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JUDGMENT Mukerji, J. 1. This appeal No. 1024 and the connected appeals namely 1025 to 1027, arise out of four independent suits instituted by the same parties namely the respondents who were the plaintiffs in the Court of first instance, for similar reliefs. 2. It appears that the plaintiffs claimed to be the owners of a plot of land bearing No. 1065, containing some trees. Adjoining this plot of land and to the east of it are two plots which are recorded in the village paper as graveyards. The plaintiff said that plot 1065 was not a graveyard but had been used as such, at the occasions complained of, by the defendants in the four suits, without any right. The relief sought for was recovery of possession and injunction. 3. The defence was that the plot in question had been used from time immemorial as a graveyard and the plaintiffs had no right to stop the defendants and other Mohammedans of the community from using it as such. 4. The plaintiffs adduced some documentary evidence which shows that the plot 1065 was recorded as the zamindar's grove, while the two adjoining plots namely 1064 and 1089 were recorded as burial grounds. One witness was examined on commission, but before other witnesses could be examined, the parties, through their pleaders, agreed that if the Munsif would inspect the place, the parties would not adduce any oral evidence, leaving it open to the Court to decide the case on the documentary evidence and on the knowledge acquired by it, on inspection. 5. The Munsif did inspect the place and from what he saw he came to the conclusion that the plot 1065 was an ancient graveyard, notwithstanding the fact that the documents did not support this conclusion. 6. On appeal to the lower appellate Court, a preliminary plea was taken that no appeal lay. This objection was brushed aside and the appeals were heard on their merits. The learned Subordinate Judge, who heard the appeals, had before him the amin's report, the amin having previously inspected the locality and made a report. The learned Judge on the strength of the amin's report and the documentary evidence discarded the opinion entertained by the Munsif as the result of his inspection and decreed the suits. 7. In this Court two points have been urged namely, no appeal lay to the lower appellate Court and the lower appellate Court had misread and misinterpreted the notes of local inspection made by the trial Court. 8. As regards the first point, it has no force. The Munsif was not constituted an arbitrator. All that was done was to shut out the oral evidence and to substitute for it the inspection that the Munsif might make of the locality. In a similar case I held that an appeal lay: see Raghubir Saran Das v. Ram Das A.I.R. 1925 All. 348. I adhere to that opinion and hold that an appeal to the lower appellate Court was competent. 9. Coming to the merits of the case, it seems to me that the trial has been very unsatisfactory. No doubt Order 18, Rule 18, Civil P.C. permits the Judge to make a local inspection. The rule does not say what value is to be attached to the local inspection, but there is abundant authority which establishes that a decision, based, entirely, on local inspection is bound to be unsatisfactory and should not be permitted except perhaps in exceptional cases: vide Kessowji Issur v. G.I.P. Ry. Co. [1907] 31 Bom. 381, Ahmad Sahib v. Magnisite Syndicate Ltd. [1916] 39 Mad. 501, Raikishori Ghose v. Kumudini Kanta Ghose [1912] 15 C.L.J. 138, Bharat Chandra Chakrabarty v. Kiran Chandra Rai A.I.R. 1925 Calcutta series 1069, Tirath Ram v. Muhammad Abdul Rahim Shah A.I.R. 1923 Lahore series 546. 10. An examination of the present case will show how unsatisfactory has been the result of the parties, allowing the inspection of the Munsif to take the place of oral evidence. The Munsif, as the result of his inspection found himself justified in overriding the documentary evidence and the report of the amin. The Subordinate Judge found the result of the Munsif's inspection insufficient to override the amin's inspection report and the records of the village. The Munsif in his notes of inspection does not take the trouble of saying what he actually saw. He records only what might be called the result of his inspection, the inferences drawn by him and not the facts on which the inference is based. But it is the facts that should have been put on the record and not the mere inferences. The Munsif's notes are to be found at p 75-C of the record of suit No. 12 of 1925 of the Court of the Munsif. I would quote the two important paras. 3 and 4 from his notes to show how Vague the record is: Apart from the disputed graves, a very large number are scattered hither and thither over the plot 1065. The raised portions of this innumerable graves do not exist at present but the planks with which they have been covered go to show beyond shadow of doubt that they are extremely old. 11. It will be noticed that the Munsif does not give the number of graves he observed. If he had been a witness in the case, he would surely have been questioned as to the number of graves he had observed. It will be again noticed that the learned Munsif found that the mounds over the supposed graves had disappeared. If so, it is not clear what were the indications from which the inference was drawn that there was a grave at any particular spot. The Munsif does no doubt mention that he found certain planks which were presumably used to cover the graves; but he does not say whether the planks were observable on the surface of the land, how many they were and whether they had been removed to see whether there were any graves underneath or whether simply old pieces of planks had been brought and put on the spot. 12. I am satisfied that the trial of the case has been extremely inconclusive. The lower appellate Court ought not to have proceeded to decide the case without letting the parties adduce oral evidence on the point or without sending some person for local investigation with direction to note all the facts which were likely to influence the judgment of the Court one way or the other. 13. The result is that I set aside the decrees of the Courts below and remand the suits through the lower appellate Court to the Court of first instance for disposal according to law. Parties will be at liberty to adduce oral evidence. They shall not be pinned down to the statement they made about not producing any oral evidence. The costs here and hitherto will abide the result.

Author: Mukerji

Mohammed Ishaq And Ors. vs Balmakund Lal And Anr. on 5 December, 1928

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14445 of 2010 INDRAJEET BIND & ANR. Versus THE STATE OF BIHAR ----------- 4. 23.06.2010 Call for a report from the Chief Judicial Magistrate, Nalanda at Biharsharif in connection with Silao P.S. Case No. 201 of 2006 as to why till date the case has not been committed to the court of Session and in case it has been committed to the court of Session, the order be transmitted to the court concerned to report to this Court about the present stage of the trial so as to reach this court with three weeks. Put up after receipt of the same. ( Anjana Prakash, J.) S.Ali

Indrajeet Bind &Amp; Anr vs The State Of Bihar on 23 June, 2010

Patna High Court - Orders

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Central Government Act

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Bhullan Prasad vs State Of U.P. & Others on 17 August, 2010

Allahabad High Court

JUDGMENT H.K. Rathod, J. 1. Heard Mr.K.B.Anandjiwala, learned advocate for the petitioner and Mr.A.D.Oza, learned Public Prosecutor on behalf of the respondent State. "The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising the powers, the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum." [Extract : Vaish Degree College Vs. Laxminarayan reported in AIR 1976 SC page 888 ] "Law cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, rule of law must run akin to rule of life. And life of law is not logic but experience ..' While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction." [Extract : Municipal Board, Pratapgadh Vs. M.S.Chawla reported in AIR 1982 SC page 1493 ] "Article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal inquiry. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects; `Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest." [ Extract : Shivshankar Dal Mill Vs. State of Hyryana reported in AIR 1980 SC page 1037 ] Rule. Mr.A.D.Oza, learned Public Prosecutor waives service of Rule on behalf of the respondent State. 2. The brief facts of the present petition are as under :- On 9-2-2001 at about 4.30 p.m informant Kiritbhai Vitthalbhai Lalluvaida lodged the FIR for the offence which took palce on 26-1-2001 at about 8.50 a.m. against the petitioner and other accused persons for the offences under Section 304, 120B, 418, 420 of IPC and under Section 3(2)(c)(d), 7(1)(i)(ii) (2) of the Gujarat Owners Flat Act, 1973. It is stated in the FIR that on the land bearing City Final Plot No. 247, T.P.Scheme No.29 and City Survey No.274, two buildings are being constructed as Block A & B of `Rutvij Apartment' having in all 32 flats and has been registered on 28th April, 1995 in the name of Shaan Co-operative Housing Society Ltd. The coplainant had purchased one float in Block - B of the Rutvij Apartment in the year 1998 and for the same he has also taken loan of Rs.1.50 lacs from Satellite Road Branch of State Bank of Saurashtra. It is also alleged by the complainant in the complaint that B.U.Permission, share certificate, plans etc from the builder but according the petitioner, the same were very well supplied to the members. It is further alleged in the FIR that on 26th January, 2001 at about 8.50 a.m. the portion of the staircase of Blcok No.B was broken and pillars were sank in the earth upto first floor due to massive earthquake. Howerver, no damage is caused to Blcok - A which is adjacent to Blcok-B. It is the case of the prosecution that one Satiben, wife of Vijaykumar Nair and Mahendra Patel, Jay M. Makwana and wife of Bhogilal received injury on their persons in the the said incident. Satiben was thereafter taken to hospital and there she succumbed to injuiris sustained by her. However, it is contended by the petitioner that because of sinking of a building or due to any other reason except the dashing with the wall the deceased had succumed to injuries. It is also alleged in the FIR that the petitioners and other accused persons had used sub standard material in constructing the building and had not constructed the building as per the approvewd plans and thereby caused damanges to the properties and lives of the residents of Rutvij Apartment. The detailed description of the alleged incident is given in the FIR which is annexed and marked as Annexure-A to the petition. The petitioner had preferred Misc. Crim. Application No. 726 / 2001 in the Court of the Addl Sessions Judge, Ahmedabad which was rejected by the concerned Sesssions Judge on 18th April, 2001 qua the present petitioner and hence the present petition under Section 439 of CrPC 1973 on the ground that the petitioner is innoncent and he has not committed any crime as alleged against him. It is also submitted by the petitioner, all the necessary and relevant papers in respect of the building in question have been obtained the same were supplied to the complainant of the FIR. It is also submitted that the petitioner has, by now, constructed as many societies in different localities of Ahmedabad City. Even after the construction of Rutvij Apartment, he has constructed more schemes but except the present building i.e. Rutvij Apart Block No-B, not a slightest damange was caused to any of the buildings of which the construction was carried out by the present petitioner. However, it is submitted by the petitioner that soon after this earthquake, on 31-1-2001 a meeting of members of the society was held and in the said meeting it was unanimously decided that at the same place the construction work is to be carried out and the members had also signed in that Minutes book of the Society. That the building Rutvij Apartment was constructed by me as per the Standard Specifications and as per the Rules and bye-law of Municipal Corporation. That as regards the damaged building, the petitioner undertake to reconstruct and restore all the flats by undertaking constructing myself at my entire cost. However, if the flat owner or owners choose and desire to pay to me any amount by way of contribution as may be received from the Government aid and / or any agency by him or them, it will be open to me accept the same but I will not compel in any way any of them to make any such contribution by resorting to litigation or in any other manner I further undertake to complete the construction by the end of May, 2003 and put the respective flat owners in actual possession of their respective flats. If I fail in any way to deliver possession of reconstructed flats to the respective owner or owners by the end of May, 2003, I will pay rent compensation at the rate of Rs.5000/- per month to each of such flat owner. If however any flat owner chooses not to have reconstructed flat, I will pay him the price thereof paid by him. Mr.Anandjiwala, learned advocate appearing on behalf of the petitioner has also further submitted that the petitioner is ready to pay Rs.75,000/to the legal heirs of the deceased Satthiben w/o Vijaykumar Nayar within three weeks of the date of release of the petitioner from jail. 3. Learned advocate Mr.Anandjiwala has prepared draft undertaking and copy of the said draft undertaking has also been given to the learned PP Shri A.D.Oza. However, Mr.A.D.Oza, learned PP has verified the statement made by the present petitioner in the draft undertaking. 4. In the present petition, this Court has issued notice on 26th April, 2001 made it returnable on 27th April, 2001 and thereafter the matter has been adjourned by this Court on 30-4-2001, the respondent State has filed reply against the present petition which is taken on record. 5. In the present petition, notice has been issued to the Respondent State by this Court and the respondent - State has filed reply which is taken on record. It is also necessary to note one fact that chargesheet has been submitted against the present petitioner - Kaushik Kumudchandra Kapadia on 7th May, 2001. The learned Public Prosecutor Mr.A.D.Oza has vehemently opposed the bail application filed by the present petitioner on the ground which has been raised in para-6 of the reply to the effect that during the course of investigation it also found that two pent houses were illegally constructed without taking the permission from the competent authority as well as the balcony of the flat which is shown in the plan of 4 ft. but actually the builder has constructed the said balcony of 6 ft. x 6 inches which is without any plan or permission from the competent authority and and because of the extra load on the whole building and because of the extra load on the whole building the building is collapsed. It is further contended in the reply that the petitioner was knowing the above illegal construction which was the main reason of the collapse of the building. It is further contended that there were other multistoried building still standing nearby which clearly shows that the building used by the builder is substandard and not upto the mark. Mr.Oza, learned PP has further submitted that FSL team consisting of Officer from FSL as well as NCB expert from Hyderabad visited the site on 21-2-2001 and have collected the samples of columns, beams, rods and steel and the same samples have been sent to the laboratory of National Council for Cement and Building Material, New Delhi. It is further submitted that the report from the said Laboratory is still awaited and the samples of soils was also sent for testing at Hyderabad and its report is still awaited. Mr.A.D.Oza, learned PP has also submitted that from the laboratory report from FSL against the present petitioner has been received, wherein the fact is established that there was poor construction which resulted into collapse of building. Mr.Oza, learned PP has also objected the undertaking which has been suggested by the petitioner and he also submitted that this petition has been filed by the petitioner is prior to filing of the chargesheet and therefore now the chargesheet is submitted against the present petitioner and therefore the petition is not maintainable. Mr.Oza, learned PP has also submitted that considering the charges levelled under provisions of Section 304 of IPC, which itself indicate the offence is very serious in nature and the same requires consideration and therefore the present application deserves to be rejected accordingly. Mr.A.D.Oza, learned PP has also submitted that looking to the peculiar facts and circumstances of this case, the petitioner has come forward to file undertaking and this Court is considering the undertaking of the present petitioner. Therefore, Mr.Oza, learned PP has submitted that only on this ground, no reasoned order may be passed otherwise it will come into way of the respondent - State Government while opposing bail application filed by other similarly situated builders. 6. I have considered the averments made in the present application and also considering the statement of Mr.K.B.Anandjiwala, learned advocate for the petitioner in respect of the draft undertaking so also considering the submissions made by both the learned advocates for the respective parties without deciding the merits of the matter and considering the request of both the learned advocates for the parties who requested not to pass reasoned order and therefore considering the matter and before passing the final order, according to my opinion, some observations made by the Apex Court as well as Division Bench of this Court while dealing with such application which are pertinent to quote in relevance of the facts and circumstances of this case which are reproduced as under :- Recently, the Apex Court in case of GAYA PRASAD V. PRADEEP SRIVASTAVA reported in (2001) 2 SCC page 604, para-19 observed as under :- "The time is running out for doing something to solve the problem which has already grown into monstrous form. If a citizen is told that once you resort to legal procedure for realisation of your urgent need you have to wait and wait for 23 to 30 years, what else is it if not to inevitably encourage and force him to resort to extra-legal measures for realising the required reliefs. A Republic, governed by rule of law, cannot afford to compel its citizens to resort to such extra-legal means which are very often contra-legal means with counterproductive results on the maintenance of law and order in the Country." There is recent observation of the Apex Court in case of MAKAHN LAL BANGAL V. MANAS BHUNIA, reported in (2001) 2, SCC 652, para-26, "An alert Judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly negotiating on shorter routes avoiding prolixity and expeditiously attaining the destination of a just decision. The interest of the counsel for the parties in conducting the trial in such a way so as to gain success for their respective clients is understandable but the obligation of the Presiding Judge to hold the proceedings so as to achieve the dual objective search for truth and delivering justice expeditiously - cannot be subdued. However, sensitive the subject matter of trial may be; the courtroom is no place of play for passions, emotions and surcharged enthusiasm." Recent observation of the Apex Court in case of GOVERNMENT OF A.P. V. A.P. JAISWAL reported in (2001), 1 SCC 748, para-24 which runs as under : "Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect for the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice." There is recent observation of the Division Bench of this Court in case of PEOPLES UNION FOR C.L. VS. STATE [ Coram : D.M.Dharmadhikari, C.J. ] reported in 2001 (1) G.L.R., page 547 observed that; "A Judge on assuming office during his tenure sits cut-off from the society as he cannot continue to be in public life, but as he also comes from the society with his own experience of it, he is better stationed at a distance from the problems of the society to view them in a more objective, detached and dispassionate manner, than those involved in it, and for that reason, he is more suited to resolve conflicts and competing claims of the individual and the society. [ para 22 ]". The Apex Court in a decision rendered in case of JOGINDAR KUMAR VS. STATE OF UP reported in AIR 1994 S.C. page 1349, certain observations are quoted as under :- `No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Office in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do. The, there is the right to have some one informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984, in England. These rights are inherent in Arts. 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the Supreme Court issued the following requirements : (1) An arrested person being held in custody is entitled, if he so request to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained. (2) The police officer shall inform the arrested person when he is brought to the police station of this right. (3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Arts. 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals." 23. In India, Third Report of the National Police Commission at Pg-32 also suggested : "... An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :- (i) The case involves a grave offence like murder, dacoity, robbery , rape etc. , and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims. (ii) The accused is likely to abscond and evade the process of law. (iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ... " The Apex Court in case of GURCHARAN SINGH V. STATE [ DELHI ADMN. ] reported in AIR 1978 page 179 has in para-22 observed as under :- "In other non-bailable cases the court will exercise its judicial discretion in favour of granting bail subject to sub sec (3) of Section 437, Cr.P.C. , if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence." The Apex Court in case of STATE VS. CAPTAIN JAGJIT SINGH reported in AIR 1962 SC 253 (Supra) has made observed as under :- `It (the High Court) should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the State, and similar other considerations, which arise when a court is asked for bail in a non bailable offence. It is true that under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non bailable offence", we are of the opinion that the above observations equally apply to a case under Section 439 of the new Code and the legal position is not different under the new Code." 7. After considering the above observations as well as the averments made in the application and affidavit-inreply and considering the draft undertaking which has been suggested by the learned advocate Mr.K.B.Anandjiwala, it is a duty of the Court to see and protect the interest of the person who have become victim in such grave incident and simultaneously also to consider the fate of the persons who are behind the bar because of this incident. It is also necessary to keep in mind the fact that now the chargesheet has been submitted by the Investigating Officer. 8. I have considered the objections raised by the learned Public Prosecutor against the present petition. The main contention of Learned P.P. is on merits and second objection that investigation is pending in a crucial stage. The third objection that F.S.L. Report is awaited and prima facie looking to preliminary report of FSL, the material which has been used by the builder is of poor quality and no standard material used by the builder and construction is not in accordance with Rules and Bye-laws of the Municipal Corporation. Looking to the objections of Learned P.P. this Court can examine the merits of the case and to pass appropriate order, but the real worry is that, it will come in way of the State Government in respect of pending other similar matters, which are more than 70 in numbers pending before this Court before the concerned Sessions Courts. This Court has passed similar order after considering the similar undertaking in Criminal Misc. Application Nos. 1677/2001 order dated 18-4-2001, Criminal Misc. Application No.2158 / 2001 order dated 24-4-2001 and Criminal Misc. Application No. 3068 / 2001 order dated 30-4-2001. In all these matters learned PP Mr.A.D.Oza had appeared and after considering his submission, this Court has passed order after taking into account, the undertaking which has been given by the concerned petitioner in each each of the petition. It is also necessary to note that in similar matter of the Builders, Crim. Misc. Application No. 1238 / 2001 order dated 1-5-2001, this Court [ Coram : C.K.Buch, J.] has passed similar order considering the similar type of undertaking wherein also learned PP Mr.A.D.Oza has appeared. In such situation though, there is an objection of Learned Public Prosecutor, if other petitioner come forward before this Court and prepare to file same undertaking as considered by this Court in earlier petitions, then in such circumstances, this Court differ the decision on the ground that consistency is the corner stone of the Administration of Justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect for the rule of finality. It is a with a view to achieve consistency in judicial pronouncement, the Courts have evolved the rule of precedents. Principle of stair decisis etc. These rules and principles are based on public policy and if these are not followed by Court then there will be CHAOS in the administrations of justice. It is also necessary to note that it is well established principle that while examining the bail application, the Court normally avoid the reason, either in granting or refusing Bail Application.That recently in the case of KANTIBHADRA SHAH AND ANOTHER Vs. STATE OF WEST BENGAL, reported in 2001 [1] SCC page 722, the following observation of Apex Court in para-12 is reproduced as under :- "12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to nest stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985." Therefore, considering the above observation made by Apex Court and considering to have consistence approach in similar matters, though there is an objection of learned public prosecutor Mr.A.D.Oza on merits, but I am not passing a reasoned order on merits on the ground that it will definitely come in a way of the State Government in pending such bail applications either before this Court or before Courts filed by the Builders and other connected persons. Earlier in all similar matters, I have not passed reasoned order and therefore, in present case also I am not passing the reasoned order in view of the above special facts and circumstances. However, it is necessary to note that now investigation is over and chargesheet is submitted in the Court by concerned Investigating Officer in the present case. Recently, the Apex Court has considered the bail application and certain principles has been enumerated by the Apex Court in the case of PRAHALAD SINGH BHATTI Vs N.C.T., Delhi and another, reported in 2001 AIR S.C.W. page 1263. The relevant observations on para-8 are quoted as under :- "The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior means and and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or State and similar other consideration. It has also to be kept in mind that for the purpose of granting the bail the Legislature has used kept in mind that for the purpose of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." In light of the above observations made by the Apex Court, it is necessary to note that if the accused released by the Court and his presence in the society adversely affect or having adverse impact in the mind of society, then normally bails cannot be granted, but in a converse situation if Accused released by the Court and his presence will helpful to the victim of the society, then Court may consider is a relevant factor for granting the bail in favour of accused. In the present case, if the Builder remains in jail, it will not helpful in any manner to the members of housing society, whose flat/s are collapsed and their family members are died in such incident. But when Builder come forward with a bonafide undertaking and agreed to reconstruct the total flats collapsed in the incident at his own cost without taking a single penny from the concerned member/s and prepared to pay Rs.75,000/- to each person who died in incident and other benefited terms, then in such circumstances according to my opinion, the presence of the petitioner will not adversely affect or having any adverse impact on the society. This is also one of the important considerations while examining the bail application. 9. After considering the aforesaid statement made by the learned advocate Mr.K.B.Anandjiwala appearing for the petitioner to the effect that the petitioner will file necessary undertaking which has been suggested as above and considering the submissions of both the learned advocates and further considering the fact that as per the statement made at the Bar by learned advocate Mr.K.B.Anandjiwala, that necessary undertaking will be filed by the petitioner before this Court within 10 days from the date of release and considering the peculiar facts and circumstances emerging of this case so also taking into consideration observations made by the Hon'ble Apex Court and the Division Bench of this Court, following order is passed. The parties do not press for reasoned order. Considering the submissions made on behalf of the parties, and having regard to the circumstances and facts of the case, the application is allowed and he is ordered to be released on bail in connection with Crime Register No. I- 62 / 2001 registered at Navrangpura Police Station for the offence charged against him in this application on executing bond of Rs.25,000/- each (Rupees Twenty Five Thousand only) with one surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall, a) not take undue advantage of his liberty or abusehis liberty; b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner; c) maintain law and order and should co-operate the investigating officers; d) not act in a manner injurious to the interest of the prosecution; e) mark their presence before Navrangpura Police Station on every Sunday between 9.00 a.m. to 2.00 p.m. for a period of three months from the date of release and thereafter present petitioner, shall mark his presence before the aforesaid police station once in a month preferably on 1st Sunday of each month till the trial is over. f) furnish the address of his residence to the I.O. 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; g) surrender his Passport, if any, to the lower court within a week; h) it is directed to the petitioner to co-operate with the investigation and to remain personally present as and when required by the Investigating Officer. 3. If breach of any of the above conditions is committed, the City Sessions Judge, Ahmedabad will be free to issue warrant or take appropriate action in the matter. 4. Bail before the lower Court having jurisdiction to try the case. It would be opened to the trial court concerned to give time to furnish the solvency certificate if prayed for. 10. In view of statement made by the learned Advocate Mr.K.B.Anandjiwala on behalf of the petitioner, necessary undertaking which is annexed to this order, is directed to be filed before this Court within 10 days from the date of the release of the petitioner without fail. 11. It is further directed to the petitioners to supply xerox copy of the affirmed undertaking to the office of the Public Prosecutor, concerned trial court and to the concerned investigating officer. 12. It is also made it clear that the amount of Rs.75,000/- in respect of victim who died in the incident, shall not come in the way for claiming compensation in accordance with law. 13. It is further directed to the petitioners that in pursuance of the statement made before this court, necessary undertaking as referred to in this order is required to be filed before this Court by the petitioner within 10 days from the date of release and the such undertaking is required to be strictly complied with by the petitioner without fail, otherwise in the event of non compliance of any such term of the said undertakings, the respondent State as well as the concerned members of `Rutvij Apartments' - a building in question in the present order and legal heirs of victim are entitled to file necessary application before this Court for cancellation of order granting bail in favour of the petitioner. 14. It is open for the parties including the concerned members of the said `Rutvij Apartments' and legal heirs of the victim in case of any difficulty in respect of any such terms as incorporated in the undertaking will be at liberty to apply before this Court by way of necessary application. 15. This order is passed by this Court considering the peculiar facts and circumstances of the case as well as considering the undertaking of the petitioner and undertaking to make the payment to the victim, therefore this order may not be treated as precedent for other similar cases. 16. However, it is made it clear that undertaking that may be filed by the petitioner before this Court pursuant to the order passed by this Court, will not come in the way in any manner while facing and / or defending the proceedings arising from C.R. No. I - 62 / 2001 of Navrangpura Police Station. It is also made it clear that the present undertaking which will be filed by the present petitioner only in connection with relief of grant of bail in favour of the petitioner and therefore such undertaking will not amounts to an admission of the petitioner in respect of criminal liability which will be obviously required to be faced by the petitioner in respect of the offence registered against him pursuant to C.R. No. I - 62 / 2001 - Navrangpura Police Station. 17. Before parting with the present order, according to my opinion, the humanitarian stand and approach taken by the petitioner is in real sense satisfying the genuine rehabilitation of the members and victim affected on account of earthquake and have become victim of this unprecedented earthquake. Rule is made absolute accordingly. Direct service is permitted today.

Author: H Rathod

Kaushik Kumudchandra Kapadia vs State Of Gujarat on 10 May, 2001

Gujarat High Court

Gujarat High Court Case Information System Print LPA/313/2006 2/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 313 of 2006 ===================================================== GANPATBHAI MAHIJIBHAI SOLANKI - Appellant(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ===================================================== Appearance : M/S THAKKAR ASSOC. for Appellant(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 5, 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2.5,5.2.6 ===================================================== CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 01/03/2006 ORAL ORDER(Per : HONOURABLE MR.JUSTICE M.S.SHAH) The grievance of Mr Pahwa for the appellant is that the averments made in the affidavit-in-reply to Civil Application No.9103 of 2005 in Misc. Civil Application No.2222 of 2005 have not been taken into consideration by the learned Single Judge by treating them as contentions on merits of the case. It is submitted that the said affidavit was filed to oppose the civil application for condonation of delay filed by the State Government and it was the case of the appellant that during the intervening period of six years, the appellant had sold away the lands to other parties by registered sale deeds and those parties had also in turn sold the lands to other parties and that residential units were also constructed on the lands in question. It is submitted that all those facts in paragraph 10 to 17 have not been considered by the learned Single Judge. It is submitted that the averments made in the aforesaid paragraphs of the affidavit-in-reply were sufficient to contend that in view of the rights and equities of third party having been created during the period of six years, such gross delay did not deserve to be condoned. 2. In view of the above submissions, notice returnable on 28th March 2006. Till the returnable date, all the parties shall maintain status-quo as on today regarding the lands in question. In the meantime, respondent Nos.1 and 2 shall submit a report pointing out the situation at the site of all the lands in question being lands in Survey Nos.345, 347/1 and 267 with their corresponding final plot numbers, if any. The report shall also specifically indicate the plots which are allotted by the authority under Section 23 of the Urban Land (Ceiling & Regulation) Act, 1976 and the other lands. The particulars about the owner and occupants of the lands in question shall also be submitted with relationship, if any, of those occupants with the present appellant. Direct service is permitted. A copy of this order shall be made available to Mr Dave, learned AGP for timely compliance. (M.S. SHAH, J.) (SHARAD D DAVE, J.) zgs/-

Author: Mohit S. D.Dave,

Ganpatbhai vs State on 6 September, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP No. 14319 of 2003(D) 1. P.J.JOSEPH, S/O.JOSEPH, ... Petitioner Vs 1. SPECIAL SALE OFFICER, INSPECTOR OF ... Respondent 2. THE MANAGER, KIZHATHADIYOOR 3. JOINT REGISTRAR, CO.OPERATIVE SOCIETY, For Petitioner :SRI.R.DIVAKARAN For Respondent :SRI.P.C.HARIDAS The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :03/01/2008 O R D E R THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- O.P.NO.14319 OF 2003 ------------------------------------------- Dated this the 3rd day of January, 2008 JUDGMENT The learned counsel for the second respondent submits that the entire amount due from the petitioner has been paid and the loan account has been closed. Hence nothing survives in this writ petition. The same is closed. THOTTATHIL B.RADHAKRISHNAN, Judge csl  

P.J.Joseph vs Special Sale Officer on 3 January, 2008

Kerala High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2009/002926/5743 Appeal No. CIC/SG/A/2009/002926/ Relevant FactsRespondent : Public Information Officer Hemwati Nandan Bahuguna Garhwal University, Srinagar Pauri, Garhwal, (Uttarakhand)- 246174. RTI application filed on : 29/07/2009 PIO replied : 20/08/2009 First appeal filed on : 01/09/2009 First Appellate Authority order : 07/10/2009 Second Appeal filed on : 05/11/2009 Information Sought emerging from the Appeal Appellant : Mr. Santosh Kumar Mamagain, Patwari Cum Ameen, HNB Garhwal University, Srinagar, Distt- Pauri Garhwal, Uttaranchal. a) The seniority list of teaching staff of Garhwal University during the period 1998 to 2008-09. b) The date of cadre creation of employees, the list of posts in the university and the nature of reservation applicable to the university. Reply of the PIO: A committee has been established to look into this matter and information can only be provided after the committee comes out with its report. First Appeal: Unsatisfactory information provided by the PIO. Order of the FAA: The FAA directed the PIO to provide complete information to the Appellant within 15 days. Ground of the Second Appeal: Non compliance of orders of FAA. The Appellant did not receive any reply from PIO even after FAA's order. Decision: The Commission has perused the documents submitted by the Appellant. It is clear from the documents submitted by the Appellant that the RTI Application was received by the PIO on 29/07/2009. The PIO replied vide his letter dated 18-20/08/2009 in which he stated that the information was being prepared for the Appellant and that with regard to Cadre positions, reservations and seniority list, a Committee had been constituted to examine the matter and the information would be provided after the Committee had reached a final decision. The Appellant then filed a First Appeal on 01/09/2009. The First Appellate Authority passed an order dated 07/10/2009 after a holding a hearing during which the Appellant and the PIO's representative Mr. Chandra Lal, Asst. Registrar (Admn.) and Mr. Harsh Lal, Asst. Superintendent (Admn.) were present. The First Appellate Authority, Prof. M.S.M. Rawat, observed in his order that no information had been provided to the Appellant. As the representatives of the PIO stated before him that the information would be ready in 15 days, the First Appellate Authority directed the PIO to provide the information to the Appellant within 15 days. He has further observed in his decision that the order was being issued with the consent of the APIO. However, no information was provided to the Appellant till the filing of the Second Appeal. From the contents of the RTI Application, it is clear that the information sought by the Appellant falls under the ambit of Section 2(f) of the RTI Act. Furthermore, no exemption has been claimed by the PIO or his representatives who appeared during the hearing of the First Appeal and neither has the First Appellate Authority made any observation to that effect. Furthermore, it is clear from the First Appellate Authority's order that the representatives of the PIO had themselves agreed to provide the information to the Appellant within 15 days. The Commission therefore directs the PIO to provide the information to the Appellant. The appeal is allowed. The PIO is directed to provide the complete information to the Appellant before 28 December 2009. From the facts before the Commission it is apparent that the PIO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 as he has not replied within 30 days of receiving the RTI Application. He has also not obeyed the orders of the First Appellate Authority, despite the fact that his representatives had themselves consented to the time limit set by the Authority, which raises a reasonable doubt that the denial of information may also be malafide. It appears that the PIO's actions attract the penal provisions of Section 20 (1). A show cause notice is being issued to him, and he is directed to give his reasons to the Commission to show cause why penalty should not be levied on him. He will present himself before the Commission at the above address on 31 December 2009 at 11.30 a.m. along with his written submissions to show cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the Appellant. If there are other persons responsible for the delay in providing the information to the Appellant and for not complying with the order of the First Appellate Authority, the PIO is directed to inform such persons of the show cause hearing on 31 December 2009 and direct them to appear before the Commission on 31 December 2009 along with him. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 7 December 2009 (In any correspondence on this decision, mention the complete decision number.) (RR)

Mr. Santosh Kumar Mamagain vs Hemwati Nandan Bahuguna Garhwal ... on 7 December, 2009

Central Information Commission

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.389 of 2010 RAM CHANDRA PRASAD SINGH Versus MR. AJAY KUMAR SINGH ----------- RPS (Ajay Kumar Tripathi,J.) 2 27.10.2010 Matter may come up on 8th December, 2010 to enable the counsel for the Munger Municipal Corporation to inform the Court with regard to left over salary which is still due to the petitioner.

