not by the Chairman-cum-Managing Director himself, it was the Board of Director alone who was, thus, entitled to take appropriate action after taking into consideration the show cause filed by the petitioner. If the Corporation felt that it was not possible for it to complete the proceedings within the time schedule fixed by this Court, in view of the difficulties in convening the meeting of the Board of Directors it could approach this Court for extension of time but thereby on that pretext the Chairman-cum-Managing Director could not have usurp the jurisdiction which he did not have further, as noticed hereinbefore even no document has been placed on records for the purpose of showing that even subsequently the Board of Directors ratified the impugned order dated 7th April, 1989. 15. In this view of the matter, in my opinion, the impugned order having been passed by an authority, who is not competent to do the same, cannot be sustained. 16. Further, in this situation, in my opinion, the Board of Directors of respondent No. 2 should consider the matter afresh and pass an appropriate order. 17. There cannot be any doubt that if some benefit has been obtained by the practising fraud or in total disregard of law the same can be recalled. It is further (illeg) law that a mistake committed by an employee can b" rectified. 18. It is also well settled that a conditional order takes its effect only upon fulfilment of the conditions precedent mentioned therein. From a perusal of the counter-affidavit filed on behalf of respondent No. 2 it is evident that several serious allegations have been made as against the petitioner and as also the then Chairman-cum-Managing Director of respondent No. 2. If the said allegations are correct, the respondent No. 2 will be free to take any action as against the officers responsible therefor including the petitioner, but the same has to be done in accordance with law. Further as indicated abvoe, Mr. Jawed Anwar, the learned Counsel appearing on behalf of the respondent No. 2, not only questioned the authority of the Deputy Secretary of the Industries Department to issue the letter dated 25.8.1987, as contained in Annexure-l2 of the writ application but also contended that prior to the issuance of the said letter, the Bureau of Public Enterprises was not consulted, which according to the learned Counsel, would be evident from Annexure-P to the counter-affidavit. In such a situation, in my opinion, the Board of Directors, Industries Department and the Bureau of Public Enterprises should check up their records so that the truth may come out. 19. It further appears, from a perusal of the reasoned order passed by the Chairman-cum-Managing Director, that he referred the various files in order to come to a conclusion that various malpractices have been performed by various authorities at different stages including the then Chairman-cum-Managing Director as also the petitioner. In ,view of the seriousness of the allegations made in the reasoned order dated 7th April, 1989 as also in the counter affidavit, in my opinion, the petitioner must be held to be entitled to peruse the relevant records upon which the respondent No. 2 intends to rely upon, so that, if considered necessary, the petitioner may file an additional show cause. As the petitioner is now aware of the details of the records upon which respondent No. 2 intends to rely upon, it would open to the petitioner, if he so desires, to file a representation before the Chairman-cum-Managing Director of respondent No. 2, Corporation. In order to enable him to peruse the relevant files and in that even such an opportunity would be granted to him in order to comply with the principles of natural justice. It is well known that the doctrine of audi alteram pattern requires disclosures of materials which may be used against a deliquent officer. In the peculier circumstances of this case, in my opinion, liberty should also be given to respondent No. 2, if he so desires, to amend the show cause notices as contained in Anncxures 17 and 17A of the writ application, keeping in view on the decision of the Supreme Court in Hussain Sasan Saheb Kaludgi v. State of Maharashtra . 20. In the result, this writ application is allowed, the impugned office order dated 7th April, 1989, as contained in Annexure-1 to the writ application is quashed and the Board of Directors of respondent No. 2 is, hereby, directed to consider the matter afresh keeping in view of the observations made hereinbefore as also the order passed, by this Court in the earlier writ application, as contained in Annexure-16 to the writ application. As the fate of the petitioner is hanging fire for a long time it is desirable that the matter should come to an end expeditiously and positively within a period of two months from today. In the facts and circumstances of the case, the parties shall bear their own costs In the meantime status quo as obtaining today shall be maintained in view of the order passed in the earlier writ petition.