Ram Chandra Prasad Singh vs Mr. Ajay Kumar Singh on 27 October, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/2900/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2900 of 2010 ========================================= PRAFULBHAI KODARBHAI PATEL Versus STATE OF GUJARAT, THROUGH LAND ACQUISITION OFFICER, DEPUTY =========================================Appearance : MR R.K.MANSURI for the Petitioner MS MANISHA LAVKUMAR, ASSTT GOVERNMENT PLEADER for the Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 04/03/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Heard the learned counsel for the petitioner. The present petition is filed against an order of the Collector, rejecting the application under Section 28-A of the Land Acquisition Act being time barred. Admittedly, the petitioner was before the Reference Court in other part of the land which was part of the acquisition. So, it cannot be said that the petitioner was not aware of the award. Since he was aware of the award, yet he has preferred application beyond limitation prescribed under the provisions of Section 28-A of the said Act. The Collector was right in rejecting the application because no condonation is available for the delayed application. In that view of the matter, order of the Collector is not found to be incorrect. The petition has no force and is dismissed. (BHAGWATI PRASAD, J.) (J.C.UPADHYAYA, J.) omkar     Top

Author: Bhagwati Prasad,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp;

Appearance vs Ms on 4 March, 2010

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.112 of 2009 SUDAMA KUMAR PASWAN Versus THE STATE OF BIHAR & ORS With CWJC No.130 of 2009 BHARATI KUMARI Versus THE STATE OF BIHAR & ORS With CWJC No.132 of 2009 ASHA KUMARI Versus THE STATE OF BIHAR & ORS With CWJC No.218 of 2009 PURSHOTAM KUMAR Versus The State Of Bihar & Ors With CWJC No.225 of 2009 ARCHANA KUMARI Versus THE STATE OF BIHAR & ORS With CWJC No.354 of 2009 LAKESHWAR YADAV Versus THE STATE OF BIHAR & ORS ----------- DKS/ (Mridula Mishra, J.) 03/ 25.07.2011 Counsel for the petitioners is permitted to change the nomenclature of Respondent No. 4. In place of District Superintendent of Education, Nawada, District Education Officer, Nawada should be impleaded as Respondent No.4. Despite sufficient time being allowed to the State-respondents for filing counter affidavit till date it has not been filed. As a last indulgence, two weeks' further time is allowed for filing counter affidavit. Put up these matters on 16th August, 2011, retaining their positions. In case counter affidavit will not be filed, the District Education Officer, Nawada shall remain physically present in Court.

Asha Kumari vs The State Of Bihar & Ors on 25 July, 2011

Patna High Court - Orders

JUDGMENT Nishita Mhatre, J. Page 2704 1. Notice of Motion No. 885 of 2005 has been taken out by the Plaintiffs for a direction to Defendant No. 1 to furnish a list of the present and the past tenants in the suit property and to render true and correct accounts of his dealings in respect of the property from 1st April 2002. A prayer for appointment a Receiver has also been made and an injunction is claimed against Defendant No. 1 from disposing off or parting with or alienating, encroaching or creating third party rights in respect of the suit property and from transferring the tenancies in the suit property. 2. Notice of Motion No. 2283 of 2005 has been taken out by the Plaintiffs for appointing Court Receiver in respect of the suit property. In the alternative, it is prayed that Defendant No. 1 be directed to deposit the excess/surplus rent collected by him in respect of the suit property after deducting the taxes payable to the Mumbai Municipal Corporation with effect from 1st April 2002. 3. By way of ad-interim relief, this Court while hearing Notice of Motion No. 885 of 2005, has passed the following operative order: During the pendency and till the final disposal of the motion, the defendants are restrained by an order of injunction from transferring the property or transferring any of the tenancies of any of the tenants in the suit property or letting out or creating any new tenancies in the suit property without prior permission of this Court. The defendants are also directed to file the list of all tenants and rent receivable from each of them. It is clarified that this order does not prevent the defendant No. 1 from collecting the rent from the existing tenants. Motion is made returnable in due course. 4. Notice of Motion No. 2283 of 2005 was directed to be heard along with Notice of Motion No. 885 of 2005 and no ad-interim relief was granted. These two Motions are, therefore, taken up for final hearing together. Page 2705 5. One Khatal Moosa Phaniband married Azambi in 1925 under Mahomedan law. A Nikah was performed. The Plaintiffs, Defendant No. 2 and the father of Defendant No. 1 were their children. Plaintiffs' brother i.e. Defendant No. 1's father, pre-deceased Khatal Moosa Phaniband. It appears that Khatal Moosa Phaniband and his wife solemnized their marriage again under the Special Marriage Act, 1954, on 14th September 1970. The Plaintiffs claim a right to the property and estate of their father who they contend died intestate, to the exclusion of Defendant No. 1. According to the Plaintiffs, the administration of the estate of the deceased must be effected in accordance with the Mahomedan law. Defendant No. 1 would thus not be entitled to any share in the estate as his father had pre-deceased his grand-father. The Plaintiffs contend that Defendant No. 1's father having expired before the succession to the estate of Khatal Moosa Phaniband was opened, Defendant No. 1 has no right to the estate of his grand-father. The Plaintiffs contend that they and their sister, Defendant No. 2 herein, would, therefore be entitled to an equal share in the property of Khatal Moosa Phaniband i.e. a 1/5th share each. 6. Defendant No. 1 contends that his grand-father expired leaving a Will dated 27th December 1978 under which he has been bequeathed all the property except for an amount of Rs. 1,001/- to be paid to the Plaintiffs and Defendant No. 2, each. Defendant No. 1 contends that in view of the marriage of the deceased Khatal Moosa Phaniband and his wife being registered under the Special Marriage Act, 1954, subsequently, the succession to the estate of the deceased Khatal Moosa Phaniband would be governed by the Indian Succession Act, 1925 and not the Muslim Personal Law. According to Defendant No. 1, the restriction on a Muslim to bequeath only 2/3rd of his property under Muslim Law is removed in view of the fact that the marriage of the deceased has subsequently been registered under the Special Marriage Act, 1954. Reliance is placed on Section 21 of the Special Marriage Act to support the submission of Defendant No. 1. 7. The Plaintiffs, however, point out that the Will cannot be accepted as it is not probated. It is submitted on behalf of the Plaintiffs that when Defendant No. 1 claims under the Will under which the deceased has bequeathed his entire property as there are no restrictions applicable in view of the marriage being registered under the Special Marriage Act, a probate is required as that is a necessity under the Indian Succession Act. It is submitted that no legal right can be granted in favour of Defendant No. 1 to the estate of the deceased if the Will has not been probated. 8. Reliance is placed by the learned Advocate for the Plaintiffs on the judgments in the case of Mohan Lal v. Mirza Abdul Gaffar , S. Mudaliar v. State of Madras , Karnataka Board of Wakf v. Government of India and Hem Nolini Judah v. Isolyne Sarojbashini Bose in support of his submissions. Page 2706 9. Defendant No. 1 relies on the judgments in the case of Ahronee Shemail v. Ahmed Omer, AIR 1931 Bombay 533 and Mahomed Hussein Haji Gulam Mahomed Ajam v. Aishabai and Ors. AIR 1935 Bombay 84 in support of the submission that there is no statutory obligation on a Mahomedan executor to take a probate of a testator's Will. 10. Undisputedly, the Nikah of Khatal Moosa Phaniband and Azambi was performed in 1926. The marriage was solemnized subsequently under the Special Marriage Act, 1954 as well. Section 18 of the Special Marriage Act, stipulates the effect of a marriage under that Act. Where a marriage is registered under the Special Marriages Act, it is deemed to be a marriage solemnized under the Act. Section 21 of the Special Marriage Act reads as under: 21. Succession to property of parties married under the Act. -Notwithstanding any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this Act shall have effect as if Chapter III of Part V (Special Rules for Parsi section that intestate) had been omitted therefrom. Therefore, this Section provides that succession to the property of a person whose marriage is solemnized under the Act would be regulated by the provisions of the Indian Succession Act, 1925. Had Khatal Moosa died intestate, his estate would have devolved on his heirs under the Indian Succession Act because his marriage was registered under the Special Marriage Act on 14th September 1970. 11. Section 58 which is contained in Part VI of the Indian Succession Act, provides that that part would not apply to the testamentary disposition to the property of any Muhammadan. Section 213 provides that no right as an executor or legatee can be established by a person unless a Court of competent jurisdiction has granted probate of the Will of the deceased under which the right is claimed by the person or has granted letters of administration that the Will or an authenticated copy of the Will annexed. Sub-section (2) of this Section makes the section inapplicable to Wills made by Muhammadans. 12. The question, therefore, is whether Section 21 of the Special Marriage Act would have the effect of removing the restriction on a Muslim which permits him to bequeath only a part of his property. A question also arises as to whether a Will which is made by a Muslim married under the Special Marriage Act needs to be probated. Can such a Muslim avail of the enabling provision under Section 213(2) of the Indian Succession Act ? 13. In my view, prima facie, it appears that a Muslim who marries under the Special Marriage Act is entitled to bequeath his entire property. There would be no restriction on him to bequeath only 1/3rd of his property as is provided under the Muslim Personal Law. Moreover, such a person would not have to obtain the consent of the heirs in order to bequeath in excess of the legal third of his property. However, once a Muslim who is married under Page 2707 the Special Marriage Act is treated on par with person of other communities married under the Special Marriage Act, all the rigours of the Indian Succession Act are applicable. Prima facie, it appears to me that a Will of such a Muslim who was married under the Special Marriage Act would require to be probated. 14. The judgment in the case of Mahomad Hussain (supra) relied on by Defendant No. 1 would not be applicable as the question which arose in that case was regarding a Muslim who was married by performing a Nikah and not under the Special Marriage Act. In such circumstances, it was held that a Mahomedan executor can establish his right without taking probate. That, in any event, is the law under the Succession Act. 15. In the case of Hem Judah (supra), the Apex Court came to the conclusion that Section 213 creates a bar to the establishment of any right under the Will by any legatee or executor unless the probate or letters of administration of the Will have been obtained. This is so irrespective of whether such a right is claimed by the person as a Plaintiff or a Defendant. There is no doubt that this judgment was not in respect of Muslims. However, in my view, prima facie, in the light of the deceased having married under the Special Marriage Act, Defendant No. 1 would have to establish his right only after obtaining a probate of the Will of the deceased. 16. Defendant No. 1 is in possession of the suit property ever since the death of the deceased on 16th May 1982. Defendant No. 1 has been dealing with the property for twenty four years. In such circumstances, in my view, it would not be proper to appoint a Court Receiver when the Plaintiffs have approached the Court at this belated stage. The Plaintiffs have already been granted the relief as aforesaid at the ad-interim stage. 17. In my view, the order needs to be confirmed in order to protect the property. 18. Hence, the following order: (a) Defendant No. 1 is restrained from transferring the suit property or creating any third party right in respect of the suit property without prior permission of this Court. (b) Defendant No. 1 has already filed the list of tenants as directed by the Order at the ad-interim stage. Defendant No. 1 is restrained from transferring the tenancies or creating new tenancies or inducting new tenants without prior permission of this Court. (c) Defendant No. 1 shall keep accounts of the rent collected from the existing tenants and the payments made in respect of the Municipal taxes and other outgoings during the pendency of the present Suit. (d) Defendant No. 1 shall submit the accounts in this Court and furnish a copy of the same to the Plaintiffs and Defendant No. 2, annually. 19. Notice of Motions disposed off accordingly.

Author: N Mhatre

Mrs. Sayeeda Shakur Khan And Ors. vs Sajid Phaniband And Anr. on 3 August, 2006

Bombay High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 5631 of 2007() 1. M.SHAJAHAN, AGED 40, ... Petitioner 2. RAHMATHULLAH, AGED 38, 3. NOUSHAD, AGED 33, 4. SHAJAHAN, AGED 36, S/O HANEEFAKUNJU, Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent For Petitioner :SRI.K.A.HASSAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :19/09/2007 O R D E R R. BASANT, J. ------------------------------------------------- B.A.NO. 5631 OF 2007 ------------------------------------------------- Dated this the 19th day of September, 2007 ORDER Application for anticipatory bail. The petitioners are accused 16, 30, 28 and 29 respectively in a Sessions Case where they face indictment for offences punishable, inter alia, under Sec.333 of the IPC and Sec.3 of P.D.P.P. Act. 2. Investigation is complete. Final report has already been filed. The case has been committed to the Court of Session. The case was registered as S.C.No.1081/04 before the learned Additional Assistant Sessions Judge, Kollam. The petitioners have not appeared before the learned Sessions Judge. Consequently, warrants of arrest have been issued against the petitioners. The petitioners find such warrants of arrest chasing them. 2. According to the learned counsel for the petitioners,  B.A.NO. 5631 OF 2007 -: 2 :- the petitioners are absolutely innocent. Their omission/failure to appear before the learned Sessions Judge was not wilful or deliberate; but was due to reasons beyond their control. They are prepared to surrender before the learned Sessions Judge and seek regular bail. But they apprehend that their applications for regular bail may not be considered by the learned Sessions Judge on merits, in accordance with law and expeditiously. 3. I have considered all the relevant inputs. After the decision in Bharat Chaudhary and another v. State of Bihar (AIR 2003 SC 4662), it is by now trite that powers under Sec.438 of the Cr.P.C. can be invoked in favour of a person who apprehends arrest in execution of a non-bailable warrant issued by a court in a pending proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist. I am not persuaded, in the facts and circumstances of this case, that any such reasons exist. 4. It is for the petitioners to appear before the learned Sessions Judge and explain to the learned Sessions Judge the circumstances under which they could not earlier appear before the learned Sessions Judge. I have no reason to assume that the learned Sessions Judge would not consider the petitioners' applications for regular bail on merits, in accordance with law  B.A.NO. 5631 OF 2007 -: 3 :- and expeditiously. No special or specific directions appear to be necessary. Every court must do the same. Sufficient general directions on this aspect have already been issued in the decision reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 5. In the result, this bail application is dismissed; but with the observation that if the petitioners surrender before the learned Sessions Judge and seek bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Sessions Judge must proceed to pass appropriate orders on merits and expeditiously - on the date of surrender itself. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge 

M.Shajahan vs State Of Kerala on 19 September, 2007

Kerala High Court

Court No. - 43 Case :- CRIMINAL APPEAL No. - 215 of 2009 Petitioner :- Sohan Pal Respondent :- State Of U.P. Petitioner Counsel :- Sanjay Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J. Heard learned counsel for the appellant and the learned A.G.A. The appellant has been convicted in S.T. No. 925/2007 (State Vs. Sohan Pal) vide order dated 20.11.2008 passed by Additional Sessions Judge/F.T.C., Court No. 17, Bulandshahar for offences under section 376 I.P.C. and the maximum sentence awarded to him is 7 years RI. The rest of the sentences are lesser sentences and all the sentences have been ordered to run concurrently. It is contended by learned counsel for the appellant that in respect of offence under Section 380 I.P.C., trial Court itself disbelieved the prosecution version, victim was found to be major and the medical report does not support the allegation of rape. He further contended that the appellant is in jail since November, 2008 and the appeal is not likely to be heard in near future. Learned AGA however endeavoured to support the judgment of conviction by filing a written objection. Looking to the period of detention and the fact that the appeal is not likely to be heard in near future, I consider it appropriate to release the appellant on bail. Let the appellant Sohan Pal be enlarged on bail on his furnishing a personal bond of Rs. 1 lac with two sureties each in the like amount to the satisfaction of trial Judge concerned in the above sessions trial for above offence. As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by trial Judge concerned to be kept on the record of this appeal. The appellant is allowed one month time to deposit half of the amount of fine awarded to him. Rest half of the amount of fine shall remain stayed during the pendency of this appeal in this court. Order Date :- 19.1.2010 AKG/-

Sohan Pal vs State Of U.P. on 19 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CA/7225/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No.7225 of 2011 In FIRST APPEAL No.2062 of 2011 ===================================================== INDO COMPUTECH SOFTWARE HARDWARE SYSTEMS LIMITED & 2 - Petitioner(s) Versus GUJARAT NARMADA VALLEY FERTILIZERS CO LTD-Opponent ===================================================== Appearance : MS RUPAL K THAKORE for Applicant (s) : 1 - 3. None for Opponent (s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 19/10/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) RULE returnable on 22.11.2011. By ad-interim order, there shall be stay against execution and operation of the judgment and decree passed by the trial Court on condition that applicant No.1 deposits the entire decreetal amount with the trial Court before the returnable date. It is made clear that if the amount is not deposited and condition is not complied with, the opponent-original plaintiff shall be at liberty to execute the decree against applicant No.1. Sd/- [JAYANT PATEL,J] Sd/- [R.M.CHHAYA, J ] *** Bhavesh*     Top

Author: Jayant Patel, R.M.Chhaya,

Limited vs Unknown on 19 October, 2011

Gujarat High Court

6 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No. 36/2009 IA No. 1/2017 National Insurance Co. .....Petitioner/Appellant(s) Through: Mr. C.S. Gupta, Advocate Vs. Rehan Begum ..... Respondent(s) Through: None Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE ORDER At request, adjourned. List on 26.11.2021. (Tashi Rabstan) Judge JAMMU 20.09.2021 Pawan Angotra PAWAN ANGOTRA 2021.09.21 12:44 I attest to the accuracy and integrity of this document

National Insurance Co vs Rehan Begum on 20 September, 2021

Jammu & Kashmir High Court

Gujarat High Court Case Information System Print CA/11206/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 11206 of 2009 In FIRST APPEAL No. 4084 of 2009 ========================================================= PASCHIM GUJARAT VIJ CO.LTD. - Petitioner(s) Versus SITABEN MOHANBHAI BARIA & 3 - Respondent(s) ========================================================= Appearance : MR MD RANA for Petitioner(s) : 1, MR VIKRAM J THAKOR for Respondent(s) : 1 - 3. MR YV SHAH for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 19/01/2010 ORAL ORDER Heard learned Advocate Mr. MD Rana for applicant, learned Advocate Mr. Vikram J. Thakor for respondents No.1-3 and learned Advocate Mr. YV Shah for respondent No.4. Considering request made by learned Advocate Mr.Thakor, matter is adjourned to 28.1.2010. (H.K. Rathod,J.) Vyas     Top

Author: H.K.Rathod,&Nbsp;

Paschim vs Sitaben on 19 January, 2010

Gujarat High Court

JUDGMENT Tottenham, J. 1. This is an appeal against a decree of the Subordinate Judge of Bhagalpore, ordering restoration to the plaintiff, respondent, as mutwali, of certain property alleged to be wuqf, which had been acquired by the defendant No. 1, appellant, by auction-purchase in execution of a decree held by the defendants Nos. 2 and 3 against the defendant, No. 4. The wuqf was created in 1872 by Shah Enayet Hossein, the late father of the defendant No. 4, and grandfather of the plaintiff The plaintiff, being a minor, the suit was, with the permission of the District Judge, instituted on his behalf by his sister, Bibi Fatema alias Bibi Nur Jehan. 2. The defendant No. 4, Shah Asudulla Saheb, is the plaintiff's father. 3. When the property was attached in 1873, the debtor filed a claim on behalf of the present plaintiff, objecting that the property was wuqf, and not liable to be sold, the debtor being only the manager thereof during the minority of his son, the mutwali. That claim, however, was rejected, and the sale took place on the 7th of August 1878. 4. The judgment of the lower Court, after setting out the pleadings, held, that the suit was maintainable as brought; that the wuqf was a valid one in all respects; and that the purchaser at auction had acquired no right under the sale. 5. The contentions urged before us in appeal have been, first, that the suit was not maintainable by Ommutul Fatema as next friend to the minor plaintiff, and that there must be a formal order of the Court appointing a guardian ad litem; secondly, that the alleged wuqf is not a valid one under Mahomedan law; and thirdly, that the wuqfnama was never intended by Enayet Hossein, the maker of it, to be operative, and that, in fact, the property has always continued to be enjoyed and used as the means of support of the family. 6. As to the first point we think that the objection is not well founded. It was first assumed by the pleader for the appellant that the minor's father, the defendant No. 4, was his certificated guardian under Act XL of 1858. But it seems that this is not so; and we consider that the District Judge, who undoubtedly had jurisdiction to try this suit, was competent, under Section 3 of the Act, to allow it to be instituted by the minor's sister, he considering that the father had neglected his interest in respect of the property in suit. 7. The next question is, whether or not the wuqf is a valid one according to Mahomedan law. There has always been a good deal of controversy in the Courts as to what is essential, and as to what will invalidate a wuqf. On the one hand, it has been contended that no wuqf is valid unless it is solely and wholly for pious and charitable purposes enduring throughout all times; and on the other hand, there have been those who considered that what is practically a perpetual provision for the dedicator's family may be a valid wuqf. 8. The fact that the Subordinate Judge who tried this case is himself a Mahomedan gentleman of considerable attainments in Arabic learning, entitles his opinion to peculiar weight in a case of this nature; and he appears to have entertained no doubt, whatever, as to this wuqf being of a thoroughly legitimate character as to its constitution and objects. And singularly enough, the only matter which strikes us as one in respect of which, with reference to the decisions of the Courts, makes the character of this alleged wuqf at all doubtful, is the very one which the lower Court has treated as one as to which there could be no dispute as to its being a proper object of wuqf. For, in the wuqfnama, there is express provision for the maintenance of the dedicator's male descendants, in addition to the strictly pious and religious objects for which the wuqf purports to have been made. But the Bombay High Court has," by a Full Bench, decided that, to constitute a valid wuqf, there must be a dedication of the property solely to the worship of God, or to religious or charitable purposes: see Abdul Ganne Kasam v. Hussen Miya Rahimtula 10 Bom. H.C.R. 13. That view has been endorsed by a Division Bench of this Court in the case of Mahomed Hamidulla Khan v. Budrunnissa Khatun 8 C.L.R. 164. 9. The definition might seem to exclude from judicial recognition a wuqf of which one object is a provision for the family of the creator of it. 10. The lower Court, however, easily disposes of this question by the observation that "it is quite evident, and there is no necessity to quote any authority on the subject, that a wuqf for one's-self and for one's children is valid." 11. In the Bombay case the Judges, after considering all the available authorities on this question, held, that the balance was in favour of the dictum to which they gave effect; and this too was what the Division Bench, of which one of us was a member, decided in the case of Mahomed Hamidulla Khan v. Budrunnissa Khatun 8 C.L.R. 164. In that case the alleged wuqf, which we declined to recognize, had for its object nothing connected with the worship of God or religious observances, and provided only in a very remote contingency for the poor. It was simply a perpetuity for the benefit of the dedicator's daughter and her descendants so long as any should exist. 12. The wuqfnama now before us is of a very different character; and having regard to the passage in it reciting the fact of dedication, we think that, without saying whether or no we are prepared on further consideration to adopt to the full the ruling above-mentioned, we can treat this wuqf as actually fulfilling the condition described, for the maker of the wuqf, after reciting the whole of his property of every kind, proceeds to declare that all has been endowed by him for the expenses of the musjid and the tombs of the holy personages of his family; the servants of the asthana, and for performing the urs and fateha at the tomb. 13. These are the objects of the wuqf, and they are all distinctly religious. They also involve to some extent charity to the poor. 14. We are disposed to hold this, therefore, to be a valid wuqf within the purview of the rulings quoted. 15. The subsequent direction that the manager shall maintain the future male descendants of the maker of the wuqf does not necessarily alter its character. Whether or not the provision or direction can be lawfully carried out it is not necessary for us now to decide. But apart from this we are of opinion that the wuqf was completed by the passage which we have quoted. And we accordingly decide this point against the appellant. 16. As regards the third and last objections we are of opinion that the wuqf being found to be a legal and valid one, it is really immaterial for the purposes of this suit to enquire how the proceeds of the property have since been applied. For no amount of misappropriation or other misconduct on the part of the manager can alter the character of the wuqf or render it void. 17. That being so, we hold that the decree of the lower Court was right, and we dismiss the appeal with costs. 18. This judgment will also govern Appeal No. 52 of 1881.

Author: Tottenham

Luchmiput Singh vs Amir Alum And Ors. on 3 July, 1882

Calcutta High Court

Gujarat High Court Case Information System Print R/CR.MA/7888/2011 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 7888 of 2011 ========================================================= VIHABHAI GELABHAI ROJASARA & 1....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================= Appearance: MRJAGDHISH SATAPARA as ADVOCATE for the Applicant(s) No. 1-2 MR JK SHAH APP for the RESPONDENT(s) No. 1 ========================================================= CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 10/06/2011 ORAL ORDER1. RULE. Learned APP, Mr. J.K.Shah, waives service of notice of rule on behalf of State. 2. This is an application under Section 439 of Criminal Procedure Code praying for regular bail in connection with offence registered with Chotila Police Station, District Surendranagar vide C.R. No.I-58/ 2011 for the offences punishable u/s. 324, 326, 504 read with 114 of IPC. 3. The following aspects are taken into consideration; (I) All offences are magistrate triable offences. (II) Injured has been released from the hospital long time back and also happens to be related to accused-applicants. (III) No criminal history or any past antecedent. 4. Under the circumstances, the accused-applicants are ordered to be enlarged on regular bail in connection with offence registered with Chotila Police Station, District Surendranagar, vide C.R. No.I-58/2011 on their executing a bond in the sum of Rs.15,000/-(Rupees fifteen thousand only) each with one surety of the like amount to the satisfaction of the lower Court and subject to the conditions that they shall; (a) Not take undue advantage of his liberty or abuse his liberty; (b) Not act in a manner injurious to the interest of the prosecution; (c) Maintain law and order; (d) Mark their presence once in a month with the concerned Police Station between 10:00 am to 2:00 pm; (e) Not enter Village Rajapara, situated in Taluka Chotila for a period of three months. (f) Not leave the State of Gujarat without prior permission of the Sessions Court concerned; (g) Furnish permanent address of their residence at the time of execution of the bond and shall not change the residence without prior permission of this Court; (h) Surrender their passport, if any, to the Lower Court immediately. 5. It goes without saying that any observations touching the merits of the case is purely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of the final opinion in the main matter. 6. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter. 7. Bail before the Lower Court having jurisdiction to try the case. 8. Rule is made absolute. Application is disposed of accordingly. Direct service is permitted. (J.B.PARDIWALA, J.) /phalguni/ Page 3 of 3     Top

Author: J.B.Pardiwala,&Nbsp;

Vihabhai vs State on 10 June, 2011

Gujarat High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.501 of 2011 Bhukhin Bai .... Petitioner Versus M/s. CCL & Ors. ...Respondents Coram : The Hon'ble Mr. Justice Narendra Nath Tiwari For the Petitioner : Mr. Ajit Kumar, Advocate For the Respondents : J.C. To Mr. A. Sen, Advocate ----- 2/20.06.2011 After some argument, learned counsel for the petitioner seeks permission to withdraw this writ petition in order to approach the appropriate Forum. Permission is granted. This writ petition is dismissed as withdrawn. ( Narendra Nath Tiwari, J.) s.b.

Bhukhin Bai vs M/S Central Coalfields Limited on 20 June, 2011

Jharkhand High Court

Court No. - 35 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15519 of 2010 Petitioner :- Rakesh Gupta Respondent :- State Of U.P. Petitioner Counsel :- Rajiv Gupta,Rajul Bhargava Respondent Counsel :- Govt. Advocate Hon'ble Ra°esh Chandra,J. Sri Rajesh Kumar Srivastava, Advocate has filed Parch on behalf of the complainant which is taken on record. As prayed by learned counsel for the applicant, put up on 5th July, 2010 as fresh before appropriate Court. Order Date :- 22.6.2010 P

Rakesh Gupta vs State Of U.P. on 22 June, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37038 of 2011 Viveka Nand Versus The State Of Bihar ---------------------------------- AI ( Mandhata Singh, J.) 3 9.11.2011 Let the time for payment of instalment amount by the petitioner passed in Cr.Misc.No. 9166 of 2010 be further extended by three months from today in connection with Kotwali (Adampur) P.S. Case No. 682 of 2009 pending in the court of Chief Judicial Magistrate, Bhagalpur. Accordingly, the modification application is allowed. Let this order including the order dated 16.4.2010 passed in Cr.Misc.No. 9166 of 2010, order dated 5.8.2010 passed in Cr.Misc.No. 28718 of 2010, order dated 29.10.2010 passed in Cr.Misc.No. 39426 of 2010, order dated 23.2.2011 passed in Cr.Misc.No. 7005 of 2011, order dated 9.8.2011 passed in Cr.Misc.No. 26767 of 2011 be communicated to the court below through fax at the cost of the petitioner.

Viveka Nand vs The State Of Bihar on 9 November, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 28727 of 2008(T) 1. RANI.R.C, KOZHITHODATHU VEEDU, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. THE DIRECTOR OF PUBLIC INSTRUCTION, 3. THE DISTRICT EDUCATION OFFICER,OFFICE 4. THE MANAGER, MAYYANAD HIGHER SECONDARY For Petitioner :SRI.S.D.ASOKAN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :26/09/2008 O R D E R ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 28727 of 2008 -------------------------------------------------------- Dated: SEPTEMBER 26, 2008 JUDGMENT Against Ext.P2 order rejecting the approval of her appointment, petitioner has filed Ext.P5 revision before the 1st respondent. In this writ petition what is sought for is an order requiring an expeditious disposal of Ext.P5. 2. If, as stated by the petitioner, Ext.P5 has been received and is still pending, the 1st respondent shall take necessary action for an expeditious disposal of the same with notice to all concerned. 3. Accordingly I dispose of this writ petition directing disposal of Ext.P5 as expeditiously as possible, at any rate, within three months of production of a copy of this judgment along with a copy of the writ petition. ANTONY DOMINIC, JUDGE mt/-

Rani.R.C vs State Of Kerala on 26 September, 2008

Kerala High Court

Court No. - 40 Case :- CRIMINAL APPEAL No. - 4022 of 2010 Petitioner :- Kalyan Singh @ Kallu & Another Respondent :- State Of U.P. Petitioner Counsel :- Rajul Bhargava Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J. Admit. Summon the trial court record. This appeal is directed to come up along with the Criminal Appeal No. 3935/2010 preferred by co-accused Ram Kishun alias Nanhey. Learned AGA is allowed two weeks time to file objection on bail prayer of the appellant. Bail prayer of the appellants shall be considered after the receipt of the record. List on 19.7.2010 before the appropriate bench for the said purpose. Order Date :- 28.6.2010 SKS/4022/10

Kalyan Singh @ Kallu & Another vs State Of U.P. on 28 June, 2010

Allahabad High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-32064 of 2009(O&M) Date of Decision: November 13, 2009 Mamta Atri and another ... Petitioners Versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE S.D. ANAND Present : Mr. Arvind Kashyap, Advocate, for the petitioners. ***** S.D. Anand, J. November 13, 2009 ( S.D. Anand ) vinod* Judge Learned counsel for the petitioners states that this petition may be dismissed as withdrawn. Dismissed as withdrawn accordingly.

Mamta Atri And Another vs State Of Punjab And Others on 13 November, 2009

Punjab-Haryana High Court

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Mohammad Saleem Ansari vs Chairman/M.D. U.P. Power ... on 23 August, 2010

Allahabad High Court

(1) S.B.CIVIL SALES TAX REVISION NO.290/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur, (2) S.B.CIVIL SALES TAX REVISION NO.292/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur, (3) S.B.CIVIL SALES TAX REVISION NO.293/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur Order dt: 6/1/2009 1/2 S.B.CIVIL SALES TAX REVISION NO.290/2007 (CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur) S.B.CIVIL SALES TAX REVISION NO.292/2007 (CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur) S.B.CIVIL SALES TAX REVISION NO.293/2007 (CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur) DATE OF ORDER : 6/1/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Vinit Kumar Mathur with Mr.Lokesh Mathur, for the petitioners. Learned counsel for the Revenue submits that the impugned order of Tax Board dated 26/4/2007 has since been rectified by the Tax Board on 17/12/2008, which is placed on record, holding that the sale of PCC Poles are taxable @ 12% as a cement product in accordance with the decision of this Court in case of ACTO Vs. M/s Sankhla Udhyog - S.B.Civil Sales Tax Revision No.853/2002 dated 2/4/2007, which is placed at Annex.4 in the present revision petitions. It was held in the aforesaid case against the same assessee as under: "Entry 87 provides tax on "articles made of cement". Therefore, basically it is to be seen whether the article in question is made of cement or not? The word "made" as used in the entry is relevant and has its own significance which makes the entry wide. It nowhere provides that "articles of cement" shall be taxable at the rate of 12%. An article means an independent and separate commodity and when ti is manufactured with the inclusion of cement, then it necessarily means that the article may have very many other articles but it is made because of cement. The nature and the properties of cement are not unknown and that is the binding character. Therefore, when an article is made by using cement then for that article, entry 87 is the (1) S.B.CIVIL SALES TAX REVISION NO.290/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur, (2) S.B.CIVIL SALES TAX REVISION NO.292/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur, (3) S.B.CIVIL SALES TAX REVISION NO.293/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur Order dt: 6/1/2009 2/2 provision for taxing. Simply because the other articles have been used in manufacturing the product made by cement, it cannot be said that that article is not made by cement. The sue of iron rods gives the shape and strength to the cement poles but cannot be made without use of cement and, therefore, PCC Poles are the "articles made of cement". So far as two division bench judgments of Tax Board delivered in Appeal No. 1170/1996 and 1171/1996 dated 5.10.2001 are concerned, copies of those judgments have not been provided by any of the parties but in view of the reasons mentioned above, this Court is of the view that PCC Poles fall in the category of "articles made of cement" and consequently are covered under entry no.87 and, therefore, liable to be taxed at the rate of 12%. In view of the above, this revision is allowed, the orders of the Tax Board and Dy. Commissioner (Appeals) dated 16.1.2002 and 3.3.1998 are set aside and the order of the assessing authority dated 12.7.1996 is upheld." Accordingly, the present revision petitions against original order of Tax Board dt:26/4/2007 have become infructuous as order of the Tax Board itself has been rectified in favour of the Revenue on 27/12/2008. The present revision petitions are accordingly dismissed as having become infructuous. (DR.VINEET KOTHARI), J. item no.2 to 4 baweja/-

C.T.O.Spl.Circle Jodhpur vs M/S Sankhla Udhyog Ltd on 6 January, 2009

Rajasthan High Court - Jodhpur

[Complete Act]

Central Government Act

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-28974 of 2008 Date of decision : July 03, 2009 Harjinder Pal Singh alias Jinda ....Petitioner versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. DS Sandhu, Advocate for the petitioner Mr. Gaurav Garg Dhuriwala, AAG Punjab L.N. Mittal, J. (Oral) ( L.N. Mittal ) July 03, 2009 Judge 'dalbir' Harjinder Pal Singh alias Jinda has filed this petition for bail in case FIR No. 61 dated 19.5.2007, under sections 302, 307, 395, 148, 149 IPC and sections 25, 27 of the Arms Act, Police Station Sultanpur Lodhi District Kapurthala. I have heard learned counsel for the parties and perused the case file. According to version in the FIR, the assailants named therein fired at the deceased Nirmal Singh and others going in a Gypsy. The petitioner was however not named in the FIR. In subsequent statements, the petitioner was also named and was said to have fired from .315 bore rifle hitting on the deceased on his shoulder. Petitioner's co-accused Kuldeep Singh also fired at the deceased. Accused Ranjit Singh alias Rana fired at witness Ranjit Singh who was also inflicted injuries with sabble. Criminal Misc. No. M-28974 of 2008 -2- Learned counsel for the petitioner contends that the petitioner was not named in the FIR. It is also contended that PW Ranjit Singh who stated before the police that the petitioner had fired at the deceased has appeared in the witness box as PW1 and has not stated in the witness box that the petitioner had fired at the deceased. No other witness is said to have made any statement before the police that the petitioner had fired at the deceased or anybody else. The petitioner is in custody since 24.9.2007 i.e. for more than one year and nine months. It is also contended that co- accused Ranjit Singh alias Rana who had fired at witness Ranjit Singh has since been released on bail. Learned State counsel contends that the petitioner in his extra judicial confession has stated that he had fired from his rifle although he had not said as to on whom the fire was directed or who was hit. Keeping in view all the circumstances but without meaning to express any opinion on the merits, the instant bail petition is allowed. The petitioner is ordered to be released on bail on furnishing bail bonds to the satisfaction of learned Chief Judicial Magistrate/Duty Magistrate, Kapurthala.