Author: S Sinha

Navin Prakash Narain vs State Of Bihar on 1 February, 1990

Patna High Court

JUDGMENT P.D. Desai, J. 1. This petition filed by an applicant for admission to the first M.B.B.S. Course in one of the Government Medical Colleges in the State of Gujarat challenges the validity of Rule 5.2(A) added on July 1, 1978 in the Rules for Admission to First M.B.B.S. Course at the Government Medical Colleges in the State of Gujarat, 1978 (hereinafter referred to as 'the Rules') In order to appreciate the points which arise for determination, it would be necessary to make an appraisal of the problem against its proper background. 2. There are the following four Government Medical Colleges in the State of Gujarat; (1) B.J. Medical College at Ahmedabad affiliated to the Gujarat University, (2) Medical College at Baroda affiliated to the M.S. University, (3) M.P. Shah Medical College at Jamnagar affiliated to the Saurashtra University and (4) Government Medical College at Surat affiliated to the South Gujarat University. In order to regulate admission to these Colleges during the year 1978 the Government of Gujarat has framed the Rules. Rule 1(A) prescribes the qualifying examinations for admission to the Course. Accordingly, speaking broadly, only those students who have passed the following examinations are eligible for being admitted to the Course in the respective Colleges: 1. F.Y. B.Sc. (B-Group) examination of the Gujarat University taking physics, chemistry and biology, including a practical test in each of those subjects, (Ahmedabad College); 2. Higher Secondary Certificate Examination (Science Stream) taking physics, chemistry, biology, mathematics and English under the new 1012 educa tional pattern conducted by the Gujarat Secondary School Education Board, (all Colleges); 3. Pre-medical examination of M.S. University, Saurashtra University and South Gujarat University, (Baroda, Jamnagar and Surat Colleges). 4. Any other examination of the University or of the Statutory Board which, in scope and standard, is found to be equivalent to the above qualifying examinations, taking physics, chemistry and biology, including a practical test in each of these subjects, (Ahmedabad College); Having laid down the qualifying examinations, the Rules proceeded to prescribe, inter alia, marks which will be taken into consideration for determining merit order of a candidate for the purpose of admission, the categories of students eligible to apply for admission and the minimum total marks in the Science subjects which are required to be obtained at the qualifying examination. This field is covered by Rule (B)(i) to Rule 2.2. Rule 3 provides that the application for admission must be submitted to the prescribed authority so as to reach the concerned authority on or before June 8, 1978. There is a specific mandate contained the said Rule that no application received after the prescribed date would be considered irrespective of the reason for late receipt. The next material Rule is Rule 5.1 which lays down the basis for determining the merit order. It provides that: (a) External marks obtained in the theory examination in the subjects of physics, chemistry and biology at the F.Y. B.Sc. (B-Group) examination modified with reference to the provision under Rule 5.2 shall determine the merit order of candidates seeking admission against the seats earmarked for the students passing F.Y. B.Sc. (B-Group) examination from the Gujarat University, and (b) marks obtained in the theory examination in the subjects of physics, chemistry, biology, mathematics and English at the Higher Secondary Certificate Examination of the Gujarat Secondary School Education Board, modified with reference to the provisions under Rule 5 2 shall determine the merit order of candidates seeking admission against the seats earmarked for the students pas-Sing Higher Secondary Certificate Examination of the Gujarat Secondary School Education Board. Under the scheme of this Rule the merit order is not determined merely on the basis of the marks obtained in the concerned theory examination since those marks have to be modified with reference to the provision made in Rule 5.2 which provides for certain credit being given on the basis of the performance of the student at the preceding examinations. Since Rule 5.2 is the material rule for the purposes of the decision of this petition, it may be set out in extenso: Credit of two marks shall be given to those who have passed S.S.C. (Old or New) examination or any equivalent examination of a statutory body, at first attempt and have secured 60 per cent or more marks of the total marks in all the subjects taken together at the examination. Credit of another three marks shall be given to those who have passed pre-University Science Examination or any equivalent examination of a University at first attempt and have secured 60 per cent or more marks of the total marks in all the subjects taken together at the examination. No credit marks shall be given if attested attempt certificate and attested markesheet certificate in all respect are not produced with the application form. Rule 5.3 makes provision for dealing with a situation in which candidates are found to have secured equal marks corrected as per Rule 5.2. We are not directly concerned with the said rule in this petition and it may, therefore, be passed over. Next following Rules are also not material for the purposes of the decision of this petition until we reach Rule 15 which provides for the reservation of the right of the Government to introduce any new rule or to make change in any of the existing rules at any time without prior notice. These were the material Rules in force on June 9, 1978 which was the last date for submission of application for admission, to any of the Government Medical Colleges. 3. On July 1, 1978, the Government issued a Memorandum (Annexure-I to the affidavit-in-reply dated July 14, 1978 filed by Mr. M.H. Dhanesha, Under Secretary to Government, Health and Family Welfare Department) with a view to modifying the Rules by insertion of Rule 5.2(A). The newly added Rule 5.2(A) reads as under: Credit of five marks shall be given to those who have passed the All India Higher Secondary Examination of the Central Board of Higher Secondary Examination at first attempt and have secured 60% or more marks thereat provided that they must also have passed the next lower Examination of the said Board at first attempt and must have secured 60% or more marks thereat. The words "Central Board of Higher Secondary Examination" appearing in the aforesaid Rule do not correctly describe the body which was in the mind of the Government. It is agreed by all that there is no organisation known by the name "Central Board of Higher Secondary Examination". There is only one body known as "Central Board of Secondary Education". Mr. M.B. Shah, learned Assistant Government Pleader appearing on behalf of respondent No. 1, stated to the Court that there is an obvious or apparent mistake in describing the "Central Board of Secondary Education" as "Central Board of Higher Secondary Examination" and that if necessary the respondents will issue a clarification giving the correct description. In the meantime, all the parties appearing before me have agreed to proceed on the basis that Rule 5.2(A) operates in relation to the All India Higher Secondary Examination of the Central Board of Secondary Education. I will, therefore, proceed to consider the question of the validity of the Rule aforesaid on the abovementioned basis. 4. Rule 5.2(A) was obviously introduced after the last date or submitting application for admission to any of the Government Medical Colleges had expired and the purpose of the Rule was to give the benefit of credit of five marks to those of the applicants who had passed the All India Higher Secondary Examination of the Central Board of Secondary Education (hereinafter referred to as "the Board Examination") on their satisfying the prescribed conditions. It might be clarified at this stage that the Board Examination is not by itself a qualifying examination for admission to the Government Medical Colleges under the Rules. However, the Academic Council of the Gujarat University in exercise of its powers under Section 22(x) of the Gujarat University Act has framed Regulations prescribing the equivalence of examinations and in the said Regulations the Board Examination has been recognized as equivalent to the Pre-University Science Examination of the Gujarat University, if such examination is passed with Mathematics (Advance level), Physics, Chemistry and Biology. As a result, a student passing the Board Examination with the abovementioned subjects becomes eligible for being admitted to the F.Y. B.Sc. Class of any of the Colleges affiliated to the Gujarat University. If any of such students accordingly gets admitted to F.Y. B.Sc. (B. Group) Class and passes the said examination in the subjects prescribed in Rule 1.(A)(i) of the Rules, such student becomes eligible for being admitted to First M.B.B.S. Course at the prescribed Government Medical College in the State of Gujarat. It is in the case of such a student that the newly added Rule 5.2(A) will operate so as to give him the benefit of credit of five marks provided he satisfies the conditions laid down in the said Rule. 5. The petitioner had passed S.S.C. Examination (old) conducted by a Statutory Board established in the State of Gujarat in June 1976 at first attempt securing 78% marks. She thereafter joined Pre-University Science Course in one of the Colleges affiliated to the Gujarat University and was declared successful at the examination held in March 1977 at first attempt having secured 72% marks. The petitioner then appeared at First Year B.Sc. (B-Group) examination in March 1978 and was declared successful thereat at first attempt, having secured 72% marks. The petitioner accordingly became eligible for seeking admission to the concerned Government Medical College in the State of Gujarat under Rule 1.(A)(i). She also became eligible to claim credit of 2 + 3 marks under Rule 5.2, she having passed the S.S.C. Examination (old) at first attempt having secured more than 60 per cent marks and having further passed Pre-University Science Examination at first attempt having secured more than the same percentage of marks. 6. The fourth respondent had passed the Board Examination (11th Standard) held in March/April 1977 at first attempt having obtained 78% marks. Since she had passed the said examination with prescribed subjects, she was eligible for being admitted to the F.Y. B.Sc. course of the Gujarat University as per the Regulations prescribed by the Academic Council of the said University. After getting the eligibility certificate she took admission to the F.Y. B.Sc. course in one of the Colleges affiliated to the Gujarat University. She appeared in the F.Y.B Sc. Examination (B-Group) held in March, April 1978 and was declared successful thereat at first attempt upon securing 73% marks According to the said respondent, the next lower examination of the said Board is the 10th Standard examination. So far as the said examination is concerned, the question papers were required to be supplied by the Board but the examination was to be conducted by the heads of the schools concerned and the assessment of answer books was also to be arranged by the heads of the institutions and the copy of the result after declaration was to be sent to the Board. The fourth respondent appeared in the 10th Standard examination of the Board in March/April 1976 and secured 72 % marks thereat. According to the fourth respondent, in view of the aforesaid position, she became eligible not only to seek admission to the concerned Government Medical College under Rule 1.(A)(i) but she also became entitled to claim credit of five marks under Rule 5.2(A) in view of the fact that she had passed the Board Examination (11th Standard) at first attempt having secured more than 60% marks and she hid also passed the next lower examination of the said Board (10th Standard) at first attempt securing more than 60% marks thereat. 7. The fifth respondent is also a candidate seeking admission to the concerned Government Medical College. He passed the Board Examination (11th Standard) in 1977 having secured 62.8% marks. Prior to that he had passed the 10th Standard examination in 1976 securing 61.2% marks. After passing the 11th Standard examination he joined the F.Y.B.Sc. course in one of the Colleges affiliated to the Gujarat University and was declared successful at the F.Y. B.Sc. (B Group) examination in the year 1978 having secured 72.9 % marks. The said respondent also claims the benefit of Rule 5.2(A) on the same grounds that are urged by the fourth-respondents 8. Before proceeding to consider the validity of Rule 5.2(A) against the aforesaid background, it may not be out of place to point out that the system of giving credit marks has been obviously introduced with a View to giving weightage to those students whose academic career has been of a high standard not only in the qualifying examination but also In the immediately preceding examinations. The reason behind the adoption of such a system apparently has reasonable relation to the subject matter and one of the main objects of the Rules, namely, to secure the best possible material for admission to the Government Medical Colleges. Ordinarily, therefore, there cannot,, be any objection to the enactment of a rule based on such a rational policy so long as it operates fairly and the benefit conferred thereby is available to all who are similarly situate. 9. The contention urged on behalf of the petitioner, however, is that by enacting Rule 5.2(A) the State Government has treated unequals as equals. The argument was that so far as the assignment of credit marks is concerned, a student who has passed the Board Examination as also the next lower examination could not have been legimately put on a par with a student who has passed S.S.C. (old or new) examination and the Pre-University Science Examination. Alternatively, it was contended that the formula adopted for the giving of credit marks under Rules 5.2 and 5.2(A) itself brings about unequal treatment inasmuch as whereas a student who is covered by Rule 5.2 is given credit marks separately (2 + 3) for having passed two different examinations, a student who falls within the preview of Rule 5.2(A) is given a lump sum credit of five marks. The further grievance was that in effect Rule 5.2(A) operates retrospectively since it came to be enacted after the last date for filing of application for admission had expired and that consistently with the high policy upon which the rule of law is based; no executive action could have been validly taken in such a manner so as to affect the existing rights and/or privileges. One more ground of challenge was that the Rule was enacted mala fide in order primarily to favour the fourth respondent who happens to be the daughter of a highly placed State Government Officer. 10. Now, it cannot be doubted that since the State Government maintains the four Medical Colleges in question, it has the power to frame Rules regulating admission to those Colleges. It cannot be disputed at the same time that since those Colleges are maintained out of public funds and that the authority which maintains them is the State Government, such Rules must conform to the guarantee of equal protection conferred by Article 14. The Rules, therefore, must not operate in a discriminatory manner and if any of the Rules including the rule relating to giving of credit marks is arbitrary or brings about unfair treatment, it will have to be struck down as offending Article 14. When a challenge based on Article 14 against any of those rules is brought before the Court, however, it would be worthwhile to remember that the legitimate presumption is that the rule must have bean framed by the State Government in good faith and with full knowledge of the existing conditions as well as requirements and that the amendment, if any, must have been made to solve difficulties manifested by experience. The State Government is required to deal with diverse problems arising out of an infinite variety of situations and it must, therefore, have the power to make provision to meet with such problems and to attain particular rational objects. Another thing which requires to be borne in mind is that in order to come within the mischief of Article 14 it is not sufficient to show merely that there is differentiation or inequality of treatment, for, 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 said Article it is necessary to show that the differentiation or inequality, if any, is irrational or arbirnry and this it has no rational relation to the object sought to be achieved Ameerunissa v. Mahboob Begum Equal treatment of unequal objects, transactions or persons is also not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to the object intended to be achieved see Jalan Trading Co. v. Mill Mazdoor Sabha It is also an accepted principle that if the diffluence in treatment is of a trivial, unsubstantial or illusory nature, then that circumcised alone is sometimes regarded as a cogent ground for holding that the action is not discriminatory at all or no inequality has, it fact, been created See State of W.B. v. Anwar Ali Mathematical nicety and perfect equality are also not required to meet the test of Article 14. Whit is of the essence of the muter is similarity and not identity of the treatment Stale of Bombay v. F.N. Bihara A.I.R. 195 S.C. 318. The formula devised with a view to attaining the given object need not be scientifically perfect or logically complete so long as it (sic) the test of reasonableness and it has nexus with the object sought to be achieved See Ganga Ram v. The Union of India A.I.R. 1970 S.C. 3178. Invalidity of such formula cannot be established by merely finding fault with the scheme adopted to achieve the purpose in view (See John Trading Co.). It is against this background that we must proceed to consider the challenge levelled against Rule 5.2(A). 11. Now, under Rule 1.(A)(i) students who have passed F.Y. B.Sc. (B-Group) examination of the Gujarat University with the prescribed subjects are eligible for admission to the B.J. Medical College at Ahmedabad against the seats earmarked for the said College in the annexure to the Rules. In order to get admission to F.Y. B.Sc. course of the Gujarat University a student is required to pass the Pre-University Science Examination or an examination which is treated as equivalent thereto by the Academic Council of the Gujarat University. The Academic Council of the Gujarat University he framed Regulations under Section 22(x) of the Gujarat University Act and, as earlier stated, the Board Examination has been recognized as equivalent to the Pre-University Science Examination of the Gujarat University if such examination is passed with Mathamatics (advance level), Physics, Chemistry and Biology. A student who has been declared successful at the Board Examination with the prescribed subjects would, therefore, be eligible for being admitted to the F.Y.B.Sc. coarse of the Gujarat University. The position obtaining as aforesaid would show that a student seeking admission to the B.J. Medical College at Ahmedabad under Rule 1.(A)(i) could have been admitted to the F.Y. B.Sc. course from at least two different sources (though the possibility of there being more sources cannot be ruled out). So far as admission to the Pre-University Science class is concerned, it appears that the qualifying examination is the requisite S.S.C. Examination. It appears that when the Rules were enacted, the State Government had in its mind only those students who had passed the S.S.C. Examination and the Pre-University Science Examination or any other equivalent examination of a statutory Board or of a University, as the case may be, for the purposes of giving credit marks. Rule 52, therefore, provided for giving of credit of two marks to the students who had passed S.S.C. (old or new) Examination or any equivalent examination of a statutory body at first attempt having secured 60% or more marks of the total marks in all the subjects taken together at the examination. Further credit of 3 marks is required to be given thereunder to a student who had passed the Pre-University Science Examination or any equivalent examination of a University at first attempt having secured 60% or more marks of the total marks in all the subjects taken together at the examination. The formula adopted as aforesaid would show that credit marks are to be given on the basis of the performance of the concerned student in two examinations immediately preceding the F.Y. B.Sc. Examination and that the total credit of five marks is split up into two distinct components, each component being relatable to one of the preceding examinations. 12. After the Rules were enacted, the attention of the State Government appears to have been drawn to the fact that the benefit of credit marks on the basis of performance in two immediately preceding Examinations to the F.Y. B.Sc. Examination should also be given to those students who secured admission to the F.Y. B.Sc. course after having passed the Board Examination. The fourth respondent has stated in her affidavit dated July 10, 1978 that on May 30, 1978 she made an application to the State Government requesting that an appropriate provision should be made in the Rules for giving credit marks to students who had joined the F.Y. B.Sc. course after passing the Board Examination. Though this application was made before the expiry of the last date for the submission of the application forms for admission to the Government Medical College, no action appears to have been taken thereon. According to the fourth respondent, under those circumstances she met the Minister of Education on June 12, 1978 and made a representation to him in this behalf. The State Government appears to have favourably considered the said representation and the Director of Medical Education and Research was informed by a communication dated June 21, 1978 issued by the Health and Family Welfare Department regarding the State Government's decision to give five credit marks to students who had passed the Board Examination in First Class at the first attempt. The formal memorandum enacting Rule 5.2(A) was thereafter issued on July 1, 1978. However, as it would appear from what follows, in the said rule the aforesaid decision of the State Government was given effect to with some modification in as much as the passing of two and not one examination with certain percentage of marks at the first attempt was made the precondition for earning the credit of five marks. It would thus appear that Rule 5.2(A) was enacted with a view to giving the benefit of five credit marks to students who applied for admission to the B.J. Medical College at Ahmedabad after having passed the F.Y. B.Sc. (B-group) Examination but whose admission to the F.Y. B.Sc. course was after passing the Board Examination which has been treated by the Gujarat University as equivalent to the Pre-University Science Examination. Broadly speaking, therefore, the object of enactment of Rule 5.2(A) was to give similar treatment to a class of students who were not covered by Rule 5.2. 13. Against this background let us examine the content of Rule 5.2(A). In order to earn the credit of five marks under the said rule, two requirements must be satisfied: first, the concerned student must have passed the Board Examination at first attempt having secured 60% or more marks and, secondly, he must also have passed the next lower examination of the said Board at first attempt having secured 60% or more marks thereat. The scheme of Rule 5.2(A), therefore, is to an extent similar to that of Rule 5.2 in as much as Rule 5.2(A) also provides for giving of five credit marks on the basis of the performance of the concerned student in two examinations immediately preceding the F.Y. B.Sc. examination. The point of distinction, however, is that unlike Rule 5.2, Rule 5.2(A) does not provide for the split up of the credit of five marks into two different components each relatable to each of the preceding examinations. This is given rise to the argument that the different formulae adopted for giving of credit marks under Rules 5.2 and 5.2(A) bring about unequal treatment. It would be convenient to deal with this question at the outset since it is capable of comparatively simpler solution. 14. It is true that whereas Rule 5.2 gives credit marks separately (2 + 3) for having passed two different examinations, namely, S.S.C. (old or new) and Pre-University Science Examination respectively, Rule 5.2(A) provides for giving of lump sum credit of five marks for having passed the Board Examination as also the next lower examination. This cannot, however, be held to be per se discriminatory. It requires to be noted in this connection that the matter of fitting up of credit marks into two components is not a matter of essential importance. Till and so long as it is not shown that the lump-sum method works unfairly and to the prejudice of students who are governed by the split-up method, such method cannot be assailed by merely finding fault with the scheme adopted to achieve the purpose in view. In other words, it must be shown that the adoption of different formulae leads to unequal treatment to persons similarly situate. The scheme of Rule 5.2(A), as explained earlier, is that two conditions are required to be fulfilled for the earning of lump-sum credit of five marks arid each of the said conditions is related to the passing of an examination at first attempt having secured certain percentage of marks. Broadly speaking, therefore, the formula adopted for the assignment of credit marks in Rule 5.2(A) is analogous to the formula adopted in Rule 5.2. In the course of the discussion which follows, it will be shown that the Board Examination having been treated as equivalent to the Pre-University Science Examination, the assignment of three out of lump sum five marks to the Board students can be fairly and reasonably accounted for. With regard to the remaining two marks, as it will be pointed out later, the examination of 10th Standard of the Higher Secondary School, which is the next lower examination to the Board examination, has to be treated as equivalent to the S.S.C. (old) examination. Therefore, even those two marks can be reasonably and fairly accounted for. Under these circumstances and upon this notional split up, it would appear that the lump sum credit of five marks given to a student who has passed the Board Examination as also the immediately lower examination does not operate to give any favourable treatment to such students resulting in discrimination against the students who are governed by Rule 5.2. One has to remember that what is of the essence of the matter is similarity and not identity of treatment. The formulae devised with a view to meting out like treatment to persons similarly situate need not be so perfectly identical, however, as to be scientifically comparable. It is the substance which matters and not the form. An apparently similarly framed rule may in reality result in invidious discrimination and vice versa. Having regard to all these circumstances, in my opinion, this ground of challenge has no merit. 15. On behalf of the petitioner, it was urged in the forefront, however, that students who had joined the F.Y. B.Sc. course after passing the Board Examination could not be treated as similarly situate with those who had joined the F.Y. B.Sc. course after passing the Pre-University Science Examination and that, therefore, those students could not be given the benefit of any credit marks. To the aforesaid contention, complete answer is provided by the relevant Regulations framed by the Academic Council of the Gujarat University which has treated the Board Examination as equivalent to the Pre-University Science Examination of the University if the Board Examination was passed with Mathematics (Advance level), Physics, Chemistry and Biology as the subjects. The highest academic body of the Gujarat University having itself accorded this equivalence, it would be idle to contend that a student who has passed the Board Examination with the named subjects is not similarly situate as a student who has passed the Pre-University Science Examination. If, therefore, under Rule 5.2 credit of three marks is required to be given to a student who has passed the Pre-University Science Examination or an equivalent examination of a University at first attempt having secured 60% or more of the total marks in all the subjects taken together at the examination, there is no reason why similar credit should not be given to a student who has similarly passed the Board Examination. In fact, if such credit is not given to such a student, he would be justified in complaining that he has been discriminated against, although he is similarly situate as a student who has passed the Pre-University Science Examination. It would thus appear that no objection can possibly be taken against notional apportionment or assignment of three out of five credit marks on the basis of a student having passed the Board Examination at first attempt by securing 60% or more marks. Needless to reiterate in this connection that the equivalence having been accorded by the highest Academic body of the University for the purposes of giving admission to the F.Y. B.Sc. course of the University, no challenge can possibly succeed against such equivalence and that if the State Government is guided on the basis of such equivalence, it cannot possibly be held that it has acted discriminatorily or arbitrarily or unreasonably. 16. It was then contended on behalf of the petitioner that the 10th standard examination which is the next lower examination to the Board Examination cannot be treated on a par with the S.S.C. (old or new) examination or equivalent examination of a statutory body and that, therefore, Rule 5.2(A) operates unfairly, as compared to Rule 5.2, in so far as Rule 5.2(A) provides for giving of the credit of five marks by taking into consideration the passing of such lower examination also at first attempt with certain percentage of marks. The argument in other words was that since S.S.C. (Old or New) examination or any equivalent examination of a statutory body cannot be equated with the examination next lower to the Board Examination, one of the conditions for earning of credit marks under Rule 5.2 and Rule 5.2(A) brought about imbalance giving more favourable treatment to the Board students. 17. As regards this objection with regard to equivalence, the respondents rely upon the affidavit dated August 24, 1978 filed by Mr. N.V. Pujara, Secretary, Gujarat Secondary Education Board, who has in terms stated that Standard X examination, which is the next lower examination to the Board examination, is equivalent to the S.S.C. (Old) examination. It might be clarified at this stage that Mr. Pujara is qualified to speak on this subject not only because of his present position but also because prior to his appointment as the Secretary of the Gujarat Secondary Education Board, he was holding a Class I post in the Gujarat Education Service (Administrative Branch). He was the District Education Officer at various places. Prior to joining Government service, he had worked as a teacher Educator in the Secondary Teachers Training College at Aliabada and prior to that he had worked as Head-master in a Secondary School. In the course of Mr. Pujara's affidavit, reference has been made to the Gujarat Secondary Education Regulations, 1974 which came into force on and with effect from March 10, 1974. These Regulations have been framed under the Gujarat Secondary Education Act, 1972. Chapter V of the said Regulations deals with admissions, etc. into a registered school. Regulation 12 in the said Chapter lays down the conditions for admission of students to such schools. Clause (b) of Regulation 12(9) lays down the formula of equivalence of school classes for the purposes of admission of students from schools situate in other States and Union Territories in a registered school in this State. Sub-clause (iii) of Clause (b), which is relevant, inter alia provides that "a student migrating from an eleven year Higher Secondary School to an eleven year high school shall be admitted to one class higher". The effect of this provision may be illustrated as follows: Suppose a student studying in a Higher Secondary School in another State has passed IX Standard examination and would, therefore, be pro noted to X Standard in such school, decides to migrate to this State, he would be admitted in the X[ Standard ii a registered High School in this State. Against this background, let us consider the& question of equivalence of Standard X examination of the Board with S S.C. (Old) examination in our State. Having regard to the scheme of studies for which provision has been made by the Central Board of Secondary Education as per its prospectus, the Higher Secondary stage consists of three years after eight years of previous schooling. In other words, Standards IX, X and XI are comprised in the higher Secondary stage. As against this, the course of study leading upto S.S.C. (Old) examination consisted of XI Standards comprised of Primary and Secondary stages but not of Higher Secondary stage. Having regard to Sub-clause (iii) of Regulation 12(9)(b), so far as any recognised school in this State is concerned, a student migrating from an eleven year Higher Secondary School will have to be admitted to a recognised High School in this State in one class higher. On this basis, so far as equivalence is concerned, under the relevant Regulation, Standard X of Higher Secondary School is equated to Standard XI of the eleven year high school registered in this State. Standard XI in a recognised high school in this State at the material time would be the final year of the old S.S.C. course. This scheme of equivalence, therefore, shows that Xth Standard of Higher Secondary course has been equated with the XIth or final standard of the old S.S.C. course and in that manner, broadly speaking, there is equivalence between a student who has passed Xth Standard of the Higher Secondary course and old S.S.C. Examination of the Gujarat Secondary Education Board. In my opinion, therefore, it would not be correct to say that if the passing of the examination next lower to the Board examination, that is to say, the Xth Standard Examination, has been taken into consideration as one of the factors for the giving of credit marks under Rule 5.2(A), a examination which is not equivalent has entered into consideration and in that manner an imbalance has been brought about or unfair treatment has been meted out. In fact, on the aforesaid basis of equivalence, no objection can possibly be taken against notional apportionment of two out of five credit marks on the basis of a student having passed Standard X examination at first attempt by securing 60% or more marks. 18. Having regard to the foregoing discussion, in my opinion, there is no justification in the grievance of the petitioner that unequals have been treated as equals by the enactment of Rule 5.2(A) by giving credit of five marks to students who passed the Board Examination as also the next lower examination as against assignment of similar credit marks under Rule 5.2 to students who passed the S.S.C. (old or new) examination and the Pre-University Science Examination. In fact, it could have been legitimately urged on behalf of the concerned respondents, had provision not been nude in Rule 5.2(A) for giving of credit marks to them, that they have been discriminated against although they were similarly situate as the petitioners. 19. When confronted with this position, it was the contention of the petitioner that no credit marks can be given under Rule 5.2(A) which is inoperative on the face of it because one of the conditions laid down therein, namely, the passing of "the next lower examination of the said Board..." was impossible of fulfilment. The argument, in other words, was that the B and held only the; All India Higher Secondary Examination at the end of Standard XI and that 113113 of the lower examinations including Standard X examination wire held by the Board and that, therefore, the last part of the condition imposed by Rule 5.2(A) was incapable of being satisfied and consequently no credit marks can be claimed or assigned under the said Rule. In support of this submission, reliance was placed on the prospectus of the All India Higher Secondary Examination, 1977 published under the authority of the Board. At page 17 of the prospectus, under the hearing "Schema of Studies" it is mentioned that the duration of the Higher Secondary stage shall be three years after eight years of previous schooling. The subjects which every candidate is required to offer are then set out under two diffident headings, namely, Compulsory Subjects and Effective Subjects. At pages 22 to 26 of the prospectus are to be found the provisions regarding the internal and external examinations. So far as the internal examination is concerned, it is stated that in order to distribute the work-load throughout the period of study, methods of external and internal assessment would be utilised. The examination at the end of Classes IX and X is required to be internal. As per the procedure for evaluation, the question-papers for the internal examinations for the above mentioned higher secondary classes are required to be supplied by the Board but the examination has to be conducted by the heads of schools concerned on the dates fixed by the Board The assessment of answer books has also to be arranged by the heads of institutions themselves. A copy of the result after its declaration is required to be forwarded by the heads of institutions to the Secretary of the Board within two weeks of the examination. The answer-books are required to be preserved for a period of six months from the date of commencement of examination and during the said period the answer books would be open to scrutiny by the Officers/Inspectors appointed by the Board. No student can be promoted to class XI unless he has qualified in all the subjects of the internal examination unless otherwise specified. The subjects in which the examination has to be offered at the end of 9th and 10th Standards are prescribed by the Board So far as external examination is concerned, it is to be held at the end of Class XI in the subjects specified The number of papers in each subject and allotment of maximum marks as also the minimum marks required to be declared successful are also set out in the prospectus. It is not in dispute that the examination at the end of XIth Standard is conducted by the Board and that the results of the said examination are also declared by the Board. The argument in the context of the aforesaid scheme of examination was that the examination next lower to the Board Examination could not be said to be the examination of the Board in as much as it was only internal examination conducted by the heads of the schools concerned and the assessment of answer-books in such examination was to be arranged by them and even the results had to be declared by them. Tills submission made on behalf of the petitioner cannot be accepted. When Rule 5.2(A) speaks of "the next lower examination of the said Board" (underlining supplied) what is intended is that the; chorionic elimination should have been held by or under the auspices of the Board. It is not necessary that the examination should have been actually conjugated by the Board and that the Board should have been associated with all the stages of the conduct of the examination. Even if the concerned examination is held under the auspices of the Board and the Board retains overall control over the conduct of such examination, the examination could be legitimately said to be the examination of the Board. It cannot be doubted that the examination at the end of the Xth Standard, which is the examination next lower to the final Board examination (XIth Standard), is held under the auspices of the Board. The distribution of the work-load throughout the period of study at the Higher Secondary level and the method of assessment are prescribed by the Board. The curricula for the examinations for different Standards at the higher secondary level (Standards IX, X and XI) are also prescribed by the Board. The question papers for internal examination in the Xth Standard are supplied by the Board. The dates for holding the examination are also fixed by the Board. Though the assessment has to be arranged by the heads of institutions, the Board his the power through its officers and Inspectors to scrutinize the answer-books. The result of the examination, though it is to be declared by the heads of institutions, is required to be forwarded to the Secretary of the Board within two weeks of the examination. All these provisions would show that the Board retains overall control over the internal examinations held for the lower standards of the Higher Secondary stage and that, therefore, those examinations could be said to be the examinations of the Board. The argument that the examination at Standard X is not the examination of the Board and that, therefore, Rule 5.2(A) enacts a condition impossible of fulfilment and the said Rule is, therefore, inoperative cannot be accepted. 20. The next ground of challenge is that since Rule 5.2(A) was enacted after the last date for filing applications for admission had expired, it could not have been validly enacted, more so because it altered the position as existing on such date and in that manner affected and altered settled rights by retrospective operation. Now, it might be clarified at the outset that though the State Government has every right to frame rules regulating admission to Government Colleges based on certain rational policy and to amend them, if occasion arises, to remove any defect or lacuna, it would be always desirable to formulate and finalise such rules with precision well in advance and to make the rules relating to admission known to the intending applicants at a point of time reasonably anterior to the last date of admission. Li a society governed by the rule of law, certain basic principles (sic) be observed. One of such principles is that enactments or orders governing public rights and duties must be open and adequately published and that they should be relatively stable. If such an enactment or order is to guide the people, they must be able to find out what it is and it show did not be changed too often. An ambiguous, vague, obscure or imprecise enactment or order is likely to misguide or confuse those who are to be guided by it and to: frequent changes would mike it well-nigh difficult, if not impossible, for the people to make long-term planning and decisions (See Joseph Raz on "The Rule of Law and its Virtue", The Law Quarterly Review, Vol. 93, page 195). Indeed, F.A. Hayek's definition of the rule of law is: ...this means that Government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its powers in given circumstances and to plan one's individual affairs (sic) the basis of this knowledge" (See "The Road to Serfdom," p 54). In this connection, it would be worthwhile to recall the observations made by the Supreme Court in Jaisinghani v. Union of India at page 43. It was there pointed out that the absence of arbitrary power is the Sist essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the savoring enemy of caprice, Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful. It would appear from the above observations that predictability even of the administrative decision is one of the essentials of rule of law which is the high policy of the Constitution embodied in Article 14. This principle would govern the framing of Rules for admission to the Government Medical Colleges because those institution are run out of public funds and the Government in framing its policy in regard to the admission to those Colleges must act with some predictability. Frequent changes made in the rules are likely to introduce uncertainty and, as experience has shown, result in plethora of litigation. The State Government would be wall-advised, therefore, to consider all the relevant questions relating to its policy in the matter of admission to Government Colleges well in advance of the start of the academic year and to formulate rules based on such policy and make such rules known to the intending applicants by giving to it suitable publicity. No departure should ordinarily be made once such rules are published unless for compelling reasons it is necessary to do so in order to meet exigencies of the situation. Experience has shown that the rules are not framed after taking into account all possible contingencies, with the result that, on the one hand, the aggrieved students have to report to the Court of law for seeking; redress and, on the other, the State Government itself is faced with many administrative and other problems arising on account of such litigation. Not only that, but even students who are not parties to the litigation are also sometimes put to considerable hardship on account of interim orders which are required to be made during the pendency of the litigation. To avoid such situation recurring from year to year, as has been the experience so far, it would be desirable for the State Government to give to these rules some permanency after taking into account all relevant facts and circumstances. Besides, it would be desirable to get the rules examined by an independent Committee of experts which might consist not only of Government offbiab but also outsiders such as the Deais of the Medical Faculty of the Universities and representatives of the Indian Medical Council. Once such rules are framed, they should ordinarily be not amenable to change straightway by exercise of executive powers. Any such amendment, even if necessary, should only be made in consultation with such Committee. It would also be desirable to have the rules examined by the Legal Department of the State Government in order to ensure against possible litigation as also to cast them in suitable precise verbal formula so that interpretation of the rules on account of unhappy or equivocal expression does not raise problem? not only for the students but also far the Court. This Court has had to deal expeditiously with may matters relating to admission to Government Colleges in the past decade and the inconvenience that it has caused not only to this Court but also to the Government and students is something which could have been avoided had these measures been taken earlier. It is hoped that the views herein expressed by this Court will not fall on deaf ears and that by the time the next academic year arrives, the State Government will have done all that is within its powers to implement the suggestions. 21. So far as the contention that Rule 5.2(A) is retrospective in its operation is concerned, I am afraid, the argument is somewhat misconceived. It is true that this Rule way? enacted after the last date for applications for admission to the Government Medical Colleges had expired. However, that circumstance by itself would not make it retrospective in operation. It requires to be noted that at the point of time when the State Government appears to have taken the decision to introduce Rule 5.2(A) on or about June 21, 1978, intimations were not given individually to any of the applicants with regard to their admission nor had anyone of such applicants paid fees and was enrolled as a student. In other words, admissions had not been finalized when Rule 5.2(A) was enacted. The Rule would, therefore, operate prospectively, that is to say, at the time finalizing the selection which was yet to arrive. Therefore, the rule cannot be said to operate retrospectively, our could it be said that it operates in such a manner as to affect or alter settled rights. Till admissions are given, no rights are acquired. Even assuming, however, that the rule is retrospective ii operation and it tikes away the right to be considered for admission oak the basis of the policy declared before the last date of submission of application forms, the question still is whether the State Government could have enacted such a rule in the facts and circumstances of this case. Rule 15 undoubtedly reserves to the Government the right to introduce any new rule or to make change in any of the existing rules at any time without prior notice. That provision in the Rules by itself may not, however, absolve the Government form the necessity of justifying the subsequent introduction of any Rule if the challenge is that the very investment of such power is contrary to the rule of law or that, in any case, the exercise of such power in the instant case is ultra virus. 22. Against this background, let us consider the question of the validity of the Rule. In this connection, it requires to be borne in mind, in the first place, that by the enactment of Rue 5.2(A), the basic criteria for eligibility for admission such as the qualifying examination are not changed. None of the students who hid applied for admission on the basis of the existing eligibility criteria will be denied admission on account of the subsequent change, nor is any other class of students who was not otherwise eligible for admission given an opportunity to apply for admission. All that is provided by the enactment of Rule 5.2(A) is that in determining the merit order of the students who had already applied, credit of five marks shall be given not only to a class of students who is covered by Rule 5 2 but also to another category of students who were similarly situate. It cannot, therefore, be said that by subsequent enactment of Rule 5.2(A) such a basic change is introduced that it would have the effect of disqualifying or enabling students foal applying for admission. In the next place, as earlier pointed out, Rule 5 2 conferred the benefit of credit marks only on a section of the students. It left out many other similarly situate students who had passed equivalent examinations prior to the qualifying examination and obtained high marks at such examinations at first attempt. In such a situation, Rule 5.2 standing by itself would have been possibly exposed to a challenge based on the ground of discrimination. It is legitimate to assume that the State Government having been informed of this position it acted in good faith to make suitable provision is the Rules so as to shut out any such challenge and to give fair and equal treatment to all students similarly situate. In such circumstances, even if an amendment in the Rules is made which operates retrospectively in such a limited field, no exception can possibly be taken. In my opinion, having regard to these circumstances, so far as the present case is concerned, it cannot be successfully contended that retrospective operation, if any, of the impugned Rule violates the basic concept of the rule of law and that in that manner it violates Article 14. Under the circumstances, in my opinion, even the third challenge has no merit. 23. That takes me to the last ground of challenge which, in my opinion, is the weakest. The contention was that Rule 5.2(A) was enacted male fide in order primarily to favour the fourth respondent who happens to be the daughter of a highly placed State Government Officer. Support for this argument is sought from the affidavit of the fourth respondent in which she has set out the facts relating to her having made an application to the State Government and followed up the same by seeking a personal interview with the Minister of Education. I do not think that from this circumstance alone any male fide exercise of power can be spelt out. It is true that the father of the fourth respondent is an officer of the State Government. It is significant to note, however, that the Rule does not create an exception for or, to put it differently, does not confer benefit only upon the fourth respondent. It covers cases of many other students who are similarly situate. Merely because the fourth respondent is the daughter of an officer of the State Government, she cannot be denied the right to approach the competent authority to seek redress for her legitimate grievance and if any step is taken by the competent authority in pursuance of such representation, it cannot be straightway assumed that such action is founded merely on a desire to favour one individual. I am satisfied, on the facts and in the circumstances of the case, that the challenge as to the male fide exercise of powers is not made out. In the result, the Writ Petition fails and is dismissed. Rule discharged with no order as to costs.