Harjinder Pal Singh Alias Jinda vs State Of Punjab on 3 July, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print SCR.A/28720/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 287 of 2008 ========================================================= AFAROJ AHEMADSAD MIYASAB SAIYAD - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR AM PAREKH for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 28/07/2008 ORAL ORDER Learned advocate Mr. Parekh states that the grievance raised in this petition no more survives in view of the settlement arrived at between the parties. In view of the above statement, no order on the petition. The petition stands disposed of accordingly. (ANANT S. DAVE, J.) mandora/     Top

Author: Anant S. Dave,&Nbsp;

Afaroj vs State on 28 July, 2008

Gujarat High Court

[Section 2(44)] [Section 2] [Complete Act]

Central Government Act

In the High Court of Judicature at Madras Dated: 06-02-2009 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.37462 of 2003 1.The University of Madras represented by its Registrar, Chepauk, Madras-600 005. 2.The Institute of Correspondence Education, University of Madras, represented by its Director Chepauk, Madras-600 005. .. Petitioners. Versus 1.Mr.K.Sundaresan 2.The I Additional Labour Court, represented by its Presiding Officer, Chennai-600 104. .. Respondents. Prayer: Petition filed seeking for a writ of Certiorari, calling for the records relating to the petition in I.D.No.510 of 1995, from the file of the second respondent, culminating in its order, dated 6.5.2003 and quash the same. For Petitioners : Mr.Kandavadivel Doraisamy For Respondent : Mr.G.Rajagopalan (Senior Counsel) Appearing for R1 for Mr.P.Rose Kamalam O R D E R Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the first respondent. 2. This writ petition has been filed by the petitioners challenging the award of the second respondent Labour Court, dated 6.5.2003, made in I.D.No.510 of 1995. 3. It has been stated that the first respondent and 14 others had filed a writ petition before this Court, in W.P.No.8431 of 1986, praying for a writ of mandamus to direct the respondents therein, including the petitioners in the present writ petition, to continue to employ the petitioners in service. After hearing the petitioners, as well as the respondents therein, this Court was pleased to dismiss the said writ petition by an order, dated 2.7.91, on a specific finding that the petitioners, except one K.Balakrishnan, had not worked for the statutory period of 240 days and therefore, the provisions of Section 25F of the Industrial Disputes Act, 1947, would not be applicable to them. Aggrieved by the said order, a writ appeal had been preferred before a Division Bench of this Court, in W.A.No.1164 of 1991. The said appeal had been dismissed by an order, dated 5.12.91, permitting the petitioners to resort to the appropriate process prescribed by the laws relating to industrial disputes. Accordingly, the first respondent had filed a petition before the Labour Officer III, Kuralagam, Chennai, for conciliation of the dispute. Since no conciliation could be arrived at, a failure report had been submitted to the Government. 4. As the dispute was not referred to the Labour Court for adjudication, the first respondent and some others, who were similarly placed, had filed a writ petition, in W.P.No.8191 of 1993, seeking for a direction to the Government to refer the disputes to the Labour Court. This Court had dismissed the said writ petition, on 4.9.95, reserving their right to approach the Labour Court, in accordance with law. In pursuance of the said order, the first respondent had raised an industrial dispute, on the file of the second respondent Labour Court, in I.D.No.510 of 1995, praying for a direction to direct the petitioners to reinstate him, with continuity of service and all other attendant benefits. The petitioners had filed a counter, denying the claims made by the first respondent. Evidence was let in and documents were marked. Thereafter, the second respondent Labour Court had passed an award, dated 6.5.2003, directing the petitioners to reinstate the first respondent in service, as a daily-rated employee, without adverting to the legal objections raised by the petitioners stating that the first respondent had worked only for 23 days in the year, 1985 and 96 days in the year, 1986. The said fact had been testified by the witnesses examined on the side of the petitioners. The second respondent Labour Court had not given any reason as to why the evidence of M.W.1 could not be considered, to reject the claims made by the first respondent. The first respondent had not proved that he had worked for more than 240 days in a year. Therefore, the question of retrenchment does not arise and Section 25F of the Industrial Disputes Act, 1947, has no relevance to the case of the first respondent. Therefore, the award of the second respondent Labour Court, directing the petitioners to reinstate the first respondent in service, is unsustainable in the eye of law. The Labour Court had not shown sufficient reasons for not accepting the evidence of M.W.1, examined on behalf of the petitioners, to disprove the claims made by the first respondent. The second respondent Labour Court had failed to consider the legal question, as to whether there was retrenchment, as defined under Section 2(oo) of the Industrial Disputes Act, 1947. 5. Mr.Kandavadivel Doraisamy, the learned counsel appearing for the petitioners had relied on the decision of the Supreme Court of India, reported in M.P.Housing Board & Anr. V. Manoj Shrivastava (J.T 2006(3) SC 73), wherein it was held that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. To obtain the status of a "permanent employee" he must be appointed in terms of the statutory rules applicable to his service. He should have been appointed against a vacant post which had been duly sanctioned by the competent statutory authority or that his appointment should have been made following the statutory law operating in the field. The learned counsel had relied on the decision of the Supreme Court in Secretary State of Karnataka V. Umadevi (3) (2006 (4) SCC 1), to show that the Courts of law would not, in normal circumstances, issue instructions for regularisation of the services of irregularly or illegally appointed persons. 6. Mr.G.Rajagopalan, the learned Senior Counsel appearing on behalf of the first respondent, had submitted that even though the first respondent was a daily-rated employee, his wages were being paid on monthly basis. Even though it was contended on behalf of the petitioners that there was no work available for continuing the first respondent in employment, an advertisement had been issued by the Madras University calling for candidates to be employed for performing the same functions as that of the first respondent. Some of the persons who were similarly placed, as that of the first respondent, had been given employment by the petitioner University. Since the first respondent had been in continuous employment and having satisfied the requirements of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, as well as the Industrial Disputes Act, 1947, the first respondent cannot be denied employment, as rightly held by the second respondent Labour Court. Therefore, the award of the second respondent Labour Court, dated 6.5.2003, made in I.D.No.510 of 1995, is in accordance with law and valid. In such circumstances, the writ petition filed by the petitioner is liable to be dismissed, as devoid of merits. 7. The learned Senior Counsel, appearing for the first respondent, had relied on the following decisions in support of his contentions: 7.1. In U.P.State Electricity Board Vs. Pooran Chandra Pandey (2007 (9) SCC 92), it has been held that the decision of the Supreme Court in Secretary State of Karnataka V. Umadevi (3) 2006 (4) SCC 1 cannot be applied, mechanically, in all cases, without seeing the facts and circumstances of the particular case. In view of Article 14 of the Constitution of India, the employees who had put in long years of service cannot be denied the benefit of regularization in service. The learned counsel had also relied on the decision reported in Registrar, University of Madras Vs. P.Gajendran (1991 Writ L.R. 659). 8. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the University of Madras, the first petitioner herein, had placed before this Court a communication No.F.1.(B)/ESTT/2008/3854, dated 1.12.2008, from the Registrar-in-charge, University of Madras, Chennai, which reads as follows: "With reference to your letter cited, I am, by direction, to inform that the Temporary vacancies are available on daily wages basis only and Madras University cannot give guarantee for employment throughout the year. Subject to the order passed by the Honourable High Court, Madras University can consider and give temporary appointment on daily wages without backwages. I am, therefore to request you to kindly inform accordingly to the Honourable High Court on the day of hearing." 9. The learned counsel appearing on behalf of the first respondent had submitted that the first respondent would accept the offer made on behalf of the University of Madras, the first petitioner in the present writ petition, as stated in the communication, dated 1.12.2008, without agitating the matter any further, on merits. 10. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the respondents, the award of the first respondent Labour Court is set aside and the first petitioner University is directed to consider and give temporary appointment to the first respondent, on daily wages, without any backwages. However, if the first respondent is aggrieved by any of the aspects relating to the matter, it may be open to him to agitate the same before the appropriate forum, in the manner known to law. Accordingly, the writ petition stands closed, with the above directions. No costs. csh To The I Additional Labour Court, represented by its Presiding Officer, Chennai 600 104

The University Of Madras vs Mr.K.Sundaresan on 6 February, 2009

Madras 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 Appeal : No. CIC/WB/A/2010/000006-DS Dated:-16/11/2010 Appellant : Shri Sanjay Shrivastava, Jaipur Public Authority : DoPT, New Delhi ORDER The Commission has received a petition dated 16/10/2009 from Shri Sanjay Shrivastava, in respect of his/her RTI-application on 17/01/2009 filed with the CPIO, Govt. of India, M/o Personnel, Public Grievances & Pension, DoPT, 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, dated 19/02/2009. 3. The Appellant preferred his/her first-appeal on 07/03/2009 before The Appellate Authority, which has not been decided by AA. (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 Appellate Authority, with the following directions: 5. In case the Appellant still feels aggrieved by the decision of AA, 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. 6 The matter is closed with the above directions. -sd- (Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy: (T. K. Mohapatra) US & Dy. Registrar Tele. No. 011-26105027 [email protected] Copy to:- 1. Shri Sanjay Shrivastava, 71/251A, Patel Marg, Mansarovar, Jaipur-302020 2. The CPIO, Govt. of India, M/o Personnel, Public Grievances & Pension, DoPT, New Delhi-110003. 3. The Appellate Authority, Govt. of India, M/o Personnel, Public Grievances & Pension, DoPT, New Delhi-110003.

Mr. Sanjay Shrivastava vs Department Of Personnel And ... on 16 November, 2010

Central Information Commission

Gujarat High Court Case Information System Print CR.A/1010/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1010 of 2008 ========================================================= DEVPALSINGH JOGESHWARSING SISODIYA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR NM KAPADIA for Appellant(s) : 1, MR LR PUJARI, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 20/09/2011 ORAL ORDER Issue fresh bailable warrant against the appellant in the sum of Rs.5,000/-. To be served through concerned police station. S.O. to 5th October, 2011. D.S. is permitted. ( M.D. SHAH, J. ) syed/     Top

Author: Md Shah,

Devpalsingh vs Unknown on 20 September, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 113 of 2004() 1. MOHAMMED KUNHI,S/O ABDUL KHADER, ... Petitioner Vs 1. K.SHYAM SUNDER,S/O RAMAPPA, ... Respondent 2. P.GANGADHARAN,S/O P.KUNHIRAMAN, 3. THE UNITED INDIA INSURANCE CO.LIMITED, For Petitioner :SRI.T.SETHUMADHAVAN For Respondent :SRI.S.MAMMU The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice K.P.BALACHANDRAN Dated :06/08/2008 O R D E R J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.113 OF 2004 (D) ----------------------------------- Dated this the 6th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained very serious injuries in a motor accident on 2.11.1998. He was aged 42 at the time of accident. He claimed a compensation of Rs.3.5 lakhs. Tribunal awarded only Rs.85,285/- as compensation and directed the 3rd respondent Insurance company to pay the same. Only dispute is regarding the quantum of compensation. 2. For assessing the disability, claimant was referred to the Medical Board. Medical Board assessed 10% disability. That was accepted by the tribunal and compensation was calculated for 10% disability. According to the claimants, he was getting Rs.3,000/- per month. He was a foot wear merchant. Tribunal has taken only Rs.1,500/- as the monthly  MACA.113/2004 2 income. He was maintaining a family and accident occurred at the age of 42. We are of the view that atleast Rs.100/- can be taken as the daily income and for 25 days work, he will get Rs.2,500/- as the monthly income. He was aged 42 and taking guidelines from the 2nd Schedule, 15 was taken as the multiplier. If that be so, compensation payable for 10% disability will be Rs.2,500 x 12 x /100 x 15 = Rs.45,000/-. 10 Tribunal has granted only Rs.23,400/- towards permanent disability. Therefore, additional amount payable for permanent disability and loss of earning power will be Rs.21,600/-. Tribunal found that he was under treatment for four months and tribunal has awarded Rs.6,000/- towards loss of earnings for four months. Since we have increased the monthly income to Rs.2,500/-, he is entitled to Rs.4,000/- more under that ground. We are of the opinion that just and reasonable compensation was granted under other heads. The above additional amount of Rs.25,600/- should be deposited by the 3rd respondent insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, appellant is allowed to withdraw the same. Appeal is  MACA.113/2004 3 accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp  J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T ---------------------------------------------------------

Mohammed Kunhi vs K.Shyam Sunder on 6 August, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP.No. 146 of 2005() 1. T. SIVADASAN, PEEDIKAKANDY, ... Petitioner Vs 1. REMA HARIDAS, D/O. ACHUTHAN, ... Respondent For Petitioner :SRI.THOMAS ANTONY For Respondent : No Appearance The Hon'ble MR. Justice M.N.KRISHNAN Dated :28/01/2011 O R D E R M.N. KRISHNAN,J. ........................................... C.R.P.NO.146 OF 2005 ............................................. Dated this the 28th day of January, 2011. O R D E R This revision is preferred against the order of the Subordinate Judge's Court, Kozhikode in E.P.No.125/2001 in O.S.No.283/1988. The execution petition was filed for realisation of the amount due to the decree holder from the judgment debtor by the sale of the property. The decree holder has obtained a decree for realisation of ` 90,696/= and he wanted to sell the property. 2. The judgment debtor would resist the claim contending that he had no subsisting right over the property and the 1/4th share which he had over the property had been transfered in favour of others and therefore, there cannot be any proceedings against the property. 3. In the trial court, PW1 and RW1 were examined and Exts.A1,A2 and B1 to B4 were marked. The trial court on appreciation of the materials held that the transfer is hit by Section 53 of the Transfer of Property Act and therefore ordered sale of the property. It is against that decision, the  : 2 : C.R.P.NO.146 OF 2005 revision is preferred. 4. Heard the young counsel for the revision petitioner. He had persuasively submitted before me that the court below should not have ordered sale of the property for the reason that there was no debtor creditor relationship between the decree holder and the judgment debtor at the time of the sale and that he owes some amount to his sister and therefore had transferred the property. 5. The learned Subordinate Judge in para-5 has dealt with the matter in detail. He had considered the evidence of the present revision petitioner/respondent wherein he has admitted that he had received Ext.A1 notice from the decree holder as early as on 28.1.1988 demanding the amount and the further recital in the notice is that he shall not transfer his property as he is intending to proceed against the judgment debtor in a court of law. On receipt of the notice, the judgment debtor transfered his right in favour of his brothers and sisters. 6. Whether this transfer would amount to a fraudulent transfer attracting Section 53 of the TP Act is the question to be considered. Under Section 53 of the TP Act every transfer of immovable property made with intent to  : 3 : C.R.P.NO.146 OF 2005 defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. 7. Ext.A1 in crystal clear terms intimates the judgment debtor namely the revision petitioner that he has to pay the amount due to the decree holder and further it recites that he shall not transfer the property. But on receipt of the notice, in stead of discharging the debt, the revision petitioner had transfered his right in favour of his sisters. 8. I think the necessary ingredient to constitute a fraudulent transfer is writ large on the face of the transfer itself. It is to safeguard the interest of the persons who are likely to be defeated in this way that Section 53 of the TP Act has been engrafted by the legislation. Therefore, I do not find any error committed by the court below or any illegality committed by the court below so as to warrant interference exercising the jurisdiction under Section 115 of the Civil Procedure Code. The revision lacks merit and hence dismissed. M.N. KRISHNAN, JUDGE. : 4 : C.R.P.NO.146 OF 2005 cl  : 5 : C.R.P.NO.146 OF 2005 M.N. KRISHNAN, J. ........................................... M.A.C.A/A.S/C.R.P.NO.OF ............................................. 17th January, 2011. J U D G M E N T/O R D E R 

T. Sivadasan vs Rema Haridas on 28 January, 2011

Kerala High Court

ORDER T.N.R. Tirumalpad, J.C. 1. The petitioner herein is an accused in C. R. Case No. 264 of 1960 before Shri K. P. Dutta, first class Magistrate, Sadar. The case was originally pending before the S.D.M., Sadar and it was transferred to Shri K. P. Dutta on 25-3-63. On 20-4-63 Shri K. P, Dutta examined one P. W. and posted it to 5-6-63 for further hearing. Then the petitioner preferred a revision petition to the Sessions Judge for referring the matter to this Court challenging the competency of Shri K. P. Dutta to try the case. But the Sessions Judge refused to make a reference and dismissed the revision petition. Thereupon the petitioner has filed the present revision petition to set aside the order of the learned Sessions Judge and to declare that Shri K. P. Dutta is not competent to try the case. 2. The contention of the petitioner is that Shri K. P. Dutta had ceased to be a magistrate when this case was transferred to him and that therefore he is incompetent to try the case. To deal with this argument, it is necessary to refer to some notifications. Shri K. P. Dutta was first appointed on 15-1-1954 as a temporary A.S.D.O. Sadar by the following notification: Shri Kali Prasanna Dutta, B.L., Advocate. Bar Association, Agartala, is temporarily appointed as Additional Sub-Divisional Officer on a pay of Rs. 200/- p.m. in the scale of Rs. 200-10-420-15-450/- with Dearness Allowance, as admissible under the rules for the period upto 28th February, 1954. He is to report for duty at once. He will be dealing with the cases of Sadar Sub-Division." On the same day there was another notification as follows: In exercise of the powers conferred by Sec tion 12 of the Code of Criminal Procedure, 1898

Amulya Chandra Paul vs The State on 18 July, 1963

Gauhati High Court

JUDGMENT M.M. Kumar, J. 1. This petition filed under Articles 226/227 of the Constitution of India challenges the orders Annexures P-4, P-6, P-10, P-15, P-20, P-24, P-27 and P-29 inflicting various punishments on the petitioner, which in service jurisprudence are known as "minor punishments". 2. After hearing the learned counsel for the parties, I am of the considered opinion that the order Annexure P-4, P-6, P-10 and P-20 cannot be sustained because these orders have been passed after issuance of charge-sheets under Regulation 7 of the Haryana State Electricity Board Employees (Punishment and Appeal) Regulation, 1990 (hereinafter referred to as "regulation"). 3. A Full Bench of this Court has considered the question as to whether after issuance of charge-sheet under Rule 7 of the Haryana Civil Service (Punishment and Appeal) Rules 1987 for inflicting of major penalty, the employer is entitled to accept the explanation furnished by way of reply by the delinquent officer and impose a minor penalty without holding any inquiry. It has been held by the Full Bench that after a charge-sheet has been issued to delinquent officer for holding departmental inquiry contemplating imposition of major penalty, then no short-cut method is permissible even for imposing of minor penalty. It is not disputed that the respondent-Board has issued charge-sheet to the petitioner for imposition of major penalty and without holding an inquiry accepted his explanation for imposing minor penalty. The orders Annexure P-4, P-6, P-10 and P-20 have been passed inflicting minor penalty. Therefore, it is obvious that such a course is not permissible in law as ruled by the Full Bench of this Court in C.W.P. No. 3661 of 1999 (Dr. K.G. Tiwari, SDO, Animal Husbandry (Retd.) v. State of Haryana and Ors.) decided on 20th December, 2001. Therefore, these impugned orders are liable to be quashed. 4. Similarly, the orders Annexures P-15 and P-24 have been challenged on the ground that the orders do not reflect any application of mind and also lack reasons. It is well settled that under Regulation 4, even minor punishment cannot be imposed unless there are good and sufficient reasons. Reasons are sine qua non for every quasi judicial order as they provide link between the guilt of the delinquent officer as well as the conclusion reached by the punishing authority. This aspect is also covered by the judgment rendered by this Court in x x x x x C.W.P. No. 3710 of 1994 titled Digambar Singh v. Haryana State Electricity Board and Anr. decided on 3.8.1994. Therefore, these two orders are also liable to be quashed on that ground. 5. For the reasons recorded above, orders Annexure P-4, P-6, P-10, P-20, P-15 and P-24 are quashed. However, it shall be open to the respondent-Board to take a decision afresh by holding inquiry in respect of the cases where charge-sheets under Regulation 7 have been issued or by passing fresh order in case where show-cause notices under Regulation 8 for imposing minor penalties have been served on the delinquent officer. Therefore, the question of consequential relief may also be considered by the Board in case no punishment is imposed on the petitioner. Needless to say that if the allegations levelled in the charge-sheets are found to be baseless, then the Annual Confidential Reports or consequences flowing therefrom shall be reviewed and re-considered. 6. The writ petition is allowed in the above terms.

Author: M Kumar

Randhir Singh vs Haryana State Electricity Board ... on 3 February, 2003

Punjab-Haryana High Court

JUDGMENT Francis W. Maclean, K.C.I.E., C.J. 1. The facts necessary to be stated for the decision of this rule are shortly as follows: In a valuation made by the Corporation of Calcutta to take effect from the 1st April 1891, the annual value of certain premises belonging to the opposite party was fixed by the Commissioners at 651 rupees. On the 2nd April 1891, the opposite party objected to that valuation, but, owing, as it is said, to the great number of objections taken by other rate-payers, the objection was not determined until the 28th January 1895, when the Vice-Chairman reduced the annual value to 487 rupees. Under the "Calcutta Municipal Consolidation Act, 1888" (Bengal Act II of 1888) fresh valuations are to be made every six years, and, in 1897, the Commissioners made a fresh valuation to take effect from the 1st April 1897and the annual value of the above property was fixed at 566 rupees. On the 10th July 1897 the opposite party, under Section 135 of the Act, gave (notice of his objections to the last valuation. These objections were heard by the Vice-Chairman on the 10th December 1897, and the valuation was reduced to 540 rupees. The opposite party appealed under Section 157 to the Court of Small Causes at Sealdah, and the Judge of that Court, on the 23rd May 1898, allowed the appeal, and determined that the said valuation was illegal, inasmuch as a period of six years had not expired from the date of the last preceding valuation, and set aside the last valuation. Under these circumstances we are invited by the present rule to interfere under Section 25 of the Small Cause 'Courts Act (IX of 1887). 2. To this rule two objections are raised: First.-That, unless the Judge of the Small Cause Court had no jurisdiction to determine the matter, this Court cannot interfere, either under Section 25 of the Small Cause Courts Act, or under Section 622 of the Code of Civil Procedure, or under Section 15 of 24 and 25 Vic., c. 104. Secondly.-That, if the above point be decided adversely to the opposite party, the Judge was right on the merits. 3. It has not been disputed by Mr. Hill, nor could it well be disputed on the authorities, as they stand, that if the Judge of the Small Cause Court had jurisdiction to determine the matter, this Court will not interfere under Section 15 of Statute 24 and 25 Vic., c. 104 (see the cases collected in the case of Tejram v. Harsukh (1875) I.L.R., 1 All., 101. Save in cases cognizable by the Small Cause Court, we could not interfere under Section 25 of the Small (Cause Courts Act by reason of Sub-section (e) of Section 3 of that Act. As regards Section 622, although this Court may interfere in regard to certain errors other than those of jurisdiction, no such errors have been suggested in the present ease. But the Corporation contend that the Judge of the Small Cause Court had no jurisdiction to determine the question of the legality of the valuation in the sense of whether or not the Corporation could make the valuation at the time they did, and it becomes necessary to decide this question at the outset, for if it be decided against the contention of the Corporation, the second question, as to the merits, will net arise. 4. The contention of the opposite party is that, upon the true construction of the Act I have referred to (Bengal Act II of 1888), the Corporation were premature in re-valuing his house, as six years had not elapsed from the date of the last "valuation," viz., the 28th January 1895. The question of jurisdiction appears to me to hinge upon what is meant by the term "valuation" in Section 135 of the Act, for the person dissatisfied with that "valuation" may object if he comply with the provisions of the section. The Corporation contend that the term "valuation" means "the amount of the valuation" or the amount at which any particular property is valued, and that it is only to the amount of the valuation that the rate-payer can object; and it is only such an objection with which the Small Cause Court has jurisdiction to deal. The point is, perhaps, not free from doubt, but the first criticism on this contention is that the Act speaks of "valuation", not amount of the valuation," and it would be rather incongruous if the dissatisfied person, i.e., the rate-payer, can object to the payment of part of the valuation, but cannot challenge the valuation in its entirety. The opposite party here, i.e., the rate-payer, says that he objects, not to apart of the valuation, but to the valuation in its entirety, and that he objects to that valuation, because it is premature, i.e., made before the Corporation were entitled to make it, and consequently that it imposes upon him a liability to pay the new assessment from a date from which he is not bound to pay it. He argues that this goes to the very root of the matter, and consequently that he objects to the entire valuation. It is a little difficult to see why this is not an objection to the valuation. What does the term "valuation" mean? Is it confined merely to the amount at which the property is valued, or does it cover the process or act of valuation? Section 125 speaks of a valuation being cancelled on the ground of irregularity, which points to something beyond the mere question of amount. If a valuation were made before the proper time it would be irregular. Again Section 132, which speaks of the valuation of districts, imports that the term "valuation" cannot be construed in the restricted sense for which the Corporation contend, for the valuation of a district cannot mean the mere amount of the valuation, but must include the process or act of valuation itself. A valuation is the act of valuing, and the opposite party may under Section 135 object to that act of valuing, and here he objects to the whole act of valuing on the ground that it is unauthorised and premature. 5. I think then the contention of the opposite party is well founded, and that we should be placing a narrow construction on the section if we were to adopt the argument of the Corporation. In my opinion, then, the objection raised by the rate-payer was an objection to the valuation within the meaning of Section 135, and that being so, the Judge of the Small Cause Court had jurisdiction to deal with it, and it is not open to us to interfere. 6. I do not propose to enter into the merits, i.e., as to whether or not the Judge of the Small Cause Court has placed a right construction on the Act, but I cannot refrain from saying that the language of the Act is very far from clear upon the point, and that the view taken by the Judge of the Small Cause Court is open to the criticism, on the score of confusion and inconvenience in the working of the assessment of the Corporation, to which Mr. Hill has subjected it. However, we have nothing to do with that; it the Act does not meet, in this respect, the reasonable requirements of the Corporation, it may be advisable to amend it. That, again, is a matter for the consideration of the Corporation. 7. For these reasons the rule must be discharged with coast.

Corporation Of Calcutta vs Bhupati Roy Chowdhry on 22 August, 1898

Calcutta High Court

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B.CR.MISC.BAIL APPLICATION NO.4092/2010. Rambabu Vs. State of Rajasthan Date of order : 13/5/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.K. Kaushik for the petitioner. Shri Amit Poonia, Public Prosecutor for State. ****** Heard learned counsel for petitioner and the learned Public Prosecutor for the State and perused the relevant documents placed before me. Contention of the learned counsel for petitioner is that he has been arrayed for offence under Section 420 read with Section 120B IPC, challan against co-accused Puneet Methi and Durgendra Pal Singh have been filed for offence under Section 420 IPC simplicitor and they have been enlarged on bail by order of the Additional Chief Judicial Magistrate dated 14/12/2009 even under Section 437 Cr.P.C. Petitioner is in jail since 16/3/2009, there is no other criminal case pending against him and the trial will take a long time. Considering the submissions made at the bar, the nature of accusation, the materials on record and all other facts and circumstances of the case, I deem it just and proper to enlarge the petitioner on bail. In the result, this bail application u/S.439 Cr.P.C. is allowed and it is directed that petitioner Rambabu S/o Shri Lalita Prasad shall be released on bail in FIR No.75/2009 P.S. Jalupura, Jaipur for offence u/Ss.420 and 120B IPC on his furnishing a personal bond in the sum of Rs.30,000/- together with two sureties in the sum of Rs.15,000/- each to the satisfaction of the concerned Court for his appearance before that court on all dates of hearing until conclusion of the trial. (MOHAMMAD RAFIQ), J. anil

Ram Babu vs State Of Rajasthan on 13 May, 2010

Rajasthan High Court

JUDGMENT 1. The only question raised in this appeal is whether the incumbrance of the defendants was annulled under Section 167 of the Bengal Tenancy Act. 2. The plaintiffs-appellants are patnidars of the mouzah in which the tank in dispute is situated and they purchased the darpatni at a sale held in execution of a decree for arrears of rent on the 22nd November, 1904. The defendants, who were sepatnidars and who claim to hold an incumbrance on the tank, applied to have the sale set aside on the 21st December 1904, which was, however, rejected on the 1st February, 1905, and sale was confirmed on the., 4th February, 1905. The purchasers obtained possession on the 22nd March 1905 and they applied under Section 167 of the Bengal Tenancy Act on the 10th January 1906. Notice under Section 167 was served on the 4th March, 1906, and the present suit was instituted on the 24th August 1906. Both the Courts below have held that the application under section. 167 having been made more than a year after the date of sale, the incumbrance was not annulled and accordingly dismissed the suit. The Courts below held that the words 'date of sale' mean the date on which the sale actually takes place and not the date of the confirmation of the sale. 3. It may be pointed out that the learned Subordinate Judge is in error in stating that in the present case no objection seems to have been made to the sale itself. 4. The plaintiffs have appealed to this Court. The first contention raised on behalf of the appellants is that the defendants Nos. 1 to 4 who claim to be the incumbrancers were parties to the rent-suit and are bound by the decree in the rent-suit and the sale held in execution thereof and that as such the question of annulment of incumbrance does not arise. This point, however, was not raised in the Court below and there are not sufficient materials on the record for deciding the question. Besides, the plaintiffs proceeded in the Courts below on the ground that there was an incumbrance which had been annulled under Section 167, Bengal Tenancy Act. I, therefore, overrule the first contention. 5. The next contention is that the words date of sale' in Section 167 mean the 'date of confirmation of sale' and that, at any rate, the defendants having themselves taken proceedings for setting aside the sale should not be allowed to say that the 'date of sale' was the date on which the sale was actually held and not the date on which the sale was confirmed, and reliance is placed upon the case of Taibatanessa Bibi v. Provubati Dassi 4 Ind. Cas 750 : 10 C.L.J. 640. 6. I do not think it necessary to decide, in the present case, whether the words 'date of sale' in Section 167, Bengal Tenancy Act, mean the date of confirmation of sale, because it seems to me that the present case should be decided in accordance with the view taken in the case cited above. It was held, in that case that a person who claims to hold incumbrances and who disputed in a previous litigation the right of the purchaser of the entire holding under the sale for arrears of rent and thus denied the right of the purchaser to issue notices to annul the incumbrances, involving the purchaser of the entire holding in litigation to prove his title, cannot, by reason of his having raised the dispute and caused the delay, in equity, be allowed subsequently to say that the title under which the purchaser claimed to issue the notice was perfected for the purposes of Section 167 of the Bengal Tenancy Act on the date of his actual purchase and not on any subsequent date such as the date of the confirmation of his title by the decision in the previous litigation. 7. The above observations apply to the facts of the present case. In that case, as in the present, the defendant applied to set aside the sale' under the provisions of Section 311 of the Civil Procedure Code and the application under Section 167 was made within one year from the date of the confirmation of sale. 8. I accordingly hold that the application under Section 167 of the Bengal Tenancy Act was in time and the incumbrance was annulled. 9. The decrees of the Courts below are set aside and the suit is decreed with costs in all Courts.

Gobind Chandra Laha And Ors. vs Tara Pada Bhattacharjee And Ors. on 8 February, 1911

Calcutta High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2100 of 2009 (O&M) Date of Decision 25.08.2009 Deepti Kapoor ...... Petitioner No.1 VERSUS Dharmesh Piplani ......Petitioner No.2 CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.I.P.S.Kohli, and Mrs.Archana Sharma, Advocates, for the petitioners. ***** A.N.JINDAL, J(ORAL): This petition is directed against the order dated 03.01.2009, passed by Additional Sessions Judge, Chandigarh, whereby the petition alongwith application for leave to file the present petition for divorce before the statutory period of one year of marriage has been dismissed. Heard. The Additional District Judge, Chandigarh without deciding the application dated 17.12.2008, citing the judgment that statutory period of limitation as provided under Section 13-B of the Hindu Marriage Act could be condoned, has refused to entertain the petition. Hence, this revision petition is accepted and the impugned order is set aside. The case is remitted back to the Additional District Judge, Chandigarh to decide the aforesaid application. (A.N.Jindal) Judge 25.08.2009 mamta-II

Deepti Kapoor vs Unknown on 25 August, 2009

Punjab-Haryana High Court

Gujarat High Court Case Information System Print SCR.A/1845/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1845 of 2010 ========================================================= CHAUDHARY BHOOMIKABEN SIDDRAJKUMAR & 1 - Applicant(s) Versus STATE OF GUJARAT & 8 - Respondent(s) ========================================================= Appearance : MR IM PANDYA for Applicant(s) : 1 - 2. MS CM SHAH, APP for Respondent(s) : 1, None for Respondent(s) : 2 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 24/09/2010 ORAL ORDER The petitioners are both of marriageable age. They have got married on their own volition. Marriage certificate is also produced on record. It is however, the case of the petitioner that such marriage is not assented by the relatives of petitioner no.1 girl. They apprehend threat to their life and liberty from such relatives. Under the circumstances, it would be the responsibility of the concerned police authorities to ensure their safety. If they make any application in this regard, concerned police station may take such steps may be found necessary in facts of the case to ensure safety and liberty of the petitioners. With above observations, the petition is disposed of. Direct service to respondent no.2 is permitted. (Akil Kureshi,J.) (raghu)     Top

Author: Akil Kureshi,&Nbsp;

Chaudhary vs State on 24 September, 2010

Gujarat High Court

Gujarat High Court Case Information System Print CR.MA/12205/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 12205 of 2009 ========================================================= GOVINDBHAI MAGANBHAI DESAI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR JAYPRAKASH UMOT for Applicant(s) : 1, MR. M.G. NANAVATI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 25/01/2010 ORAL ORDER Leave to appeal is granted. Application stands disposed of accordingly. (Z.K.SAIYED, J.) pawan     Top

Author: Z.K.Saiyed,&Nbsp;

Govindbhai vs State on 25 January, 2010

Gujarat High Court

Gujarat High Court Case Information System Print CR.MA/1293/2010 1/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 1293 of 2010 In CRIMINAL APPEAL No. 1360 of 2009 ========================================= BHOLABHAI POPATBHAI BHUVA Versus STATE OF GUJARAT ========================================= Appearance : MR ZUBIN F BHARDA for the Applicant MR DC SEJPAL, ADDITIONAL PUBLIC PROSECUTOR for the Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 11/02/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. The present application is filed by the convict Bholabhai Popatbhai Bhuva praying for temporary bail for a period of 7 days on the ground that his father-in-law has expired and he wants to participate in the last rituals of his father-in-law. 2. Learned Additional Public Prosecutor Mr.Sejpal was asked to take instructions in the matter, more particularly in light of the advertisement produced at page No.6, Annexure-A, wherein it is mentioned that the last rituals are kept at the place of the present applicant and the same is signed by the wife of the present applicant daughter of the deceased, three daughters of the present applicant and his son. 3. In light of the fact mentioned in communication dated 11.02.2010 from Jasdan Police Station to the office of the Government Pleader that the deceased was residing with his eldest son Nathabhai, that wife of the deceased is alive and that the deceased has three sons and two daughters, the Court finds no reason to grant temporary bail to the applicant. The application is rejected. (Ravi R.Tripathi, J.) (J.C.Upadhyaya, J.) *Shitole     Top

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

Appearance : vs Mr Dc Sejpal on 11 February, 2010

Gujarat High Court

V"£'\.'J 1 IN THE HIGH COURT OF KARNATAKA, DATED TI-IIS THE 2151' DAY OF OCTOBER. BEFOREW - TI-IE I-ION'BLE MR.JUS'I'ICE II/IOII.ANf WRIT PETITION No§CC5:1~7_1 OF 20OV7Cv-.(AS'§R'E.?S}"j BETVVEEN : RMAHADEVAPPA S/O. LATE NANJAMMA AGE 33 YEARS _ I OLD No.8, NEW NO; 156 SWEEPERS ~ 4 _ RAJAJINAOAR_.4i:OLONy _ CINEMA ROAD: -- NANJANOUD MYSORE"EIsfiz21C1*;:.; " * PEIITIONER [BY M is. NAG SHAFI, ADV} AND : I D4 A D 1 THE UNION OF INDIA - NEEBY ITS ASSISTANT LABOUR COMMISSIONER (CENTRAL) _ "1\/4III~JIVS7}fRY_ OF LABOUR & EMPLOYMENT A "O:FFICE' THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL) SHRAM SA~D_A'N, YESHWANTHPUR, INDL. SUBURB. 280 STAGE, GORAOUNTEPALYA, TUMKUR " ROAD, BANGALORE -- 22. THE FOOD CORPORATION OF INDIA REPBY I'IS ADMINISTRATIVE MANAGER DISTRICT OFFICE, "PRESTIGE COMPLEX" C A DOUBLE ROAD, RAMASWAMY CIRCLE, MYSORE ~ 570 024. 3 THE FOOD CORPORATION OF INDIA REGIONAL OFFICE, NO. 10 I ST PHASE, IST STAGE. THAVAREKERE, BANGALORE M 41 REPBY ITS GENERAL MANAGER. 4 THE FOOD CORPORATION OF iNDIA REPBY YFS ZONAL, MANAGER SOUTH _- " -- " 3, HADDOWS ROAD, CHENNAIALB.-.1 ;_y..REs:2ONDE'NTSv..' A (BY SR1 Y HARIPRASAD, cosc FOR R1) " {BY SR1. P R RAMES11, ADV FOR R2 M 4; THIS WRIT PETITTON ISETLED UNDER ART-14c1;"Es 226 A AND 227 OF' THE CO_NSTITUTION INDIAPRAYING To QUASH THE ORDER DATED 13.7j,06O'-PASSED BY THE R3 MARKED AS ANN--G, ISSGUEGWRIT MANDAMUS TOT HE R1 AND R4 To CONSIDER 'fmE _.REPRESENTA'1'IONS OF THE PETITIONER DATED} 29.6.06 OTVEN TO THE R4 MARKED AND.: .. THIS-'S :COIj1\/ii';'=\T.d,O1'J; FOR PRLHEARING IN 'B' GROUP, TH1S"D;é\§{, Tt'1EpCOURT THE FOLLOWING: I5etitioner?_s' "3. class IV employee in the respondent--Food'1Corporation of India, reported to have 75.2001 yyhile in harness, led to the petitioner .fi'15i_1_1g "étn'._;a_pp1»i:eation dt. 19.7.2001 for appointment on cOi'npa.ssi'onate grounds, which when rejected by it 'etanirnflnication dt. 13.7.2006, has resulted in this A' petition. 2. Petition is opposed by filing statement of objections inter alia contending that the dependent of M deceased--employee quota GDDE) in the respondent- organistation is regulated strictly in terms" Headquarter Circular dt. 14.5.2001 and _ thereunder is possible subject tomcertain * , the instructions issued by the Co oration to re'ect a lications iendin *forj1nore5than.f } PP .. V _ , three years, coupled fact is no vacancy in the the 5% direct recruitment V 'quota :p.fo'1'\~ . appointment, resulted _petitioner's claim, by communication . V ..i.IkIeard"'*the learned counsel for the parties, pleadings and examined the c'o,_rI1munic_ation AnneXure--G. The communication states that " the Committee constituted by the competent a1.1thority, assessed the Vacancy/ scrutiny of DDE .. _..applications for the year 2005 and examined the vacancy position for appointment, whence it was observed that there were no vacancies available under Lek 4 5% direct recruitment quota. The Communicationdoes not animate consideration of the petitionersa'p-piicatioii_ dt. 19.7.2001 against vacancies in e>:iste11ce*'Vas*~:o1aAVthat , date to be filled up on compass:i.Qna"te.. 'T1fre competent authority Without examiiiingh th.e«-....\ra..canc3rVi' position as in the_ year as perverse procedure to reject dthveiiaetitioner. In that View of the vrn:at.ter,:"the' dt. 13.7.2006 Annexure. '{V1'it....petition is allowed. The Communication .£¥r:nexure--G is quashed. The proceediiighis 1je113.itt'€C1.._fQI7 consideration afresh over the V"peti.tioner'_s'~. :v'app1ication dt. 19.7.2001 and i;.sU}_osequei1t"represVenté1tions and pass orders strictly in '_ac_eordance wi.th}_law, in any event within a period of 0' ' . Vthr'ee__ nélofitiis. Sd/...: I" dye ln.

Author: Ram Mohan Reddy

Mr R Mahadevappa vs The Union Of India on 21 October, 2010

Karnataka High Court

Gujarat High Court Case Information System Print CA/11120/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR ORDERS No. 11120 of 2010 In LETTERS PATENT APPEAL No. 1669 of 2010 In SPECIAL CIVIL APPLICATION No. 7699 of 1993 ========================================================= D F CHAUHAN & 12 - Petitioner(s) Versus GUJARAT WATER AND RESOURCES DEVELOPMENT CORPORATION & 2 - Respondent(s) ========================================================= Appearance : MR HJ DHOLAKIA for Petitioner(s) : 1 - 10, 10.2.1, 10.2.2, 10.2.3, 10.2.4,10.2.5 - 13. None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 14/12/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) The application is allowed by consent in terms of paragraph 7(B). The application stands disposed accordingly. (D.H.WAGHELA, J.) (J.C.UPADHYAYA, J.) (binoy)     Top

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

D vs Gujarat on 14 December, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 2694 of 2007(U) 1. ABDUL MANAF @ MANAF, ... Petitioner 2. SHIHABUDEEN, ROADVILA PUTHEN VEEDU, Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. SHEREENA (MINOR), AGED 15, For Petitioner :SRI.R.KRISHNA RAJ For Respondent :SRI.S.M.ALTHAF The Hon'ble MR. Justice R.BASANT Dated :24/05/2007 O R D E R R.BASANT, J ------------------------------------ W.P(C).No.2694 of 2007 ------------------------------------- Dated this the 24th day of May, 2007 JUDGMENT There is no representation for the petitioners. The learned Government Pleader submits that investigation is in progress in all seriousness and the investigation is expected to be completed within a period of 3 months from this date. In these circumstances, I am satisfied that no further direction need be issued in the matter. This W.P(C) is, accordingly, dismissed. Sd/- (R.BASANT, JUDGE) rtr/-

Abdul Manaf @ Manaf vs State Of Kerala on 24 May, 2007

Kerala High Court

Gujarat High Court Case Information System Print CA/109/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 109 of 2007 In FIRST APPEAL (STAMP NUMBER) No. 1235 of 2006 ========================================================= THE SPECIAL LAND ACQUISITION OFFICER & 2 - Petitioner(s) Versus KANAKSINH KESARISINH - Respondent(s) ========================================================= Appearance : MS TRUSHA PATEL, AGP for Petitioner(s) : 1 - 3. RULE SERVED for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 24/07/2008 ORAL ORDER Though served, none appears. Heard. On the facts and circumstances of the case sufficient cause is shown to condone the delay. The delay is, therefore, condoned. Civil Application is allowed accordingly. Rule is made absolute with no order as to costs. First Appeal to come up on 25/8/2008. (K.S.JHAVERI, J.) (ila)     Top

Author: Ks Jhaveri,&Nbsp;

The vs Kanaksinh on 24 July, 2008

Gujarat High Court

BETWEEN: 'V " MALLAPPA, . '- S/ORAMAPPA PATiL,. ' ' AGED 25 YR,£'s,~--» 't:::, " LABOUR, , IN THE may-z COURT OF KARNATAK35.- 'A ' CIRCUIT BENCH AT [;_Ieim§wA:)" ~ -- If'_'; I)ATE§ THIS THE 3RD my' 0;? O€,";.'I'«I'.:i'I-I3'<I'§3R_.: BEF0 RE.V V 1' 'V . V 'THE H(j)N'BLE MR.JU$9ifi<§_E; MISCELLANEOUS §iE:i;59?o /1fic§A<V)5. R/O.CHIKK£2.AALAGUDL'-'E,AA * 'I'ALUK:HUKK£?.RI;-- V *:>1s'r.BELGAUM.4 - APPELLANT (:3? SR1. ;j>.'s.;«1.<;>sz\}1A**:'.1a_:_V,' Abvf FOR SR1 H,M.NIRANJAN, ADV. } 1 r§':i.AIjL.,_A. £513.'; _§f)A4§'~£s€3V}'§§, MAJCER,-_: '~ ' ' '--='».{OWNEI"a'__ OF R;'O'CHI}{KA"--.LAC'UDDE, T{'ALUK:HU}iKE;RI, " 'V DI»<3;'§'..F3E:LGA'"a}M. -~ ._ £2. _DIXxIs1o$:AL MANAGER, - ma NEW INDIA ASSURANCE v 'e::iQ.;:,f:_*;:">., BELGAUM. ' ' ;2§s§>c:>N}:>ENT (1259; SRE.R.C,NA-GARAJ, ASV, FOR R-1 AND SEE M.E{.S€3UDAGAR, ADV. .. FOR R-1*) - - M3",/"' i-kiifiiiii THIS MFA ES FILED u;s.3o(1; 't':=1ET ' JUDGMENT AND AWARD DT25/4/2005 EAs€._jE2:;>9zN'e;>~:o;~J{'cA;'i§E..e§Ee;;i_G4 ON THE FILE OF' THE LABOUR O F?F'ICER A£fJi} coE§.1%{.isS1dNE;E"Eo§es, WORKMEN COMPENSATION, SUB--'E)1:V1?3iOI\f-liw,_ . 13E1;{31={i;;i~}i;"' EARTLY' ALLOWENG THE CLAIM PETYTION Eogeajgvi-E_ENsA*:*:0:$1 9.15:1) SEEKING ENHANCEMENT OF comperzsmfrori'. ' L' THIS APPEAL cVoM1NsAVV_Q:NV.;rc5;é :§1EAR.:N£:g--.*m1s DAY, comm' DELIVERED THE EQEE§§2--_.v1Nc: V _ __ This'ap;:'>e}2ant seeking e11ha12cemen.t of compensatiojzi..p£a$seévw}syj.'§he"ie'eiified Commissioner for We-rkmen's compenssfiog, éJ3. WCA.SR.43/2004 mainly on the 'Et}Ea_{~7t"heA' igiorknsefi Comyensafion Commissioner has not p1"ii;3e1"i:;z'V evidence ané gmssly erred in taking only ' "*"?€)°X{~. he has sustained disabiiity {(12 the tune of _ . jg 3. Q6926. i.'I~:IeaI*d the learned counsel and perused the documents . an record. 3. The oniy short point ixxsmlveci in this appeal is whether realiy the appelaint sufiers 100% of the loss of eaxrning capacity on 1 ../ 31 ,r ,. 3', account of the injuries sustained by him durixxgihe employment? ' 4. Acconding to the appellant, he vehicie bearing Regn. No. KR-29: exld " Ai'8V'84"V ut:'ei'eAr:. 'm$prJnde1;tt " No.1. On 8/ 1/ 2004 when he was _g&:1 g 'ix; the vehicle along with fire wood the said vehi¢1§ie';vasehi;v;§.;,% =ajKfs~Rfre bus and in that accident, he sufl"ered.Vinjux'ies~ other fractures and admitted :o41C:;v:;'§:fH¢s;aita3€aiid _'§1:e1fi private hospitai and took and therefore, a claim petition Cafif1C"i(:} be of R334 lakhs. The learned CommissioI1er'e<--.fc1'v. Workaéezefbs Compensation, Belgaum, after considering _£'£1eV iI1jui"iesV__;g__11_:i other documentary evidence, awarded cQm§fensai'5pt1.e '<..c§'vRs.1,79,653/- by talcing 70% of the 1033 cf V ea,II1in.g"capé1c'i¥:5r.c'§?Vt11e ciajmant. :3': to the Dr.S.R.Hegde, the appellant sufifers 50°/E) V 'p¢;1'111euent disabiiity. Thcugh the evidence disckases that he eniy 50% of the pezmanent disahility is his limb, the 'Commissioner has wrongly taken the loss of eaming capacity at n 3'0"/Ea. There is no evidence yiaceéi on record to show that due to the '1 f' . I ¥§'/'I/2 " '?"_Mvs _ injuries sustained, the apiaeilant suffers; tota} 4_ viewed fmm any angle, I do not find ' f 2 with the percentage of disability as Cempensation Csmmissioner Thxé' Commissioner has Iightiy appli€:ac1_ '=r§:1cv.fiJ1't . and has awarded compensation. ThV{§i7EV: J:SAIZi'O involved in this appea}. 6. Accerdigigi is Sd/-~ Judge

Author: K.Ramanna

Mallappa vs Mallappa A Dange on 3 October, 2008

Karnataka High Court

IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD I' DATED THIS THE 17TH DAY OF REBRIJ.A1R3f._._2D:ID I I 7' BEFORE A. I I » THE HON'BLE MR.JIIs.TICEI'sIIEHAsH--"-DI' ADI' I WRIT PETiTIONS"'N.D'.6D 146;2I01--I) : AND 60.153-155-;'--£20~1_O"{QM--CPCI_ BETWEEN: INDIA PVT. _ I A ._ 298, 0LD,MAHA.I-3ALIRIJ__ ROAD, . SHOLINGANALLUR; CHENNAI..I60'Q0'19 REPRE.sEN'TE'D~1--I3Y_ITS AUTH..QR1sED SIGNATORY MR.€5.RENGARAJAN._"=,I . ...PETIT1oNER (BY S'I2I;sRINIVAé_j~RAc§HA\£AN, ADV FOR M / s'*-.1I$IDIJs* LAW)» . "M/:3,VMS?L'L.TD A CG--.QRERAT_IvE COLONY, ' ._ HQ«sPET..58:3j203 'REPRESENTED BY ITS MANAGING DIRECTOR. ...RESPONDENT A ;(_.l3Y SR1.s.s.NAGANAND, sR.ADv FOR SRI.G.K.I-IIREGOUDAR, ADV) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF' INDIA PRAYING TO QUASH THE ORDERS DT.07.01.201O PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) AT HOSPET ON I.A.NO.27 PREFERRED BY THE PETITIONER ABOVE NAMED IN O.S.NO.50/2005 AND ETC., THIS PETITION COMING ON FOR oRpERTs.;__'__j'Tfqis. DAY, THE COURT MADE THE FOLLOWING: 1. After hearing for some._vti'm_e, learned the-A' petitioner has filed a memo. gC.opy._o'f..the memo isiiserved on the learned senior counsel -Sri,Nfaganarid,* _ 2. Sri.Nagar'1arM1id, learned s«eniori.veot1nse1 appearing for the rivespondrénts he has no objection to dispose of the «memo is placed on record and made as part_ofith'is order. _fi1A"-'etitivoriver has sought for consolidating and dubbing i'W_s"1'i1_ts':"'O.S.No.49/2005, O.S.No.112/2005 and Oi:E;'3.I\fo;i14i';/2005 with O.S.No.50/OS and to dispose of the it is same a common judgment. hi4. Sri.Naganand, learned senior counsel appearing for the contesting respondent submitted that in some case the defendants are different and it may not be possible for the trial court to pass common judgment, same may beylesft to trial court itself. 5. Memo filed by the petitioner's~ciounse'I readis:Vasl"L1nder;g "In the above petition Zthepetitionerig questioned the legalitylofugtheforder of of the Principal Civil Jsege (st.1:>'h..i} 'sitd J;/isc, Hospet, dated e.j.o1.;2o'1o"i_jiti "-»o.s.1\i'o.50 /£005 refusing to consolidate the suits o.s.49/2005, oA.is..1:'1'2/ :,stnd~vO.a:._:£ 714/05 with the suit; the same by a l V A has already filed affidavits hy__ vvay in chief in o.s.49/05, ._ o.s§'i1V2/Q5. stid'~~io.s.114/05. The petitioner t~ha_t__upon consolidation and clubbing of a°siiit.is"-.o.s.49/05, o.s.112/05 and o.s.114/05 - ../05 with all four suits to be disposed of a common judgment with common H evidence, the petitioner may be permitted to and "wsill file in two weeks a fresh affidavit by way of additional evidence in the consolidated suits and mark additional documents if any and in View of the above will withdraw the affidavits by way of evidence already filed in O.S.49/05, 0.8.112/05 and 0.8.114/05 before the Court of the Principal Judge (Sr.Dn.) 81; JMFC, Hospet." 6. In terms of the memo, the trial courtiiii-S. d:i_rec'ted fig dispose of the suits. The trial court isidirected't--o:_iconso1idat«e and club O.S.No.49/2005, "vojs.No.1Jis2i,/Qeosii:--¢'i"~~a.ifid.,L O.S.No.114/2005 with o.s;1§i'o.s0/05._'_an}i °'c;¢}idqct at common trial and dispose of«'tir1ie"sii1:'itsit'--._ 7. Both thewcounsei"su:brr1it_'tha,it'v_tirie;."tiin1e fixed by this court in 2006..4foriiidis§5osa1 of the suits and connected matters may 31.07.2010. In View of the aboveideireloprnenti; extended upto 31.07.2910 fore-§iis'po.sa1 of theflisuitsi 8. "the "aibO»\I:ti','t(:)3i)vS(i3iI"JatiOnS, the writ petition stands 35/5,. fudge disposed of. his 1m%- _ '-

Author: Subhash B.Adi

M/S. Vestas Wind Technology India ... vs M/S. Mspl Ltd. on 17 February, 2010

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5160 of 2006 PRITHVI NATH PANDEY Versus THE STATE OF BIHAR & ORS ----------- Md.S. ( Rakesh Kumar, J.) 2. 11.2.2011. List the case before another Bench, after obtaining permission of Hon'ble the Chief Justice.

Prithvi Nath Pandey vs The State Of Bihar &Amp; Ors on 11 February, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.43163 of 2017 Arising Out of PS.Case No. -73 Year- 2017 Thana -KUSHESHWARSTHAN District- DARBHANGA ====================================================== Mangnu Paswan Son of Late Nathuni Paswan Resident of Village-Koniya, P.S.-Kusheshwarastha, District-Darbhanga. .... .... Petitioner/s Versus The State of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Abhay Shankar Singh, Adv. For the Opposite Party/s : Mr. Sanjay Kumar Singh, APP ====================================================== CORAM: HONOURABLE JUSTICE SMT. NILU AGRAWAL ORAL ORDER U T 3 14-11-2017 Heard the learned counsel for the petitioner and the learned A.P.P. for the State. Petitioner is languishing in judicial custody since 22.04.2017 in connection with Kusheshwarasthan P.S. Case No. 73/2017, for offences alleged under Sections 366, 346 and 34 of the Indian Penal Code. The prosecution case as lodged by the informant is that his wife Chanchal Devi had gone to the field for cutting grass and did not return. It has been submitted by the learned counsel for petitioner that he is innocent, not named in the F.I.R and bears no criminal history. He submits that F.I.R. has been lodged after two days delay and no plausible explanation has been given for such Patna High Court Cr.Misc. No.43163 of 2017 (3) dt.14-11-2017 2/3 delay. Thereafter, after a week the informant had filed a petition before the police that all the family members of the petitioner including the petitioner are involved in abducting his wife and the petitioner was heard by someone that the lady should not be brought in the village. He submits that only on suspicion the petitioner along with his family members including the daughter- in-law has been made accused. He further submits that charge- sheet has already been submitted and there is no allegation of tampering with the prosecution witnesses. However, learned A.P.P. opposes the prayer for bail stating therein that victim lady is still traceless. Considering the facts and circumstances of the case and material on record, let the petitioner named above, be enlarged 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 learned Judicial Magistrate, Benipur, Darbhanga, in connection with Kusheshwarasthan P.S. Case No. 73/2017, subject to the condition that both bailors would be a close relative of the petitioner having sufficient immovable property within the jurisdiction of the concerned police station/court, who will file an affidavit stating their relationship with the petitioner and that the petitioner will appear before the police/court as and when required Patna High Court Cr.Misc. No.43163 of 2017 (3) dt.14-11-2017 3/3 and failure to appear on two consecutive dates without assigning any reason will entail cancellation of his bail bonds. (Nilu Agrawal, J) Vinita/-

Mangnu Paswan vs The State Of Bihar on 14 November, 2017

Patna High Court - Orders

Court No. - 7 Case :- APPLICATION U/S 482 N0. - 21012 of 2010 Petitioner :- Gulam Rasool And Another Respondent :- State Of U.P. And AnotherPetitioner Counsel :- Mohammad Khalid Respondent Counsel :- Govt Advocate Hon'ble Mrs. Poonam Srivastav.J. As prayed, put up on 12.07.2010 as fresh before appropriate Court. Order Date :- 18.6.2010 arun

Gulam Rasool And Another vs State Of U.P. And Another on 18 June, 2010

Allahabad High Court

Court No. - 21 Case :- WRIT - C No. - 17 of 2010 Petitioner :- Naresh Respondent :- State Of U.P. & OthersPetitioner Counsel :- V.K. Upadhyay,S.K. Upadhyay Respondent Counsel :- C.S.C. Hon'b|e V.K. Shuk|a.J. Learned Standing counsel has accepted notice on behalf of respondent nos. 1 to 3. He prays for and is granted eight weeks time to file counter affidavit. Rejoinder affidavit may be filed within next four weeks. List thereafter. Order Date :- 5.1.2010 Dhruv

Naresh vs State Of U.P. & Others on 5 January, 2010

Allahabad High Court

[Complete Act]

Central Government Act

JUDGMENT Lawrence H. Jenkins, C.J. 1. This is an appeal arising out of a suit brought to recover a sum of Rs. 4,455-8 as the price of 469 tons of coal delivered by the plaintiff to the defendants. The delivery is not disputed. But it is pleaded that there has been a breach of contract on the part of the plaintiff, which entitles the defendants to set-off a sum of Rs. 2,079 by way of damages against the sum of Rs. 4,455-8, and on that footing the defendants submit that he is only entitled to receive a sum of Rs. 2,376-8, and this they offered to pay and have actually brought into Court. 2. The contract out of which the suit arises is contained in bought and sold notes which, though they are not absolutely in identical terms, may, as Mr. Justice Fletcher says, be taken to be identical for the purpose of the present suit. The sold note on which the plaintiff relies is addressed to Messrs. Banerjee & Co., Managing Agents, Kunji Munji & Company, who may be taken as identical with the plaintiff for the present purpose. It is signed by W.C. Banerjee and runs in these terms: Dear Sirs, I have this day sold by your order and for your account to Messrs. George Henderson and Company, Calcutta, the entire stock at Shalimar Depot or 700-800, say seven or eight hundred tons of best Kusunda steam coal freshly raised and free from shales, slates, water-marks, rubble, dust or other impurities at the rate of Rs. 9-8, say nine rupees eight annas, per ton free in boats at Shalimar. The sellers will not be responsible for any demurrage to the boats. Average basket weights. Payment on completion of delivery. 3. The principal question in dispute between the parties is whether delivery of 469 tons was, in the circumstances of this case, a sufficient performance of the contract. This turns upon the question what force should be attributed to the words "the entire stock at Shalimar Depot or 700-800, say seven to eight hundred tons of coal." On the part of the plaintiff who, feeling himself aggrieved by the decision of Mr. Justice Fletcher, has appealed from that decision, it is urged that the mention of 700-800 tons is not binding, that it is merely a statement of expectation and nothing more, and not in any sense a warranty, and that he, the plaintiff, has performed his contract in its entirety by delivering 469 tons, that being "the entire stock at Shalimar Depot." Mr. Justice Fletcher has not accepted that view, and in my opinion rightly. It is not of any great use to refer to decided cases for the purpose of determining the meaning of a contract of this kind. Regard must be had to the actual words used in this case, and to the circumstances under which the parties contracted and to the relative positions of the parties, so far as they are disclosed by the materials before the Court. The position then is this: the owner of this entire stock at Shalimar Depot being a coal merchant, says that it is in quantity 700-800 tons, while there is nothing to suggest before us that the defendants ever saw the coal, or ever visited the Depot at Shalimar. At the same [ time there is no evidence of any custom of trade or usage which would give to the words used any particular meaning in relation to a contract such as this. In the circumstances, I think it is a fair reading of the words to say that there was a promise by the plaintiffs that the coal which constituted their entire stock was 7OO-8OO tons, and that it is impossible to treat the words used as a mere expression of opinion, which was not to carry with it any legal consequences. 4. Accepting that view, it necessarily follows that there has been a breach by the plaintiff of his obligation under the agreement between him and the defendants, and though the damages are at present unascertained, and the case therefore does not come within Section 111 of the old Civil Procedure Code or the corresponding order of the present Code, still the circumstances are such as to entitle the defendants to rely on this by way of equitable set-off in answer to the plaintiff's claim, so far as it is available for that purpose. 5. The only other point in the case is whether a breach has been established. It is quite true that there is no oral evidence adduced, but at the same time it is manifest that the parties went to trial on an understanding that the case should be determined, as far as possible, on the pleadings and the correspondence; and reading the pleadings and the correspondence, I think it is established that there was a breach. It there was a breach, it is necessary, for the purpose of determining the damages, to fix the date of that breach, and it has been agreed before us by the parties that the 28th of November 1907 should be taken as that date. The decree as drawn up provides for a reference to the Official Referee to inquire and report what damages were sustained by the defendants by reason of the non delivery of the portion of the coal contracted to be supplied by the plaintiff as in the pleadings in the suit mentioned. 6. The measure of damages is the estimated loss in the ordinary course of events arising from the breach of contract: where there is an available market for the goods in question, as apparently is the case here, the measure of damages is prima facie the difference between the contract price and the market or current price of the coal on the 28th of November 1907. If, as is said, there was no certain market rate, then evidence must be adduced for the purpose of showing what was the measure of damages. 7. The result then is that, in my opinion, the decree founded on Mr. Fletcher's judgment is correct, and this appeal should be dismissed with costs. Woodroffe, J. 8. I agree. To my mind the point seems to be quite clear. Had the plaintiff intended to sell by estimation only, it was open to him to state that fact. The word "say" may perhaps be a word of some ambiguity. It was, however, open to him to state that he sold the entire stock of "about" 700 or 800 tons, or "by estimate" 700 or 800 tons, or "approximately" 700 or 800 tons, using these or other words which would appropriately indicate a sale by estimation,. But he sells in fact "the entire stock or 700-800 tons. And then we must look at the circumstances of the case that he was himself a coal dealer, that the goods were not, as in many of the cases cited to us, future goods. The goods were actually in existence at the date of the contract and at the depot, and I think it must be assumed, in the absence of anything to the contrary that the goods being in existence, the seller knew what the quantity was which he was selling. In my opinion, therefore, the words "700 or 800" tons were not, as has been contended, a mere collateral estimate of quantity, but an integral part of the contract, that is to say, they were words descriptive of the preceding words "entire stock." It is not likely, in the circumstances of this case, that a stock of existing goods would be sold or bought without a statement of the quantity of the stock sold.

Author: L H Jenkins

Kallyanjee Shamjee vs Shorrock on 26 January, 1910

Calcutta High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 37366 of 2007(W) 1. ISHA BEEVI, THOUFEEK MANZIL, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent 2. DISTRICT COLLECTOR, KOLLAM. For Petitioner :SRI. K.SIJU For Respondent : No Appearance The Hon'ble MR. Justice M.N.KRISHNAN Dated :18/12/2007 O R D E R M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 37366 OF 2007 --------------------- Dated this the 18thday of December, 2007 J U D G M E N T This is yet another case where the helplessness of a person who had been deprived of the land by Land Acquisition Proceedings is brought to limelight. I am informed the property was acquired as early as in the year 1988 and still, the claimant is knocking at the doors of the courts for getting the amounts that is awarded to her. It is quite unfortunate. But at the same time, I have to state that there may be cases where people are waiting for a longer time than this. Therefore it may not be proper to issue a time bound direction. This court can direct the authorities to take into consideration the plight of the poor claimant, which has forced her to to come to this court for a direction. I sincerely and earnestly believe that the Government will do something to satisfy the award so that the heart burn of the claimant is averted. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps  