Author: P Desai

Kumari Jayshree Chandrachud ... vs State Of Gujarat And Ors. on 2 September, 1978

Gujarat High Court

[Section 39] [Complete Act]

Central Government Act

[Section 42] [Complete Act]

Central Government Act

> Title: Presentation of 9th Report of Business Advisory Committee. 12.04 1/2 hrs. MOTION RE : NINTH REPORT OF BUSINESS ADVISORY COMMITTEE THE MINISTER OF PARLIAMENTARY AFFAIRS AND MINISTER OF URBAN DEVELOPMENT (SHRI GHULAM NABI AZAD): I beg to move the following: "That this House do agree with the Ninth Report of the Business Advisory Committee presented to the House on the 17th March, 2005". MR. SPEAKER: The question is: "That this House do agree with the Ninth Report of the Business Advisory Committee presented to the House on the 17th March, 2005". The Motion was adopted.

Presentation Of 9 Th Report Of Business Advisory Committee. on 18 March, 2005

Lok Sabha Debates

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.(MD)No.822 of 2009 and M.P.(MD)No. 2 of 2009 Tamil Nadu State Transport Corporation Limited(Madurai Division No.I), represented through its Managing Director, Madurai. ... Appellant/ Respondent vs 1. Kartheeswari 2. Minor Shanmuga Priya 3. Minor solaimoney 4. Tmt.Shanmugathai ... Respondents 1-4/ Petitioners 1-4 5. M.Ramasamy 6. The Branch Manager, United India Insurance Company Limited, Virudhunagar. 7. The Branch Manager, United India Insurance Company Limited, Kovilpatti ... Respondent 5-7/ Respondents 2-7 PRAYER Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree dated 01.08.2007 made in M.C.O.P.No.50 of 2004, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sivakasi. !For appellant ... Mr.S.Royce Emmanuel ^For respondents ... Mr.M.Micheal Bharathi for R.1 to R.4 For R.6 and R.7 ... Mr.A.S.Mathialagan * * * :JUDGMENT ssl To The Motor Accidents Claims Tribunal, The Subordinate Judge, Sivakasi.  This Civil Miscellaneous Appeal has been filed by the Transport Corporation challenging the award dated 01.08.2007 made in M.C.O.P.No.50 of 2004, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sivakasi. 2. The only contention raised by the learned Counsel for the appellant is that the finding of the Tribunal with regard to the negligence on the part of the driver of the bus is erroneous and that the negligence is attributable to the driver of the Tractor Trailor which is also involved in the accident. 3. In the appeal, the learned Counsel for the appellant pleaded that the evidence of the conductor is that the driver of the tractor trailor also came in a rash and negligent manner and contributed to the accident and that the evidence of the conductor was rejected by the Tribunal. 4. In the light of the following document, viz., F.I.R. which has been lodged on 06.07.1995, wherein, it has been clearly stated that the Transport Corporation bus has turned from South to North and hit the tractor trailor and thereafter, hit the two wheeler, in which the deceased travelled, there can be no doubt that accident was caused by the driver of the Transport Corporation Bus. Therefore, the lower Court finding that the Transport Corporation Bus was driven in a rash and negligent manner, resulting in the death of the deceased is correct. Appellant have not produced any record viz., the Motor Vehicle Inspectors report or the sketch to prove contributory negligence on the part of the driver of the tractor trailor. In view of the documents F.I.R., charge- sheet clearly pointing out the guilt as against the driver of the Transport Corporation bus, this Court is unable to accept any other view, contrary to the findings of the Tribunal. This Court finds no merits in appellant plea. 5. Hence, this Civil Miscellaneous Appeal is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.

Tamil Nadu State Transport ... vs Kartheeswari on 19 January, 2010

Madras High Court

Gujarat High Court Case Information System Print SCR.A/198/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 198 of 2009 ========================================================= JALALUDDIN AHMEDMIYA KAJI - Applicant(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR NK MAJMUDAR for Applicant(s) : 1, Mr U A Trivedi, Addl.PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 16/04/2010 ORAL ORDER Notice not received back. Issue fresh NOTICE returnable on 06th May, 2010. [ANANT S DAVE J.] msp     Top

Author: Anant S. Dave,&Nbsp;

Jalaluddin vs State on 16 April, 2010

Gujarat High Court

[Section 20(2)] [Section 20] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM DBP.No. 67 of 2009() 1. TRAVANCORE DEVASWOM GUARDS ASSOCIATION ... Petitioner Vs 1. THE SECRETARY,TRAVANCORE DEVASWOM BOARD ... Respondent For Petitioner :...... For Respondent :SRI.P.GOPAL,SC FOR TDB The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :03/12/2009 O R D E R P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- D.B.P.No. 67 of 2009 ------------------------------- Dated this the 3rd December, 2009 O R D E R Raman, J. This Devaswom Board Petition is based on the report of Ombudsman, TDB-Report No.159 of 2009 in Complaint No.137 of 2009. After considering the facts and circumstances of the case, there will be a direction to the Chief Commissioner to take a decision in the matter, as suggested by the Ombudsman in paragraph 5 of the report. The said decision shall be taken, as expeditiously as possible, at any rate, within a period of two months, and the decision taken shall also be communicated in the form of a report with copy of the Ombudsman. The D.B.P. is closed with the above direction. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.

Travancore Devaswom Guards ... vs The Secretary on 3 December, 2009

Kerala High Court

Gujarat High Court Case Information System Print CR.MA/2780/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2780 of 2011 WITH CRIMINAL MISC. APPLICATION No. 4365 of 2011 in CRIMINAL MISC.APPLICATION No. 2780 of 2011 ========================================= PRAKASH RAMCHANDRA BAROT & 4 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR MB GANDHI for Applicant(s) : 1 - 5.MR CHINMAY M GANDHI for Applicant(s) : 1 - 5. PUBLIC PROSECUTOR for Respondent(s) : 1, MR RAJESH K SAVJANI for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/07/2011 ORAL ORDER Heard learned Advocate Mr. Chinmay M. Gandhi appearing for petitioners, Mr. B.B. Nayak, learned Senior Advocate appearing with Mr. Rajesh K. Savjani for the original first informant. Order reserved. (J.B. Pardiwala, J.) */Mohandas     Top

Author: J.B.Pardiwala,

Prakash vs State on 2 September, 2011

Gujarat High Court

JUDGMENT S.M. Abdul Wahab, J. 1. C.R.P.No. 2673 of 1996 is against the fair and decretal order in R.C.A.No. 5 of 1994, dated 27.8.1996 on the file of the Subordinate Judge, Trichy (Rent Control Appellate Authority) confirming the order of the District Munsif (Rent Controller), Trichy in R.CO.P.No. 285 of 1986, dated 30.11.1993. 2. C.R.P.No. 2674 of 1996 is against the order dated 27.8.1996 in R.C.A.No. 6 of 1994 on the file of the Subordinate Judge (Rent Control Appellate Authority) Trichy, confirming the order of the District Munsif (Rent Controller) Trichy in R.CO.P.No. 39 of 1987, dated 30.11.1993. 3. These two revision petitions arise out of a common order dated 27.8.1996. The petitioner in both the civil revision petitions is the same person i.e., the tenant, in respect of a building. The respondents are also the same persons in both the revision petitions and they are the landlords. 4. R.CO.P.No. 285 of 1986 was filed for eviction on the ground of default, own as well as additional occupation. R.CO.P.No. 39 of 1987 was filed by the tenant for deposit of the rents under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. 5. The case of the landlords was that the petitioner is a tenant in respect of the building bearing door No. 57 (Southern Portion) E.B. Road, Trichy-8, on a monthly rent of Rs. 300. The rent was paid upto 1985. He committed default from 1.1.1986 to September, 1986. Originally the petitioner became tenant under Mariyayee Ammal. One T.K. Sankaran, agent was collecting the rent. After the death of Mariyayee on 3.4.1986, the petitioner failed to pay the rent. Mariyayee left a will in favour of the respondents on 27.4.1974. The building is required for the oil business of the family. They have no other building in the city of Trichy. Notice was sent on 6.8.1986. It was returned. There is no relation of tenant and landlord between the fourth respondent and Mariyayee. 6. The fourth respondent S. Ashok Kumar filed a counter. According to him he was not a tenant. The tenant was his brother i.e., Thangaraj, who was paying rent to Mariyayee. From 1.8.1973 to 15.3.1979 rent was paid to the father of the respondents 1 to 3. In 1980 Marayee has received rent from Thangaraj. When rent was sent by Thangaraj to the father of the respondents 1 to 3, it was refused. Hence, Thangaraj petitioner has filed R.CO.P.No. 39 of 1987 for depositing the rent into court. 7. The second respondent, the petitioner herein also filed a counter stating that he is the tenant and when the father of the respondents refused to receive the rent, he has filed R.CO.P.No. 39 of 1987. He has deposited the rent in the said case. There is no default in payment of rent. The respondents are not carrying on any business. Therefore, there is no necessity for own or additional accommodation. He has also stated that the rent was only Rs. 175 and not Rs. 300. 8. The Rent Controller took up, both the petitions for eviction as well as deposit of rent together and passed a common order holding that the respondents are entitled for eviction in R.CO.P.No. 285 of 1986 and dismissing the R.CO.P.No. 39 of 1987. 9. The petitioner filed two appeals-before the appellate authority i.e., R.C.A.Nos. 5 and 6 of 1994, one against the order of eviction and the other against the order dismissing the petition for deposit. The appellate authority dismissed both the appeals. Hence, the respondent has preferred these two revision petitions. 10. The petition for deposit and the appeal relating to it were dismissed on the ground that the petitioner has failed to prove that he is the tenant of the building. The Rent Controller has found that the petitioner is not the tenant and the agreement of tenancy is in favour of his brother one S. Ashok Kumar. The petitioner has never paid the rent to the respondent's mother. It has also found that the building was required for own use i.e., for the business of the father carried at Gandhi Market. 11. The appellate authority considered four points, namely, whether the petitioner is the tenant, what is the rent, whether the petitioner committed default and whether the building was required for additional accommodation. 12. After considering the above points, the lower appellate court found that S. Ashok Kumar is the tenant and the rent was Rs. 300. It has also found that wilful default was committed and that the building was required for the business of the father. 13. In the civil revision petition, the learned Counsel for the petitioner Thiru N. Thiagarajan, vehemently contended that the finding of the courts below that the petitioner is not the tenant is incorrect. He has also contended that there was no threat from the owner of the building wherein the father of the respondents is carrying on business. 14. As regards the contention that the petitioner is not a tenant, the contention is that the agreement dated 11.7.1973 i.e., Ex.A-5 was S. Asokan. It is not disputed that the petitioner is none other than the brother of said S. Asokan. P.W.1 is the father of the respondents. He has admitted that the rents were paid and the payment was entered in a book. Even though, he has admitted that the agreement was signed by the said Ashok Kumar and his wife as well as himself as the witness, he has stated that he does not know as to where the said Ashok Kumar was carrying on business at the time of the rental agreement. Further, he has stated that he does not know whether the said Ashok Kumar, the brother of the petitioner is carrying on business or not. Another statement given by him is that he knows about the petitioner from 1985-86. Again he has stated that he does not know whether his wife Mariyayee received the rent from the petitioner. But however, he has admitted that the rent sent by Thangaraj was received by Mariyayee. Apart from this P.W. 1 no other witness has been examined. 15. R.W.1 S. Thangaraj, his evidence has categorically stated that himself and his brother Ashok Kumar were carrying on business together. First his brother was paying the rent, thereafter, his brother executed the rent chit in favour of Mariyayee Ammal. He alone was carrying on the business. Rent is Rs. 175 only, rent was collected by both Mariyayee Ammal and P.W.1. He has produced Exs.B-3 to B-7 money order coupons. As she refused to receive the rent, he sent Ex.B-8. 16. R.W.2, S. Ashok Kumar has stated that he took the building for lease for his brother. Brother alone is carrying on business. From 1973, he is carrying on the business and the licence, the profession and telephone were in his name. Even though he executed the lease agreement, his brother is paying the rent. Mariyayee Ammal used to receive the rent from him and the rent book (Kutcha book) was taken away by the respondents. From the oral evidence, the facts to be noted are that the rent was paid by R.W. 1 and he alone is carrying on the business in the petition building. The original owner Mariyayee Ammal has received the rent from the petitioner R.W.1. The evidence of P.W.1 is unbelievable because, he himself has stated that the petitioner was carrying on business at the time of the rental agreement. He has also stated that he does not know whether the petitioner is carrying on business or not. P.W.1 has admitted that he was collecting rent on behalf of Mariyayee Ammal. If the petitioner was not carrying on business, he could have asserted that fact. But by saying that he was not carrying on business at one place and at another place he does not know as to who carries on business, shows that he is not speaking the truth. No other independent witness has been examined to show that the petitioner is not carrying on business in the building in question. 17. Much reliance is placed on Ex.A-2 a notice sent by Ashok Kumar, brother of the petitioner to Mariyayee Ammal. In the said notice, it is stated that he is the tenant and the rent sent by him for February, March, April, and May, 1992 along with the said notice. He has also stated that Mariyayee Ammal demanded higher rent. As the agent did not turn up to collect the rent, it was sent by money order to Mariyayee Ammal and they were refused. It was also stated that steps are taken to deposit the rent. Ex.A-3 is the reply dated 14.6.1982. In the said notice, it is stated that the matter was settled. Ex.A-7 is the notice dated 13.9.1986 sent by the respondents' mother Mariyayee Animal to S. Ashok Kumar "Lucky Star Oil Company." Ex.B-8 is a notice sent by the petitioner to the respondents on 5.12.1986. It is stated therein that the petitioner was paying the rent to Mariyayee Ammal till December, 1985. As the rents were tendered to Sankaran, father of the respondents and refused by him, the rent for January, 1986 to November, 1986 were sent by draft. For this, the reply is Ex.B-9. In the said notice, the petitioner's status as tenant was denied. It is stated that Ashok Kumar alone became the tenant for premises No. 57. It is stated in the said reply that his brother Ashok Kumar was the tenant and the petitioner was not at all a tenant and the rents were never received from the petitioner. Exs.A-9 to 11 are money order coupon. As we have seen already, P.W.1 has admitted that the money order sent by Thangaraj was received. From Exs.B-11 to B-16, it can be safely inferred that Thangaraj is carrying' on business at No. 57 E.B. Road, Tirchi, from 1973 onwards, and the name of the business is "Lucky Star Oil and Motor Oil" at No. 57, East Puliyur Road, Trichi. The aforesaid documents are official records. 18. Even though the rent deed was executed by the brother of the petitioner, the petitioner alone is carrying on the business in the rental building. As admitted by P.W.1 the rent has been received by him also. Therefore, the necessary interference is that even though the rent deed was executed in favour of one brother, the business is carried on by another brother. He is not a stranger and it cannot also be termed as a case of sub-tenancy. Therefore, the petitioner cannot be termed as a stranger and has nothing to do with the tenancy, Factually he has been carrying on business in the rented premises by paying rent. It is also worthwhile to mention that in paragraph 8 itself, the respondents have categorically stated that the tenancy has been oral except for the initial period of one year when the tenancy commenced from 11.7.1973. In such circumstances, the respondents cannot rely upon Ex. A-5 alone and contend that Ashok Kumar alone is the tenant because, he has executed Ex.A-5. As the tenancy has been oral in the beginning as admitted by the respondents from 1974 onwards and rents have been received from the petitioner by Mariyayee Ammal herself as per the admission of P.W.1 and the Exs.B-3 to B-7 the notice sent by Ashok Kumar cannot be taken advantage of and contend that Ashok Kumar alone is the tenant. The notice under Exs.A-2 and A-7 would only show that S. Ashok Kumar alone is the tenant, because even in those two documents "Lucky Star Oil Company" is mentioned. In effect these two notices relate to "Lucky Star Oil Company" From Ex.B-15, it is clear that the petitioner is carrying on business under the name and style of "Lucky Star Oil & Motor Oil" under a licence from the Sales Tax Department from 27.9.1973. In these circumstances, it is very difficult and unjust to hold that the petitioner is not the tenant in respect of the building namely, 57, E.B. Road, Trichi. In my view, the Courts below have not adverted to the vital documents like Exs.B-3 to B-6 and B-H to B-16. Ex.B-15 has been rejected stating that the original was not filed. That cannot be a reason for rejecting a document. Since the document has been admitted, it cannot be rejected on the ground that original was not produced, and it is also not stated under what condition the said document was admitted marked and given a number. Therefore, the finding of the courts below cannot be sustained. 19. The learned Counsel for the respondents relied upon a latest decision of this Court reported in M/ s. Boston v. Akbar , wherein a learned single Judge has held that if finding are rendered by the Rent Controller one way or the other and affirmed by the appellate authority after evaluating the evidence, While exercising powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court is not entitled to reverse those findings of fact. In my view, the learned Judge has carefully worded the principle. If the evidence has been evaluated properly, the court's power is restricted, if there is no evaluation of certain evidence, it is the duty of the court to interfere, otherwise the revisional jurisdiction of this Court under Section 25 of the Act is not exercised at all. The purpose of Section 25 is for interference by this Court. However, the interference is on certain conditions laid down in the said section. This Court is bound to interfere when it is not satisfied with the legality of the decision rendered by the Rent Controller and the appellate authority. Here, the illegality is apparent, as mentioned above, when the courts below have failed to consider the vital documents. 20. As regards the default, according to the Courts below, since there was no tendering of rent by S. Ashok Kumar, who alone is the tenant, there is default. They have not taken into account the money order sent by the petitioner and also the notice sent by him under Ex.B-8 and the filing of the petition for deposit of rent i. e,, R.C.O.R.No. 39 of 1987. Since the rent has been deposited as per the orders in R.CO.P.No. 39 of 1987, the question of default does not arise at all. 21. The next important question is the ground of owners occupation. In the petition in paragraph 13, the petitioners/landlords have stated that Oil and Maligai business are carried on at No. M.S.40, Gandhi Market Building, belonging to Trichirapalli Municipality. In paragraph 14, it is stated that the entire door No. 57, E.B. Raod, Trichirapalli, is required for the conduct of the aforesaid joint family business of Oil and Maligai. P.W.1 has not stated any where in his evidence that the said building No. 57, E.B. Road, is required for shifting the business from Gandhi Market. There is also no evidence that the respondents are under threat of eviction. In the cross-examination also he has not stated that the building is required for shifting the business from Gandhi Market. On the other hand, it is stated that it is required for the additional accommodation. That apart, at the end of the cross-examination, P.W.1 has stated that there is a business in Gandhi Market, it is in a rented building and it is a hotel. He has also admitted that he is not carrying on business at No. 57 E.B. Road. The evidence of P.W.1 is contrary to the allegations contained in the petition itself. In the petition, it is stated that the building is required for carrying on business in Maligai and Oil at Gandhi market, but in the evidence, P.W. 1 has stated that he is carrying on hotel business in the Gandhi Market. The rent control appellate authority has stated that R.W. 1 has admitted that P.W. 1 is having a hotel business at Gandhi Market. The appellate authority has also admitted that accepting the evidence of R.W.1 that hotel business is running in Gandhi Market and the building belongs to the Corporation. As we have seen already P.W.1 has not stated the reason as to why he wants to shift his hotel business from Gandhi Market to the building in question. It is clear that the respondent have not proved that they require the building in question for the purpose of shifting the business, hence requiring for own occupation, is not established. 22. As regards the additional accommodation, P.W. 1 himself has categorically stated that they are not carrying on the hotel business at' No. 57, E.B. Road, Trichi, under the name and style of "Meena Eating House". It is also not known whether the respondents are doing any other business at No. 57, E.B. Road, Trichi. In the circumstances, the question of additional accommodation does not arise at all. The respondents case appears to be that since there is already a shop vacant and the business to be started cannot be accommodated in that vacant portion alone, they require the petition building also for the business to be started. Section l0(3)(c) of the Act cannot be attracted in such contingencies. The ingredients require in that is the landlord is occupying only a part of the building and he must require additional accommodation for the said business. If there is no business at all, the question of accommodating the non-existing business in the building occupied by a tenant does not arise at all. 23. The decision relied upon by the lower appellate Court reported in Shivaji Rao v. Bhujanga Rao 1974 T.L.N.J. 183 is not helpful to the respondent/landlords. In the said case, in the same main building independent and different door numbers are there, but in the case on hand the business is said to be carried on altogether in a different locality and not in the very same building where the tenant is carrying on business. Therefore, the said decision has been wrongly quoted by the appellate authority. 24. On consideration of the above facts and circumstances of the case, I am of the view that the courts below have erred in their decision. Therefore, the fair and decretal order of the Rent Controller as confirmed by the Rent Control Appellate Authority is set aside. The civil revision petitions are allowed. However, there will be no order as to costs. Consequently, C.M.P.No. 14755 of 1996 is dismissed as unnecessary.