Isha Beevi vs State Of Kerala on 18 December, 2007

Kerala High Court

JUDGMENT Manmohan Sarin, J. 1. This judgment decides the above two writ petitions wherein common issue, regarding the applicability of Euro II and Euro III norms (also known as Bharat II and Bharat III norms) to vehicles plying in the National Capital Territory of Delhi, arises for consideration. The question has arisen in the context of stipulations in the tender document relating to permissibility of vehicles to be used for the purpose of contract for transportation of LPG cylinders. 2. Vijendra Kumar, petitioner in WP(C) No. 2512/2007, is a transport contractor. He assails a condition in tender No.1PG/TPT/NZ/204 which reads as The tenderers to ensure that model of the quoted trucks should not be prior to the year 1996 and all statutory requirements as specified by the Transport Department, Delhi State from time to time are complied with as not being in conformity with the amendments in the Central Motor Vehicles Rules and not being in consonance with directions given by the Hon'ble Supreme Court regarding commercial vehicles conforming to Bharat II and Bharat III norms. It is the petitioner's case that as per the direction issued by respondent No. 2 Govt. of NCT of Delhi, commercial vehicles manufactured after 1.4.2005 could be registered in Delhi if they conformed to Bharat Stage III norms. However trucks having national permit, would continue to be governed by Bharat Stage II norms for plying on Delhi roads. 3. Petitioner, accordingly seeks a writ of prohibition directing the respondent No. 1 not to consider the tender of any contractor whose vehicles are not conforming to the requirements as per existing law and in particular the Motor Vehicles Act and the Central Motor Vehicles Rules. A writ of mandamus is further sought to the respondent No 1 to strictly follow Motor Vehicles Act and Central Motor Vehicles Rules and to issue a clarification amending the condition of the tender so as to call for only such vehicles which are conforming to Bharat Stage II and Bharat Stage III norms. 4. Notice in the above petition had been issued on 4.4.2007. counter affidavit has been filed by respondent No. 1. Ms. Zubeda Begum, counsel for respondent No. 2 Government of NCT of Delhi had also sought instructions and she has also been heard in opposition to the petition. 5. While this petition was pending, another writ petition bearing WP(C) No. 2882/2007 was filed and came up for admission on 23.4.2007. Petitioner Sunil Bansal filed the second writ petition aggrieved by a tender condition in respect of tender No.BPCL/LPG/PKD/NR/2007/03/Piyala invited for transportation of LPG cylinders Ex-LPG Plant Piyala to the Depot markets in Delhi. He also contended that respondent No. 2 had written letters to the oil companies including respondent No. 1 Bharat Petroleum directing them that four wheeled vehicles plying within NCT of Delhi must conform to Bharat III norms and four wheeled transport vehicles plying on inter state permit, national permit or all India tourist permit within jurisdiction of NCT of Delhi and certain other selected cities would continue to be governed by Bharat II emission norms. Respondent No. 1 had assured respondent No. 2 vide its letter of 7.2.2007 that they would be amending the tender condition in future contracts. 6. Petitioner is aggrieved as the tender condition did not require conforming with Bharat Stage II and Bharat Stage III norms despite the decision in the letters referred to earlier. Petitioner Sunil Bansal also sought a writ of prohibition directing respondent No. 1 not to consider the tender of any contractor whose vehicles did not conform to the existing law and the Central Motor Vehicles Rules. Further that the vehicles should be compliant either with Bharat Stage II or Bharat Stage III norms. A writ of mandamus was also sought commanding respondent No. 1 to strictly follow the Motor Vehicles Act and Central Motor Vehicle rules and to consider only those tenderers whose vehicles conform with Bharat Stage II and Bharat Stage III norms. 7. Petitioners in the Writ petitions were represented by Mr. Rakesh Tiku. With the consent of the parties, both the writ petitions were taken up for disposal together as the issue involved in the petitions was the same. 8. Learned Counsel for the petitioners Mr. Rakesh Tiku submitted that respondent No. 2 Govt. of NCT of Delhi had specified that commercial vehicles manufactured after 1.4.2005 could be registered in Delhi if they were conforming to Bharat Stage III norms. However, commercial vehicles having national permit, inter-state permit or all-India tourist permit would continue to be required to be governed by Bharat Stage II norms. As noted, petitioner's submission is that respondent No. 1 HPCL in WP(C) No. 2512/2007 and BPCL in WP(C)No. 2882/2007 were required to review their existing contracts and also make necessary changes in the tender document, they neither reviewed the existing contracts nor made amendments in the tender document being issued to ensure compliance with above requirements. Petitioners, therefore, urged that respondent No. 1 was trying to find out ways to flout the norms prescribed by Govt. of Delhi, respondent No. 2. Mr. Tiku referring to the tender condition mentioned in para 3 above, which is the subject matter of WP(C) No. 2512/2007, submitted that the same left ample scope for entertaining ineligible bidders. It was, therefore, not conducive to the requirement of conforming to the emission norms as intended by the Govt. of NCT of Delhi. Mr. Tiku submitted that on a proper interpretation of the provisions of the Motor vehicles Act, Central Motor Vehicles Rules, the notification issued there under and the directions of the Supreme Court, only commercial vehicles manufactured after 1.4.2005 and conforming to Bharat Stage III norms can ply in Delhi. Further, commercial vehicles having national permits were also required to conform to Bharat Stage II norms. Mr. Tiku urged that respondent was required to strictly adhere to the rules and consider only those vehicles registered after 1.4.2005 conforming to Bharat Stage III norms as per the notification of 20.10.2004. Finally it was submitted that petitioner does not press his challenge to vehicles already registered not conforming to Bharat II and Bharat III norms and would be satisfied if requirement of conforming to Bharat Stage II norms was enforced. 9. Respondent No. 1 in its counter affidavit, has averred that the notification dated 20.10.2004 relied on by the petitioner is with respect to emission norms and is applicable only in respect of four wheel vehicles, which are manufactured after 1.4.2005. The notification did not stipulate that all four wheel transport vehicles plying in Delhi should conform to Bharat Stage II and Bharat Stage III norms. Mr. Sanjay Kapur and Ms. Zubeda Begum submitted that the only restriction as per the direction of the Hon'ble Supreme Court is that commercial vehicles, which were over 15 years old, should not be allowed to ply on Delhi roads. Ms. Zubeda Begum relied on the judgment of the Supreme Court in M.C. Mehta v. Union of India in WP(C) No. 13029/1986 dated 28th July, 1998 and submitted that four wheel vehicles including taxis, which were 15 years old by October 1998, were not to be permitted to ply on Delhi roads. Ms Zubeida Begum, counsel for Respondent No. 2 further stated that for Commercial and heavy vehicles, Bharat II norms have been introduced w.e.f. 24th October 2001. 10. We have perused the notifications in question as also the directions given in M.C. Mehta's (supra) case wherein the Supreme court realizing the urgency and importance of protection and improvement of the environment and to improve the quality of air and reduce vehicular pollution had approved the measures proposed by the committee and the time frame there for. We notice that as per the notification issued by the Ministry of Shipping Road Transport and Highways (Department of Road Transport and Highways), Govt. of India dated 20.10.2004, only vehicles manufactured after 1.4.2005, are required to comply with Bharat Stage III norms. Secondly, as per the directions issued by the Supreme Court in M.C. Mehta (supra), commercial vehicles, which are over 15 years old by 2nd October 1998, cannot ply on Delhi roads. Taking into consideration the order of the Supreme Court and the notification dated 20.10.2004, we are of the view that commercial vehicles having national permit, inter-state or all-India tourist permit and are within 15 years from their date of registration, can ply on Delhi roads. These commercial vehicles need not comply with Bharat Stage II norms if they are manufactured prior to 1.4.2005. Once they are more than 15 years old from their date of registration, they will not be permitted to ply on Delhi roads and, therefore, will be phased out in a progressive manner. Further, commercial vehicles, which sought to be registered after 1.4.2005 in Delhi, have to conform to Bharat Stage III norms. We may also note that the Division Bench of this Court in WP(C) No. 1349/2007 titled Dev Raj v. Union of India and Ors. had declined to entertain a petition filed seeking directions to the respondents and the public sector undertaking not to enter into any contract for utilizing services of goods vehicles that do not comply with Euro II or Euro III norms by holding that the Supreme Court was already examining and monitoring the issue of vehicle pollution and implementation of its directions to restrict plying of commercial vehicles including taxis. It was open to the petitioner to approach Bhure Lal Committee and if required, the Supreme Court. The petitions could have been disposed off on the above basis. 11. We have, however, chosen to consider the submissions of the petitioners since it was sought to be urged that the Govt. of NCT of Delhi was not following and observing the decisions taken and directions given by itself. Apart from the fact that respondents have the discretion and freedom to formulate the tender terms. Reference may be invited to Air India Ltd. v. Cochin International Airport Ltd. , wherein the Supreme Court held that, State can choose its own method to arrive at a decision and it can fix its own terms of invitation to tender and that is not open to judicial scrutiny. In the present case, we find that petitioner has not been able to make out a case for interference in the exercise of writ jurisdiction. It cannot be said that the tender conditions as framed by the respondents are violative of the norms and notifications issued under the Central Motor Vehicles Rules or the directions of the Supreme Court. The decision to permit vehicles which are less than 15 years old, even if they do not conform to Bharat Stage II norms, subject to the condition that no fresh registration of vehicles not conforming to Bharat Stage II norms would be granted after 24.10.2001 and vehicles registered after 1.4.2005 would conform to the Bharat Stage III norms is intended to phase out old vehicles in a progressive manner while addressing the concern of adhering to emission norms to control vehicular pollution. The writ petitions have no merit and are dismissed.

Author: M Sarin

Vijendra Kumar vs Hindustan Petroleum Corporation ... on 10 May, 2007

Delhi High Court

ORDER Amareshwar Sahay, J. 1. Heard the parties. 2. The petitioner, who was arrayed as one of the accused in a complaint case filed by O.P. No. 2, has challenged the judgment dated 28.4.2003 of the Additional Sessions Judge, XIII, Dhanbad, whereby the learned Additional Sessions Judge reversed the order of learned trial Court, dismissing the complaint under Section 203, Cr PC and directed the learned trial Court to make further enquiry into the case for taking cognizance of the offence alleged in the complaint petition. 3. The facts in brief are that O.P. No. 2 Suresh Chandra Agrawalla filed a complaint petition before the Chief Judicial Magistrate, Dhanbad stating therein that he was the Power-of-Attorney holder of Ramesh Kumar Singhal, who purchased two Kathas of land of Plot No. 13, Khata No. 3 situated within Chirkunda police station from Smt. Sumitra Devi by virtue of a registered deed of sale on 6/11/2000 for a consideration of Rs. 1,05,000/-. It was alleged that prior to the execution of the said sale deed Smt. Sumitra Devi convinced the purchaser that two rooms on the aforesaid land was in occupation of Hafizullah (accused No. 2 in the complaint) and his son Md. Islam (Petitioner herein) who were tenants and they have promised to vacate the land on receipt of Rs. 10,000/- which was paid by the complainant to them. 4. It is said that after the purchase the complainant asked the accused Hafizullah and Md. Islam to vacate the premises under their occupation but Md. Islam, i.e. the present petitioner informed him that he was the owner of the said two rooms by virtue of purchase by registered sale deed executed by Smt. Sumitra Devi and he produced a registered sale deed before the complainant and then the complainant was surprised to learn that in fact Smt. Sumitra Devi had already sold a part of the land to Md. Islam and this fact was mischievously concealed by the accused persons. It was further alleged that in the complaint that in the sale deed which was executed by Smt. Sumitra Devi in favour of Ramesh Kumar Singhal the accused Md. Hafizullah, i.e. the father of the present petitioner also signed as a witness, which showed that the accused Md. Hafizullah and his son Md. Islam, i.e. the present petitioner connived with Smt. Sumitra devi in making and executing the said sale deed by giving fraudulent and false declaration. 5. In view of the above facts, it was alleged that the accused persons by means of fraudulent representation induced Ramesh Kumar Singhal to part with Rs. 10.000/- to accused Nos. 2 and 3, i.e. md. Hafizullah and his son Md. Islam and thereby committed the offence of cheating. 6. The trial Court held enquiry under Section 202, Cr PC and thereafter by order dated 7.9.2002 dismissed the complaint holding that since the land in question was already transferred to Md. Islam therefore, the vendor Smt. Sumitra Devi could not have transferred a better title than she herself had. 7. Being aggrieved with the said order of dismissal of complaint the complainant moved before the Session Judge in revision. The learned Additional Sessions Judge heard the revision application and held that on perusal of the oral and documentary evidence of the complainant adduced during enquiry under Section 202, Cr PC a prima facie case under Section 420 was made out and accordingly, by the impugned judgment the learned Additional Sessions Judge set aside the order of the learned Magistrate and directed to him to make further enquiry into the case. 8. The aforesaid judgment of the learned Additional Sessions Judge passed in the revision has been challenged by the present petitioner in this application. 9. The learned counsel for the petitioner Mr. Jitendra S. Singh, in support of the revision application has made three fold submissions. Firstly, that even if, the entire allegation made in the complaint petition and the evidence adduced on behalf of the complainant during enquiry under Section 202 Cr PC is accepted in its entirely, no case whatsoever is made out. Secondly, that even if, on the facts alleged, any case is made out under Section 420 IPC, the same at best can be said to be made out only against Smt. Sumitra Devi the vendor and Md. Hafizullah, who had put his signature as a witness in the sale deed executed by Smt Sumitra Devi in favour of Ramesh Kumar Singhal and not against the petitioner, and thirdly, that the learned Additional Sessions Judge has at one hand held that from perusal of the oral and documentary evidence adduced during enquiry under Section 202, Cr PC a prima facie case under Section 420, IPC is made out and then on the other hand has directed the learned Magistrate to make further enquiry into the case which was absolutely Illegal as he has already disclosed his mind regarding the existence of prima facie case. 10. One the other Mr. Mahesh Tewari the learned counsel for O.P. No. 2, relying on the decision in the case of State of Karnataka v. M. Devendrappa, reported in 2002 (1) East Cr C 392 : 2002 (1) JCJR 264 (SC) : (2002) 3 SCC 89, has submitted that this Court should not assume the role of the trial Court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation on a reasonable appreciation of such evidence. He further submitted that since the learned Additional Sessions Judge has only directed the learned trial Court to make further enquiry and, therefore, no interference is required by this Court in its revisional jurisdiction. 11. No doubt the Apex Court in the aforesaid case cited above on behalf of O.P. No. 2 has held that power possessed by the High Court under Section 482 of the Code, are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate promise. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot seen in their true perspective without sufficient materials. 12. But the Apex Court in the said very judgment cited above, in para-6, of its judgment has also held that in exercise of the powers of the High Court would be justified to quash any proceeding if it finds that the initiation/continuance of it amounts to abuse of as the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 13. In the present case, neither in the complaint petitioner in the evidence adduced by the complainant during enquiry under Section 202, Cr PC, it has been alleged that the present petitioner Md. Islam had any hand in commission of the offence alleged by the complainant. The misrepresentation, if any, has been alleged against Sumitra Devi the vendor who sold the land to the complainant. The allegation of receipt of Rs. 10,000/- was also alleged by the complainant against the other accused namely Md. Hafizullah who allegedly granted receipt of the said amount of Rs. 10,000/-. Even according to the complainant it was the other accused Md. Hafizullah who put his signature as a witness in the sale deed executed by Sumitra Devi in favour of the complainant. Therefore, even if, on the facts alleged by the complainant no case of cheating or for commission of the offence under Section 420 IPC, is made out against the present petitioner. 14. I further find that the learned Additional Sessions Judge has committed illegality in expressing his opinion about existence of prima facie case under Section 420, IPC while remanding the case to the trial Court for further enquiry into the case. This would certainly prejudice the mind of the trial Court. 15. Considering the facts and circumstances of the case, this revision application is allowed and the order of the learned Additional Sessions Judge passed in revision is modified to the extent that the learned trial Court without being prejudiced by the order of the learned Additional Sessions Judge wherein it was held that the prima facie case under Section 420, IPC, is made out, shall make further enquiry under Section 202, Cr PC as to whether the materials already on record make out any prima facie case against the accused Smt. Sumitra Devi or Md. Hafizullah or not and then shall pass an appropriate order in accordance with law. So far as this petitioner, namely, Md. Islam is concerned, in view of the findings above the complaint against him is hereby quashed. 16. With the aforesaid observations and directions this application is allowed.

Author: A Sahay

Md. Islam vs State Of Jharkhand And Anr. on 12 January, 2005

Jharkhand High Court

Court No. - 46 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35312 of 2009 Petitioner :- Kalloo Patel Respondent :- State Of U.P. Petitioner Counsel :- Anup Swaroop Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Shyam Shankar Tiwari,J. Heard learned counsel for the applicant, learned A.G.A and perused the record. From the perusal of the gang chart it appears that there are two cases against the applicant. In case crime no. 339 of 2009 the applicant has already been bailed out by the court below vide order dated 24.7.2009. In view of the facts and circumstances of the case and submissions made by learned counsel without expressing any opinion on the merits of the case the applicant is entitled to be released on bail. Let the applicant Kalloo Patel involved in Case Crime No. 647 of 2009 under Section 2/3 Gangster and Anti Social Activities (Prevention) Act, 1986 P.S. Saini, District Kaushambi be release on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Order Date :- 21.1.2010 F.H.

Kalloo Patel vs State Of U.P. on 21 January, 2010

Allahabad High Court

ORDER Dr. A.S. Anand, C.J. 1. This writ appeal is directed against the judgment of the learned single Judge in Writ petition No. 14035 of 1989 decided on 1st December 1989. 2. The appellant herein was working as a Traffic Manager with the Madras Port Trust at the relevant time. On the allegation of being in possession of property disproportionate to his known sources of income, a criminal case was instituted against him. The appellant was placed under suspension. The appellant filed Writ Petition No. 329 of 1989 seeking enhancement of the subsistence allowance, since he was paid only 50% of his pay as subsistence allowance. The writ petition came to be allowed on 3rd March 1989 and the respondents were directed to consider the case of the appellant for the grant of the enhanced subsistence allowance (1990-II-LLJ-5). In the meanwhile, the first respondent also initiated disciplinary proceedings against the appellant and a charge memo was drawn up on 14th February 1989 containing four charges under the Madras Port Trust Employees' (Classification, Control & Appeal) Regulations, 1988. The gravaman of the charge related to violation of the various provisions of the Madras Port Trust Employees' (Conduct) Regulations, 1987. The charge was served on the appellant and an enquiry officer came to be appointment on 19th July 1989. A preliminary enquiry was directed to be held and it commenced at New Delhi on 28th July 1989. The appellant, it appears, sought the permission of the enquiry officer to be represented by a legal practitioner during the disciplinary proceedings which was however, declined. The appellant filed Writ Petition No. 11063 of 1989 seeking a writ of mandamus directing the respondent to permit him to be represented by a legal petitioner in the department proceedings pending before the second respondent. The writ petition was allowed on 18th September 1989. 3. The appellant thereafter instead of participating in the enquiry and allowing it to be concluded despite the directions of the High Court in the earlier litigation for its early disposal, filed W.P. No. 14035 of 1989 praying for the issue of a writ of mandamus forbearing the second respondent (Enquiry Officer) from proceeding with the departmental enquiry against the appellant till the disposal of the criminal case in C.C. No. 1 of 1989 pending on the file of the Special VIII Additional Judge, City Civil Court, Madras. 4. Before the learned single Judge, the appellant relied upon the judgment of the Supreme Court reported in Kusheswar v. Bharat Coking Coal Ltd. (1988-II-LLJ-470) and in particular on paragraphs 7 and 8 thereof to urge that the trial of the disciplinary proceedings was required to be stayed till the disposal of the criminal case. The learned single Judge after hearing elaborate arguments on behalf of the parties found that three out of the four charges in the charge memo in the disciplinary proceedings pertain to the failure on the part of the appellant to report or obtain approval of the competent authority before acquiring immovable property either in his own name or in the names of other members of his family. It was also found that so far as charge No. 4 in the disciplinary proceedings is concerned, the allegations detailed therein refer to four deposits; whereas the criminal case pertains to several more allegations regarding deposits. The learned single Judge found that the criminal case and the disciplinary proceedings, in the facts and circumstances of the case, could not be said to be grounded upon identical set of facts and that the scope of the two proceedings differ vastly. The writ petition was accordingly dismissed. Hence the writ appeal. 5. Before this Court also, the learned counsel for the appellant reiterated the submissions made by him before the learned single Judge and referred to the decision of the Supreme Court reported in Kusheshwar v. Bharat Coking Coal Ltd. (supra) in support of his submission. We are afraid we cannot agree with the learned counsel for the appellant that the disciplinary proceedings, in the facts and circumstances of this case, require to be stayed pending disposal of the criminal case. It is no longer disputed that disciplinary proceedings and criminal cases can go on simultaneously, depending upon the facts and circumstances of each case, as noticed by the Supreme Court in the Kusheshwar's case (supra), Courts will decide whether the disciplinary proceedings should or should not be stayed pending the judicial consideration of the criminal proceedings. 6. In this case, it is not disputed, as indeed it cannot be, that the gravaman of the charges in the disciplinary proceedings pertain to violations of the Conduct Rules which are not the charges in so far as the criminal case is concerned. The violations include the acquisition of immovable property by an employee of the Madras Port Trust either in his own name or in the names of his family members without the prior permission of the competent authority or without reporting the transaction to him. The violation of the Conduct Rules is, therefore, an independent matter as compared to the charges in the criminal case which have been drawn up against the appellant. We are, therefore, not satisfied that this is a fit case in which an injunction should be issued in favour of the appellant to stay the departmental proceedings. We are influenced in taking this view also since we find that the appellant appears to be delaying the disposal of the disciplinary proceedings, which this court had ordered to be expedited in the earlier litigation between the parties, In Writ Petition No. 11063 of 1989 field by the appellant seeking the issuance of a writ of mandamus directing the second respondent to permit the appellant to be represented by a legal practitioner in the departmental proceedings, no grievance was made of the nature which has been projected in this writ petition, even though admittedly the criminal case had already been initiated and the disciplinary proceedings had commenced. This only shows that the appellant wants to delay the disposal of the disciplinary proceedings. Though charge No. 4 in the disciplinary proceedings and some of the allegations in the criminal case may overlap, that by itself does not justify the staying of the disciplinary proceedings in toto. 7. The technicality which the learned counsel for the appellant has projected before us in seeking a writ as prayed for is that the appellant in the disciplinary proceedings would have to disclose to some extent his defence which may be prejudicial to him in the criminal case. Keeping in view the facts and circumstances of this case, we find that the apprehension expressed is rather fanciful and not bona fide. The effort to delay the disposal of the disciplinary proceedings, which are pending for a sufficiently long time, shows that the narrow technicalities on which the appellant seeks to get an order to stay the proceedings in the disciplinary enquiry cannot be allowed, as it would amount to putting premium on dilatory tactics. Under these circumstances, the learned single Judge, in our opinion, was perfectly justified in recording a finding based on the materials before him that there was no justification to stay the disciplinary proceedings. In view of the specific directions given in Writ Appeal No. 144 of 1989 which arose out of the Judgment in Writ Petition No. 329 of 1989 that the disciplinary proceedings should be expedited, we find no reason now to grant the request of the appellant. The writ appeal has no merit. It fails and is dismissed.

Author: . A Anand

G. Chandrasekharan vs The Chairman, Madras Port Trust ... on 4 January, 1990

Madras High Court

ORDER Ravindra Singh, J. 1. Heard Sri Vinay Saran learned counsel for the petitioners, learned A.G.A. and Sri D. S. Tiwari learned counsel for the respondent No. 2. 2. This petition has been filed against the order dated 28-6-2002 passed by the Learned Judicial Magistrate, 1st class, Chhata, Mathura, in Criminal Case No. 27 of 2000, whereby cognizance was taken by the learned, Magistrate and the petitioners were summoned to face the trial for the offences punishable under Sections 498A, I.P.C. and 3/4 Dowry Prohibition Act and the judgment and order dated 21-10-2003 passed by the learned Additional Sessions Judge, Court No. 4, Mathura in Criminal Revision No. 214 of 2002 whereby the revision filed by the petitioners was dismissed. 3. It is contended by the learned counsel for the petitioners that one Rameshwar the father of Smt. Vimlesh ,the respondent No. 2 lodged an F.I.R. against the petitioners on 7-12-1999 in case crime No. 301 of 1999 under Section 498A and Section 3/4 Dowry Prohibition Act, P. S. Chhata, district Mathura, which was investigated by the police thereafter, the I.O. came to conclusion that the petitioners were falsely implicated in the case, therefore final report was submitted by the I.O. in the Court in favour of the petitioners. Against that final report Rameshwar the rather of the respondent No. 2 filed protest petition dated 17-5-2000. That protest petition was treated as complaint by the learned Magistrate on 12-2-2002 and Rameshwar the father of the respondent No. 2 was directed to appear before the Court for recording his statement under Section 200, Cr.P.C. The statements of Rameshwar and the witnesses namely Smt. Vimlesh respondent No. 2, Deen Dayal and Tej Ram were recorded under Sections 200 and 202, Cr.P.C. After recording the statements of the Rameshwar and above named witnesses the learned Judicial Magistrate took the cognizance and summoned the petitioners on 28-6-2002 to face the trial for the offences punishable under Section 498A, I.P.C. and Sections 3/4 Dowry Prohibition Act. Against this order the petitioners have filed Criminal Revision No. 214 of 2002, which was dismissed by the learned Additional Sessions Judge, Court No. 4, Mathura on 21-10-2003. 4. It is contended by the learned counsel for the petitioners that Rameshwar lodged the F.I.R. against the petitioners in which final report was submitted by the I.O. The learned Magistrate issued notice to the first informant Rameshwar, who filed the protest petition dated 17-5-2000 in the Court of learned Judicial Magistrate. Rameshwar has not prayed therein that the protest petition may be treated as complaint. Even then without considering the police report the learned Judicial Magistrate considered the averments made by Rameshwar in the protest petition and passed the order dated 12-2-2002 treating the protest petition as complaint and Rameshwar was directed to appear before the Court for recording his statement under Section 200, Cr.P.C, it is illegal order. 5. It is contended that the learned Magistrate took the cognizance and summoned the petitioners on 28-6-2002 on the basis of the statements of the complainant and the witnesses recorded under Sections 200 and 202. Cr.P.C. to face the trial for the offences punishable under Sections 498A, I.P.C. and 3/4 Dowry Prohibition Act. The impugned order dated 28-6-2002 is also illegal order because the learned Magistrate has not considered police report at all and has not passed any order in respect of the police report. 6. It is further contended by the learned counsel for the petitioners that Rameshwar the father of the respondent No. 2, who lodged the F.I.R. and filed the protest petition, has died in an accident on 15-7-2003 during the pendency of the revision in the Court of learned Additional Sessions Judge, Court No. 4, Mathura, so the petitioners have made necessary respondent No. 2 Smt. Vimlesh (main aggrieved person) the daughter of the Rameshwar and the wife of the petitioner No. 1. Her statement was recorded by the learned Magistrate under Section 202, Cr.P.C. Smt. Vimlesh respondent No. 2 has filed Criminal Case No. 12 of 2000 (new number 11/XI of 2002) under Section 125, Cr.P.C. against the petitioner No. 1 and the petitioner No. 1 filed Matrimonial case No. 157 of 1997 under Section 13 of the Hindu Marriage Act against the respondent No. 2, but the petitioner No. 1 and respondent No. 2 Smt. Vimlesh have settled all the disputes amicably and have arrived in a compromise by forgiving all the differences arose between them and they have filed compromise application in above mentioned cases. The case No. 11/8/2002 under Section 125, Cr.P.C. pending in the Court of the learned Judicial Magistrate, 1st Class, Chhata, district Mathura, which has been decided on 23-8-2004 in the light of the terms and conditions of compromise filed in the Court and the Matrimonial Case No. 157 of 1997 filed by the petitioner No. 1 under Section 13 of the Hindu Marriage Act has also been decided on 26-9-2004 in the light of terms and conditions of the compromise filed by the parties. The respondent No. 2 herself has filed supplementary affidavit mentioning therein that she has settled all the dispute with the petitioner No. 1 and there is no difference between them, so the criminal proceedings of the present case pending in the Court of learned Judicial Magistrate, 1st class, Chhata, Mathura may be quashed. In such circumstances the criminal proceeding pending against the petitioners may be quashed. In support of his submissions the learned counsel for the petitioners has placed reliance on the Apex Court decision of the case B. S.. Joshi v. State of Haryana, (2003) 4 SCC 675 : (2003 Cri LJ 2028), in which it was held by Hon'ble Supreme Court that it becomes the duty of the Court to encourage genuine settlements of matrimonial disputes and the High Court in exercise of its inherent powers can quash the criminal proceedings or F.I.R. or complaint and the provisions of Section 320, Cr.P.C. does not limit or affect the powers under Section 482 of the Code. Learned counsel for the petitioners has also placed reliance on the case decided by a single Judge of this Court (Hon'ble C. P. Misra, J.) i.e. Jayabrata Bhattacharjee v. State of U. P., decided on 22-11-2004 in Criminal Misc. Application No. 6168 of 2004, in which the criminal proceedings on the basis of compromise were quashed by holding that no useful purpose is likely to be served by allowing a criminal prosecution to continue and further chances of ultimate conviction are bleak as there is no chance of opposite party No. 2 further supporting the case in this regard against the accused. The learned counsel for the petitioners has cited another decision of single Judge of this Court (Hon'ble Ravindra Singh, J.) M/s. BACFO Pharmaceutical (India) Limited v. State of U. P. in Criminal Misc. Writ Petition No. 7950 of 2004 decided on 6-10-2004 in which on the basis of the compromise the proceeding of a criminal complaint were quashed. 7. It is further contended by the learned counsel for the petitioners that the revisional Court has not considered this aspect properly. The learned revisional Court has also committed the mistake by not considering the errors committed by the learned Magistrate and passed the order without applying his judicial mind, so the order dated 21-10-2003 passed by the revisional Court is also illegal order. 8. Sri D. S. Tiwari learned counsel for the respondent No. 2 filed supplementary affidavit on behalf of Smt. Vimlesh respondent No. 2 in which she has clearly mentioned that she has no objection if the present writ petition is allowed and prosecution of the petitioners is quashed. In support of the supplementary affidavit she has filed certified Copy of the order dated 23-8-2004 (Annexure No. SA-1) passed by the learned Judicial Magistrate, 1st class, Chhata, Mathura and the order dated 26-9-2004 (Annexure No. SA-2) passed by the learned Civil Judge (S.D.), Hathras in Matrimonial Case No. 157 of 1997 under Section 13 of the Hindu Marriage Act. 9. Sri D. S. Tiwari learned counsel for the respondent No. 2 submitted that she has no objection if the criminal proceedings pending in the Court of Judicial Magistrate, 1st Class, Chhata against the petitioners are j quashed because both the parties have come into compromise. 10. In view of the facts and circum-stances of the case and submissions made by the learned counsel for the petitioners, A.G.A. and the learned counsel for the respondent No. 2 it is clear that the F.I.R. was lodged by one Rameshwar against the petitioners under Section 498A, I.P.C. and Sections 3/4 Dowry Prohibition Act, in which investigation was done by the I.O., who came to the conclusion that the petitioners were falsely implicated so he submitted final report in favour of the petitioners, Rameshwar (the first informant) filed protest petition, which was treated as a complaint by the learned Magistrate, 1st class, Chhata, Mathura on 12-2-2002 and the first informant was directed to appear before the Court for recording his statement under Section 200, Cr.P.C. From the perusal of the order dated 12-2-2002 it appears that the learned Magistrate has not considered the police report at all, even there was no allegation made by the first informant against the I.O. that statements of the witnesses were not recorded or not recorded correctly and the first informant has not prayed at all to treat his protest petition as a complaint. The learned Judicial Magistrate is under obligation to consider the police report (final report) containing the evidence collected by the I.O., if he is satisfied that during investigation the statements of the witnesses are not recorded or not recorded correctly or fair investigation is not done by the I.O. then they can direct for reinvestigation or the protest petition filed by the first informant may be treated as complaint. The learned Magistrate is under obligation to record his finding on the final report because to consider the final report the notice is issued to the first informant. In the present case the learned Magistrate has not considered the final report and no finding has been recorded in respect of final report, so the order dated 12-2-2002 is illegal. 11. To consider the next contention of the learned counsel for the petitioners the perusal and consideration of the order dated 28-6-2002 passed by the learned Judicial Magistrate, 1st class, Chhata taking the cognizance against the petitioners and summoning them to face the trial for the offences punishable under Section 498A, I.P.C. and Sections 3/4 Dowry Prohibition Act, is necessarily required, from its perusal it appears that he has not considered the police report at the time of taking cognizance and no order has been passed on the police report. The learned Magistrate is under obligation to pass the order on the police report but in the present case the learned Magistrate has not considered the police report and no order was passed at the time when the protest petition was treated as complaint, even at the stage of taking cognizance against the petitioners also no order on police report (Final Report) was passed, therefore, the order dated 28-6-2002 is also illegal. 12. In respect of last contention of the counsel for the petitioners, the perusal of the records shows that the supplementary affidavit filed by the respondent No. 2 clearly shows that both the parties have come into compromise and the matter has been settled outside the Court. The compromise application has been filed in a case filed by the respondent No. 2 under Section 125, Cr.P.C. which has been decided in the terms and condition of the compromise on 23-8-2004 and the Matrimonial Case No. 157 of 1997 filed by the petitioner No. 1 against the respondent No. 2 under Section 13 of the Hindu Marriage Act, has also been decided in the terms and conditions of the compromise on 26-9-2004 by the learned Civil Judge (S.D.), Hathras. The respondent No. 2 has clearly mentioned in supplementary affidavit that the parties have settled their entire dispute and they have arrived into compromise, so she has no objection if the present petition is allowed and the prosecution of the petitioners is quashed. In such circumstances it will not be proper to remit this matter to the Court of learned Magistrate concerned to pass a fresh order after considering the final report, in accordance with the provisions of law and to direct the parties to file compromise in the Court of learned Judicial Magistrate, Chhata, Mathura for passing appropriate orders because it will be a futile exercise and abuse of the process of law. 13. After considering the facts and circumstances of the present case as discussed above and the views taken by the Apex Court and the High Court in the cases, as mentioned above, the criminal proceedings against the petitioners in Criminal Case No. 27 of 2000 pending in the Court of the learned Judicial Magistrate, 1st class, Chhata, Mathura under Sections 498A, I.P.C. and 3/4, Dowry Prohibition Act, are quashed and the impugned orders dated 12-2-2002 and 28-6-2002 passed by learned Judicial Magistrate, 1st Class, Chhata and the order dated 21-10-2003 passed by the learned Additional Sessions Judge, Court No. 4, Mathura in Criminal Revision No. 214 of 2002 are set aside. 14. Accordingly, the petition is allowed.

Author: R Singh

Vijendra Sharma Alias Vijendra ... vs State Of U.P. And Ors. on 12 January, 2005

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Con.Case(C).No. 1595 of 2008(S) 1. DR.VIMAL.V.V., S/O.K.VIJAYAN, AGED ... Petitioner Vs 1. VISWAS METHA, FATHER'S NAME NOT KNOWN, ... Respondent 2. GEETHA, HUSBAND'S NAME NOT KNOWN, For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR For Respondent :GOVERNMENT PLEADER The Hon'ble the Chief Justice MR.H.L.DATTU The Hon'ble MR. Justice A.K.BASHEER Dated :24/11/2008 O R D E R H.L.Dattu, C.J. & A.K.Basheer, J. ---------------------------------------------- Cont.Case (C).No.1595 of 2008-S ---------------------------------------------- Dated, this the 24th November, 2008 JUDGMENT H.L.Dattu Chief Justice A.K.Basheer vku/- Judge  H.L.Dattu,C.J. In view of the orders passed by the apex Court, in Special Leave Petition (Civil).No.28009-28010 of 2008, dated 21.11.2008, for the present, we need not have to entertain this contempt petition. Accordingly, the contempt petition is closed. (2) However, liberty is reserved to the petitioner-complainant to approach this Court, if need arises in future. Ordered accordingly.

Dr.Vimal.V.V. vs Viswas Metha on 24 November, 2008

Kerala High Court

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Reeta Yadav vs Vice Chancellor, V.B.S. ... on 25 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.416 of 2009 IN (CWJC 9682/2008) ============================================ RAKESH KUMAR - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================= With LETTERS PATENT APPEAL No.521 of 2009 IN (CWJC 10387/2008) ============================================== SHASHI PRABHA MANI - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) =============================================== with LETTERS PATENT APPEAL No.1014 of 2009 IN (CWJC 9956/2008) ============================================== LUSY KUMARI - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) =============================================== with LETTERS PATENT APPEAL No.933 of 2008 IN (CWJC 9446/2008) =============================================== ARCHANA KUMARI SINHA - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ================================================ with LETTERS PATENT APPEAL No.934 of 2008 IN (CWJC 10121/2008) =========================================== RUPA KUMARI - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) =========================================== with 2 LETTERS PATENT APPEAL No.956 of 2008 IN (CWJC 9444/2008) =========================================== NADIR FAISAL - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) =========================================== with LETTERS PATENT APPEAL No.1497 of 2009 IN (CWJC 2813/2009) ============================================ ROHIT KUMAR GUPTA - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================ with LETTERS PATENT APPEAL No.1576 of 2009 IN (CWJC 2761/2009) ============================================ KAMESHWAR JEE PRASAD - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================= with LETTERS PATENT APPEAL No.816 of 2009 IN (CWJC 3401/2009) ============================================ KANCHAN KUMARI - Appellant (s) Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================== with LETTERS PATENT APPEAL No.83 of 2010 IN (CWJC 3223/2009) ============================================ RINKU RANJAN KUMAR - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================= with LETTERS PATENT APPEAL No.125 of 2009 3 IN (CWJC 11241/2008) ============================================= SANJEEV KUMAR - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================== with LETTERS PATENT APPEAL No.1238 of 2010 IN (CWJC 17792/2009) ============================================== SHYAM BABU & ANR - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) =============================================== Appearance : (In LPA No.416 of 2009) For the Appellant : Mr. EBRAHIM KABIR Mr. SHRUTI SINGH For the Respondent: Mr. (GA8) Mr. P.K.SHAHI Mr. ARCHANA MEENAKSHEE Mr. RAJ KUMAR Mr. ARCHANA SINHA (In LPA No.521 of 2009) For the Appellant : Mr. RAJEEV KUMAR SINGH Mr. NAWAL KISHORE SINGH Mr. ONKAR KUMAR Mr. RAKESH KUMAR SINGH For the Respondent: Mr. (GA9) Mr. P.K.SHAHI (In LPA No.1014 of 2009) For the Appellant : Mr. RAM SUMIRAN RAI Mr. AJAY Mr. KRISHNA CHANDRA For the Respondent: Mr. (GA5) Mr. P.K.SHAHI (In LPA No.933 of 2008) For the Appellant : Mr. RAJEEV KUMAR SINGH Mr. ONKAR KUMAR Mr. ARVIND KUMAR SINGH Mr. NAWAL KISHORE SINGH For the Respondent: Mr. (GP12) Mr. P.K.SHAHI (In LPA No.934 of 2008) For the Appellant : Mr. RAJEEV KUMAR SINGH Mr. NAWAL KISHORE SINGH Mr. ONKAR KUMAR For the Respondent: Mr. (AAG11) Mr. P.K.SHAHI 4 (In LPA No.956 of 2008) For the Appellant : Mr. RAJEEV KUMAR SINGH Mr. ONKAR KUMAR Mr. NAWAL KISHORE SINGH Mr. RAKESH KUMAR SINGH For the Respondent: Mr. (SC12) Mr. P.K.SHAHI (In LPA No.1497 of 2009) For the Appellant : Mr. ARVIND KUMAR SINGH Mr. RAKESH KUMAR SINGH For the Respondent: Mr. (In LPA No.1576 of 2009) For the Appellant : Mr. RAJEEV KUMAR SINGH Mr. MRITYUNJAY KUMAR Mr. NAWAL KISHORE SINGH Mr. ALOK KUMAR SINGH Mr. MD.JUBAIR ANSARI For the Respondent: Mr. (GA3) Mr. P.K.SHAHI (In LPA No.816 of 2009) For the Appellant : Mr. NARESH DIKSHIT Mr. LALAN KUMAR I For the Respondent: Mr. (In LPA No.83 of 2010) For the Appellant : Mr. RAJEEV KUMAR SINGH Mr. RAKESH KUMAR SINGH Mr. ONKAR KUMAR Mr. MUKESH KUMAR SINGH Mr. ARVIND KUMAR SINGH For the Respondent: Mr. Mr. (SC10) (In LPA No.125 of 2009) For the Appellant : Mr. DR.SHASHI S.KISHORE Mr. SHIVPUJAN SAHAY Mr. M.K.CHOUDHARY For the Respondent: Mr. (SC6) Mr. P.K.SHAHI (In LPA No.1238 of 2010) For the Appellant : Mr. SHRUTI SINHA@SHRUTI SINGH For the Respondent: Mr. (AAG10) ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER(Per: HONOURABLE THE CHIEF JUSTICE) 5 6. 08.9.2010. At the request of the learned Advocates, stand over to 20th September 2010 at 2 P.M. (R. M. Doshit, CJ) (Jyoti Saran, J) ahk

Shyam Babu &Amp; Anr vs The State Of Bihar &Amp; Ors on 8 September, 2010

Patna High Court - Orders

ORDER Thanikkachalam, J. 1. This revision is directed against the order passed in R.C.A. No. 242 of 1986, which in turn arose out of the order passed in R.C.O.P. No. 472 of 1981. The tenant is the petitioner herein. The petition for eviction was filed under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, XVIII of 1960, (hereinafter referred to as the 'Act'). In the petition for eviction it is stated asunder: The petition premises is situate at No. 11-12, East Chitrai Street, Madurai. The tenant is a partnership firm represented by one of its partners SP.P.S. Shanmugham Chettiar. The tenant is conducting a medical shop in the petition premises, on a monthly rent of Rs. 825. The owner of the petition premises is also a partnership firm represented by one of its partners. The landlord is carrying on business in glass and enamel wares and as general merchants in 90-92, East Avanimoola Street, Madurai. The petition premises is situate just behind the premises at door Nos. 90 to 92, East Avanimoola Street. The landlord is having its godowns in a rented premises at No. 8, Mela Nappalaya Street, Madurai and in two other rented premises at Lakshminarayanapuram Agraharam, Madurai to store its goods. The owner of the premises at door No. 8, Mela Nappalaya Street, Madurai filed eviction proceedings against the landlord, herein and obtained an order of eviction. Therefore, the landlord herein was compelled to surrender possession of premises at No. 8, Mela Nappalaya Street, Madurai to its owner. The other two godowns which are rented premises at Lakshminarayanapuram Agraharam, Madurai are far away from the place of business conducted by the landlord. The landlord desires to locate its godown very near to its business place so as to prevent breakage of glasswares in transit from the godown to the shop premises. Further according to the landlord, if the godown is near to the shop premises it will be easy for it to handle the goods by minimising the damages. With this bona fide desire in view, the landlord herein issued a notice to the petitioner herein on 7.4.1981 calling upon the tenant to quit and deliver vacant possession. The tenant sent a reply dated 11.4.1981 setting forth its defence. 2. In the counter filed by the tenant, (sic) stated as under:- The tenant is in occupation of the petition premises for the past many years. Originally, the rent was Rs. 450 and the same was increased periodically and at present the rent is Rs. 825 p.m. It is true that the owner of the premises at No. 8, Mela Nappalaya Street, obtained an order of eviction against the landlord herein. The landlord herein is also in occupation of the other two rented premises in Lakshminarayanapuram Agraharam. This would go to show that originally the landlord does not want to utilise the petition premises as godown and therefore it took on rent the premises at Lakshminarayanapuram Agraharam for storing their goods. Hence, from the beginning the respondent does not want to utilise the petition premises as godown, since it is built for the purpose of running a shop. The petition premises is not fit for using the same as godown, only to cause hardship to the petitioner herein and to enhance the rent, the landlord filed the present eviction petition. Therefore, it was submitted that there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. One Kadhar Ibrahim was examined as P.W.1 and one Swaminathan was examined as R.W.1. The landlord filed 4 documents. No document was filed on behalf of the tenant. Considering the facts arising in this case, the rent controller came to the conclusion that there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Accordingly, the eviction petition was dismissed. On appeal, the Rent Control Appellate Authority came to the conclusion that there is bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act and accordingly the appellate authority reversed the order passed by the Rent Controller, allowed the appeal and ordered eviction. It is against this order, the present revision has been preferred by the tenant. 3. The learned Senior Counsel Mr. M.R. Narayanaswamy, appearing for the tenant/petitioner herein submitted as under:- The rent control appellate authority was not correct in reversing the well reasoned order of the rent controller. Admittedly, the landlord is carrying on its business in its own premises at Nos. 90-91, East Avanimoola street, Madurai and hence the respondent herein, (the landlord) cannot claim any other non-residential building its own by invoking Section 10(3)(a)(iii) of the Act. in order to obtain the remedy under Section 10(3)(a)(iii) of the Act, the landlord should satisfy the court that he is carrying on business in a non-residential building in the city, town or village concerned, which is not of his own. Unfortunately, this aspect has been completely lost sight of by the authorities below, which decided the issue arising in this case. Even if this objection is not specifically raised by the tenant in the counter statement, since this matter goes to the root of the jurisdiction of the authority concerned it can be raised at any stage. It is settled law that Section 10(3)(a)(iii) of the Act can come to the assistance of the landlord only if he is not occupying any other non-residential building of his own in the city, town or village. The fact that the landlord was compelled to surrender the possession of another rented premises being used as godown, by itself would not entitled the landlord to ask for eviction of the petitioner herein. Even in the pleadings, the petition premises is required only for carrying on glassware business, which is already being carried on in its own premises. Therefore, the authority below should have seen that without going into the merits of the claim, the petition is liable to be dismissed even at the threshold. The question of bona fide and the exact need are always interrelated. Apart from other things, it is incumbent on the part of the landlord to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Premises Nos. 90 to 92, Avanimoola Street, is a two storeyed building. The landlord is carrying on its business in the ground floor. The second floor is also in the possession of the landlord. In the first floor one portion was occupied by an auditor. Recently, he vacated the portion under his occupation. Another portion in the first floor was under the occupation of Ramanathapuram Chamber of Commerce. The Chamber of Commerce constructed a building of their own and therefore they are also moving out of the first floor. Therefore, now the entire first and second floor in the premises at Nos. 90 to 92, Avanimoola street are available to the landlord. If the landlord really needs any accommodation for storing their goods in a nearby place it can utilise the first and second floor. But the landlord does not want to do the same. The portions under the occupation of the auditor and the Chamber of Commerce are similar in extent like the portion under the occupation of the tenant herein. Hence it cannot be said that the portions under the occupation of the auditor and the Chamber of Commerce are not sufficient and suitable for godown purposes. The landlord demanded higher rent and when the tenant refused to pay the same, the landlord came forward with this eviction petition. Therefore, there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Accordingly it was pleaded that the order passed by the appellate authority is liable to be set aside. 4. On the other hand, the learned Senior Counsel Mr.Palpandian appearing for the respondent/ landlord submitted as under:- The requirement of the petition premises by the landlord under Section 10(3)(a)(iii) of the Act is bona fide. Admittedly, the landlord was evicted from one of its godowns at Mela Nappalaya Street. The other two godowns are also rented premises, and they are far away from the business premises of the landlord and hence there is nothing improper on the part of the landlord to have a desire to locate its godown in the petition premises, which is admittedly situate immediately behind the premises at Nos. 90 to 92, Avanimoola Street. The landlord is carrying on business in glasswares and hence it is necessary that the godown should be situate very close to its business premises. As otherwise the landlord would incur heavy losses in the transit of goods, which are to be handled with care. It is not correct to state that the petition premises is unfit for godown purposes. In fact, the tenant is using a portion of the petition premises for godown purposes. The landlord is requiring the petition premises for different purpose viz., for godown. Therefore, the fact that the landlord is having another premises of its own in which it is carrying on its business cannot be said to be an impediment in obtaining possession under Section 10(3)(a)(iii) of the Act. The first floor in premises Nos. 90 to 92 is not fit for godown purposes. It is not correct to state that the landlord demanded higher rent. It was therefore pleaded that the appellate authority was correct in ordering eviction under Section 10(3)(a)(iii) of the Act. 5. I have heard the rival submissions. 6. The petition for eviction was filed under Section 10(3)(a)(iii) of the Act. The petition premises is situate at door Nos. 11 and 12, East Chitrai Street, Madurai. The tenant is a partnership firm and it is conducting a medical shop in the petition premises known as SP.S.S. Medical Hall. The owner of the premises is also a partnership firm. The landlord is carrying on its business at Nos. 90 to 92, East Avanimoola Street, Madurai. The petition premises is situate immediately behind the premises at Nos. 90 to 92, East Avanimoola Street. The landlord is carrying on business in Glass and Enamel wares business. The landlord is carrying on its business both in wholesale and retail in the abovesaid premises. At the time when the petition for eviction was filed, the landlord was having one of its godown for storing its goods at Melanapalayam Street. In the rent control proceedings, the landlord herein was directed to hand over the possession of the said premises. The landlord is also having its godown at two other places in Lakshminarayanapuram Agraharam. The respondent firm's manager was examined as P.W.I. According to him, possession of the godown at Melanapalayam street was already handed over to the owner of the premises. According to him, the goods stored at Melanapalayam street godown were brought back and stored in the premises at Avanimoola Street. Therefore there is shortage of place, for business purposes. The other two godowns at Lakshminarayanapuram are far away from the premises at Nos. 90 to 92, East Avanimoola Street. According to the landlord since the petition premises is very near to the place in which the landlord is carrying on its business, if the possession of the same is handed over to it, it would be of great advantage to it in carrying on its business. According to the landlord, it is now very difficult for them to bring their goods from the godowns at Lakshminarayanapuram Agraharam on account of the distance. Due to the distance the landlord is incurring a lot of damages to the goods, since the goods in which they are conducting their business is very delicate and they should be handled with care. Therefore, according to the landlord, the petition premises is a convenient place for them to use the same as their godown for the purpose of storing their goods so as to enable them to bring the goods easily from the godown to their business place. Further, it was submitted that if the goods arestored in the first floor and brought back to the ground floor for business purposes that would cause lot of damages to the goods. Therefore, the landlord required the petition premises for the purpose of its godown under Section 10(3)(a)(iii) of the Act. The tenant pointed out that admittedly the landlord is carrying on its business in a premises of its own at Nos. 90 to 92, East Avanimoola Street. Therefore, there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. According to the tenant, the premises at Nos. 90 to 92, East Avanimoola Street, is having three floors. In the ground floor landlord is carrying on its business. The second floor is under its possession. The tenants in the first floor handed over the possession to the landlord. Hence, the landlord can utilise the first floor for its godown purposes. Therefore according to the tenant, there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Now it remains to be seen that the landlord is having a premises of its own at Nos. 90 to 92, East Avanimoola Street other than the petition premises. In the said premises the landlord is carrying on its business in glass and enamel wares. As per the provisions of Section 10(3)(a)(iii) of the Act, a landlord is not entitled to ask for eviction under this provision if he is in occupation of a non-residential premises of his own, where, he is doing his business. Admittedly, the landlord herein is the owner of the premises at Nos. 90 to 92, East Avanimoola Street wherein it is carrying on its business. Therefore, according to the tenant, even on this ground the petition for eviction is liable to be dismissed. 7. this aspect was neither brought to the notice of the authorities below nor it was considered by the authorities below. But the facts are already on record. In fact, it is the duty of the authorities below to apply the correct law on the facts available on record. But, the authorities below failed to do so. Since this question goes to the root of the matter relating to the jurisdiction of the authorities below it can be considered at this stage. 8. A similar question came up for consideration before this court in the case of M/s. Glamour Saree Museum v. The Tamil Nadu Handloom Weavers' Co-operative Society (1969)2 M.L.J. 493, wherein this Court held as under: By the language employed in Section 10(3)(a)(iii) it is clear that if a landlord is carrying on a business in a non-residential premises of his own that will be a bar to his obtaining an order of eviction in respect of another premises. It does not appear to be the intention of the provision that the test is every business considered separately. It is not as if that if a landlord is having several businesses and is occupying a non-residential premises of his own in which he is carrying on one of the businesses, he is permitted by the provision to get possession of other non-residential premises of his own for carrying on every one of the other businesses. So also, while considering the provisions of Section 10(3)(a)(iii) of the Act, a Division Bench of this court in the case of L.Easwaran Chettiar v. K.Subbarayan , held as under: "A landlord is interdicted from seeking a non-residential building of his own in occupation of a tenant if and when he is already in such a non-residential building of his own in which he is carrying on business. Considerations that the non-residential building occupied by the landlord is insufficient for the business he is carrying on is alien to the clear provisions of the law. The words 'a business' in Sub-clause (a)(iii) mean 'any business'. Convenience of the landlord or his desire to expand his business are irrelevant. He may merit an order of eviction but law as it stands precludes him from getting eviction of tenant." 9. In this context, it is pertinent to note that a similar question came up for consideration before the Full Bench of the Andhra Pradesh High Court in the case of Smt. Udhya Bai v. Shankarlal A.I.R. 1968 A.P. 184, wherein the Full Bench of the Andhra Pradesh High Court held as under: Under Section 10(3)(a)(iii) of the Act, a landlord in occupation of a non-residential building is not entitled, for carrying on his business or for commencing a business, to get back possession of another non-residential building in the occupation of a tenant; the bar under the section against securing eviction of the tenant of such non-residential building is absolute; suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord or to meet the bona fide need of any other member pf the family of the landlord, independent of and over and above the need of the landlord, are all irrelevant considerations in the context of construing the provisions in Section 10(3)(a)(iii) of the Act, which in clear terms, from seeking recovery of the non-residential building belonging to him in the occupation of the tenant. Thus, it remains to be seen in the instant case also the landlord is having a business premises of its own at Nos. 90 to 92 East Avanimoola Street, in which the landlord is carrying on its own business. A plain reading of Section 10(3)(a)(iii) of the Act in the light of the ratio adumbrated in the abovesaid decisions would go to show that in the present case also there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. 10. But the matter did not rest there. The Supreme Court stipulated further conditions in obtaining an order of eviction under Section 10(3)(a)(iii) of the Act in the following manner in the case of Hameedia Hardware Stores v. B. Mohan Lal Sowcar . By merely proving that the premises in question is a non-residential building and that the landlord or any member pf his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10(3)(a)(iii) appears get a tenant evicted, He must show in view of Clause (e) of Section 10(3) that his claim is bona fide. The word 'claim' means 'a demand for something as due' or 'to seek or ask for on the ground of right' etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of building amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord's requirement or need. 11. In the instant case, it remains to be seen that the landlord is carrying on business in the ground floor at Nos. 90 to 92, East Avanimoola Street. The second floor is already in its possession. The auditor and the Chamber of Commerce are stated to have handed over the possession. Hence, the first floor is also under the possession of the landlord. The landlord was having three godowns for storing its goods. Possession of one godown at Melanappalayam was surrendered and the goods are now kept in its business premises. Two other godowns are at Lakshminarayanapuram Agraharam. According to the landlord the godowns at Lakshminarayanapuram are far away and in transit the goods are getting damaged and hence it wanted its godown in a nearby place to its business premises. The fact remains that first and second floor in the same premises where the landlord is carrying on its business are available. All the three floors in the said premises are of the same size. Now the landlord wanted the petition premises for godown purpose even though two floors in the same premises at Nos. 90 to 92, East Avanimoola Street are available. In such circumstances, the question is whether the requirement of the landlord is bona fide and honest. According to the landlord if the goods are stored in the first floor, and brought back to the ground floor for business purposes then there would be lot of damages to the goods. This kind of reasoning appears to be unacceptable, especially when the adjoining premises is under the occupation of a statutory tenant. No doubt it is not for the tenant to suggest as to which of the portion would be suited for the business of the landlord. But the point is under the given circumstances whether the requirement of the landlord of the petition premises under Section 10(3)(a)(iii) of the Act is bona fide when the other portions in the same premises are available to the landlord, which are also suitable for the landlord's godown purposes. 12. To my mind if the adjoining premises is nearer and advantageous to the ground floor of the premises Nos. 90 to 92, East Avanimoola Street then equally the first and second floor of the same premises are also nearer and advantageous to the ground floor. Thus, a close scrutiny of the facts arising in this case would go to show that the requirement of the landlord of the petition premises under Section 10(3)(a)(iii) of the Act appears to be not genuine. Even if the possession of the petition premises is not given that would not cause great hardship to the landlord. Therefore, even looking at this angle also the request of the landlord is not bona fide. 13. Another contention put forward by the learned Counsel for the landlord was that carrying on business is different from storing materials in a godown and the landlord required the petition premises for the purpose of using the same as godown. Therefore according to the learned Counsel the requirement of the petition premises is not for the purpose of running the business which the landlord is carrying on its own premises. Accordingly, since the petition premises is required for different purpose viz., for using the same as godown, the requirement is bona fide under Section 10(3)(a)(iii) of the Act. Further, according to the learned Counsel, the landlord is not having a premises of its own which it is using for godown purpose. In fact the landlord is using the rented premises for the purpose of godown. Therefore, according to the learned Counsel the landlord is entitled to an order of eviction under Section 10(3)(a)(iii) of the Act. The point is whether carrying on business in a particular commodity and storing the same commodity in a godown are two different kinds of businesses, as contended by the learned Counsel for the landlord. This contention cannot be accepted because storing the commodities in a godown and selling the same in the business premises of its own are different components of the same business and they are not two different kinds of businesses. Even assuming that the landlord is using the rented godown for one purpose and using the premises of its own for different purpose viz., for selling the goods, on this basis also eviction of the petition premises cannot be asked under Section 10(3)(a)(iii) of the Act, since eviction on this basis is not envisaged under the abovesaid provision of the Act. In order to support this line of argument, reliance was placed upon a decision of this court in Gulamali v. Howrah Casting Company Madras (1978)1 M.L.J. 218. According to the facts arising in this case: The revision petitioners were owners of 25, Errabalu Chetty Street, Madras. The respondents were tenants in various portions of the building. The second petitioner was carrying on business in pipe and sluice valves under the name of International Sales Corporation" in door No. 3/13, Vanniar Street, Madras, being rented premises. The revision petitioners carried on a different business at No. 25, Errabalu Chetty Street, Madras. Stating that the second petitioner bona fide required the portions in the occupation of the respondent herein for his own business purposes, petitions for eviction under Section 10(3)(a)(iii) of Tamil Nadu Act XVIII of 1960, were filed. On these facts, this Court held as under: The legal position would boil down to this; did the landlord seek eviction of the tenant from a non-residential building belonging to him with reference to a business, which he was carrying on in a rented premises. If that is so, Section 10(3)(a)(iii) would apply albeit he was carrying on another business either individually or in partnership in the non-residential premises owned by him. This interpretation is in accordance with the object of the Act. viz., this was not a case of unreasonable eviction. It would be rather very reasonable for a landlord to have his business which was of a different nature run in the premises owned by him, rather than suffer the tenancy for all time to come merely because he happened to be a partner in some other business which was being carried on in a portion of a non-residential premises. In the case of Muslim co-sharers, it was not unknown that fractional shares were held by them and if the law was not to be interpreted in this manner, then it would affect the right of a landlord, which was certainly not the policy of the Act. Thus according to the facts arising in the abovesaid decision the landlord was doing two different kinds of businesses in two different commodities and one such business was conducted in a rented premises. But the facts arising in the present case are different and therefore the abovesaid decision will not render any assistance to the respondent herein to establish its case. 14. Further, this Court took the abovesaid view in the case of Gulamali v. Howrah Casting Company Madras (1978) 1 M.L.J. 218, after taking into consideration of a Division Bench decision of this Court rendered in C.R.P. No. 2343 of 1971 dated 2.5.1973 in the case of V.R. Jayaram v. N.B. Ramalingam. In the abovesaid decision, this Court was of the following view: In other words, if a landlord is carrying on two different businesses, one may in jewellery, in a building of his own, and the other, may in timber, in a rented building, he would be entitled to relief under Section 10(3)(a)(iii) for shifting the timber business to a third building, which is his own but in the occupation of a tenant. In such case, the timber business of the landlord in the rented building satisfied the clause "a business which is carrying on" occurring in the above section." Again, this view was taken by the Division Bench of this Court in C.R.P. No. 2343 of 1971 by following the decision of another Division Bench of this court rendered in C.R.P. No. 4164 of 1950 in the case of Ramalinga Moopanar v. V.S. Narayana Iyer (1951) 1 M.L.J. (N.R.C.) 7. A close reading of the decision rendered by the Division Bench of this court in the case of Eswaran Chettiar v. Subbarayan , and yet another decision rendered by another Division Bench of this Court in C.R.P. No. 2343 of 1971 dated 2.5.1973 in the case of V.R. Jayaraman v. N.B. Ramalingam, would go to show that the abovesaid two Division Benches of this court understood and expressed the meaning of the words 'a business' occurring in Section 10(3)(a)(iii) of the Act, in two different manners according to the facts arising in those cases. But anyhow we are not concerned with the same in the instant case. According to the facts arising in the present case, the landlord is not carrying on two different businesses in two different commodities as in those cases. 15. Therefore, in the present case, the landlord cannot ask for eviction of the petition premises for using the same as its godown under Section 10(3)(a)(iii) of the Act, since the landlord is carrying on its business in a premises of its own in the same town, where there is sufficient place available for the landlord to utilise the same as its godown. A plain reading of the order passed by the Rent Control Appellate Authority would go to show that it failed to appreciate the facts arising in this case in proper perspective. 16. Thus, on a careful consideration of the facts arising in this case, in the light of the judicial pronouncements cited supra, I hold that the Rent Control Appellate Authority was not correct in reversing the order passed by the Rent Controller in dismissing the petition. Accordingly, the order passed by the Rent Control Appellate Authority is set aside and that of the Rent Controller restored. 17. In the result, the civil revision petition is allowed. But there will be no order as to costs.

Author: Thanikkachalam

Sp.S.S. Medical Hall, A ... vs S. Ibrahim And Co. A Regd. ... on 24 September, 1991

Madras High Court

Gujarat High Court Case Information System Print SCA/4797/2011 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4797 of 2011 ========================================================= SHANTABEN W/O RAMESHBHAI LALJIBHAI BHILWAL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS KRISHNA U MISHRA for Petitioner(s) : 1, Ms.Manisha L Shah, AGP for Respondent(s) : 1, 3, RULE SERVED BY DS for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 21/07/2011 ORAL ORDER1. This petition is directed against the order of detention dated 3.4.2011 passed by respondent no.2, in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short "the Act") by detaining the detenue as a "bootlegger" as defined under Section 2(b) of the Act. 2. Learned advocate for the detenue submits that registration of FIR/s itself cannot lead to disturbance of even tempo of public life and therefore the public order. The order of detention is assailed by the detenue on various grounds mentioned in the memo of the petition. However, learned counsel for the detenue submits that, except FIR/s registered under the Bombay Prohibition Act, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenue is a `bootlegger' within the meaning of Section 2(b) of the Act and required to be detained as the detenue's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenue has placed reliance on judgment of the Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, AIR 1989 Supreme Court 491 and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court (Coram: S.J.Mukhopadhaya, C.J. & J.B.Pardiwala, J) in Letters Patent Appeal No.2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben Vs. Commissioner of Police) which would squarely help the detenue. 3. Learned Assistant Government Pleader submitted that registration of FIR/s would go to show that the detenue had, in fact, indulged into such activities, which can be said to be disturbing the public health and public order and in view of sufficient material before the detaining authority to pass the order of detention, no interference is called for by this Court in exercise of its power under Article 226 of the Constitution of India. 4. Having heard the rival submissions of the parties and perused the record of the case, I am of the view that FIR/s registered under the Bombay Prohibition Act alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. On careful perusal of the material available on record and the ratio laid down by the Apex Court in the case of Piyush Kantilal Mehta (supra) and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court (Coram: S.J.Mukhopadhaya C.J. & J.B.Pardiwala, J) in Letters Patent Appeal No.2732 of 2010 in Special Civil Application No.9492 of 2010 (Artiben Vs.Commissioner of Police), I am of the view that the activities of the detenue cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside. 5. In the result, the petition is allowed. The order of detention dated 3.4.2011 passed by the respondent no.2 is quashed and set aside. The detenue, is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted. ( Anant S Dave, J ) srilatha     Top

Author: Anant S. Dave,

Shantaben vs State on 21 July, 2011

Gujarat High Court

ORDER S.C. Jain. Member (J) 1. Briefly stated, the facts of the case are apparent on record that the Respondents imported 200 kgs. Calcium Tungstate and the goods were assessed to duty under Chapter 32.04/12(1) of CTA and Countervailing duty was charged under Item 68 of Central Excise. The assessee filed the refund claim alleging that the assessment should be under Chapter 28.01/58 but the Assistant Collector of Customs (Refund Department) rejected the claim of the assessee as unsubstantiated. On appeal, the Collector of Customs (Appeals), Bombay decided the case ordering classification under Chapter 28.01/58 CTA. 2. Aggrieved by the said Order passed by the Collector of Customs (Appeals), Bombay, the Department filed an appeal before the Tribunal which was received in the Office on 19-7-1984. In this apppeal an application for condonation of delay has also been filed. The reasons mentioned for condonation of delay are that the Appellate's i.e. Collector of Customs (Appeals) Order is not correct in law and on facts. The appeal could not be filed in time as the order was under study and also required consultation with the Deputy Chief Chemist and this caused the delay in filing the appeal. 3. The appellant contested this application for condonation of delay. 4. We have heard Shri A.S. Sundar Rajan, JDR for the Department and Shri R.G. Sheikh, Advocate for the Respondents and gone through the record. 5. As per own admission of the appellant, the order appealed against was communicated on 25-7-1983 and the time limit for 3 months for filing the appeal had expired on 24-10-1983. But the appeal was received in the Office of this Tribunal on 9-7-1984, that is, there is a delay of about 9 months in filing this appeal. 6. Regarding the condonation of delay, the legal proposition is that litigants should act with due diligence and care and sufficient cause has to be shown by the parties seeking condonation of delay. Even if sufficient cause has been shown, the party is not entitled to condonation of delay as a matter of right. The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court. If sufficient cause is not proved, nothing further has to be done. The application for condoning has to be dismissed on that ground alone. If sufficient cause is shown, the court has to enquire whether in its discretion it should condone the delay. Delay of each day has to be explained satisfactorily by the party. The Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. (reported in AIR 1962 Supreme Court 361) held that the proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court. 7. Keeping in view this legal proposition, we have to see whether in the present case the Department, i.e. appellant has been able to show sufficient cause for condonation of the delay of 9 months and that this delay of 9 months has been satisfactorily explained. Two reasons have been given by the appellant seeking condonation of the delay - one ground is that judgment was under study and the other was that the report of the Deputy Chief Chemist was to be obtained. On both these points, the appellant failed to satisfy us that there is sufficient gound for condonation of delay and that the delay has been satisfactorily explained. The learned Departmental Representative could not point out as to how the report of the Chief Chemist was required at the time when the matter has already been decided even the appellate stage. The department has not given any detail as to how this much time was taken for the study of the judgment which was communicated to the department as far back as 25-7-1983. The delay of 9 months shows that the departmental authorities were negligent and careless in not pursuing the matter promptly which has resulted in delay in filing this appeal. For want of any sufficient cause and for not explaining the delay of about 9 months, we are hereby rejecting this application for condonation of delay and on this account the appeal also fails and the same is hereby rejected as barred by time.

Collector Of Customs vs Kiran X-Ray Screens Limited on 16 November, 1984

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 20816 of 2005(C) 1. P.K.SREENIVASAN, ... Petitioner Vs 1. THE JOINT REGISTRAR OF CO-OPERATIVE ... Respondent 2. THE GURUVAYOOR CO-OPERATIVE URBAN 3. P.N.RANJITH, For Petitioner :SRI.D.SREEKUMAR For Respondent :SRI.D.SOMASUNDARAM The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :23/05/2008 O R D E R THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.20816 of 2005-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of May, 2008. JUDGMENT The learned counsel for the petitioner submits that this writ petition has become infructuous. The writ petition is hence dismissed as infructuous. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/260308 

P.K.Sreenivasan vs The Joint Registrar Of ... on 23 May, 2008

Kerala High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 08/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.767 of 2009 and M.P.(MD)No.3 of 2009 M/s National Insurance Company Limited, through its Branch Manager, Vigneswara Building, 2/7 Pudukottai Road, Trichy-20. ... Appellant / 2nd Respondent Vs 1. P.K.S.Gunaseelan @ Rajasekar ... Respondent/Petitioner 2. R.Sundar ... Respondent/ 1st Respondent Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree order made in M.C.O.P.No.935 of 2003 dated 20.03.2008, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court, Trichy. !For Appellant ... Ms.P.Malini ^For Respondents ... Mr.B.Prasanna Vinoth for R.1 * * * * * :JUDGMENT This Civil Miscellaneous Appeal has been filed by the appellant against the judgment and decree order made in M.C.O.P.No.935 of 2003 dated 20.03.2008, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court, Trichy. 2. The appellant is the insurer of the vehicle owned by the second respondent. The first respondent rode a two wheeler on 29.04.2002 on Bharathithasan salai in front of P.L.A. petrol bunk. At that time the two wheeler owned by the second respondent dashed against him and he received grievous injuries. According to the first respondent, the accident was due to the rash and negligent driving of the person who rode the two wheeler of the second respondent. 3. The first respondent filed M.C.O.P.No.935 of 2003 claiming a sum of Rs.3,00,000/- as compensation. Before the Tribunal, besides examining himself as a witness, the claimant examined the doctor who gave a disability certificate. Exs. P.1 to P.5 were marked on his side. On the side of the Insurance Company, one witness was examined and Exs.R.1 and R.2 were marked. The Tribunal passed an award dated 20.03.2008 granting Rs.47,000/- as compensation with 7.5% interest and costs. The appeal is preferred by the Insurance Company against the said order. 4. Heard Ms.P.Malini, learned Counsel for the appellant and Mr.B.Prasanna Vinoth, learned Counsel for the first respondent. 5. The learned Counsel for the appellant strenuously contends that the vehicle that was insured with the appellant, did not involve in any accident. The claimant skidded himself and got injured and made a false claim against the appellant Insurance Company. The learned Counsel proceeds further that when the accident took place on 29.04.2002, the claimant lodged F.I.R. on 30.08.2002 after four months. It is also submitted that he did not prosecute the matter further and the criminal prosecution was stopped. Hence it should be taken that no accident took place. However, the Tribunal erroneously came to the conclusion that the vehicle insured with the appellant involved in the accident. The learned Counsel also submits that in Ex.P.3, the hospital record, it is stated that the injury was caused due to the fall. 6. On the other hand, the learned Counsel for the claimant submits that there is no infirmity in the award and the Tribunal after taking into account the oral evidence of the claimant, who was an eye-witness to the accident, came to the conclusion that the vehicle insured with the appellant involved in the accident. It is submitted that the delay in filing of F.I.R. and the closing of criminal prosecution could not come in the way of proceedings before the Motor Accident Claims Tribunal. The learned Counsel for the claimant also relies on the judgment of the Division Bench of this Court in Pallavan Transport Corporation Vs. Saroj Goyal reported in 2001-2-L.W.292. 7. I have considered the submissions made on either side and perused the records. 8. The learned Counsel for the appellant questions only the liability. According to the appellant, the vehicle that was insured with the appellant did not involve in the accident at all. According to the appellant, the accident took place due to the skidding of the two wheeler that was ridden by the claimant. The following is the pleadings of the appellant before the Tribunal. "The real reason for the alleged accident is the sudden skid of the petitioner's vehicle on his careless, negligent and rash driving only to invite the skidding and consequent stated injuries." 9. On the other hand, the claimant pleaded as follows: "the injured petitioner Mr.Gunaseelan (A) Rajasekar was riding his motor cycle TVS MAX 100, proceeding from his extreme left side of the Bharathidasan Salai infront of PL.A. petrol bunk. At that time the vehicle TVS Scooty bearing Registration No.TN-45-Q-6611, belonging to the first respondent, driven by its driver in a rash and negligent manner and dashed against the above said motor cycle TVS MAX 100." 10. In support of his claim, the injured deposed before the Tribunal. He categorically deposed in conformity with the statement made in his petition. 11. On the other hand, the appellant did not let in any evidence to establish his defence that the accident took place due to the skidding of his own vehicle. R.W.1, examined on the side of the appellant, was its employee and he was not an eye-witness. He deposed as follows: "1-k; vjph;kDjhuh; thfdBkh my;yJ BtW vt;tpj thfdKk; te;J Bkhjp tpgj;J Vw;gLj;jhj fhuzj;jpdhy;jhd; kDjhuh; bgl;Buhy; gA;fpypUe;J Buhow;F jpUk;g[k;BghJ rWf;fp tpGe;jjpy; Vw;gl;l fhaA;fspdhy; Ra epidt[ nHe;J kaf;fkile;J fple;jBghJ mUfpy; nUe;j xUth;, mUfpy; nUe;j kUj;Jtkidapy; Brh;f;Fk;BghJ tz;oapypUe;J tpGe;J tpl;lij Twp, mJ tpgj;J Fwpg;Bgl;oy; cs;sJ." 12. That is, the appellant admitted that there was an accident on 29.04.2002 and that the injured became unconscious and that he was taken to hospital and was treated as inpatient. However, R.W.1 deposed that in the accident register, it is stated that the accident took place due to the skid of his own vehicle. When R.W.1 made such a statement it was for him to produce the accident register and to establish his case. But the accident register was not produced. On the other hand, the learned Counsel for the appellant blames the claimant for not producing the accident register. When there is no contra evidence let in by the appellant contradicting the evidence of the claimant, who was en eye-witness to the accident, the Tribunal could not be found fault for recording its finding that there was an accident involving the vehicle insured with the appellant. 12. The learned Counsel for the appellant strenuously contends that there was delay of 4 months in lodging F.I.R. and that the prosecution did not proceed further as the complainant did not pursue the matter. According to her, this circumstance would establish that the vehicle that was insured with the appellant did not involve in the accident. I am not able to agree with the submission made by the learned Counsel for the appellant. 14. Even assuming that no F.I.R. was lodged or F.I.R. was lodged belatedly that could not be decisive to come to the conclusion that no accident took place involving the vehicle insured with the appellant. The judgment of the Division Bench of this Court in Pallavan Transport Corporation Vs. Saroj Goyal reported in 2001-2-L.W.292 relied on by the learned Counsel for the claimant squarely applies to this case. Paragraphs 7 and 8 of the above said judgment are extracted hereunder: "7....Though we have observed that the claimants failed to place first information report, sketch relating to the scene of accident, in as much as the Accidents Claims Tribunal must take special care to see that innocent victims did not suffer and owners and drivers do not escape liability merely because of some doubt here and there, culpability must be inferred from the circumstances where it is fairly reasonable. As observed by their Lordships of the Supreme Court in N.K.V.Bros.(p) Ltd. Vs. M.Karumai Ammal (1980 ACJ 435 (SC), the Court should not succumb to niceties, technicalities and mystic maybes. 8. Likewise, merely because the eye witness did not inform the police nor made any specific complaint it did not diminish his statement before the Court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable, even in the absence of the fact that he did not inform the police regarding the manner of accident, it can safely be accepted. In this regard learned Counsel appearing for the claimants very much relied upon Natchathiram and others V. Jayasekaran and others (2000) ACJ 902. The learned Judge in a similar circumstance has held, "10... The mere fact that he has not given any complaint to the police will not diminish the credibility of the witness to any extent as observed by the tribunal...." We are in agreement with the view expressed by the learned judge". 15. Further the Tribunal enquiring to the claims arising out of road accidents cannot decide the matter on technicalities. 16. In these circumstances, I do not find any infirmity in the award of the Tribunal. Since the only issue raised by the appellant in the appeal is that the vehicle insured with them did not involve in the accident and no other issue was raised, the appeal fails. 17. Accordingly, this Civil Miscellaneous Appeal is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs. ssl To The Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court, Trichy.