Author: S A Wahab

S. Thangaraj vs Balasubramaniam And Ors. on 29 April, 1998

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38792 of 2010 ABINASH SINGH Versus STATE OF BIHAR ----------- Vikash ( Mandhata Singh, J.) 02. 29.11.2010 Issue notice to opposite party no. 2 under registered cover with A/D and also ordinary process for which requisites must be filed within two weeks failing which this application shall stand rejected as against concerned opposite party without further reference to a Bench. In the meantime, no coercive step shall be taken against the petitioner in connection with Kanti P.S. Case No.189 of 2010 pending in the Court of the S.D.J.M., West Muzaffarpur. Let this order be communicated to the court below through fax at the cost of the petitioner.

Abinash Singh vs State Of Bihar on 29 November, 2010

Patna High Court - Orders

JUDGMENT R.N. Misra, J. 1. The appellant in this court was the plaintiff who sued for title and possession in respect of 13 decimals of land with a house standing thereon. His suit was decreed in the trial court, but he lost in the lower appellate court and has, therefore, come in second appeal. 2. According to the plaintiff, one Gopinath Mohapatra had three sons, namely, Bhagaban, Madan, and Janardan. Bhagaban's widow was Jema. Radhamani happened to be the widow of Madan and the plaintiff is the son of Janardan. These three brothers had become separate during their lifetime and were in separate enjoyment of the properties allotted to their respective shares. So far as the homestead was concerned they had been enjoying it jointly without any partition by metes and bounds. This house was situated in touzi No. 674. Gopinath, the common ancestor had only one anna interest in the touzi. This interest of one anna had accordingly been divided into three shares among Bhagaban, .Madan and Janardan. Before Jemamani's death, she had executed a deed of gift in favour of Padmamani, who was the daughter of RadhamanL Radhamani had also executed another deed of gift in respect of her interest in the touzi in favour of Padmamani. Radhamani had two daughters, Padmamani and Indramani. One Babu-ram Biswal had married Padmamani and had lived in the family as an illatem son-in-law. Thus, during the lifetime of Jemamani and Radhamani, Baburani with his wife had come to live in the house and was in possession thereof. Padmamani died leaving two daughters, Amba and Laxmi and Baburam married one Hernamani for the second time after the death of his first wife. Hemamani is defendant No. 1. Indramani died leaving behind Hari and Benudhar as the sons. They are defendants 4 and 5. The plaintiff had gone away to Calcutta in connection with service. In the meantime, during his absence, the superior right in the touzi was sold to one Sabitri Dei as early as September. 1920, but the plaintiff was in occupation of the house and the rest of the property as a tenant under Sabitri and other co-sharer landlords. On 16-1-1923, the plaintiff had executed a usufructuary mortgage in favour of Baburam. In 1930, he redeemed the mortgage and came to possession. During this period, behind the back of the plaintiff, Baburam had got himself recorded in the current settlement record of rights. The plaintiff had no occasion to doubt the bona fides of Baburam who was virtually looking after all his properties. The plaintiff upon return from Calcutta possessed the property and after Jemamani's death he inherited the share of Bhagaban as the last surviving reversioner. The defendants 2 to 4 were never in possession of the property. The defendant No, 1 was not entitled to the property, but he applied before the Estates Abolition Authorities for fixation of fair and equitable rent in her name. The plaintiff objected to it. As there was a decision against the plaintiff by the Estates Abolition Collector, the suit was filed. The cause of action of the suit was actually the order of the Estates Abolition Collector dated 18-8-62 by which fair and equitable rent in favour of defendant No. 1 was determined. 3. The main contest came from the defendant No. 1. Her case was that by virtue of the deeds of gift Padmamani became the owner of the property held by Jemamani and Radhamani. After the sale of the plaintiff in favour of Sabitri, Jemamani and Radhamani became tenants under the landlord and possessed the properties. Baburam possessed the entire property. of all the three branches and after his death, the defendant No. 1 has been in possession of it. The plaintiff's mortgage was denied. She further claimed that in the return made by the ex-intermediary, in place of Gopinath's one anna interest, the name of the defendant No. 1 had already been entered. The defendant No. 1 claimed to have acquired adverse title to the property on account of her possession for a long time beyond the statutory period. 4. There is no dispute about the following facts:-- Bhagaban left behind Jemamani as his widow who died sometime in the year 1928. Madan's widow Radhamani died in 1917. The plaintiff is the son of Janar-dan Madan's two daughters were Radhamani and Indramani. Padmamani was married to Baburam who came to live as the illatem son-in-law along with Radhamani. Padmamani died in 1941. Baburam remarried after the death of Padmamani to defendant No. 1. Indramani died in 1956. The defendants 2 and 3 -are Padmamani's daughters. Similarly defendants 4 and 5 are the sons of Indramani. The two gifts, Ext. B-1 and Ext. A-1 were found to be invalid by the trial court. The learned Munsif believed the possession of Padmamani and Baburam, and after them, defendant No. 1. But he found such possession to be permissive and declared the plaintiff's title and possession over 2/3rd of the disputed property as he found defendants 4 and 5 were entitled to the remaining 1/3rd. He also called upon the defendants 4 and 5 to sell this 1/3rd share to the plaintiff on payment of Rs. 166/-, under the provisions of Section 4 of the Partition Act. 5. The defendant No. 1 and the defendants 2 to 5 together filed two separate appeals being Title Appeals No. 54/66 and No. 37/66. These appeals were heard together by the learned Additional Subordinate Judge. The lower appellate court found that the question of possession was of considerable importance and first proceeded to examine that aspect. He held that Baburam's possession was not permissive. He next found that the right to claim on the basis of the reversionary right of the plaintiff arose in 1917 so far as Radhamani was concerned and in 1928 so far as Jemamani was concerned. The suit brought in 1962 was out of time. He then examined the defence claim that the suit was barred by limitation under Section 39 of the Orissa Estates Abolition Act and upheld that objection also. Thus, on these findings, the decree of the trial court was set aside and the appeal was allowed. The plaintiff having lost in the hands of the appellate court is in appeal before this Court. 6. Two questions mainly arise in this appeal. Firstly, as to whether on merit, the claim of the plaintiff is to succeed and secondly, the effect of settlement under Ext. J made by the Estates Abolition Collector. 7. The provisions of the Orissa Estates Abolition Act as far as pertinent for the present purpose are contained in Sections 6, 8-A and 39 of the Act. These provisions so far as relevant may now be extracted for convenient reference. "Section 6(1): With effect from the date of vesting, all homesteads comprised in an estate and being in the possession of an intermediary on the date of such vesting, . . . shall, notwithstanding anything contained in this Act be deemed to be settled by the State Government with such Intermediary and with all the share-holders owning the estate, who shall be entitled to retain possession of such homesteads and of such buildings. ....... subject to the payment of such fair and equitable ground-rent as may be determined by the Collector in the prescribed manner." "Section 8-A: (1) The Intermediary shall file his claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him under Section 6 or Section 7 before the Collector within three months from the date of vesting. (2) x x x x x x (3) On the failure of filing the claims within the period specified under this section the provisions of clause (h) of Section 5 shall, notwithstanding anything to the contrary in Sections 6, 7 and 8, apply as if the right to possession of the lands or building or structure as the case may be, had vested in the State Government by the operation of this Act and thereupon the right to make any such claim as aforesaid shall stand extinguished." "Section 39: No suit shall be brought in any Civil Court in respect of any entry in or omission from a compensation Assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subiect of any application made or proceeding taken under the said Chapters," 8. In the trial court Ext J which is the final order under Section 6 of the Estates Abolition Act and Ext. L, the rent schedule pursuant to the order under Ext- J were produced. From Ext. L it clearly transpires that plots 134 and 135 of Nijjot holding and plot 72 of the Ana-badi holding which constitute the entire disputed property were settled in the name of defendant No. 1, in Rent Fixation Case No. 136 of 1956-57, under Sections 6 and 7 of the Estates Abolition Act In this court, an application for acceptance of additional evidence has been filed. Two sets of documents have been produced along with an application for acceptance of additional evidence. The first document is the entire order sheet of Rent Fixation Case No. 136 of 1956-57 including the public notice and the second document is the order of the Additional Collector of Balasore in Estates Abolition Appeal No. 60 of 1959-60, dated 30th July, 1960, by which the original order of settlement was vacated and the matter was directed to be redisposed of. Ext. J is the final order subsequent to this remand. Both these proceedings were inter-partes and are public documents. Mr. Pal's claim is that these documents if accepted would help the court to decide the matter conveniently. Mr. Mohapatra raised objection about admitting these documents into evidence. But I do not think, the plaintiff is at all prejudiced by accepting these documents. The very basis of his case is that such a proceeding was taken and aggrieved by its final order he came to the court. There is no dispute or doubt about the authenticity of the documents I am also of the view that if the documents are received in evidence, the disposal of the appeal may be facilitated. I would, therefore, allow the application under Order 41, Rule 27, C.P.C. and direct that these two documents be received by way of additional evidence. The order sheet of the Rent Fixation Case No. 136 of 1956-57 be marked as Ext. O and the appellate order of the Collector in Estates Abolition Appeal No. 60 of 1959-60 be marked as Ext. P. 9. On a reference to the Estates Abolition proceedings, it transpires that an application was made by the defendant No. 1 for settlement of the land with her. On 11-5-59, the O.E.A. Collector passed the following order-- "The ex-Zamindar and the applicant in this case--Hemamani Biswal--appears through Govinda Biswal. The application for fixation of rent under Sections 6 and 7 of the O.E.A. Act has been filed in the prescribed form within the prescribed time limit." Ultimately he accepted the claim and directed rent to be fixed. An appeal was carried by the plaintiff-appellant to the Additional District Collector. By Ext. P (the document received as additional evidence), the plaintiff's appeal was allowed and the Estates Abolition Collector was called upon to make spot verification and redetermination of the matter. There was actually a spot enquiry on 18-7-62 as would appear from the order sheet in Ext. O. The various orders in this case, subsequent to the remand by the appellate court go to show that both the parties--the plaintiff and the defendant No. 1--were present. After hearing the parties, the order under Ext. J was passed settling the lands with the defendant No. 1. No challenge was offered to the settlement by the Estates Abolition Collector by filing an appeal under Section 9 of that Act. The plaintiff came with this suit. 10. The main question for examination, therefore, is as to whether the Civil Court has jurisdiction in view of the mandatory provisions in the statute to entertain the present suit. 11. Mr. Mohapatra's main contention in this Court has been that the settlement by the Estates Abolition Collector as evidenced by Ext. J is not in accordance with law and therefore it is open to the civil court to examine the matter afresh. The bar of jurisdiction raised under Section 39 of the Estates Abolition Act is on the basis that the order is in accordance with the statute. If the impugned order Ext. J is not in accordance with the statute, the bar of jurisdiction would not apply and the Civil Court would certainly have jurisdiction to examine whether the statutory requirements have been complied with. He also contends that possession on the material date was required to be found by the Estates Abolition Collector for the purpose of making an order under Section 6 of the Act. As the Estates Abolition Collector has omitted to find possession on the material date his order is without jurisdiction and therefore, the protection under the statute in respect of such orders on the provisions of Section 39 of the Act cannot be raised. He relies upon the decision of their Lordships of the Judicial Committee in Secy, of State v. Mask & Co., AIR 1940 PC 105, where their Lordships have laid down:-- "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." The rule in the aforesaid case has received explicit approval of their Lordships of the Supreme Court on several occasions and the dictum is beyond dispute. 12. The reasoning indicated in the remand order Ext. P was expressed by the learned Additional Collector in the following way-- "The pleader for the appellant (plaintiff) argued that he was in possession of these plots even after the sale of their Interest in the touzi. He has obtained rent receipts from the previous landlords. The learned Tahasildar has passed orders without making enquiry at the spot verification, verification of the spot is also necessary in all such cases. In view of the possession of the lands by the appellant. J remand the case to the lower court for recording documentary and oral evidence of both the sides and the final orders passed on merits after visiting the spot, if necessary." The Collector under the Estates Abolition Act visited the spot on 18-7-62 and made an enquiry with reference to possession. In a part of his final order Ext. J he stated-- "On perusal of records, it was seen that all these plots (objected plots) along with other plots as per annexures 'A' to 'H' have been recorded as Dakhal (possession) -- Padmamani Dei and Dakhal (possession) -- Jema Dei in the last settlement, names of whom were subsequently changed. In Register 'D' and in Gazette Notification dated 22-1-54, name of the applicant Hemamani Dei (Biswal) along with other co-sharers have been declared as ex-zamindars of the estate bearing touzi No. 674. Accordingly, after perusal of records and documents the then Tahsildar and Collector under Sections 6 and 7 of the O.E.A. Act he had passed orders for fixing rent in favour of the ex-zamindar Hemamani Biswal. In view of the above facts and in the absence of any definite and concrete proof. I am not in a position to declare the right and title over the disputed plots in favour of the O. P. (Plaintiff)--Shri Mohapatra in face of settlement records. ......." 13. There is no room to doubt after examining this order that the Estates Abolition Collector was aware of the requirement of the possession on the material date and on the basis of the evidence alreadv on record and the material collected by him by spot visit, he was satisfied that the applicant (defendant No. 1) was entitled to settlement under Section 6 of the Act. This order was admittedly passed in the presence of the plaintiff. 14. It is not the case of the plaintiff that the Estates Abolition Collector did not act in conformity with the fundamental principles of judicial procedure. The entire allegation is confined to the fact that he did not find possession on the date of vesting as required under Section 6 of the Estates Abolition Act. The contention raised by Mr. Mohapatra was confined to the point that in the absence of finding of possession on the date of vesting, the Collector under the Act had no jurisdiction to direct fixation of fair and equitable rent. As I have already said, it is difficult to hold on the basis of Ext. J and the background revealed by the appellate order of remand that the Estates Abolition Collector was not alive to the requirement of possession on the date of vesting and had actually not recorded a finding to that effect. Ext. J read as a whole clearly gives the impression of such a finding having been the basis of the ultimate order. I must, therefore, hold that in Ext. J it has been found that the defendant No. 1 who was the applicant in the Rent Fixation case was in possession on the date of vesting. Once that is found, it would follow that the Estates Abolition Collector had jurisdiction to make the order as required under the statute and the only ground of challenge must fail. 15. In the case of Desika Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807, their Lordships of the Supreme Court were examining a case of jurisdiction on such score. Ayyangar, J. spoke for the Court thus-- "This result would be sufficient to demonstrate the impossibility of accepting the construction for which the appellant contends. The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. In addition we have the provision in Section 9(4) (c) read with Section 9(6) to which we have adverted. In these circumstances, we have no hesitation in holding that to the extent of the question stated in Section 9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Courts are barred from trying or retrying the same question. We should, however, hasten to add that this exclusion of jurisdiction would be subject to two limitations. First is the reservation made by Lord Thankerton in AIR 1940 PC 105 at p. 110, where, after holding that the provisions of the Sea Customs Act setting up a special machinery for the adjudication of the correct duty leviable under the Act barred recourse to the Civil Courts to question the correctness of the decisions of the Authorities acting under that enactment added: 'It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conform ity with the fundamental principles of judicial procedure'. The scope of the exception here made was the subject of examination by this Court in the case of Firm of Illuri Subbayya Chetty v. State of Andhra Pradesh, AIR 1964 SC 322 where Ganjendragadkar, J. speaking for the Court said: 'Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.' It is only necessary to add that no question envisaged by Lord Thankerton or referred to by Gajendragadkar, J. is raised in the appeal before us and it is therefore unnecessary for us to examine, in the present appeal either, the precise limits of this exception. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. Lord Esher formulated the point thus in the Queen v. Commr. for Special Purposes of the Income-tax, (1888) 21 QBD 313 at pp. 319-320: 'When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases, I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.' It is manifest that the answer to the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors." 16. It is clear that the jurisdiction of the Estates Abolition Collector is of the second type referred to by Lord Esher M. R. I have already found that the Collector under the Estates Abolition Act had actually kept in view the possession on the relevant date and decided in favour of the defendant No. 1. An appeal though provided was not availed of The present proceeding is certainly collateral and once it is found that the Estates Abolition Collector had acted within his jurisdiction, the matter is not open to challenge. 17. Mr. Mohapatra wanted to distinguish the case of Brij Raj Krishna v. S.K. Shaw and Brothers, AIR 1951 SC 115, by saying that their Lordships of the Supreme Court were dealing with the Bihar Buildings (Lease, Rent and Eviction) Control Act where by express terms of that statute, the Controller had been conferred the jurisdiction to determine whether the tenant was in arrears of rent and had thus entailed the liability of being evicted; whereas in the present case, the Estates Abolition Collector was to get jurisdiction only on the footing that on the date of vesting the applicant was in possession. I do not think that the Rule laid down in the aforesaid decision can be distinguished on such score. The jurisdiction conferred upon the Estates Abolition Collector appears to be quite wide and extensive. Certain normal civil disputes have been specifically taken within the jurisdiction of the Estates Abolition Collector and in respect of such matters, the Civil Court's jurisdiction has, been excluded. Whether, an intermediary is in possession on the date of vesting or not is a matter within the exclusive jurisdiction of the Collector to determine. Under Section 5 of the Estates Abolition Act, the entire estate vests subject to provisions contained in Chapter II, such as in Sections 6, 7 and 8. What shall not vest by virtue of a vesting notification and by way of exception to the omnibus consequences of vesting provided for under Section 5 of the Act is actually statutorily left to the Collector appointed under the Act. By a deeming provision contained in Sections 6 and 7, in certain eventualities, the intermediary is entitled to hold the property. But a time is indicated and a procedure has been laid down for making an application for fixation of fair and equitable rent. On the failure to make the application in the statutory process, the disastrous result is indicated in Section 8-A (3) of the Act. The deemed settlement under Sections 6 and 7 lapses and the consequences of the vesting under Section 5 operate. In this background when the legislative intent is apparent, the question of possession for the purposes of granting a settlement must be taken certainly to be completely within the jurisdiction of the Estates Abolition Collector in the same manner as ordering eviction of a tenant for non-payment of rent is within the exclusive jurisdiction of the, controller. Whether the intermediary is in possession on the relevant date is not a jurisdictional fact, but is the basis for disposing of the claim. The Estates Abolition Collector has full jurisdiction to decide the dispute as the civil court determines the claim for settlement on the finding of possession on the date of vesting. I do not think, Mr. Mohapatra's stand with reference to the decision in AIR 1951 SC 115 is correct. Fazl AH, J. who spoke for the Court had also referred to the proposition laid down by Lord Esher, M. R. and came to hold-- "There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is nonpayment of rent or not, as well as the jurisdiction, on finding that there is nonpayment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a Civil Court." 18. In my view this is the right reasoning especially to be applied to the present case. It must be held that whether the ex-intermediary was in possession on the material date is a matter exclusively within the jurisdiction of the Collector under the Act and upon the conclusion which I have already arrived at, it must be held that he had recorded a finding as required under the statute. Its erroneous character is not open to examination in the Civil Court. 19. While there is material that the defendant No. 1 applied and got settled with fair and equitable rent, there is no material that the plaintiff made an application. The plaintiff's claim of tenancy after the disposal of the proprietary right under the sale of 1920 has not been repelled in the lower appellate court. The plaintiff in the absence of an application under Section 6 must be taken to have been visited with the penalty under Section 8-A (3) of the Act and his right to make a claim must be taken to have been statutorily extinguished. Even if there was scope for entertaining the contention of Mr. Mohapatra on the earlier score, the mandatory direction in the statute for extinguishment of claim on account of non-preferring thereof in the statutory process is bound to work out and must be taken to have worked out so as to non-suit the plaintiff even if he had cause of action and locus standi to maintain it otherwise. 20. It was open to the plaintiff to claim as a co-sharer. If he had made such a claim, the settlement in favour of the defendant No. 1 could enure to his benefit and even after the settlement had been granted in favour of the defendant No. 1 alone, it could be contended in the civil court that that settlement was to enure to the benefit of the plaintiff as a shareholder (in case he was). But in the courts below as also here, Mr. Mohapatra has contended that Baburam and his widow, the defendant No. 1 were at best licensees. Thus, there is no scope for the said basis as well. 21. The conclusion that emerges from the aforesaid discussion is that the present suit would be not maintainable on account of the bar under Section 39 of the Act. It clearly says that in respect of a matter which has already been the subject of an application made under Chapter II of the Act, a suit would not lie. Admittedly, the Rent Fixation case referred to above was under Chapter II and thus it would follow that the present suit was not maintainable. As I have found that there is no jurisdiction to entertain this suit, I do not think it necessary to get into an examination of the facts of the case for a decision on merits. That would not be open to be done in view of want of jurisdiction. 22. On my aforesaid analysis it irresistibly follows that there is no merit in the second appeal and it is bound to be dismissed. I would accordingly dismiss the appeal and uphold the appellate judgment. But in the peculiar facts of this case, I think it proper to direct both parties to bear their own costs throughout.