M/S National Insurance Company ... vs P.K.S.Gunaseelan @ Rajasekar on 8 April, 2010

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28871 of 2011 Umesh Sharma @ Umesh Khatwey Versus The State Of Bihar ----------- SHAHZAD ( Hemant Kumar Srivastava, J.) 02 26.08.2011 The defect, as pointed out by the office would be considered at the time of hearing on the point of admission. List the matter under the heading for admission.

Umesh Sharma @ Umesh Khatwey vs The State Of Bihar on 26 August, 2011

Patna High Court - Orders

[Section 40(2)] [Section 40] [Complete Act]

Central Government Act

IN THE HIGH COURT or xARNA'rA.KA_....__' v : cmcurr BENCH AT DHARWAD % DATES THIS TI-IE st» DAY c3F"MAm§H _ ' BEFORE . . T!-IE Horrsm MR. Jfisifics A;s.V_1n.o1?1§L;vié;{§" M.F.A am. &%21179'}1:zjc~os-.1wcj " ' L BETWEEN 2 " ' V' " D§V§SIONALMAN&C:'1§R GREENTALINSUR.§xi'¢iEiEi'CO1..TI}, ., KIRLOSKAR EQOM, E;i_«:Lcw}'M REP BY A ITS SR EZIIVESIC)NA;;'----MP;NAGE:R"*-._ ' _ DIVISIONAL OF'FIC-E;}§2NK&¥--COM.PL'1E)X, KESHWAPUR; 1'{U'f='3LI.'*i::,; " APPELLANT (By Sri: LA$<MvAN_13'M452§i§0§D;§;R,'*ADv.) ,_3'£;.R: Eggu @ ?A«:1c:_EsHAvAxANNA ANANDACHE . V A'c;~EI:a" ;»'e.f%3GI,}'F :20 YEARS * '€}CC.VCLEA_NER Rm NEAR II\IE)US"E'RIAL AREA .'_£«10Twge:;A; TQ VVBELGAUM 2. ' saw BAVA}-{ANNA ._1 ANANDACHE AGE MAJGR, occ BUSINESS, R/£3 B.e;'..LBH1'M& GALLI HONAGA ' .. km BELGAUM, Fx'E$PONBENTS T.{'Es;;'s:.~2_.3¢ M SHEELAVANTH, Am'. were R1) THIS APPEAL IS FELEQ U/S 30(1) OF' WC AC'? AGAINST THE '<. vJU{§GMEN'I'/ORDER DATED 28.8.2008 PASSED EN CASE NO. VA ~ _' Q KAAPAKAA/S.R--£73/200?' ON THE FELE OF' THE LABOUR OFFICER ANE} COMMISSIONER F90? WORKMEIKPS COMPENSATEON, SUB» DIVISIQN-»1, BELGAUM. THIS APPEAL CQMENG ON2FOI5~? ADNHSSION TEES DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The appellant/Insuxance Company is assailing the judgment and award dated 28.08.2C*f).:8 WCA.SR.1?3/2007. By the said awa1:d;'i*--.he V' awarded the tota} compensation of , _ " 1 A 2. Heard the learned _f0r'ihev...pai§1ties and perused 'iihe __ -- ' 'V e '}'he 'ieejfieé '~Cl0:u11se1 for the apiaeilantdzlsurance Company eontefici that the Commissioner was not the loss ef earning capacity at 8(}"/:3. it is c0fit€fléeé_.~theit' the doctor had. seated the clisabiiity only wifi tei limisa. when the disability and the percentage of ;}fr£:arnjng capacity has not beefl assessed by the dector, .:£he__5Commissiener eught not to have considered the same at »._ :.V3CP/6. Thezefoze, the quanfum of compensation awaxfied calls for }:'£"T:{i'£1C1ZiOfl. J 4. The iearned Counsel for the :espon{i'et1ts:Alto1%ée§e§f sought to justify the award. The learfted"Cot1i1&se1V.tjo;ti:tt.e evidence of the doctor and raise vto ._ that the Commissioner has tile evidet1ee".bjf~--;e§tt1'eietingt" the same during the course of -Dtfdefv-.whicii' woul{i indicate that the doctor has spoketi' .'V"'f_I;e:§*efQre, noticing the nature of éisabflity statedfl" 'Eu1vocatio11 of the ciaimant, t_he...};1a--s iégppzoftflately granted the eompens2fi:iofi"ai§;d the Saii1eVV'does"_i:6tVca11 for interference. ':i._ 'H3... ivflat has been contended, though in 'tlte the' issue raised cannot be considered as ;.:oe1irf:_ question of law, but the nature of eotzgeicieratiolitejefetthe evidence by the Commissioner would have 'ta be 4u1'.i*;}tii€:€(.iV 4' as to Whether the same would admit of any in that context, whether any modification of the requireé. in this szegaxd, a perusal of the award passed " the Commissioner would itzéicate that the aspect with u & regard to the disability and the loss of earning capacity has J: been considered by the Commissioner while _ consideration on Issue No.5, which had been * V. In this regard, the Commissioner has :.netie'e--_d evi:1er3,r:eA tendered by the doctor in deizajl reproduced verbafim. 6. A perusal of by the doctor wouid indicate ;ha::;._t;i;e cggcggeihag'::'§tate§1:fixéith regard to the xxature of the claimant, the treatment mndemd:mem£§';ae§: that would be faceé. In this rega1 fl, faced, the doctor has stated ihat the c1airn':_:eit.weul(i..V1fief'~'»}Vbe abie to stand for a longtime, ~ walk hzl.u;£i.__hevwas aiso not be abie to squat anci sit "1egge_d'.a :'«.JF"":}.I_'fl1tEI', the docter has opined that he wouid moi: ':,§§'ee:i§:1:%;s%geight and do xaborious job. The doctor has also peiate€1&Vei1rV: to the X-ray and has also stated with regard to H u diegbflify amounting to 40°/6 to the Iefi: upper iimb and 45% '.'_t;:) fixebleft lower limb. A3 against the said evidence tendereé by 'eioetor, there is nothing much to discredit the same in the {:r0ss--examix1a'a5o1:1. Therefore, this aspect of the matter would J7 'I 5 have to be noticed keeping in View the avocation 'at' the claimant, who was Working as a Cleaner. If this is what 3330 requires to be noticed. is that the stated that he would be disables} to v§or1;~.;, V Therefore, noticing the nature of the ._ of the claimant, the loss of eartlilm eapacfty__as.g$'seé~eeei"bjLr the Commissioner is slightly en, the Side and aesueh, in my view, the same requ1re' s regard, it would be appropriate '£11:-;t'i1;_1 sufiemé and the avocz§tter1"b'ft.f'§31e _hevVWvttou}d be able to do some other lighterjwork.' . 7. Hezzee,» i;ee_pi11g 'ail other earametezs with regard to figs Wegesv §he"1'-eleyant factor intact, if the compensation is 'VV' would be entitied to a sum of a'sA';=.r.§igai:13st the Sam of Rs.3,04,255/ --. Hence, the V «awaxflkis to the said extent and it is heki that the u u " "'¥VO11ld be eutitied to the compensation of .%;§zs';::,t4'z;2ee/- with interest as indicated in the awaszfi by the ~ _ V Cbmmissicner. J. Rcigistxy is dgirccteci to caicuiatse the the: _ reduced. compensation amount to1 thé '<.;;a'ji«1:n2i1:1t..__'V amount shall be refunded ' 7appe11'£{:2Af';A?I:1's%.v1:fT%1A..I1»:'Vfi'--. Company. In terms of the above; of with In) order as to costs,

Author: A.S.Bopanna

Divisional Manager vs Shri Raju @ Yado Bhavakanna ... on 6 March, 2009

Karnataka High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 7514 of 2008(T) 1. LOY ROZARIO ALIAS LOY LAMBERT, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent For Petitioner :SRI.SHEEJO CHACKO For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :04/03/2008 O R D E R R. BASANT, J. ```````````````````````````````````````````````````` W.P.(C) No. 7514 OF 2008 T ```````````````````````````````````````````````````` Dated this the 4th day of March, 2008 J U D G M E N T The short request of the petitioner is that C.P.84/07 pending before the Judicial First Class Magistrate Court-I, Kollam may be disposed of expeditiously. The petitioner's name is included in the PSC rank list. The unnecessary continuance of this proceedings may affect his chance for employment. It is hence that the petitioner wants the case to be disposed of expeditiously. 2. The request of the petitioner does appear to me to be legitimate. The petitioner must have moved the Magistrate at the first instance. Without moving the learned Magistrate, I find no reason or justification in the conduct of the petitioner rushing to this Court with this petition. 3. However, I am satisfied that the petitioner can be given an opportunity to move the learned Magistrate for  WPC.7514/08 : 2 : expeditious disposal of his case. The learned Magistrate must consider such application on merits and expeditiously. 4. Hand over copy of this order to the learned counsel for the petitioner for production before the learned Magistrate along with his application. Needless to say, the petitioner can request the learned Magistrate to consider his request in the light of the decision in Kamalaksha Vs. S.I. of Police [2007 (1) KLT 299]. 5. This writ petition is accordingly dismissed. (R.BASANT, JUDGE) aks 

Loy Rozario Alias Loy Lambert vs State Of Kerala on 4 March, 2008

Kerala High Court

In the High Court of Punjab & Haryana at Chandigarh R.F.A. No. 1449 of 2004 (O&M) Union Territory, Chandigarh ....Appellant Versus Sohan Singh ...Respondent4.2.2009 ( Rajesh Bindal) vs. Judge Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Vishal Sodhi, Standing Counsel, UT Chandigarh. Mr. P. C. Dhiman, Advocate, for the respondent. Rajesh Bindal J. For orders see detailed reasons recorded in a separate order of even date passed in R. F. A. No. 727 of 2001 - Narinder Singh vs Union Territory, Chandigarh.

Union Territory vs Sohan Singh on 4 February, 2009

Punjab-Haryana High Court

Central Information Commission CIC/OP/A/2009/000111 -AD Dated 19th January, 2010 Adjunct to the Order in appeal No.CIC/ OP/A/2009/000111 -AD Dated 27.11.09 in the case of Smt. Rajni Pathak v/s. Ministry of Railways Hearing was held on 19th January, 2010 Background1. The Order given by the Commission on 27.11.09 in the above case is as follows: i) The Commission directs the CPIO to provide the point wise information to the Complainant on the basis of records available with him. If not, the non availability of information, pointwise to be indicated. ii) The information should reach the Complainant by 28.12.09. iii) The Commission directs the CPIO cum US(E) to show cause as to why a penalty of Rs.250/- per day (Maximum Rs.25000) should not be levied on him for not responding to the RTI application within the stipulated period as given in the Act. He is directed to submit his explanation in person on 19.1.10 at 2.30 pm Decision 2. The Appellant was not present during the hearing. 3. Mr. Suman Sharma, DSCC & PIO, Mr. D.S. Parida, US(A), Mr. Sidhartha Singh, US, Mr.Sekhar Kashyap, SO and Mr. Vinod Sammel, DDPE & APIO represented the Public Authority. 4. The Respondent submitted that the RTI Application dated 04.02.08 was received in the office on 24.02.08 and that on 25.03.08 an interim reply was provided to the Appellant informing him that since the information sought is almost 20 years old and the same has to be collected and compiled from various records and files, it would take time for furnishing the same to the Appellant. The information after being collected from various departments was then complied and sent to the Appellant vide letter dated 05.05.08 comprising 16 pages of information. .The Respondent during the hearing submitted that instead of appealing first to the Appellate Authority, the Appellant has directly approached the Commission. He however added as directed by the Commission, the information was provided to the Appellant vide Ministry's letter dated 22.12.09 on receipt of the copy of the Complaint filed by the Appellant before the Commission. According to the Respondent, the Appellant was also invited to inspect the files. However the Appellant did not avail the opportunity to do so. In the light of the fact that the information sought is voluminous and that it had to be located from files which are 20 years old or more, the Commission condones the delay in furnishing of information by the CPIO and drops the penalty proceedings against the CPIO. As far as the complaint that the information is incomplete is concerned, the Commission suggests that the Appellant send a list of missing documents to the CPIO within 5 days of receipt of this order and the CPIO to provide the information by end February, 2010 if available on records. If not available the Appellant may be informed about the nonavailability of information giving reasons for the same. 5. The complaint is accordingly disposed off. (Annapurna Dixit) Information Commissioner Authenticated true copy: (G. Subramanian) Deputy Registrar Cc: 1. Smt. Rajni Pathak H.No.1/4492 C Ram Nagar Extension Mandoli road Shahdara Delhi 110 032 2. The CPIO Ministry of Railways Railway Board Rail Bhawan New Delhi 3. The Appellate Authority Ministry of Railways Railway Board Rail Bhawan New Delhi 4. The US(E) Ministry of Railways Railway Board Rail Bhawan New Delhi 5. Officer in charge, NIC 6. Press E Group, CIC

Smt. Rajni Pathak vs Ministry Of Railways on 19 January, 2010

Central Information Commission

CWP NO.17339 OF 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 4.3.2009 Makhan Singh and others ..Petitioners VERSUS Punjab State Electricity Board and others ...Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Ms.Sonia G.Singh, Advocate for petitioners Ms.Puneet Kaur Sekhon, Advocate for respondents. Permod Kohli, J. (Oral) Notice of the CM No.3572 of 2009 to counsel opposite. Ms.Sekhon accepts notice on behalf of the respondents. For the reasons recorded in the application and with the consent of learned counsel , this matter is taken up today itself for final disposal at the motion stage. It is not in dispute that the Circular dated 29.7.2003 impugned in this petition was also subject matter of challenge in CWP No.15554 of 2007. The said writ petition has been decided by the Hon'ble Division Bench of this Court vide judgment dated July 21, 2008 wherein following CWP NO.17339 OF 2008 2 directions have been given:- The issue involved in this petition is squarely covered by the aforesaid judgment. It has been brought to my notice that the aforesaid judgment is the subject matter of challenge before Hon'ble Supreme Court in SLP No.25856 of 2008, which is still pending and vide interlocutory order dated 7.11.2008 contempt proceedings have been stayed. Since the issue being covered by the aforesaid Division Bench judgment, this writ petition is disposed of in terms of the aforesaid Division Bench judgment, referred to above. It is, however, made clear that this order shall remain subject to the outcome of the said SLP and the petitioner shall be entitled to seek its implementation CWP NO.17339 OF 2008 3 through contempt or otherwise only on the disposal of the SLP or in the event, the interlocutory order of staying the contempt proceedings is vacated by Hon'ble Supreme Court at any stage. (PERMOD KOHLI) JUDGE 4.3.2009 MFK

Makhan Singh And Others vs Punjab State Electricity Board ... on 4 March, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. 43603 of 2008 and Crl.Misc. No. 49521 of 2008 in Crl.A. No. 902-DB of 2005 Date of Decision: November 17, 2008 Charanjit Singh etc. ...........Appellants Versus State of Punjab ......Respondent Coram: Hon'ble Mr.Justice S.S.Saron Hon'ble Mrs. Justice Sabina PRESENT Mr.S.S.Rana, Advocate for the applicant-Sukhdev Singh (appellant No.2) Mr.D.S.Gurna, Advocate for the applicant- Charanjit Singh (appellant No.1) Mr.S.S.Bhinder, Addl.A.G. Punjab ** S.S.Saron,J. This order will dispose of Crl.Misc. applications No. 43603 and 49521 of 2008 in Crl.Appeal No. 902-DB of 2005 filed by applicants Sukhdev Singh (appellant No.2) and Charanjit Singh (appellant No.1) seeking suspension of sentence of imprisonment. Learned counsel for the State has submitted affidavits of Kuldeep Singh, PPS-I, Superintendent, Central Jail, Ludhiana mentioning the period of imprisonment undergone by the applicants-Sukhdev Singh and Charanjit Singh and the same are taken on record. Heard counsel for the parties. The applicants-Sukhdev Singh (appellant No.2) and Crl. Misc. No. 43603 of 2008 and Crl.Misc. No. 49521 of 2008 in -2- Crl.A. No. 902-DB of 2005 Charanjit Singh (appellant No.1) have undergone more than 6 years of imprisonment which includes 3 years after their conviction. No other case is pending against them. Both the applicants were granted parole. However, they have not misused the concession of parole granted to them. Keeping in view the period of imprisonment undergone by the respective applicants, the parameters laid down by the Division Bench of this Court in the case of Dharampal v. State of Haryana 1999 (4) RCR (Crl.) 600 have been fulfilled. The appeal is not likely to mature for hearing in near future. It the facts and circumstances, it would be just and expedient to suspend the sentence of imprisonment of applicants. Accordingly, the Crl.Misc. applications are allowed and the sentence of imprisonment of the applicants- Sukhdev Singh (appellant No.2) and Charanjit Singh (appellant No.1) shall remain suspended during the pendency of the appeal subject to their furnishing personal bond and surety each to the satisfaction of the learned Chief Judicial Magistrate, Ludhiana. (S.S.Saron) Judge ( Sabina ) Judge November 17, 2008 arya

Charanjit Singh Etc vs State Of Punjab on 17 November, 2008

Punjab-Haryana High Court

IN THE HIGH COURT or" KARNATAKA AT BANGAl,(}l{E.. Dated this the 13"' day of September, 2019- I _ Before THE HON'BLE MR JUSTICE HULUVADI B f Criminal Appear .41371'/gees - A ' Between: V B Sri S Krishnappa, 64 yrs S/0 late Sanjeevappa -_ R/a#557, 'Anugraha', 6"' Cross' ' V Nanjappa Garden,Babu_sapalya... Bangalore 560 043_ I ' Appellant (By Smt B And: eeee N 'B V Sri C Ramachafidrarr, 4"/*yr*s .. S/0 late Sr1Chirtna_Kutty " R/a # 5, Kempanrra Road , « M S Nagar, *Bangalor'e,_33 V ' Respondent ¢(_ Assts., Adv.) 'B Aripreal under S.378(4) of the Code of Criminal Procedure nwvlvpraying to set._'asi'de the judgment dated 30.5.2008 in CC 28212/2006 by _ . ?_ the XIV A(3.T\/HYI, Bangalore. "The&.--'Appeal coming on for Hearing this day, Court delivered the following: 3><\,=J"

Author: Huluvadi G.Ramesh

Sri S Krishnappa vs Sri C Ramachandran on 13 September, 2010

Karnataka High Court

[Section 25] [Complete Act]

Central Government Act

Court No. - 41 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 134 of 1986 Petitioner :- Harnam Singh Respondent :- State Of U.P. Petitioner Counsel :- G.P. Dixit Respondent Counsel :- A.G.A. Hon'ble Ram Autar Singh,J. Appeal has been called out. None appeared to press this appeal. Issue non-bailable warrant against appellants returnable within six weeks. Office is directed to summon the record within the above period. List thereafter. Order Date :- 12.8.2010 Sunil Kr Tiwari

Harnam Singh vs State Of U.P. on 12 August, 2010

Allahabad High Court

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Author: Mohan Shantanagoudar

Sri Lakkuraiah S/O Boralingaiah vs The State Of Karnataka Kunigal ... on 30 September, 2008

Karnataka High Court

Gujarat High Court Case Information System Print CR.MA/5486/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5486 of 2010 In CRIMINAL APPEAL No. 861 of 2010 ========================================================= STATE OF GUJARAT - Applicant(s) Versus PATEL BABUBHAI JOITABHAI - Respondent(s) ========================================================= Appearance : MR LB DABHI, APP for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 13/08/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) Having heard Mr.L.B.Dabhi, learned APP for the applicant State of Gujarat and on perusal of the impugned judgment and order dated 20th February 2010 rendered in Special (Electricity) Case No.6/2009 by the learned Special Judge (Electricity), Mehsana, acquitting the respondent accused of the offences under Section 135(1)(B) of the Indian Electricity Act, 2003, according to us, this is a fit case to grant 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.) /moin     Top

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

State vs Patel on 13 August, 2010

Gujarat High Court

Court No. - 3 Case :- MISC. SINGLE No. - 4473 of 2010 Petitioner :- Ved Prakash Mishra S/O Late Ram Singh Mishra Respondent :- Additional District Judge,Court No.6 Faizabad Petitioner Counsel :- Praveen Tripathi Respondent Counsel :- C.S.C Hon'ble Shri Narayan Shukla,J. Issue notices to opposite parties 3 and 4. List after service report. In the meantime the parties shall maintain status quo in regard to the possession over the land in dispute. Order Date :- 10.8.2010 Banswar

Ved Prakash Mishra S/O Late Ram ... vs Additional District Judge,Court ... on 10 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.11.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.58 OF 2008 R.Veeramani .. Petitioner vs. 1.The Secretary to Government Home Department Fort St.George Chennai 600 009. 2.Director General of Police Chennai 600 004. 3.Inspector General of Police Armed Police, Trichy. 4.Deputy Inspector General of Police Armed Police, Chennai 600 010. 5.The Commandant TSP X Battalion Ulundurpet. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. For petitioner : M/s.Bala & Daisy For respondents : Mr.T.Seenivasan,AGP for R.1 to 4 .. ORDER Index:Yes/No Internet:Yes/No kh 06.11.2009 To 1.The Secretary to Government Home Department Fort St.George Chennai 600 009. 2.Director General of Police Chennai 600 004. 3.Inspector General of Police Armed Police, Trichy. 4.Deputy Inspector General of Police Armed Police, Chennai 600 010. 5.The Commandant TSP X Battalion Ulundurpet. P.JYOTHIMANI,J. P.D.Order in W.P.No.58 of 2008 Dated:06.11.2009 The writ petition is directed against the order of the 5th respondent dated 19.3.2002, which was confirmed by the 4th respondent on appeal by order dated 9.8.2002, again confirmed by the third respondent by order dated 19.2.2003, confirmed by the second respondent by order dated 28.4.2004 and further confirmed by the Government, the first respondent herein in G.O.2(D) No.324 Home (Pol.IX) Department, dated 22.5.2006 and for direction to reinstate the petitioner with consequential monetary and other service benefits. 2. The petitioner joined as Grade II Constable on 16.4.1997 and was promoted as Naik. Due to sickness of his mother, it is stated that he availed medical leave on 3.7.2001 and 4.7.2001. Thereafter, since he is stated to have fallen ill, he extended the medical leave till 4.8.2001. Since the family members of the petitioner did not inform the same to the respondents in proper manner, the 5th respondent treated the petitioner as deserter on 26.7.2001. 2(a). According to the petitioner, he was not permitted to join. Charges were framed under Rule 3(b) of the Tamil Nadu Police Subordinate Service Service (Discipline and Appeal) Rules,1955 to the effect that the petitioner has absented from duty without any leave or permission. The Assistant Commandant TSP, Ulundurpet was appointed as Enquiry Officer and the petitioner participated in the oral enquiry by submitting his explanation and the Enquiry Officer in his report dated 5.1.2002 found the charges proved. 2(b). The disciplinary authority viz., the 5th respondent passed the final order on 19.3.2002, imposing the punishment of removal from service. The 4th respondent, to whom an appeal was filed, rejected the appeal by non-speaking order on 9.8.2002 and the review petition filed before the third respondent was rejected on 19.2.2003 and the further petitions filed to the second and first respondents were also rejected, against which the present writ petition has been filed. 3. The orders are challenged on the ground that the punishment is excessive, unjust and disproportionate and the orders were passed without application of mind and without proper enquiry and the same are against the statutory rules. It is stated that in a similar case, the second respondent modified such kind of punishment into one of stoppage of increment. 4. The first respondent in the counter affidavit has stated that the petitioner was granted casual leave on 3.7.2001 and 4.7.2001 and he was to report for duty on 5.7.2001, which he failed. He remained absent for more than 21 days without any permission and no medical certificate was received and therefore, he was treated as a deserter and a charge memo was issued and he was awarded punishment after conducting enquiry and the appeal and review were rejected apart from the rejection of mercy petitions. It is stated that the petitioner has not submitted any medical leave application or medical certificate at any point of time. The desertion in uniformed service is a serious offence which has to be dealt with under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules,1955. It is also stated that the punishment is not excessive. It is also stated that within a period of four years, he had deserted twice and the same was taken note of while passing the impugned orders. It is stated that the petitioner remained absent for more than 60 days unauthorisedly. 5. The learned counsel for the petitioner would submit that in a similar circumstance, the second respondent by order dated 22.3.2007 in respect of a former police constable P.Karunanithi, reduced the punishment of dismissal into one of reduction in the time scale of pay by one stage without cumulative effect by reinstating him, whereas in the case of the petitioner a different approach has been made. He would rely upon the judgments in Bhagwan Lal Arya vs. Commissioner of Police, Delhi and another [AIR 2004 SC 2131] and Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and others [2009 AIR SCW 5596] to contend that the punishment is disproportionate to the charge itself. 6. On the other hand, the learned counsel for the respondents has placed before this Court the entire file and contended that within four years of service, this was the second incident and therefore, the authorities have taken a serious note of it. He would rely upon the judgments in Union of India and others vs. Datta Linga Toshatwad [(2005) 13 SCC 709] and G.Vijayan vs. Presiding Officer, Labour Court, Salem and another [2007 (5) MLJ 1331] to substantiate his contention that the unauthorized absence in the uniformed service cannot be taken lightly. 7. As regards the nature of enquiry conducted by the 5th respondent, the original authority, who has passed the order of punishment, it is seen that the charge was framed under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules,1955 and an Enquiry Officer was appointed. The charge framed against the petitioner is as follows: " 03/07/2001 Kjy; 04/07/2001 tiu 2 ehl;fs; jw;bray; tpLg;gpy; brd;w gpiHahsp tpLg;g[ Koe;J 05/07/2001 md;W Kw;gfy; gzpf;F mwpf;fif bra;a ntz;oath; Kd; mDkjpnah. jftnyh. kUj;Jt tpLg;ngh. ntW vt;tpj jftypd;wp bjhlh;e;J 05/07/2001 Kjy; gzpf;F tuhky; jd;dpr;irahf tuhky; ,Ue;J tUk; muR CHpahpd; jtwhd elj;ij g[hpe;jjhf Fw;wk;/" 8. A reference to the statement of the petitioner made in the affidavit shows that the petitioner has not disputed his absence for more than 60 days, but it is his case that after he took leave for two days, there was some ailment to his mother and thereafter to himself and therefore, he sent intimation to the authorities extending the leave. In the affidavit, he has also stated that his family members have not properly forwarded the letter seeking extension of medical leave. A reference to the file produced by the respondents shows that the petitioner having failed to attend duty from 3.7.2001, later reported to the Deputy Commandant-II, Ulundurpet only on 2.1.2002. He has specifically admitted that he was unable to send the leave application on medical ground due to the ignorance of his parents. He has also stated that he would not repeat the same again. In the intimation, he has stated that, " vdJ bgw;nwhUf;F rhpahd tptuk; bjhpahikahy; kUj;Jt tpLg;g[ vLj;jikia mDg;g ,aytpy;iy/" Except the said letter, there is no leave letter or medical certificate sent by the petitioner, as it is seen from the file. 9. The petitioner joined duty in April, 1997. The file shows that earlier, he deserted himself for the period from 22.10.2000 to 30.3.2001 and that was treated as LWP. He was imposed the punishment of reduction in time-scale of pay by two stages for one year and the present charge relates to his second time of desertion. In the enquiry before the Enquiry Officer, the petitioner has participated throughout and he has not chosen to cross-examine the witnesses. It was also found by the Enquiry Officer that the petitioner had not even taken steps to inform the nearest police station and even on 11.8.2001 when desertion order was served on him, he could have appeared before the 5th respondent but the petitioner had not done so till the date of enquiry. It was therefore found by the Enquiry Officer that the petitioner did not take steps to join duty. 10. The minutes of the enquiry report was served on the petitioner, as it is seen in the file and the petitioner received the same by putting his signature on 30.1.2002. Thereafter, there were reminders to the petitioner on 16.2.2002 and 5.3.2002 asking him to submit his further explanation for the Enquiry Officers report. However, the petitioner has not responded to the same and ultimately, the 5th respondent passed the order of punishment on 19.3.2002 and the further appeal and representations also came to be rejected. Therefore, the petitioner cannot question the proceedings of the 5th respondent, who has awarded the original punishment on the ground that it is opposed to the principles of natural justice denying his right of being heard. 11. On the factual matrix which I have narrated above, before going into the legal aspects, the point raised by the petitioner that under similar circumstances, the second respondent considered the mercy petition of some other person leniently and modified the dismissal order to that of reduction in time scale of pay by one stage for one year without cumulative effect has to be considered. A reference to the order of the Director General of Police in Rc.No.AP.IV (1)/235320/2006 dated 22.3.2007 relating to Thiru P.Karunanithi, Ex.P.C.1807 shows that in his career of 12 years, the absence for 21 days was the only delinquency and taking note of the fact that the said person explained that he was granted sick passport on 14.7.1995 and thereafter when he went to his native place, he developed mental disorder, and also that there was a direction from the High Court, the following order came to be passed. " 7. As per orders of the Hon'ble High Court, Madras, the representation of above Ex.PC was considered. I have gone through the mercy petition dated 24.02.2004 and connected records carefully. The petitioner has explained that he was granted sick passport on 14.07.1995 and thereafter went to his native place where he developed mental disorder. In the meantime, the petitioner was treated as deserter and dismissed from service after holding an exparte enquiry. Considering the fact that this was the only delinquency in a career of 12 years and his desertion was in continuation of Medical Leave, a lenient view is taken and he is reinstated into service. The punishment of "Dismissal from service" is modified to "reduction in time scale of pay by one stage for one year without cumulative effect". He is reinstated into service with immediate effect with the modified punishment." I do not think that the said instance is comparable to the case of the petitioner herein. 12. Again, another instance was brought to the notice of this Court, wherein the Director General of Police passed a similar order modifying the order of dismissal into one of reduction of pay by one stage for one year in Rc.No.APIV(1)/119406/2006 dated 6.9.2007 in respect of one Thiru D.Balaji, Ex.P.C.1284. There also the circumstances leading to the passing of the order were discussed as follows: "8. As per orders of the Hon'ble High Court, Madras, the representation of above EX PC was considered. I have gone through the representation of the writ petitioner dated 24.1.2006 and connected records carefully. The delinquent had obtained Medical Leave and Medical passport for 30 days as he was unwell. In the meantime his father became critically ill and very soon passed away. His father's death was followed by squabbles among the family members over sharing of family properties. Under these circumstances, the delinquent did not extend his Medical Leave and was declared a deserter. The delinquent had been maintaining a clean record of service but for this default. His name declared a deserter though technically correct, in view of the circumstances under which the order of desertion was passed and the fact that in a similar case in respect of Thiru P.Karunanithi PC 1807 of Trichy District, a lenient view was taken and an order of reinstatement modifying the punishment of dismissal from service was ordered, I take a lenient view and modify the punishment of "Dismissal from service" into "reduction of pay by one stage for one year" which shall not operate to postpone his future increment. He is reinstated into service with immediate effect." Therefore, that order also cannot be comparable to the facts and circumstances of the present case. 13. In Bhagwan Lal Arya vs. Commissioner of Police, Delhi and another (AIR 2004 SC 2131) relied on by the learned counsel for the petitioner, the Supreme Court was referring the Rules 8 and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 which are as follows: " Rule 8. Principles for inflicting penalties-(1) Dismissal/Removal  punishment of dismissal or removal from service shall be awarded for the fact of grave misconduct rendering him unfit for police service." Xxxxxxx " Rule 10. Maintenance of discipline.- The previous record of an officer, against whom charges have been proved, if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dismissal from service. When complete unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank." 14. That was also a case where leave was sanctioned for the period from 7.10.1994 to 14.12.1994 without pay as per the order of the police authorities dated 16.1.1995. In that context, it was held that the absence for two months 8 days and 17 hours on medical ground cannot be held as a grave misconduct or continued misconduct rendering him unfit for police service. It was accordingly held that the dismissal from service was disproportionate and the relevant portion of the judgment is as follows: " 10. In the instant case, the appellant had absented himself for 2 months, 8 days and 17 hours on medical grounds. The above two Rules 8, 10 provide that penalty of removal can be imposed only in cases, if grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service. The absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances, in our opinion, be termed as grave misconduct or continued misconduct rendering him unfit for police service. 11. The order dated 16.1.1995 passed by the respondents was produced by the respondents themselves in their reply to C.W.P. Before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee's legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for the act of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty or removal from service is ultra vires of Rules 8(a) and 10 of the Delhi Police (Punishment and Appeals Rules,1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside." In fact, the Supreme Court has relied upon the earlier judgment in B.C.Chaturvedi vs. Union of India (AIR 1996 SC 484) wherein it was held that normally the High Court or Tribunal in exercise of its judicial powers cannot substitute its own penalty except in cases where the decision of the appellate authority shocks the conscience of the High Court or Tribunal in which case the relief can be moulded properly and such powers can be exercised only in exceptional cases. 15. Again, the decision rendered in Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and others (2009 AIR SCW 5596), wherein the Supreme Court while dealing with the Coal India Executives (Conduct, Discipline and Appeal) Rules, 1978 relating to misconduct of one person who (i) absented himself without leave; (ii) overstayed the sanctioned leave for more than four consecutive days; and (iii) deserted the job and failed to maintain integrity and devotion to duty, and after taking note of the fact that the delinquent appeared and admitted the charge and gave personal reasons for disobeying the order of the higher authority which was not intentional, held that in such circumstances, the misconduct cannot be said to be not proved. But, while considering the proportionality of the punishment of dismissal for unauthorized absence for six months, the Supreme Court, after explaining the doctrine of proportionality, held as follows: " 26. The doctrine of proportionality is, thus, well recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months." 16. In Union of India v. Datta Linga Toshatwad [(2005) 13 SCC 709], the Supreme Court while dealing with the concept of desertion in the light of the principle of proportionality relating to the members of uniformed service, has held as follows: " 8. The present case is not a case of constable merely overstaying his leave by 12 days. The respondent took leave from 16.6.1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner of described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in different terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged." The Supreme Court has therefore deprecated the practice of unauthorized absence and desertion in the uniformed forces and held that the order of dismissal is justified. 17. Following the earlier decision of the Supreme Court in State of Rajasthan and Another v.Mohd. Ayub Naz [AIR 2006 SC 856: (2006) 1 SCC 589: 2006-I-LLJ 742], the First Bench of this Court to which I was a party, in G.Vijayan v. Presiding Officer, Labour Court, Salem and another [2007(5) MLJ 1313] while dealing with the absenteeism, held as follows: " 10. It is also relevant to point out that the Supreme Court in a recent case reported in State of Rajasthan and another v. Mohd.Ayub Naz AIR 2006 SC 856 : (2006) 1 SCC 589: 2006 I LLJ 742 held that, an employee who was absented himself for a prolonged period without prior permission, the decision of the employer to dismiss him on disciplinary enquiry cannot be interfered. Further, the Supreme Court has observed at p.745 of LLJ: "9. Absenteeism from the office for a prolonged period of time without prior permission by Government servants has become a principal cause of indiscipline which has greatly affected various Government services ..... Therefore, by applying the said consistent judicial pronouncements of the Apex Court, we have no hesitation to come to the conclusion that the award of the Labour Court in ordering reinstatement of the appellant with service benefits, however, without backwages is not on proper and sound reasoning as found by the learned single Judge. In view of the same, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed." Of course, that is a case where decision was taken under the Industrial Disputes Act after taking note of the frequent absence from duty by the worker therein who was terminated on disciplinary proceedings, but raised an industrial dispute under section 2(A) of the Industrial Disputes Act. 18. Therefore, by applying the principle of proportionality of punishment as it has been laid down by various judgments of the Apex Court, to the facts and circumstances of the present case, I am of the view that the petitioner has deserted twice within four years of service and that he has not taken any steps to inform his higher officials or even to the nearest police station about his personal disability as alleged by him and therefore, it is not a fit case for interference. Accordingly, the writ petition fails and the same is dismissed. No costs.