Author: R Misra

Ch. Krushna Chandra vs Sm. Hemamani Biswal And Ors. on 27 August, 1970

Orissa High Court

Gujarat High Court Case Information System Print CR.MA/6200/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 6200 of 2011 In CRIMINAL APPEAL No. 1337 of 2008 ========================================================= MOHAN DEVABHAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : THROUGH JAIL for Applicant(s) : 1, MR KARTIK PANDYA, APP for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE P.P.BHATT Date : 04/05/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. The present application is filed through jail seeking temporary bail for a period of 30 days so as to remain present on the occasion of marriage of his son, which is scheduled on 11.05.2011. 2. RULE. Mr.Kartik Pandya, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent-State. 3. Learned APP invited attention of the Court to the jail remarks. The convict has enjoyed 6 furloughs on 4 different occasions and every time, he has reported in time. He has also enjoyed one temporary bail in the month of March-April 2011 for the purpose of engagement of his son. 4. For the contents of the application, the application is allowed. The applicant-convict is ordered to be released on temporary bail for a period of 30 days from the date of his release in Criminal Appeal No.1337 of 2008 pending before this Court, on his executing a personal bond of Rs.5,000/- (Rupees Five Thousand Only) to the satisfaction of the Jail authorities. 5. The applicant-convict shall surrender to the Jail authorities on expiry of the temporary bail period. 6. Rule is made absolute. Registry is directed to communicate this order by fax to the jail authorities. (Ravi R.Tripathi, J.) (P.P.Bhatt, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;Mr.Justice P.P.Bhatt,&Nbsp;

Mohan vs State on 4 May, 2011

Gujarat High Court

JUDGMENT Nisith Kumar Batabyal, J. 1. Being aggrieved by the judgment and order dated 30th July, 1992 passed by the learned Trial Judge in Civil Order No. 9333 (W) of 1991, the writ petitioners have preferred this appeal against the order of dismissal of the writ petition. In the original writ application, the appellants have prayed for issuance of a writ of Mandamus commanding the respondent Nos. 1, 2, 3 and 4 to grant and/or to renew the licence under Bye-Law No. 55A of the Bye-laws framed by the Calcutta Port Trust in favour of the appellant No. 1 who claims to be a registered Partner of the duly registered Partnership Firm, the appellant No. 2 and also to his Sircars, Clerks, Servants and Agents. 2. There was originally a Partnership business started under the name and style of Messrs, B.B. Bose & Sons to carry out business of clearing; and forwarding agents for the Customs Authorities in Calcutta in the Jetty of Calcutta Port Trust between Shri Ganesh Chandra Bose (the respondent No. 7 in the appeal) with 75% share and Shri Dinendra Kumar Bose (the respondent No. 8 in the appeal) with 25 % share. The Deed of Partnership was duly registered. The appellant, Shri Bijoy Kumar Bose is a son by the first wife of respondent No. 7 and Shri Sanjoy Kumar Bose, the respondent No. 9 in the appeal is another son of respondent No. 7 by his third wife. In the year 1984, due to old age Shri Ganesh Chandra Bose (the respondent No. 7) became infirm and fell seriously ill and is still lying bed-ridden and paralysed. Both the Partners of the said firm executed and registered on 19.11.84 an irrevocable Power-of-Attorney in favour of the appellant No. 1. Subsequently on 24-4-1989, Shri Ganesh Chandra Bose (the respondent No. 7) duly admitted in his letter dated 24th April, 1989 addressed to the Collector of Customs, Calcutta (the respondent No. 5 in this appeal) that he had relinquished his 25% share or interest out of his 75% share in the Partnership in favour of the appellant, Shri Bijoy Kumar Bose and another 25%: share in favour of his another son, Shri Sanjoy Kumar Bose (the respondent No. 9). According to the appellants, when any Partner relinquishes his share or any part or portion of his share in favour of a new Partner, such a relinquishment need not be registered under the Indian Partnership Act. Accordingly, with effect from 24th of April, 1989, on the basis of the admission of Shri Ganesh Chandra Bose, respondent No. 7, the appellant has become a new Partner in the Partnership Firm with 25% share therein and the Power of Attorney executed and registered in 1984 has merged with the power of the appellant as new Partner. The grievance of the appellant is that though he has applied for renewal of licence under Bye-law No. 55A of the Bye-laws framed by Calcutta Port' Trust in favour of the appellant as a Partner of the Firm appellant No. 2 and also to his Sircar, Clerks, Servants or Agents in terms of the said Bye-law of the Calcutta Port Trust read with Bye-law No. 3 thereof, no action has been taken thereon. Hence, the appellants have prayed for the issuance'" of a writ of Mandamus commanding the respondent Nos. 1, 2, 3 and 4 to grant or renew the licence under Byelaw No. 55A of the Bye-laws framed' by the Calcutta Port Trust in favour of the appellant No. 1 and a writ or a writ in the nature of Prohibition prohibiting the respondent Nos. 1 to 4 and their agents, servants etc. and the respondent Nos. 5 and 6 from preventing the appellant and his Sircars, Clerks, Servants or Agents etc. to work and function in the Jetty and Wharves of Calcutta Port and other reliefs. 3. The writ application has been hotly contested in the Court below. 4. In the affidavit-in-opposition on behalf of the respondent No. 8 it has been stated that there was really a Partnership between Ganesh Chandra Bose and Dinendra Kumar Bose as stated in the writ petition. It is also not disputed that Ganesh Chandra Bose, respondent No. 7 became ill and paralytic and unable to sign from October, 1990. But it has been stated in paragraph 13 of the affidavit-in-opposition that the Power-of-Attorney dated 19-11-84 and the letter dated 24-4-89 were the subject-matter of dispute and/or controversy in Title Suits No. 1370 of 1990 and 1599 of 1990 in the City Civil Court at Calcutta between the parties and in the said Suit by order dated 25-1-91 in Annexure "H" and by order dated 7-3-91 in Annexure "I" to the said affidavit-in-opposition it has already been decided by the learned Judge, City Civil Court that the appellant, Bijoy Kumar Bose and the respondent No. 8 are neither Partners nor Agents nor Attorneys on the basis of the said two documents. It has been denied that the, appellant became a Partner to the extent of 25% share as stated by him. 5. In the affidavit-in-reply against the affidavit-in-opposition by respondent No. 8, the appellant has stated that he denies the statements and/or allegations or contentions made in paragraphs 3, 4, 5, 6 and 7 of the affidavit-in-opposition, in view of the statements made by him in paragraph 2 of his affidavit-in-reply. It may, in this connection, be stated that the dispute about the alleged admission by which the appellant has claimed that he has acquired 25% share in the Partnership is covered by paragraph 7 of the affidavit-in-opposition. 6. The Learned Trial Judge has been pleased to dismiss the writ application in view of the fact that the appellant did not come to Court with clean hands and suppressed material facts before the Court. According to the Learned Trial Judge, the appellant has violated the principle that he who seeks enquiry must be equity. 7. Against this order of dismissal, the appellants have come in appeal which is hotly contested. 8. The Learned Lawyer for the appellants, Mr. Mahadeb,Ghosh has submitted that under Section 68(2) of the Indian Partnership Act, a certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm and of the contents of any statements, intimation or notice recorded or noted therein. The [Learned Lawyer has in this connection drawn the attention of the Court to Annexure "A" to the writ petition which is a Certified copy of the' Register of Firms showing an entry under the description in Column-III of documents filed "Notice of changes in the Constitution". This annexure shows that there are four Partners in the Firm' of Messrs. B.B. Bose & Sons and the number of the firm on the Register is L-5235. The names of the four Partners are, Messrs. Ganesh Chandra Bose, Dinendra Kumar Bose, Bijoy Kumar Bose and Sanjoy Kumar Bose. The date of filing or registration is 6-4-1991/11.4.1979. According to the Learned Lawyer for the appellants this certified copy of the relevant entry in the Register of Firms is in proof of the fact that the appellant No. 1 and the respondent No. 9 are Partners of the Firm of Messrs. B.B. Bose & Sons, And, therefore, the respondent Nos. 1 to 6 have no reasonable excuse for withholding renewal/granting of licence in favour of the appellant No. 1 as Partner of appellant No. 2 and to his Sircars, Clerks, Servants or Agents etc. from working in the Jetty and Wharves of Calcutta Port Trust under Bye-law 55A of the Bye-laws framed by the Calcutta Port Trust. It has been further argued by the Learned Lawyer for the appellants that there was no suppression of any material fact by the appellants in the writ petition dis-entitling them from any relief on the principles of equity. According to the Learned Lawyer for the appellants, the writ petition ought to have been allowed by the Learned Court below. 9. The Learned Lawyer for the respondent Nos. 1 to 4 has submitted that they have withheld the granting/renewal of the licence in view of a litigation between the parties in the City Civil Court at Calcutta. As soon as the dispute relating the title of the parties is settled by the decision of a Competent Court of law, the Port Authorities' will grant or renew the licence under the rules. 10. The Learned Counsel for the respondent Nos. 7, 8 and 9 has submitted that the writ petitioner has been rightly rejected by the Learned Trial Court as there is no substance in the contention of the appellants. According to the Learned Counsel, at least two Suits are pending before the competent Civil Court for adjudication of the question whether the appellant No. 1 is a Partner of the Firm, Messrs. B.B. Bose & Sons. There are other question involved in, these two Suits also. The basic facts are seriously disputed in the instant case. In the circumstances, there is no occasion for the Writ Court to entertain the petition filed by he appellants. Another point argued by the Learned Counsel fer the respondent Nos. 7, 8 and 9 is that the entry in the Register of Firms about the alleged change of Constitution of the Firm cannot have any binding effect upon the two Partners of the Firm. It has been further argued by the Learned Counsel that there was a suppression of material facts in the writ petition as there was no mention about the rejection of the petition for temporary injunction filed by the appellants in one of the Suits. 11. There is no doubt that the respondent No. 8 filed Title Suit No. 1370 of 1990 on 10th of September, 1990 against the appellant No. 1 and the respondent No. 9 for declaration and permanent injunction with prayers that the irrevocable Power-of-Attorney dated 10-11-84 became void and unenforceable having; been revoked on 9-1-90, that a permanent injunction be issued restraining the defendants and each of them for acting as Agents and/or Attorneys on the basis of the said Power-of-Attorney or otherwise and other reliefs. 12. Shri Bijoy Kumar Bose, the appellant also filed Title Suit No. 1599 of 1990 in the City Civil Court at Calcutta against the Calcutta Port Trust and its Officers' as principal defendants and the registered firm, Messrs. B.B. Bose & Sons a pro forma Defendants for a declaration and injunction with prayers that the plaintiff is a Partner having 25% share or interest in the firm and permanent injunction restraining the defendants from interfering with the business of the plaintiff by refusing to renew the licence to the plaintiff's subordinate workers, agents etc. and other relief. He also filed petition for temporary injunction in that Suit but it was rejected. Thereafter he went in appeal against that order and filed an application for stay of the impugned order but both the appeal and the application were rejected. There is no mention within the four-corners of the writ petition about the fate of the application for injunction at the instance of the appellant No. 1 filed in the Learned Trial Court and its journey in the superior Court. It has been strenuously argued from the side of the constenting private respondents that this conduct of the appellants constitutes suppression of a very material fact before the Writ Court and hence it can be very well said that he has come with unclean hands before the Court of equity. 13. It has been argued from the side of the appellants that there was no suppression of material fact in this case as those facts were irrelevant. We do not proposes to enter into this aspect of the controversy right now. Let us take the most congenial view of the issue so far as the appellants are concerned. For the sake of argument, we assume that the non-mentioning of the facts as stated above within the body of the writ petition, does not constitute suppression of material fact but the fact remains that Suits in a competent Civil Court are pending where the basic facts on which the present writ application is founded are at the centre of a reging controversy. It has been held in Thakur Prasad Sao v. Board of Revenue (1976)3 SCC 850, that questions of fact would not be tried in writ proceedings. In D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corporation etc. , it has been held that in a case where the basic facts are disputed and complicated question of law and fact depending on evidence are involved, the Writ Court is not the proper forum for seeking relief. The fit course in the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. The competent Civil Court, here in our case, is the proper authority to decide whether the appellant No. 1 has acquired any right, title or interest in the Partnership business as alleged by him, in view of the alleged admission made by the respondent No. 7. It can never be the business of the Writ Court to decide that disputed question of fact and law by usurping the functions of the competent Civil Court on the matter specially when the Suits are already pending on that point. In this view of the matter, the writ petitioner itself was not entertainable at all. 14. In the earlier paragraph above it was assumed for the sake of argument that the omission to state certain facts within the four-corners of the writ petition did not constitute suppression of a material fact. Now let us assume that the said conduct of the appellants was tantamount to suppression of material fact. In that case also the appellants have no case as the relief under Article 226 is a discretionary relief and no Court of equity will grant such relief to a person who comes to Court with unclean hands. Way back in 1953 it was laid down by a Division Bench of this High Court presided over by Chakravartti, C.J. in Hindustan Motors Ltd. v. Union of India and Ors. (58 CWN 209), that an, application under Article 226 of the Constitution is liable to be thrown out at site when it deliberately suppresses material facts. 15. The Learned Counsel for the appellants has strenuously argued that in view of the presumption raised under Section 68(2) of the Indian Partnership Act, the appellants have been able to prove that the appellant No. 1 became a partner of the reconstituted firm and the contents of the intimation or notice recorded in the Register of Firms are prima facie true. The Learned Trial Judge has taken the view that Section 58 of the Indian Partnership Act in no uncertain terms provide that any intimation of change of Constitution or reconstitution of the firm shall have to be effected by the signature of all the Partners themselves or their agents specialy authorised in that regard. In this case, according to the Learned Trial Judge, the notice of reconstitution of the firm dated 6th April, 1991 was signed by Messrs. B.B. Bose & Sons through the pen of the appellant No. 1 only. No other person signed the same. In our view this is not the correct perception of the legal position so far as our law is concerned. Section 68 of the Partnership Act deals with Rules of evidence. The first sub-section notes that any statement, intimation or notice recorded in the Register of Firms shall foe conclusive proof of any facts stated therein as against the person by whom or on whose behalf such statement, intimation, notice etc. was signed. The second sub-section lays down that certified copy of any entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm and of the contents of any statement, intimation etc. recorded therein. That certainly does not mean that the entries in the Register of Firms under sub-section (2) will over-ride the lawful rights of others. 16. Section 58 of the Partnership Act deals with application for registration of a firm. Certain formalities have got to be complied with and the statements shall be signed by all the Partners or by their agents specially authorised. Section 59 of the said Act lays down what the Registrar is required to do on receipt of such an application for registration. Section 60 of the Act deals with recording of alterations in firm-name and principal place of business. Here the statement has got to be signed and verified in the manner as required under Section 58. Section 61 of the Act deals with noting of closing and opening of Branches. Under this section, any Partner or Agent of the firm may send the intimation to the Registrar who shall make a note of such intimation in the entry relating to the firm in the Register of Firms and shall file the intimation along with the statement relating to the firm filed under Section 59. Section 62 of the Act deals with noting of changes of name and addresses of Partners and intimation under this section can be given to the Registrar in the same manner as in Section 61. Section 33 of the Act deals exclusively with recording of changes in the Constitution and Dissolution of a firm. Under this section, and incoming, continuing or outgoing Partner may give notice to the Registrar of the change and the Registrar shall file the notice along with statement relating to the firm filed under Section 59. 17. It is obvious from above that in case of changes in the Constitution of a Registered Firm, intimation can be given by any incoming partner. Section 58 of the Act has got nothing to do with the recording of changes in the appropriate Registrar on the reconstitution of the Partnership. Therefore, no exception can be taken to the fact that in our case the intimation was signed by the so-called incoming Partner, the appellant No. 1 and the Registrar filed it along with the statement relating to the firm already filed under Section 59. 18. The entry in the Register of Firms under sub-section (2) of Section 68 of the Partnership Act cannot per se take away the right and/or interest of any partner. The certified copy of an entry of the Register of Firms can be produced to prove prima facie the fact of the registration of the firm and of the contents of any statement etc. noted therein. But this has got nothing to do with the veracity of those statements which may be true or false. The only Court which can decide that question in the competent Civil Court and not a Writ Court. The legal position in connection with this aspect of the matter has already been explained above. In this view of the matter, we hold that the certified copy of the Register of Firms as produced by the appellants marked as Annexure "A" to the writ petition cannot clinch to issue in favour of the appellants. 19. So far as the prayer for granting a licence by a Writ of Mandamus is concerned, it is sufficient to note the principles laid down in State of U.P. and Anr. v. Raja Ram JaisWal and Anr. . In that case it was held in paragraph 16 at page 1117 of the reported judgment as follows :- 20. "The High Court was, of course, clearly in error in issuing a Mandamus directing the District Magistrate to grant a licence, where a statute confers power and casts a duty to perform any function before the power is exercised or the function is performed, the Court cannot in exercise of writ jurisdiction supplant the licensing authority and take upon itself the functions of the licensing authority. The High Court was hearing a writ petition praying for a writ of Certiorari for quashing the order of remand. The High Court could have quashed the order of remand, if, it was satisfied that the order suffers from an error apparent on the face of the record. But there its jurisdiction would come to an end. The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a Mandamus to grant a licence". 21. In view of the discussions made above, we find no merit in the appeal which is accordingly dismissed. We uphold the impugned judgment and order though not for the reasons given by the learned Trial Judge. In the circumstances of the case, no order is made as to costs. A.M. Bhattacharjee, C.J. 22. I agree.

Author: N K Batabyal

Bejoy Kumar Bose And Ors. vs The Traffic Manager, Calcutta ... on 30 August, 1993

Calcutta High Court

[Section 8] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 27174 of 2006(I) 1. ANILKUMAR N.S., S/O.SEKHARAN, ... Petitioner Vs 1. THE STATE OF KERALA, ... Respondent 2. THE KERALA STATE ELECTRICITY BOARD, 3. THE KERALA PUBLIC SERVICE COMMISSION, For Petitioner :SRI.P.PAULOCHAN ANTONY For Respondent : No Appearance The Hon'ble MR. Justice K.K.DENESAN Dated :15/12/2006 O R D E R K.K.DENESAN, J. ----------------------------- WP(C)No. 27174 OF 2006 ----------------------------- Dated this the 15th December, 2006. JUDGMENT The petitioner applied for the post of Assistant Engineer (Electrical) in the Kerala State Electricity Board pursuant to notification issued by the third respondent. A written test was conducted by the Commission. The petitioner appeared for the written test. Short listing of candidates was done and the list was published on 5.7.2005 (Ext.P3). The main list contains 96 candidates and the supplementary list 126 candidates. Thereafter the candidates included in the short list were called for interview. The Commission published the final rank list on 13.1.2006. The petitioner was not included in the short list, and consequently, his name did not appear in the rank list also. He filed this writ petition on 12.10.2006 contending that the Commission had committed illegality in fixing a cut off mark for preparing the short list as also for the final rank list. 2. Reliefs prayed for in this writ petition are: (i) to quash Ext.P3 notification issued by the third respondent, (ii) for a direction to the third respondent Commission to consider the existing and the anticipated vacancies in the post of Assistant Engineer (Electrical)  WPC 27174/2006 2 and to prepare a list in the order of merit without fixing cut off marks, (iii) for a direction to the Commission to advice candidates only on the basis of an additional list to be prepared and (iv) for a declaration that the fixing of cut off marks at 50 as per Ext.P3 is illegal and arbitrary. 3. The third respondent Commission has filed a counter affidavit. In paragraph 4 of the counter affidavit the allegation that cut off mark was fixed in contravention of the settled principles of law has been denied. According to the Commission the cut off marks referred to in Ext.P3 is the marks scored by the candidate who was included as the last person in the list. It is not as though the Commission fixed a cut off mark and thereafter prepared a short list. The Commission had to take into account the number of vacancies till then reported and to assess the reasonable number of persons to be included in the short list. This was done taking into account the number of candidates applied, the number of vacancies reported and the number of persons to be called for interview. It is further submitted that the petitioner whose register number was not included in Ext.P3 short list published on 5.7.2005 did not choose to challenge the same within a reasonable time. Subsequently the main list was published on  WPC 27174/2006 3 13.1.2006. The final rank list also was not challenged within a reasonable time. He has chosen to approach this Court after the lapse of ten months from the date of publication of the final rank list. In the meantime the Commission had started advising candidates from the list. The present position is that the main list has exhausted. In the light of the judgment of the apex Court, the supplementary list has automatically ceased to be in force. 4. Having considered the rival submissions, I feel that the petitioner cannot be granted the reliefs prayed for. It is to be taken note of that the petitioner has not challenged Ext.P3 short list within a reasonable time. None included in that list is a party to this writ petition. No relief can be granted to the petitioner behind the back of those who were included in Ext.P3. On that ground alone this writ petition is liable to be dismissed. I find substance in the contention of the Commission that the minimum mark of 50 was stipulated not as a cut off mark but taking into consideration the lowest mark secured by the candidate who was included in the short list having regard to the number of vacancies reported and the number of persons who can be called for interview. The fact that the petitioner did not challenge the impugned action or the final rank list within a reasonable time is  WPC 27174/2006 4 also a significant point in favour of the respondents. In matters of this nature where intervening rights of others who have applied for the same post are involved, any person who sleeps over his right and thinks that he can challenge the action whenever he wants to do so according to his whims and fancies will not be granted reliefs by this Court in the exercise of the discretionary jurisdiction under Art.226 of the Constitution of India. For the above reasons, the writ petition must fail. Hence it is dismissed. K.K.DENESAN Judge jj 

Anilkumar N.S. vs The State Of Kerala on 15 December, 2006

Kerala High Court

Gujarat High Court Case Information System Print CR.A/969/1997 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 969 of 1997 ========================================================= KAMLABA DOLATSINH & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BHARGAV N BHATT for Appellant(s) : 1 - 3. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 19/01/2011 ORAL ORDER Matter is listed for 33 times for final hearing. Today, when called out, Mr. Bhargav Bhatt learned advocate is not present. Issue bailable warrant in the sum of Rs. 5000/- against the appellants. SO to 21.2.2011. (Z.K. SAIYED, J) mandora/     Top

Author: Z.K.Saiyed,&Nbsp;

Kamlaba vs Unknown on 19 January, 2011

Gujarat High Court

[Section 5A] [Complete Act]

Central Government Act

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6394 OF 2010 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) NO. 7230 of 2009) Tata Memorial Hospital Workers Union ...Appellant Versus Tata Memorial Centre and Another ...Respondents JUDGMENT (a) Four members appointed by the Government of India; (b) Three members appointed by the Trustees of the Sir Dorabji Tata Trust; (c) The Director of the Centre (ex-officio) Gokhale J. 1. Leave granted. 2. This appeal is directed against the judgment and order of a Division Bench of the Bombay High Court dated 10.2.2009 in Appeal No.133 of 2002 arising out of Writ Petition No. 2148 of 2001, whereby the Division Bench has held that for the first respondent establishment, the Central Government was the `appropriate government' for the purposes of application of Section 2(3) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 (hereinafter referred to as the M.R.T.U. and P.U.L.P. Act) read with Section 2(a) of the Industrial Disputes Act 1947 (hereinafter referred to as the I.D. Act). The Division Bench has held that the State Government was not the `appropriate  2 government' for this purpose. Consequently the Applications concerned in the present matter filed under the MRTU and PULP Act, namely the Application of the second respondent for cancellation of the status of the applicant as the recognized union under respondent No. 1, and Application for substitution of second respondent in place of the appellant, as the recognized union, were held to be non- maintainable. The appellant is aggrieved by the finding that the State Government is not the appropriate government and that the MRTU and PULP Act has no application to the first respondent establishment. It will result into automatic denial of its status as the recognized union under the MRTU and PULP Act and also into denial of the remedies available to the appellant and to the employees, of the first respondent, (against unfair labour practices, if any) and hence this appeal by special leave. The right of the appellant to represent the employees of the first respondent (numbering over 1300) is thus, at stake. 3. The appellant is a Trade Union, registered under the Trade Unions Act 1926 and the employees of the first respondent are its members. It is already registered under Chapter III of the above referred MRTU and PULP Act as the recognized union for the employees under the first respondent by an order passed way back on 2.12.1985 by the Industrial Court, Mumbai. Respondent No.2 `Tata Memorial Hospital Kamgar Sanghatana' (i.e. workers association) is another trade union functioning under the first respondent. By filing Application MRTU No. 15 of 1994 before the Industrial Court, Mumbai, the respondent No. 2 sought cancellation of the recognition of the appellant union under Section 13 of the MRTU and PULP  3 Act. Thereafter by filing another Application MRTU No.16 of 1994, the second respondent sought its own recognition in place of the appellant union under Section 14 of the MRTU and PULP Act. Both these Applications Nos. 15 and 16 of 1994 were heard together. Oral and documentary evidence was led by parties. The report of the Investigating officer appointed for the verification of the membership of the two trade unions was considered. The first respondent in its written statement raised an objection to the maintainability of these proceedings under MRTU and PULP Act by submitting that the `appropriate government' for the first respondent was the Central Government and not the State Government, and hence, the proceedings under the MRTU and PULP, were not maintainable. 4. The Application (MRTU) 15 of 1994 had been filed on the footing that the registration of the appellant as a trade union itself had been cancelled by the Registrar of Trade Unions under the Trade Union Act, 1926. The appellant pointed out to the Industrial Court that the order of cancellation was misconceived and had in fact been stayed by the Bombay High Court by its order passed in the Writ Petition No. 452 of 1994. Thereupon, the second respondent conceded this position and filed a pursis (memo) that Application (MRTU) No. 15 of 1994 be allowed to be withdrawn. The Industrial Court disposed of the two proceedings by its common judgment and order dated 29.6.2001. In that order it recorded that Application MRTU No. 15 of 1994 was being disposed of for want of prosecution. As far as the Application No. 16 of 1994 is concerned, the Industrial Court accepted the report of the Investigating Officer whereunder he had held that during the relevant period for  4 consideration of the Application under section 14 of the MRTU & PULP Act, the valid membership of the appellant union was more than that of the second respondent union. While deciding so, it examined the material on record, considered the rival submissions and held that the `appropriate government' for the first respondent was the State Government. Therefore, although the two Applications were held to be maintainable under the MRTU and PULP Act, the Application No. 16 of 1994 was dismissed on merits. 5. The first respondent filed Writ Petition No. 2148 of 2001 to challenge this judgment and order. The petition came to be dismissed by a Single Judge of the High Court by holding that the first respondent is an autonomous body and though the Central Government was funding the first respondent partially, it had only a partial control thereof. The Single Judge accepted the findings of the Industrial Court on the issue of appropriate government to be just, legal and proper and, therefore, dismissed the Writ Petition, by his order dated 29.10.2001. This was on consideration of the judgment of this court in Steel Authority of India & Ors. vs. National Union Waterfront Workers & Ors. (2001) 7 SCC 1 (which had been rendered in the meanwhile on 30.8.2001). This order of the Single Judge has come to be reversed by the impugned judgment and order passed by the Division Bench. The Division Bench has held that the Governing Council of the first respondent was managing the institution as a delegate of the Central Government. This was also on basis of its consideration of the judgment in Steel Authority of India & Ors. (supra). The Division Bench held that the Central Government was the  5 appropriate government for the first respondent and allowed the appeal. Consequently, it set aside the orders passed by the Single Judge as well as by the Industrial Court. 6. Being aggrieved by this judgment and order of the Division Bench the present appeal by special leave has been filed. The appeal raises the question as to whether the Division Bench correctly applied the law laid down by this Court in Steel Authority of India (Supra) to the facts of the present case. Though the second respondent has been described as a proforma respondent, notices were issued to both the respondents and the affidavit of service with proof has been filed by the appellant with respect to both of them. The petition has been opposed by the first respondent by filing an exhaustive counter and the appellant has filed a rejoinder thereto. Mr. Colin Gonsalves, learned Senior Counsel has addressed us on behalf of the appellant, whereas Mr. Soli J.Sorabjee, learned Senior Counsel, has defended the order of the Division Bench. Both the parties have submitted their written submissions and we have considered the same also. 7. Necessary Relevant Facts Before dealing with the rival submissions on the issue before the Court, viz. as to whether in the facts of the present case the central government or the state government is the `appropriate government,' it will be desirable to refer to the necessary relevant facts. The trustees of a public charitable trust known as Sir Dorabji Tata Trust, established sometime in the year 1940, a hospital in Mumbai,  6 named as the Tata Memorial Hospital for the Treatment and Cure of Cancer and Allied Diseases. The hospital was then being maintained out of the funds of the trust and also from the grant made available from time to time by the Central Government and by the then Government of Bombay. 8. The Government of India was desirous of establishing an Indian Cancer Research Centre for Post-Graduate Teaching and Research in Cancer and the same was established in collaboration with the trustees of Sir Dorabji Tata Trust by an agreement dated 7.10.1953. The Government of India gave the initial grant for that Centre for setting up of a laboratory on a portion of the land belonging to the trust and also undertook to provide recurring expenditure in respect of salaries of the staff and contingencies of the management of the said Center. 9. The trustees of Sir Dorabji Tata Trust subsequently decided to dedicate the hospital to the Nation with all its assets, including its funds and the plots of land. They requested the Government of India to takeover its control and management with effect from 4.2.1957. Accordingly, an agreement was entered into between the trustees and the Central Government on 4.2.1957 and under clause (1) thereof, the government agreed to takeover control and management of the hospital and to manage it at its own expenses from 1.4.1957. Under clause (2) of the agreement, the management of the hospital was to rest in the hands of the Governing Board consisting of seven members of the Board. Three of them were to be nominated by the Government of India and three by Sir Dorabji Tata Trust. The  7 Superintendent of the Hospital was to be the ex-officio seventh member of the Governing Board and its Secretary. Clause (3) of this agreement provided as follows: 10. The Trustees accordingly, filed a suit being suit No. 568 of 1957 in the Bombay City Civil Court for framing a Scheme and for giving effect to and incorporating the said agreement dated 4.2.1957. The City Civil Court passed a decree on 22.3.1957 and sanctioned the scheme as annexed to the schedule. The relevant part of the court's order recorded that the properties to be conveyed, transferred or assigned by the trustees to the government being immovable properties described in schedule `B' thereto are hereby vested in the government. The administrative control of the Tata Memorial Hospital and the Indian Cancer Research Centre was thereafter transferred to the Government of India. It first came under the Ministry of Health and thereafter under the Department of Atomic Energy with effect from 1.2.1962. 11. The Tata Memorial Centre has come to be specifically mentioned in the rules for allocation of business of Government of India framed under Article 77 of the Constitution of India. The President of India in exercise of his powers under Article 77, has framed by order dated 14.1.1961, the Rules for allocation of business of the Government of India. Rule 2 thereof deals with the allocation of business and  8 it states that the business of the government shall be transacted in the Ministries, Departments and Secretariats, as specified in the first schedule to these rules (all of which are referred to as the departments). Item 22 of the first schedule to the said rules, deals with the Department of Atomic Energy and item 10 of the annexure to the schedule concerning Department of Atomic Energy reads as followed: "10. All matters relating the Tata Memorial Centre, Bombay." 12. Subsequently, an agreement was entered into between the Government of India and the trustees of Sir Dorabji Tata Trust on 6.1.1966, and the two institutions viz. Tata Memorial Hospital and Indian Cancer Research Centre were amalgamated into an institution thereafter known as the Tata Memorial Centre i.e. respondent No.1 herein. The Tata Memorial Centre was registered as a Society under the Societies Registration Act 1860 and also as a Public Trust, under the Bombay Public Trust Act 1950. Under the rules and Regulations of this Society, the administration and management of the Centre vests in a Governing Council under Rule 3 thereof, and this council is the executive body of the Centre. The council is constituted under Rule 4 thereof. Rule 3 and 4 (i) of these Rules and Regulations read as follows: 13. The question for our consideration is whether the first respondent functions under the authority of the Central Government as its delegate as held by the Division Bench or is functioning as an independent entity. This will enable us to decide as to whether the Central Government or the State Government is the "appropriate government" for the first respondent. We have also to keep in mind that we have to decide this issue in the context of determination of an application for recognition of a trade union. Statutory Framework 14. As stated earlier, the two Applications filed before the Industrial Court, Mumbai which had led to the present Special Leave Petition were filed under Sections 13 & 14 of the MRTU and PULP Act 1971. These Sections 13 & 14 appear in Chapter-III of the MRTU & PULP Act which Chapter deals with Recognition of unions. Section 13 deals with Cancellation of recognition and suspension of rights of a recognized union on the conditions stipulated therein. Section 14 deals with Recognition of other union in place of a union already registered as a recognized  1 union and conditions therefor. As the preamble of this Act lays down, one of the objectives of this Act is to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings, to state their rights and obligations; and to confer certain powers on unrecognized unions. The other objective of this Act is to prevent unfair practices with which, we are not directly concerned in the present matter. 15. Since the question raised in the matter is whether the two applications filed under Sections 13 and 14 of MRTU and PULP Act were maintainable or not, the same will depend upon as to whether the State Government is the `appropriate government' for the first respondent. Section 2 of the MRTU and PULP Act is relevant in this behalf. It deals with the extent, commencement and application of the Act. We are concerned with sub-Section (3) thereof which reads as follows: 16. It is not disputed that the first respondent is an `industry' within the concept of industry as defined in Section 2(j) of the Industrial Disputes Act 1947. The respondent No. 1 is admittedly not covered under the Bombay Industrial Relations Act 1946. The question is whether in relation to any industrial dispute concerning the first respondent, the State Government is the `appropriate government' under the Industrial Disputes Act 1947. 17. It, therefore, becomes necessary to look into the definition of `appropriate government' under the Industrial Disputes Act 1947. Under Section 2(a) of the Industrial Disputes Act 1947 `appropriate government' means; Thus, it is clear that under the Industrial Disputes Act, the Central Government is the `appropriate government' in relation to the industrial disputes concerning the industries specified under Section 2 (a) (i) and for the industries carried on by or under the authority of the Central Government. Excluding these two categories of industries in relation to any other industrial dispute, it is the State Government which is the `appropriate government'. 18. Entry 22 in list III - Concurrent List to the Seventh Schedule to the Constitution of India relates to `Trade Unions; Industrial and Labour disputes'. Entry 23 thereunder is `social security and social insurance; employment and unemployment'. Entry 24 is `welfare of labour including conditions of work, provident fund, employer's liability, workmen's compensation, invalidity and old age pensions and maternity benefits'. Subject to the provisions contained in sub-clauses (1) and (2) in Article 246, the Legislature of a State can also make laws on these subjects, and this is how the MRTU and PULP Act 1971 makes provisions for recognition of trade unions for collective bargaining, and for prevention of unfair labour practices. It is also in the fitness of things that the Industrial Disputes Act which is the principal Central Act for investigation and settlement of Industrial Disputes lays down that for the industrial disputes concerning the specified industries and for those carried on by or under the authority of the Central Government, the Central Government will be the `appropriate government', but in relation to any other industrial dispute the State Government will be the `appropriate government'. It, therefore, becomes necessary to examine the phrase `any industry carried on by or under the authority' of Central Government on this background while applying it to a particular industry and in the instant case, to the first respondent. 19. Explanation of the concept of appropriate government by the Judiciary:-- The appeal raises the question as to whether the Division Bench has correctly applied the law laid down in Steel Authority of India (supra). The Steel Authority of India judgment however once again reiterates the law laid down way back in Heavy  1 Engineering Mazdoor Union vs. The State of Bihar (1969) 3 SCR, 1995, though with a little divergence. It therefore becomes necessary to examine as to how the concept of appropriate government has been explained by the judiciary in the leading decisions. That will enable us to find out as to what are the tests in this behalf which have evolved over the years. In Heavy Engineering case, the State of Bihar had referred an industrial dispute between the Heavy Engineering Corporation Ltd., a company wholly owned by the Central Government and its workmen for its adjudication by the Industrial Tribunal. The appellant mazdoor union challenged the reference contending that the `appropriate government' to refer the dispute was the Central Government and not the State Government. The High Court rejected the contention, and hence the matter was carried to this Court. This Court noted that the Heavy Engineering Corporation is a Government company within the meaning of Section 617 of the Companies Act, since its entire share capital was contributed by the Central Government and its shares were registered in the name of the President of India and officers of the Central Government. The memorandum of association and the articles of association of the company conferred large powers on the Central Government including the power to give directions as regards the functioning of the company. The wages and salaries of the employees were also determined in accordance with these directions. The Directors of the company were appointed by the President of India. The Company was described in its standing orders as a Government Undertaking. 20. It was accepted by the corporation that it could not be said to be an `industry' carried on by the Central Government. The limited issue was whether it could be regarded as an `industry', carried on under the authority of the Central Government. The question was as to how to construe the phrase `under the authority of Central Government'. This court held; ....There being nothing in s. 2 (a) to the contrary, the word `authority' must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act. A person is said to be authorized or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authorizes B to sell certain goods for and on his behalf and B does so, incurs no liability for so doing in respect of such goods and confers good title on the purchaser. There clearly arises in such a case the relationship of a principal and an agent. The words "under the authority of" means pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. Can the respondent-company, therefore, be said to be carrying on its business pursuant to the authority of the Central Government? That obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association." (underlining supplied) 21. This Court noted that an incorporated company has a separate existence and the law recognizes it as a juristic person, separate and distinct from its members. Its rights and obligations are different from those of its shareholders. Action taken against it does not directly affect its shareholders. The company so incorporated derives its powers and functions from and by virtue its memorandum of association and its articles of association. The mere fact that the entire share  1 capital of the company was contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference. The court noted that a notice to the President of India and the officers of the Central Government, who hold between them all the shares of the company would not be a notice to the company nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers. 22. The Court noted that the extensive powers are conferred on the Central Government including the power to give directions as to how the company should function, the power to appoint its Director and even the power to determine the wages and salaries payable by the company to its employees but these powers were derived by the company's memorandum of association and the articles of association and not by reason of the company being an agent of the Central Government. The court thereafter observed as follows: 23. Then the Court looked into the definition of `employer' as given in Section 2 (g) of the Industrial Disputes Act. As this section provides, an employer under clause (g) means, an employer in relation to an `industry' carried on by or under the authority of any department of the Central Government or the State Government, the Authority prescribed in that behalf, or where no such authority is prescribed, the head of the Department. No such authority was prescribed in regard to the business carried on by the respondent company. The Court observed that the definition of the `employer' under the Industrial Disputes Act on the contrary suggests that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government such as the posts and telegraphs or railway, or one carried on by such department through the instrumentality of an agent. All these facts led this Court to hold that the Heavy Engineering Corporation could not be said to be an `industry' carried on under the authority of the Central Government. 24. We have referred to the Judgment in Heavy Engineering Mazdoor Union (Supra) extensively for the reason that it has been followed consistently including the last relevant judgment of the Constitution Bench in Steel Authority of India Ltd. (Supra), though with a slight divergence. The next judgment of significance after Heavy Engineering Mazdoor Sangh, is Hindustan Aeronautics  1 Ltd. vs. Workmen reported in (1975) 4 SCC 679. In that matter a bench of three judges was concerned with the dispute between the management of the Barrackpore branch of the appellant Government Company situated in West Bengal and its employees. The appellant had challenged the Award of the Fifth Industrial Tribunal, West Bengal and one of the challenges was to the competence of the Government of West Bengal to make the reference of the industrial dispute. It was contended that the Barrackpore branch was under the direct control of the Bangalore Division of the Company and since it was a Government Company constituted under section 617 of the Companies Act, (the shares of which were entirely owned by the Central Government), the reference ought to have been made either by the Central Government or by the Government of Karnataka. This Court negatived the contention. It noted that the Barrackpore Branch was a separate branch and for the purposes of this Act it was an industry carried on by the Company as a separate unit. This court followed the dicta in Heavy Engineering Mazdoor Union (supra) and observed in para 4 as follows: 25. In Rashtriya Mill Mazdoor Sangh, Nagpur vs. Model Mills, reported in 1984 (Supp) SCC 443, a reference (though under the Bombay Industrial Relations Act, 1946) of the demands of the employees for payment of bonus was challenged on the ground that an authorized controller under the Industries (Development and Regulation) Act, 1951 had been appointed in respect of the industrial undertaking and since the undertaking was being run by an authorized controller under the authority of a department of the Central Government, the reference under the Bombay Industrial Relations Act, 1946 was not competent. A bench of three judges of this Court once again referred to the interpretation of the expression `under the authority of' rendered in Heavy Engineering Mazdoor Union's case. The Court noted that in reaching its conclusion in Heavy Engineering Mazdoor Union's case (supra) this Court had approved the view of Calcutta High Court in Carlsbad Mineral Water Mfg. vs. P.K. Sarkar AIR 1952 Calcutta Page 6 wherein a Division Bench that Court, had held that business which is carried on by or under the authority of the Central Government must be a Government business. The High Court had further held that in any industry to be carried on under the authority of the Central Government it must be an industry belonging to the Central Government, that is to say, its own undertaking. The Court held in para 17; 26. The Judgment in Rashtriya Mill Mazdoor Sangh (supra) was followed by the Judgment in Food Corporation of India Workers Union vs. Food Corporation of India reported in (1985) 2 SCC 294. Therein, the Court was concerned with the Writ Petition filed by the employees seeking the regularization of their services under the Contract Labour (Regulation and Abolition) Act 1970 (for short the CLRA Act). In that matter, inspite of the fact that FCI is a specified industry under Section 2(a) (i) of the Industrial Disputes Act 1947, this Court referred to the definition of `appropriate government' under the CLRA Act 1970. It referred to judgments in Heavy Engineering Mazdoor Union and Rashtriya Mill Mazdoor Sangh (supra) with approval, and held that for the regional offices and warehouses which were situated in various states, the State Governments were the `appropriate Governments' and not the Central Government. 27. The scheme of the CLRA Act 1970 came up for consideration before a bench of three Judges in Air India Statutory Corporation vs. United Labour Union (1997) 9 SCC 377. The Court was concerned with the question as to whether the Central Government was the competent appropriate government for the purposes of the notification which it had issued under that Act to abolish the Contract Labour system in the establishment of the appellant. The court held that the Central Government was the appropriate government. The definition of `appropriate government' under Section 2 (1) (a) of that Act was examined by this Court and which reads as follows: (ii) in relation to any other establishment, the Government of the State in which that other establishment is situated;] A bench of three Judges, therefore, examined the efficacy of the judgments starting from Heavy Engineering Mazdoor Union case (supra). After examining the principles arising out of some of the leading judgments on Article 12 of the Constitution of India, such as those in the case of R.D. Shetty vs. International Airport Authority of India (1979) 3 SCC 489 and Ajay Hasia vs. Khalid Muzib Sehravardi (1981) 1 SCC 722 (a Constitution Bench Judgment), the Court held that corporations and companies controlled and held by the State Governments will be institutions of those states within the meaning of Article 12 of the Constitution. A Priori, in relation to corporations and companies held and controlled by the Central Government, the `appropriate government' will be the Central Government. In paragraph 28 the court observed : --- 28. The question concerning interpretation of the concept of `appropriate government' in Section 2 (1) (a) of the CLRA Act 1970 and in Section 2 (a) of the  2 Industrial Disputes Act, 1947 was subsequently referred to a Constitution Bench in Steel Authority of India Ltd. vs. National Union Waterfront Workers, reported in [(2001) 7 SCC 1]. The Constitution Bench examined the relevant provisions and the judgments including those in the cases of R.D. Shetty and Ajay Hasia (supra). The question decided by Constitution Bench of this Court in Ajay Hasia was with respect to Jammu & Kashmir Regional Engineering College, Srinagar, which was registered as a society under the Jammu & Kashmir Registration of Societies Act 1898 and wherein it was held to be a State within the meaning of Article 12 of the Constitution. 29. In para 37 of the judgment in Steel Authority of India Ltd. (supra), this court held that merely because the government companies, corporations and societies are instrumentalities or agencies of the Government, they do not become agents of the Central or the State Government for all purposes. The Court held as follows: 30. In para 38, this Court thereafter held as follows: 31. In para 39, this Court further held as follows: 32. In the next para 40 the Constitution Bench states that it shall refer to the cases of this court on this point and thereafter examines in paragraphs 41 to 44  2 the earlier referred judgments in Heavy Engineering Mazdoor Union, Hindustan Aeronautics, Rashtirya Mill Mazdoor Sangh and Food Corporation of India (supra). 33. In paragraph 41 of the judgment, the Constitution Bench examined the Judgment in Heavy Engineering Mazdoor Union case. In Heavy Engineering Mazdoor Union the court had observed that an inference that the corporation was the agent of the Government might be drawn where it was performing in substance governmental and not commercial functions. The Constitution Bench disagreed with the distinction thus made between the Governmental activity and commercial function of Government Companies. Barring this limited disagreement, however at the end of para 41 the Constitution Bench observed that it is evident that the court correctly posed the question whether the State Government or the Central Government was the `appropriate government' and rightly answered it. 34. In paragraph 42, the Constitution Bench examined the judgment of Hindustan Aeronautics Ltd. (supra). The Constitution Bench noted that the judgment in Heavy Engineering Mazdoor Union case was followed in Hindustan Aeronautics and it had taken note of the factor that if there was any disturbance of industrial peace in Barrackpore, the `appropriate government' concerned for the maintenance of internal peace was the West Bengal Government. The court observed that the factors which weighed with the Court could not be said to be irrelevant. 35. In para 43 the Constitution Bench examined the judgment in Rashtriya Mill Mazdoor Sangh (supra) wherein although an authorized controller was  2 appointed to replace the management of the respondent Model Mill, the Rashtriya Mill Mazdoor Sangh judgment had held that the undertaking could not be held to be carried on under the authority of the Central Government. The Constitution Bench quoted the observations from the judgment with approval. 36. In para 44 the Constitution Bench referred to the FCI case (supra). It noted that the FCI judgment had followed the judgments in Heavy Engineering Mazdoor Union and Rashtriya Mazdoor Mill Sangh (supra) to hold that the State Government was the `appropriate government' pertaining to the regional offices and warehouses of the FCI under the CLRA Act. At the end of this para the Constitution Bench concluded "we find no illegality either in the approach or in the conclusion arrived at by the court in these cases." (underlining supplied) 37. In paragraphs 45 and 46, thereafter once again the Constitution Bench turned to the judgment in Air India case and in para 46 it concluded as follows: " We have held above that in the case of a Central Government company/undertaking, an instrumentality of the Government, carrying on an industry, the criteria to determine whether the Central Government is the appropriate Government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution; such an authority may be conferred either by a statute or by virtue of the relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this conclusion, with due respect, we are unable to agree with the view expressed by the learned Judges on interpretation of the expression "appropriate Government" in Air India case." (underlining supplied)  2 Submissions on behalf of the Appellant 38. On this background the submission on behalf of the appellant was that way back since 1966 when the Tata Memorial Centre (T.M.C.) was constituted into a separate society and a public trust, it has all throughout functioned as an independent entity and it could not be considered to be a delegate of the Central Government. It was submitted that at the inception the Tata Memorial Hospital was set up out of the funds of Sir Dorabji Tata Trust and not of the Central Government. The Government of India established the Indian Cancer Research Centre, but that was also under an agreement dated 7.10.1953 and in collaboration with the trustees of the Sir Dorabji Tata Trust. The Government of India did give the initial grant and undertook to provide recurring expenses in respect of the staff and contingencies of the management but the centre was established on the land belonging to the Sir Dorabji Tata Trust. Later on, the Central Government did take over the Hospital after the Trust decided to dedicate it to the nation. However, at all material times, part of the expenses of the Hospital have been met from the funds generated by the Hospital. After the formation of Respondent No. 1 as a registered society in 1966 also, the internal sources generate 1/3rd, (i.e approximately 25 crores out of 75 crores) of the funds which are utilized for running the Hospital. Thus, the following factors approved by the Industrial Court and the learned Single Judge were pressed into service on behalf of the appellants,  2 i) In its inception the entire share capital and assets of T.M.C. were not solely owned or contributed by the Government of India in view of the donation by Dorabji Trust; ii) T.M.C is not wholly run by the funds of Government of India. Its internal sources are generating 1/3rd fund which is utilized for running the hospital. iii) Its governing Council has the direct control over the activities of T.M.C. The T.M.C is functioning under its own byelaws which suggest that the deep and intensive control is by the Governing Council. iv) The T.M.C. employees are not the Government servants; 39. It was pointed out on behalf of the appellants that Mr. Muthuswamy the Chief Administrative officer of the first respondent had admitted in his evidence that there was no interference from the Central Government in the day-to-day activities of the first respondent and they were looked after by the Directors of the T.M.C. itself. The labour categories of the employees were employed either by the Directors or by the Officers of the council. He admitted that as far as functioning and administration was concerned, the first respondent was an autonomous body. As laid down in the leading decisions on this issue from time to time, including the one in Steel Authority of India (supra) whether the industry is carried on by or under the authority of the Central Government is to be decided on the facts of each case. In view of the facts which have come on record as above, it was submitted that the judgment of the Industrial Court could not have been faulted and since it was on the  2 basis of the facts and circumstances placed on record, it was rightly left undisturbed by the learned Single Judge. 40. The judgment of the Division Bench was assailed also for laying emphasis on recital No. 6 of the agreement dated 6.1.1966 between the trustees of Sir Dorabji Tata Trust and Government of India and not the subsequent clauses of that agreement. It was pointed out that in recital No. 9 of that agreement, it was proposed to amalgamate the two institutions and to entrust the control and management to the newly created body under the agreement. It was emphasized that as per clause 4 of the agreement all subsequent acquisitions shall vests in the holding trustees and clause 5 provides that the Centre shall be under the direct management and control of the Council to be created. 41. It was submitted that the appellant trade union had been recognized way-back in the year 1985 under the MRTU and PULP Act and several proceedings had been initiated by both the parties under this Act. The first respondent had thus in a way accepted that the said act does apply to it and now it cannot be permitted to contend to the contrary. It was, therefore, submitted that the Division Bench had erred in ignoring that once the society was formed and all the activities were transferred to the society, it could no longer be considered as a delegate of the Central Government and that the Division Bench seriously erred in its understanding of the law laid down by this Court. Submissions on behalf of the first respondent 42. As against the submissions on behalf of the appellant, it was submitted on behalf of the first respondent that after the Hospital was dedicated to the nation, at all material times the first respondent functioned under the authority of the Central Government. The Tata Memorial Hospital set up by Sir Dorabji Tata Trust was dedicated to the nation and the control thereof was taken over by the Government of India with effect from 1.4.1957 by virtue of the agreement between the two dated 4.2.1957. After the decree was passed by the City Civil Court on 27.3.1957 and the scheme was approved, all the properties of the Hospital came to be vested in the Government of India. The Tata Memorial Centre finds a specific place in the rules of allocation of business framed by the President of India and it is stated to be under the Department of Atomic Energy. In the treatment of the disease of cancer radiation and Isotopes produced by the Bhaba Atomic Research Centre are required to be used and they are made available by the Department of Atomic Energy. Although the society is created to run the administration of the first respondent, under clause 4 of the agreement dated 6.1.1966, the properties of the Tata Memorial Hospital and Research Centre which were vested in the Government by decree dated 22.3.1957 continue to be vested in the Government of India. It is therefore, submitted that the Division Bench was correct in the view taken by it that the first respondent society continued to function as the delegate of the Central Government. 43. The first respondent and the Division Bench emphasized the recital No. 6 of the agreement dated 6.1.1966 and the relevant portion of the Decree and the scheme; 44. The part of the decree emphasized is as follows:- 45. Tests emerging for determining whether the industry is carried on under the authority of the Central Government or the State Government Having seen the statutory framework it is clear that when it comes to an industry governed under the Industrial Disputes Act 1947, to be covered under  3 the MRTU and PULP Act, the State Government has to be the `appropriate government' in relation to any industrial dispute concerning such industry. As provided in Section 2 (3) of the MRTU and PULP Act, we have to fall back on the definitions of `industry' and `appropriate government' under the Industrial Disputes Act 1947. As per the scheme of Section 2 (a) of the Industrial Disputes Act, for the industrial disputes concerning the industries specified in sub-section (i), and for the industries which are carried on by or under the authority of the Central Government, the Central Government is the appropriate government. Section 2 (a) (ii) provides that `in relation to any other industrial dispute' the State Government is the `appropriate government'. Therefore in an industrial disputes concerning industries, other than specified industries it becomes necessary to examine whether the industry is carried on by or under the authority of the Central Government. When it does not fall under either of the two categories, the State Government will be the appropriate government. 46. It is also material to note that this exercise is to be done basically in the context of an industrial dispute to find out as to whether in relation to any industrial dispute concerning that industry, Central Government is the `appropriate government' or the State Government is the `appropriate government'. Oxford dictionary defines word `concerning' as `involving' or `about'. The word `concerning', according to Webster's Dictionary means `relating to', `regarding' or `respecting' proximate, intimate and real connection with the establishment. It is to be noted that the Industrial Dispute Act is an act for investigation and settlement of industrial  3 disputes and the MRTP and PULP Act 1971 is for recognition of trade unions for facilitating collective bargaining for certain undertakings with which we are concerned in the present matter, and for prevention of certain unfair practices amongst other objectives. This being the position it is to be noted that the examination of the issue as to which government is the `appropriate government' is to be carried out in this context. 47. As far as an industry `carried on by the Central Government' is concerned, there need not be much controversy inasmuch as it would mean the industries such as the Railways or Post and Telegraph, which are carried on departmentally by the Central Government itself. The difficulty arises while deciding the industry which is carried on, not by but `under the authority of the Central Government'. Now, as has been noted above, in the Constitution Bench Judgment in Steel Authority of India Limited (supra), the approach of the different Benches in four earlier judgments has been specifically approved and the view expressed in Air India (supra) has been disagreed with. The phrase `under the authority' has been interpreted in Heavy Engineering (Supra), to mean `pursuant to the authority' such as where an agent or servant acts under authority of his principal or master. That obviously cannot be said of a company incorporated under the Companies Act, as laid down in Heavy Engineering Mazdoor Union case (supra). However, where a statute setting up a corporation so provides specifically, it can easily be identified as an agent of the State. The Judgment in Heavy Engineering Mazdoor Sangh observed that the inference that a corporation was an agent of the  3 Government might also be drawn where it was performing in substance governmental and non commercial function. The Constitution Bench in Steel Authority case (supra) has disagreed with this view in para 41 of its judgment. Hence, even a corporation which is carrying on commercial activities can also be an agent of the state in a given situation. Heavy Engineering Judgment is otherwise completely approved wherein, it is made clear that the fact that the members or directors of corporation and he is entitled to call for information, to give directions regarding functioning which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government. The fact that entire capital is contributed by the Central Government and wages and salaries are determined by it, was also held to be not relevant. 48. In Hindustan Aeronautics the fact that the industrial dispute had arisen in West Bengal and that the `appropriate government' in the instant case for maintaining industrial peace was West Bengal was held to be relevant for the Governor of West Bengal to refer the dispute for adjudication. In Rashtriya Mill Mazdoor case the fact that the authorized controller was appointed by the Central Government to supervise the undertaking was, held as not making any difference. The fact that he was to work under the directions of the Central Government was held not to render the industrial undertaking an agent of the Central Government. 49. In Food Corporation of India (supra), inspite of the fact that FCI is a specified industry under Section 2 (i) (a) of the ID Act 1947, this Court considered  3 the definition of `appropriate government' in CLRA Act 1970, and the State Governments were held to be the `appropriate governments' for the regional offices and the warehouses situated in various states wherein the demand for regularization of the services under the CLRA Act had arisen. 50. The propositions in Steel Authority are to be seen on this background viz. that merely because the government companies / corporations and societies are discharging public functions and duties that does not by itself make them agents of the Central or the State Government. The industry or undertaking has to be carried under the authority of the Central Government or the State Government. That authority may be conferred either by a statute or by virtue of a relationship of principle and agent, or delegation of power. When it comes to conferring power by statute, there is not much difficulty. However, where it is not so, and whether the undertaking is functioning under authority it is a question of fact. It is to be decided on the facts and circumstances of each case. 51. Application of these tests to the facts of the present case. As far as the facts of the present case are concerned, as can be seen from the submissions of the parties, the determination of the question as to which Government is the appropriate Government for the first respondent - establishment, will depend upon two issues - (1) How is the property of the first respondent vested? and (2) Whether the control and management of the Hospital and the Research Centre is independently with the first respondent? 52. How is the property of the first respondent vested. As can be seen from the facts, which have come on record, the Tata Memorial Hospital was set up by Sir Dorabji Tata Trust. It was being maintained out of the funds of the Trust itself as well as from the grants made over by the Central Government as well as by the State Government. The Indian Cancer Research Centre was set up by the joint collaboration of Sir Dorabji Tata Trust and the Central Government by an agreement dated 07.10.1953. The initial grant for the Center was given by the Central Government and it was meeting the expenses of the Centre though it was set up on the land belonging to the Trust. In 1957 Sir Dorabji Tata Trust decided to dedicate to the nation the property on which the Tata Memorial Centre stands. An agreement was entered in that year between the trustees and the Central Government. The control and the management of the hospital was transferred to the Central Government and a vesting order was passed in the same year to that effect by the City Civil Court in appropriate proceedings. In the year 1966, the Central Government and the Dorabji Tata Trust entered into an agreement by virtue of which Tata Memorial Hospital and the Indian Cancer Research Centre were amalgamated and the first respondent society was created and the administration and the management of the Centre was vested in the Governing Council of the said Society. The first respondent - Centre was registered as a Society under the Societies Registration Act, 1860 as well as under the Bombay Public Trust Act, 1950. 53. The first respondent heavily relied upon the test of vesting of the property as the main criterion for ascertaining as to who controls the first respondent for the purpose of deciding as to which Government is the Appropriate Government. It was emphasized that under the agreement of 1957, the Dorabji Tata Trust handed over the property to the Central Government and that vesting had been continued in the agreement of 1966 also. It is, however, to be noted that as per this very agreement, the future acquisitions were to vest in the Governing Council of the Society. Rule - 26 of the Rules and Regulations of the first respondent - Society provides that all properties and funds of the Centre (except the immovable properties as specified) vest in the council: 54. However, even when it comes to the immovable properties, Section - 5 of the Societies Registration Act provides for deemed vesting of the properties  3 belonging to a society into the Governing Body of such society. Section - 5 of the Societies Registration Act reads as follows: 55. In this behalf, we must keep in mind, the raison d'etre of the above referred to Section - 5 that once a trust is established and a society is registered for the administration of the trust, the statute contemplates that the society should be fully autonomous and that the lack of actual transfer of property of the trust should not prevent the governing body in its administration. Law recognizes that it would be proper to regard that as done which ought to have been done. The deeming provision creates a fictional vesting in favour of the Governing Council and not in favour of the Society or the Trust. This is also for the reason that society is not a body corporate which has also been held by this Court in the Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi and Another [AIR 1962 SC 458] and reiterated in Illachi Devi (D) by L.Rs. and Others Vs. Jain Society, Protection of Orphans India and Others [AIR 2003 SC 3397]. Since the society cannot hold the property in its name, vesting of the property in the trustees is likely to hinder the administration of the trust property, particularly, where the trustees themselves or their legal representatives claim adversely to the trust. It is for this reason that the law vests the property belonging to the society in its Governing Body. 56. The phrase `property belonging to a person' has two general meanings (1) ownership, (2) the absolute right of user (per Martin B in Att. Gen. vs. Oxford & C. Railway Co. 31 L.J. (1862) 218 at 227) `Belonging' connotes either ownership or absolute right of user ( Wills J in The Governors of St. Thomas', St. Bartholomew's, and Bridewell Hospital vs. Hudgell (1901) 1 KB 381. The Centre has an absolute right of user over its immovable properties which it has been exclusively exercising all throughout. Section 5 of the Societies Registration Act clearly declares that the property belonging to the society, meaning under its user, if not vested in the trustees shall be deemed to be vested in the Governing Council of the society. In the present case, it is nobody's case that the property remains vested in the Trustees of the Dorabji Tata Trust. It has been canvassed on behalf of the first respondent that the property is vested in the Central Government. However, the Central Government has never claimed any title to the property adverse to the first respondent - Tata Memorial Centre. It is true that the property dedicated to the Tata Memorial Centre has not been transferred to the Society by the Central Government. But the fact is that it is the Governing Council of the first respondent which has been administering and controlling the day to day affairs of Tata Memorial Centre and its property funds, employment of its staff and their conditions of service. Hence, in view of the above referred to factual as well as legal scenario the first issue will have to be decided that the property dedicated to the first respondent will be deemed to be vested in the Governing Council of the first respondent - Society. 57. Whether the Control and Management of the Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society. Recital No.9 of the agreement of the 1966 specifically states as follows: 58. Consequently, Rule - 3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center. As per the foreword to the bye-laws of the Tata Memorial Centre - Thus, as per the Rules and Regulations, the entire administration and management of Tata Memorial Centre is with the Governing Council. 59. It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from the bye-laws of the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter. 60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer' under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning  4 independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer. 61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page -4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government. 62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control', of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act. 63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent - 1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondent - rival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant - Union has been recognized under the Act right from 1985. 64. In view of all these factors, it is not possible for us to sustain the judgment of the Division Bench of the Bombay High Court. The Division Bench has clearly erred in its consideration of the judgment in the Steel Authority of India Case. The first respondent cannot be held to be functioning under the authority of the Central Government. The State Government is therefore the appropriate Government for the respondent No. 1 for the purposes of ID Act and MRTU and PULP Act. The two Applications filed by respondent No. 2 will have to be held as  4 maintainable under MRTU and PULP Act. The order of the Industrial Court holding them to be maintainable but dismissing them on merits is held to be correct. In the circumstances, the appeal is allowed. The order passed by the Division Bench of the Bombay High Court is set aside and the order passed by the Industrial Court as confirmed by the learned Single Judge, is restored. The Appeal No. 133/2002 filed by the 1st Respondent in the High Court shall stand dismissed. 66. Parties will bear their own costs. ------------- (H.L. Gokhale) New Delhi Dated : August 9, 2010 

Author: Gokhale

Tata Memorial Hospital Workers ... vs Tata Memporial Centre & Anr on 9 August, 2010

Supreme Court of India

£3) (ii) (iii) 0?) The gatitigner shai! execute a band for V. (Rupees twenty five theusand enly) with $59 v$u:%Taufie§'_. ' fer the like sum ta the sati3fa;i'ié'n"'cfA_ti§se jL§§*i:$:i§::;§§e%:a§". Court; The patitianezr shall net tan1§7e:_E':'x«a:§1;h é'n'd'_VVin't:§m§ c!ate the presecutien witness£5s}"'~ . The petitione3f"s'hai!ibé";égi,§'Ea,§f-_§n.v'-atiéfiding the Triai C9ufi;W~ "'" The pie;ii:§c3ne:_.":§h'a»l§'"---..§§ée}3 marking his attendance between grid 2.00 pm. on every Sunday 'bfiféré"=th'e:._5tatié'hMRouse Officer, Sakaleshpura Tewr: , B58: §s"*--V.g' ra!§§:ed cendétienaily. £hi/- Jkuign

Author: Ashok B.Hinchigeri

Lokesha vs State By Sakaleshpura Town Police on 19 December, 2008

Karnataka High Court

Gujarat High Court Case Information System Print SCA/4021/2010 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD \ SPECIAL CIVIL APPLICATION No. 4021 of 2010 ========================================================= NILESH KANTILAL PATEL - Petitioner(s) Versus JAYSHREEBEN RAKESHKUMAR SHAH - Respondent(s) ========================================================= Appearance : MR. SUNIT SHAH WITH MR B K.RAJ for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR MEHUL S SHAH for Respondent(s) : 1, MR SURESH M SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 10/05/2010 ORAL ORDER Pursuant to order dated 4.5.2010 the brother Nayanbhai Hasmukhlal Shah and Kalpanaben Shah are present before this Court. They also produced an affidavit of Vipul Hasmukhlal Shah and Manisha Vipul Shah for the consideration of this Court. It is also cleared that Hasmukhlal Shah has expired four years back. It appears that inadvertently in order dated 4.5.2010 it is mentioned that, `father-in-law of the respondent and brother of the husband are to remain present'. Having heard Nayanbhai Hasmukhlal Shah, Kalpanaben Shah and taking into consideration the affidavit of Vipul Hasmukhlal Shah and Manisha Vipul Shah, this Court is of the opinion that they know the truth about the child of the present respondent. Nayanbhai Hasmukhlal Shah and Kalpanaben Shah narrated in detail about the method and manner in which they already accepted the child as that of their family. Not only that they also mentioned to this Court the ceremonies which were undertaken relating to the child being born in the family. The Court is prima facie convinced that the child is accepted in the family after knowing the truth about the child. Learned advocate Mr.Sunit Shah with learned advocate Mr.B.K.Raj appearing on behalf of the petitioner requested that, instead of passing any final orders at present, if the matter can be deferred for some time so as to take into consideration the development during this period pertaining to the behaviour of the family members with the child and with the respondent and her husband Rakeshkumar Shah, the request is granted. The matter is adjourned to 18th June, 2010. The custody of the child is to be handed over by the petitioner to the respondent herein on 14th May, 2010, afternoon (modalities may be worked out by the parties inter se). Learned advocate Mr.Shah for the petitioner requested that the facility of `Skipe contact' granted by the London Court for five days may be continued so that while the petitioner is away from India is able to be in touch with his child i.e. daughter. The respondent is directed to allow the petitioner to have Skipe contact with the child on Saturday, Sunday and Monday. The petitioner is returning to India on 17th June, 2010, and therefore the matter is kept on 18th June, 2010, for further consideration. ( RAVI R. TRIPATHI, J. ) syed/     Top

Author: Ravi R.Tripathi,&Nbsp;

Nilesh vs Jayshreeben on 10 May, 2010

Gujarat High Court

Gujarat High Court Case Information System Print CR.MA/5254/2011 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5254 of 2011 ========================================================= JANI JAYENDRABHAI BABULAL - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR ANKIT SHAH for Applicant(s) : 1, MR JK SHAH, ADDITIONAL PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 27/04/2011 ORAL ORDERRULE. Learned APP - Mr. J.K. Shah waives service of notice of Rule for the respondent - State. This application is filed under Section 439 of the Code of Criminal Procedure in connection with First Information Report registered as I-C.R. No.178/2007 with Kalupur Police Station, Ahmedabad for the offences punishable under Sections 365, 392, 34 and 170 of Indian Penal Code. Learned Counsel appearing for the applicant submits that considering nature of offences, punishment prescribed and the manner in which the identification parade was held, the applicant may be enlarged on bail. Heard learned APP Mr. J.K. Shah for the respondent-State. Having heard learned Counsels for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the applicant, by imposing suitable conditions, I deem it just and proper to enlarge the applicant on bail. Learned Counsels for the parties do not press for further reasoned order. In the facts and circumstances of the case, the application is allowed and the applicant is ordered to be released on bail in connection with First Information Report registered as I-C.R. No.178/2007 with Kalupur Police Station, Ahmedabad, on executing a bond of Rs.5,000/- (Rupees Five Thousand Only) with one surety of the like amount to the satisfaction of the Trial Court and subject to the conditions that he shall; a) not take undue advantage of liberty or misuse liberty; b) not act in a manner injurious to the interest of the prosecution; c) surrender passport, if any, to the lower court within a week; d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; e) mark presence at the concerned Police Station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for three months only; f) furnish the present 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 the residence without prior permission of this Court; The authorities will release the applicant only if not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower court having jurisdiction to try the case. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule made absolute. Direct Service is permitted. Sd/- (Anant S. Dave, J.) Caroline     Top

Author: Anant S. Dave,&Nbsp;

Jani vs State on 27 April, 2011

Gujarat High Court