R.Veeramani vs The Secretary To Government on 6 November, 2009

Madras High Court

[Section 15] [Complete Act]

Central Government Act

[Section 14] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 13897 of 2007(D) 1. S.SUBHALAKSHMI., ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. TAHSILDAR (REVENUE RECOVERY) 3. MANAGER, 4. SMT.DEEPA VARGHESE, For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR) For Respondent :SRI.A.S.P.KURUP, SC, UBI The Hon'ble MR. Justice ANTONY DOMINIC Dated :26/03/2008 O R D E R ANTONY DOMINIC, J. ----------------------------------------------- W.P.(C) No. 13897 OF 2007 ----------------------------------------------- Dated this the 26th day of March, 2008 JUDGMENT In this Writ Petition, the petitioner is a successful purchaser of a plot of land that was sold by the 3rd respondent bank. It is stated that, in view of the revenue recovery proceedings initiated by the State for realising the sale tax arrears, the sale could not be concluded. Although the petitioner has deposited 25% of the sale consideration. In these circumstances, to get the sale concluded, this writ petition has been filed. 2. When the matter was taken up for hearing, the learned counsel for the petitioner requested that he will be satisfied if the amount deposited by him is refunded to him. Petitioner also has a claim for interest on the amount deposited by him. Considering the fact that as per the sale conducted by the bank, the petitioner had deposited an amount as above and the sale cannot be concluded, not for the reason attributable to the petitioner, it is only fair that the amount deposited by the petitioner will be refunded to him. Since the bank also cannot be faulted for not  WPC No. 13897 OF 2007 2 concluding the sale, I cannot insist the bank to give interest on the deposit made by the petitioner. Therefore, I direct that the bank shall repay the amount deposited by the petitioner. The petitioner shall make a representation before the 3rd respondent within 10 days from today, in which case the 3rd respondent shall pass appropriate orders on that representation in the light of the observations made as above, within two weeks thereafter. The Writ Petition is disposed of as above. ANTONY DOMINIC, JUDGE ttb  WPC No. 13897 OF 2007 3

S.Subhalakshmi vs State Of Kerala on 26 March, 2008

Kerala High Court

C/SCA/8656/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 8656 of 2018 ========================================================== MUKESH NARANDAS MAKHIJANI ( SINDHI ) Versus STATE OF GUJARAT ========================================================== Appearance: MS SUBHADRA G PATEL(656) for the PETITIONER(s) No. 1 MR. BHARAT VYAS, ASST.GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2,3 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 23/08/2018 ORAL ORDER1. The present petition is filed under apprehended action of detention by the authority. The Court on 12.06.2018 was pleased to issue rule making it returnable on 23.08.2018. Subsequently, when the matter has come up for hearing today, learned Assistant Government Pleader placed on record a communication dated 22.08.2018 indicating that there is no proposal of detention of the present petitioner under the PASA in respect of CR No.III-355 of 2018 registered with Vaghodiya Police Station for the offences mentioned therein. The said communication submitted by Police Inspector, Vaghodiya Police Station, District - Vadodara, informing the office of the Government Pleader, is taken on record. Page 1 of 2 C/SCA/8656/2018 ORDER 2. Hence, in light of aforesaid communication, learned advocate appearing for the petitioner does not press the present petition at this stage. It is clarified that in view of aforesaid instructions since the petition is withdrawn, the detaining authority shall not detain the petitioner under PASA in respect of complaints which are mentioned in the present petition. It is further clarified that this order is restricted to present FIR which is brought before the Court. In view of this, petition stands dismissed as not pressed. 3. Rule is discharged. Interim relief, if any, shall stand vacated. No order as to costs. Direct service is permitted. (A.J. SHASTRI, J) Bhoomi Page 2 of 2

Mukesh Narandas Makhijani ( ... vs State Of Gujarat on 23 August, 2018

Gujarat High Court

Acctt.year Declared Determined Difference. amount amount. --------- -------- ----------- ---------- 1987-88 31166 79200 48034 1988-89 65136 165600 100464 1989-90 4238 10800 5562 1990-91 273286 694800 421514 1991-92 266260 676900 410640 1992-93 20145 51100 30955 1993-94 80560 204700 124140 ---------- --------- ---------- 740792 1883100 1142308 --------- ---------- ---------- ORDER H.L. Karwa, Judicial Member 1. These there appeals by the assessee were heard together since the issue involved is common and they are being disposed of by this consolidated order for the sake of convenience. 2. We will first take up I.T.A. No. 515(ASR)/2000 for the assessment year 1989-90. In this appeal, the assessee has taken the following grounds:- "1. That the CIT(A) was not justified in upholding the initiation of proceedings under Section 147 on erroneous and insufficient grounds. 2. That the CIT(A) has neither understood the factual position nor the legal position and has upheld the validity of the proceedings under Section 147 on irrelevant consideration. 3. That the CIT(A) has wrongly upheld the addition of Rs. 100464/- towards alleged unexplained investment in building without application of mind and without appreciating the fact that no proper opportunity of being heard had been given to the appellant. 4. That the CIT(A) has wrongly rejected the grounds of the appellant that in the absence of any defects in the construction accounts, in the books of accounts supported by vouchers, no reference could possibly be made to the D.V.O. for making an estimate. 5. That the CIT(A) has wrongly rejected the claims of the appellant for depreciation on the alleted unexplained cost of construction. His finds in this behalf to say the least show his utter ignorance of the provisions of the law. 6. That the CIT(A) has erred in not directing the A.O. to allow the benefit of unabsorbed depreciation for Assessment Year 1967-68 as had been directed by the appellate authorities in earlier years. It is not understood as how allowance of unabsorbed depreciation for Assessment Years 1987-85 to 1988-89 could govern this position. Even otherwise the necessary claims had duly been made in the return. 7. That the order of the CIT(A) is against law and facts of the case and is liable to be set-aside." 2.1 We will deal with ground Nos. 1 to 4 and 7 since these grounds are inter-linked. The relevant facts of the case are that the assessee-company filed its return on 26-12-1989 declaring 'nil' income. The A.O. processed the said return under Section 143(1)(a) of the Income-tax Act, 1961, determining the total income at nil. On 22-3-1996, the A.O. issued a notice under Section 148 of the Act to the assessee after obtaining necessary approval from the Commissioner of Income-tax. In response to the said notice, it was replied by the assessee that the original return filed on 26-12-1989 may be treated as the return filed under Section 148 of the Act. The A.O. noted that while examining the assessment records, relevant to the assessment year 1992-93, it was found that the assessee-company had constructed cold storage building and total investment of Rs. 7,40,792/- was shown during the accounting years, relevant to the assessment years 1988-89 to 1994-95. The matter relating to the cost of construction/valuation of the building, in question, was referred to the Valuation Cell of the Income-tax Department. The accounting years, the value declared by the assessee, the value determined by the D.V.O. and the difference between the cost of construction declared by the assessee and determined by the D.V.O. are reproduce hereunder:- For the assessment year under consideration, the valuation Cell of the Income-tax Department has determined the cost of construction at Rs. 1,65.600/- against Rs. 65,136/- declared by the assessee in its books of accounts. According to the A.O., there was a difference of Rs. 1,00,464/-. The reasons recorded for re-opening the assessment for the assessment year 1989-90 are reproduced hereunder:- "Reasons:- Assessment in this case was completed Under Section 143(1)(a) at the total income of Rs. Nil. It was noticed that the assessee had constructed property at Kartarpur. Its cost of construction was shown at Rs. 65136/- by the assessee. In order to elucidate the correctness of the cost of construction, the case was referred to the Valuation Cell and the cost of construction was worked out to Rs. 1,65,600/- in the year consideration. Thus, there is difference of Rs. 1,00,464/- between declared amount and the amount determined by the Valuation Cell. I have, therefore, reason to believe that total difference to the tune of Rs. 1,00,464/- has escaped assessment within the meaning of Section 147 of the I.T.Act, 1961. In view of this necessary approval to issue notice Under Section 148 of the I.T.Act, 1961 may kindly be accorded. Sd/- (Mrs. Rachna Singh) IRS, Asstt.Commissioner of Income-tax, Circle 1(1), Jalandhar." The A.O. has pointed out the above difference to the assessee. The reasons recorded for re-opening were also brought to the notice of the assessee. The contention of the assessee was that the A.O. has never referred the matter relating to valuation of cost of construction to the Valuation Officer for the assessment year under consideration. However, the A.O. referred the matter of valuation for the assessment year 1992-93 only. The A.O. rejected the above contentions of the assessee and stated that the reference was made to the Valuation Cell to determined true and correct cost of construction of the building, in question, as on 31-3-1992. According to him no specific assessment year was referred to the Valuation Cell. However, it was requested to the Valuation Cell to determine the cost of construction incurred by the assessee till 31-3-1992. According to the A.O., after obtaining the valuation report, it was found that the assessee had made unexplained investment in the construction of the above building. The other objections raised by the assessee viz. the valuation of property was done without proper identification of construction and without considering the accounts maintained by the assessee were rejected by the A.O. Even the objections raised through registered valuer of the assessee were rejected. The A.O. concluded that the assessee has made unexplained investment of Rs. 1,00,464/-, which had escaped assessment and accordingly, notice under Section 148 of the Act had been/rightly sent to the assessee. Thus, considering the amount of Rs. 1,00,464/- as unexplained investment was added back to the income of the a assessee. 3. When the matter was taken to the CIT(A), the following line of arguments was taken:- (1) That the A.O. cannot re-open the assessment on the basis of valuation report received from the D.V.O. during the assessment proceedings for the assessment year 1992-93 when the assessment for the assessment year 1989-90 had already been completed. (2) That when the required details were submitted by the assessee during the assessment proceedings, the assessee cannot re-open on the ground that the D.V.O. had estimated high cost of construction. (3) That reference to D.V.O. could not be made where complete books of accounts were being maintained by the assessee. (4) That the A.O. had referred the valuation to the D.V.O. only for the assessment year 1992-93 and there was no reference to earlier assessment years. (5) That there is difference between 'reason to believe' and 'reason to suspect' and the A.O. cannot open the assessment on the basis of change of opinion. (6) That the A.O. was not justified in re-opening the assessment particularly when the assessee had disclosed all the relevant facts before the A.O. during the course of assessment proceedings. (7) That the A.O. cannot change his opinion on the basis of same set of facts. (8) That the valuation report did not constitute the information for initiating proceedings under Section 147. (9) That the re-assessment proceedings were n-ot valid particularly when the assessee was maintained regular bills of construction supported by valuation report. (10) That the D.V.O.'s report after the assessment was invalid. (11) That the A.O. was not justified in re-opening the assessment on the basis of the order of the C.I.T., Jalandhar passed under Section 263 of the Act for the assessment year 1992-93. 4. The learned CIT(A) rejected the above contentions of the assessee for the reasons stated in paragraphs 6, 7 and 8 of the impugned order, which are reproduced hereunder:- "6. The provisions of Section 147 have changed w.e.f. 1-4-89 and the new provisions are reproduced below:- "147. If the (Assessing) Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may subject to the provisions of Section 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereinafter in this section and in Sections 148 to 153 referred to as the relevant assessment year)." 7. Most of the decision relied on by the ld.counsel are not applicable as those were pronounced keeping in view the earlier provisions of Section 147 of the I.T.Act. The facts in this case is that the return for asstt.year 1989-90 was filed by the assessee on 26.12.89 showing Nil income which was processed Under Section 143(1)(a). No further assessment order Under Section 143(3) were passed in this case. In the depreciation chart, there was reference to addition of building of Rs. 8610/- in cold storage branch and not any reference to investment of Rs. 65136/- in the building account. So, there was no question of assessee furnishing any details required by the A.O. during the course of assessment proceedings prior to issue of notice Under Section 148 and therefore, arguments of the ld.counsel and relevant case laws based on this arguments are not applicable. Again as pointed out earlier the A.O. had only processed the return of the assessee and had neither examined the books of account nor verified whether complete bills and vouchers of construction were maintained by the assessee and in these circumstances, it is not possible to accept that the assessment could not be reopened under the new provisions of Section 147 of the I.T.Act, specially in view of the observation of the ld.V.O. in the valuation report as quoted above. It may be mentioned that in the case of CIT v. Amiya Bala Paul, the Hon'ble Guwahati High Court had held that reference can be made to V.O. at any time. 8. The assessee had claimed to have constructed number of structures during the period relevant to asstt.year 1988-89 to 1994-95. It is also seen that reference was made to the V.O. when the assessment proceedings for the asstt.year 1992-93 were pending and during those valuation proceedings, the assessee was not able to identify as to which structure were constructed in which year. In these circumstances, the V.O. made valuation of the building the allocated various amounts to different years on proportionate basis as per claim of the assessee regarding investment made in various years. When the assessee itself was not in position to identify as to which building was constructed in which year, it is not possible to accept that the books of account of the assessee should be considered as reliable. The observations made by the ld.V.O. in the valuation report regarding discrepancies in the bills and accounts were also not rebutted and for this reason also the books of account of the assessee could not be considered as reliable. It was further pointed out that there is distinction between reasons to believe and change in opinion. When the A.O. has only processed the return Under Section 143(1)(a), it cannot be held that the assessment has been re-opened by change of opinion. Reference is invited to the decision of Hon'ble Gujarat High Court in the case of P.C. Patel v. M.J. Makwana, A.C.I.T. 236 ITR, 832 (Guj.) and the decision in the case of Gruh Finance Ltd. v. Jt.C.I.T. 243 ITR, 482 (Guj.). These two decisions are based on the provisions of Section 147 of IT Act after these were amended w.e.f. 1-4-89. In the case of P.C. Patel (supra), it was held that power to make assessment or reassessment within four years of the end of the relevant assessment year would be attracted even in cases where there has been complete disclosure of all relevant facts upon which correct assessment might have been based in first instance and whether it is error of fact or law that has been discovered or found out justifying the belief required to initiate the proceedings. The words 'escaped assessment' where the return is filed, cover the case of discovery of a mistake in the assessment caused by either erroneous consideration of transaction of due to its non consideration or caused by mistake of law applicable to such transfer or transactions even where there has been complete disclosure of all relevant facts upon which correct assessment could have been based. Similar views were expressed by Hon'ble Gujarat High Court in the case reported in 243 ITR, 282 and therefore, arguments of the assessee that the A.O. has reopened the assessee because of change of opinion is not well founded and is rejected. Coming to the arguments that the report of the DVO did not constitute information for initiation of proceedings Under Section 17, it may be mentioned that in the amended provisions of Section 147, the A.O. is not required to have fresh information in his possession for reopening of assessment. The only requirement is for the A.O. to have reasons to believe and when an expert like a DVO gives his opinion that investment made in building was more than what was shown by the assessee in his account, the A.O. could have justified reasons to believe that income has escaped assessment. Even if, going by various decisions quoted by the ld.counsel that report of the DVO was not information, I am of the opinion that report of DVO could still from the basis of reopening the assessment under the amended provisions as there is no more requirement of having information for reopening the assessment. I do not agree with the arguments of the ld.counsel that if the A.O. acts on the report of the DVO, he would only have reason to suspect and not reason to believe for reopening the assessee and once the A.O. has proper reasons to believe, the decisions of Hon'ble Supreme Court as mentioned in para e) above would be of no help to the assessee in view of the above discussion, I am of the view that the A.O. was justified in reopening of the assessment." From the above finding of the CIT(A), it would be clear that he has held that the A.O. was justified in re-opening the assessment. 5. Aggrieved by the order of the CIT(A), the assessee is in appeal before us. Before us, Shri Y.K. Sud, C.A., the learned counsel for the assessee, reiterated the submissions made before the authorities below. Reliance was also placed on the following decisions:- (1) Roof & Tower Construction (P) Ltd. v. Asstt. Commissioner of Income-tax (2001) 72 TTJ, 433 (Cal.'D' Bench). (2) Bhagwandas Jain and Ors. v. D.C.W.T. and Anr. (2000) 246 I.T.R., 632 (MP). (3) Tara Chand Mundhra v. Union of India and Ors. (2000) 245 ITR, 187 (Raj.) (4) S. Sreeramachandra Murthy and Anr. v. D.C.I.T. and Anr. (2000) 243 I.T.R., 427 (A.P.). (5) Grover Nursing Home v. ITO and Ors. (2001) 248 I.T.R., 493 (P.&H.). 6. On the other hand, Shri B.M. Verma, the learned D.R. strongly supported the orders of the authorities below. 7. We have carefully considered the rival submissions and have also perused the orders of the authorities below, as well as other materials placed on record. We have also considered the decisions which were brought to our notice by the parties at the time of hearing of the appeal. It is noticed that the assessee-company derives income from agricultural operations and running a cold storage. It is an admitted fact that the A.O. processed the return of income under Section 143(1)(a) filed on 26-12-1989. In other words, the A.C. has accepted the returned income as true and correct. Subsequently, the A.O. issued notice to the assessee under Section 148 of the Act stating that the valuation cell of the Income-tax Department determined the cost of construction at Rs. 1,65,600/- as against Rs. 65,136/- as per the books of the assessee. The A.O. was of the view that there was a difference of Rs. 1,00,464/- between the cost of construction shown by the assessee and as determined by the D.V.O. Consequently, the A.O. made an addition of Rs. 1,00,464/- to the total income of the assessee treating the same as unexplained investment. A copy of valuation report submitted by the D.V.O. before the A.O. is available at pages 23 to 29 of the assessee's paper book. From the said report, it is clear that the matter was referred to him by the Assistant Commissioner of Income-tax, Circle I(1), Jalandhar vide his letter dated 18-8-1993. Against Column No. 1.3, i.e. purpose of valuation, the D.V.O. has mentioned as "determination of cost of construction". The date of inspection of property is mentioned as 8-10-1993. Against Column No. 5.3, i.e. the period of construction and the year of construction (completion), the D.V.O. has mentioned the period 10/87-10/93 i.e. October, 1987 to October, 1993. As we have already noted above that the D.V.O. had determined the cost of construction for different accounting years, relevant to the assessment years 1988-89 to 1994-95. According to the A.O., there was difference between the amounts declared by the assessee and determined by the A.O. for the different assessment years. For the assessment year 1989-90, there was a difference of Rs. 1,00,464/- between the cost of construction declared by the assessee in its books of accounts and as determined by the D.V.O. The assessment for the year under consideration was re-opened on the basis of Department Valuer's report obtained after the completion of original assessment. The issue, which is to be determined by us, is whether on the above facts, the A.O. could have initiated the proceedings under Section 148 read with Section 147 of the Act or not. Section 147 (as amended by the Direct Tax laws (Amendment) Act, 1987 w.e.f. 1-4-1989) reads as under:- "147. If the (Assessing) Officer (has reason to believe) that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in Sections 148 to 153 referred to as the relevant assessment year);" Section 148 reads as under:- "148(1) Before making the assessment, reassessment or recomputation under Section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, (as may be specified in the notice a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139.) (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.)" From the above, it would be clear that under Section 147 the A.O. can re-assess any income chargeable to tax if he has "reason to believe" that such income had escaped assessment for any assessment year. The expression "reason to believe" has been considered by the Hon'ble Supreme court in the case of I.T.O. v. Lakhmani Mewal Das (1976) 103 I.T.R., 437. It was observed by the Hon'ble Supreme Court that the expression "reason to believe" does not mean a purely subjective satisfaction on the part of the I.T.O. The Hon'ble Supreme Court (at pages 445 and 446) has held as under:- "The grounds or reasons which lead to the formation of the belief contemplated by Section 17(a) of the Act must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omission to disclose fully and truly all material facts. Once there exist reasonable grounds for the Income-tax Officer to form the above belief, that would be sufficient to cloth him with jurisdiction to issue notice. Whether the grounds are adequate or not is not a matter for the court to investigate. The sufficiency of the ground which induce the ITO to act is, therefore, not a justiciable issue. It is, of course, open to the assessee to contend that the ITO did not hold the belief that there had been such non-disclosure. The existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the ITO. The reason must be held in good faith. It cannot be merely a pretence. It is open to the court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section. To this limited extend, the action of the ITO in starting proceedings in respect of income escaping assessment is open to challenge in a court of law." Keeping in view the above ruling of the Hon'ble Supreme Court, we are of the view that on the facts and in the circumstances of the present case, it cannot be held that the A.O. was justified in assuming jurisdiction under Section 147 read with Section 148 of the Act. In this regard, we may refer to the decision of the Calcutta Bench of the Income-tax Appellate Tribunal in the case of Roof & Tower Construction (P) Ltd. v. A.C.I.T. (2001) 72 TTJ(Cal), 443, wherein it has been held that the valuation report is only an opinion of valuer and it can neither amount to 'information' nor to 'reason to believe' that any income has escaped assessment and, therefore, re-opening merely on the basis of D.V.O.'s report is not sustainable. The Hon'ble Rajasthan High Court in the case of Tara Chand Mundhra v. Union of India and Ors. (2000) 245 I.T.R., 187 has held at pages 191-192 as under- "In view of the law laid down by this court in the cases of Pratapsingh Amrosingh Rajendra Singh and Deepak Kumar (1993) 200 ITR, 788 and Smt. Prem Kumari Surena (1994) 206 ITR, 715, it has been conclusively held by this court that the report of a valuer cannot singly be made the basis of information as required under Section 147(b) of the Act to issue a notice under Section 148 of the Act. No separate reasons have been furnished by the Department. The only reason discernible from the reply filed by the Department is that subsequent to the filing of the return by the assessee, the Department came into possession of the report of the official valuer of the Department and, thus, came to issue the notice under Section 148 of the At. As the only ground available with the Department for issuing notice under Section 148 of the Act was held had by this court, it can safely be held that the notice issued for reopening the assessment is a notice without foundation. As and when a notice is held to be without foundation then what would necessarily follow is that the law laid by the Supreme Court in the case of Calcutta Discount Co. Ltd. (1961) 41 ITR, 191, will govern the field and the notice deserves to be quashed. Consequently, the notice of reopening the assessment annexures 7 deserves to be quashed." 7.1 In the instant case, the A.O. himself has admitted that the assessee was maintaining the proper books of accounts. The expenses incurred by the assessee towards the cost of construction were supported by bills and vouchers. While procession the return under Section 143(1)(a) of the Act, the A.O. himself has accepted the cost of construction declared by the assessee or the year under consideration. It is also not the case of the Revenue that the books of accounts are not reliable or are not supported by bills or vouchers. At the same time, it is also not the case of the Revenue that no reliance can be placed on such books of accounts. At this stage, we may also refer to the decision of the Hon'ble Rajasthan High Court in the case of C.I.T. v. Pratapsingh Amrosingh Rajendra Singh and Deepak Kumar (1993) 200 I.T.R. 788, wherein it has been held that the valuation report can be taken into consideration only when the books of account are not reliable or are not supported by proper vouchers. In view of the decision or the Hon'ble Rajasthan High Court in the case of C.I.T. v. Pratapsingh Amrosingh Rajendra Singh and Deepak Kumar (supra), even the valuer report cannot be made the basis for re-opening the assessment. 7.2 On a perusal of the recorded reasons, reproduced hereinabove, it would be clear that the A.O. has issued a notice under Section 148 on the basis of the report of the D.V.O. and he had no other material or evidence in his possession for forming the belief that the income of the assessee had escaped assessment. Even the Hon'ble Punjab and Haryana High Court in the case of Grover Nursing Home v. I.T.O. and Ors. (2001) 24B ITR, 493 held that even the report of the D.V.O. cannot be made the sole basis for initiating action under Section 147 read with Section 148 of the Act. On this score alone, the A.O. was not justified for initiating the action under Section 147 read with Section 148 of the Act. 7.3 In the case of S. Sreeramachandra Murthy and Anr. v. Deputy Commissioner of Income-tax and Anr. (2000) 243 I.T.R., 427, the Hon'ble Andhra Pradesh High Court has held that in order to attract Section 147 of the Act, the first and foremost requirement is that the A.O. should have reason to believe that the income chargeable to tax had escaped assessment for any assessment year. In the said case, re-assessment proceedings were initiated on the ground that the assessee (petitioner) under-estimated the cost of construction of a commercial complex constructed during the year 1992-93 and the differential cost was attributable to unexplained income. The Hon'ble High Court quashed the notices under Section 148 of the I.T.Act, observing as under:- "Coming to the facts of the present case, the construction of the building complex was admittedly disclosed by the petitioner in the return and in the assessment, the cost of construction and sources of investment were specifically gone into by the A.O. It appears that there was a search in the year 1993. It is not the case of the Revenue that in the course of search operations any incriminating material which has a bearing on the cost of construction of the building, had come to light. The petitioner or his representative did not make any statement that the construction cost was more than what was disclosed earlier. Nearly four years later, the Deputy Commissioner obtained a report from the valuation cell, which revealed that the cost of construction would have been much more than what was disclosed by the assessee and noticed by the Income-tax Officer in the course of the assessment proceedings. It is on the basis of this valuation report, the impugned notice has been issued. A perused of the file in which the reasons are recorded by the second respondent makes it clear that the sole basis for reopening the assessment is the estimate of construction given by the Department Valuer long after the search. Though a reference has been made to the search operations conducted on August 4, 1993, nothing is stated therein that any adverse or incriminating material had come to the notice of the Department as regards the construction of the shopping complex. It is merely stated by the Assistant Commissioner that in the course of search and seizure operations, it was noticed that the assessee and his wife had constructed the shopping complex by name "Ramachandra Shopping Complex" at Anakapalli. The factum of construction of the shopping complex, as already noted, is not a new fact, which had come to light as a result of search operations. Though it is stated in the counter-affidavit that in the course of search operations, it was noticed that the cost of construction would be much higher than what was disclosed by the assessee in the return of income, such ground or reason is not to be found in the reasons recorded by the Assistant Commissioner leading to the initiation of reassessment proceedings. Hence, the statement in the counter-affidavit is not accurate. Therefore, as already observed by us, the sole basis for initiating reassessment proceedings is the estimate of constructional cost made by the Departmental Valuer long after the search operations. The formation of reasonable belief cannot obviously be based on such valuation done after the assessment was completed, when there was no other material to suggest that the petitioner failed to disclose the true and relevant primary facts which have a bearing on the construction of the building. The reason recorded in support of the belief which the Assessing Officer is expected to form before initiating reassessment proceedings, is thus an irrelevant reason and does not go to establish that the petitioner failed to discharge the duty of disclosing the primary facts to the Assessing Officer before the assessment was made. Learned senior standing counsel for the Department has submitted that the petitioner had shown the differential cost proportionately in the declarations relating to assessment years filed under the Kar Vivad Samadhan Scheme and that itself would furnish a legitimate basis for reassessment. We find it difficult to accept this contention. The decision to initiate reassessment proceedings is not based on that ground. Nothing is mentioned about the declarations filed under the Kar Vivad Samadhan Scheme in the reasons recorded by the Assistant Commissioner. It is well settled that the court cannot go beyond the recorded reasons, nor can it take into account any supplementary reasons which did not enter into the mind of the assessing authority at the time of issuing the reassessment notice. For the above reasons, we are constrained to quash the impugned notice issued under Section 148 of the Act and allow the writ petition. No costs." 7.4 From the above discussion, it would be clear that in the instant case, the assessee was maintaining proper books of accounts. The A.O. has not rejected the book results. He has also not stated that the assessee's books of accounts are not reliable. Therefore, there was no justification for referring the matter to the Valuation Cell. 7.5 In view of the various decisions, referred to above, we are of the firm view that in the instant case, the A.O. was not justified in initiating the proceedings under Section 147 read with Section 148 on the sole basis of report of the D.V.O. In other words, the D.V.O.'s report cannot made the basis for re-opening of the assessment, particularly, when there was no other material or evidence with the A.O. The valuation report is only an opinion of valuer and the A.O. was not justified in making the same as basis for re-opening. 7.6 In view of the above, we set-aside the impugned order and allow the ground Nos. 1 to 4 and 7 raised by the assessee. The addition of Rs. 1,00,464/- made by the A.O. and confirmed by the CIT(A) on account of alleged unexplained investment is hereby deleted. 8. As regards ground Nos. 5 and 6, we hold that these grounds have become infructuous and accordingly we dismiss the same as having become infructuous. 9. Now we will take up I.T.A. Nos. 516 & 517 (ASR)/2000. In these appeals, the assessee has taken identical grounds as those in I.T.A. No. 515(ASR)/2000, relating to the assessment year 1989-90. The only difference is regarding the addition made on account of alleged unexplained investment in the building. For the assessment year 1991-92, the addition made by the A.O. and confirmed by the CIT(A) is at Rs. 4,21,514/- while for the assessment year 1993-94, the addition of Rs. 30,955/- was upheld by the CIT(A). It is relevant to note that for the assessment year 1989-90, the impugned addition was at Rs. 1,00,464/-. While deciding the appeals of the assessee by the CIT(A) for the assessment years 1991-92 and 1993-94, he has followed his order for the assessment year 1989-90. Admitted position is that the facts and the circumstances of these cases are similar to the facts of the case relating to the assessment year 1989-90. Even the rival connection of the parties are similar. While deciding the I.T.A. No. 515(ASR)/2000 (supra), we have deleted the addition of Rs. 1,00,464/- made by the A.O. and confirmed by the CIT(A) for the reasons stated hereinabove. In view of the findings given in I.T.A. No. 515(ASR)/2000, we also delete the additions of Rs. 4,21,514/- for the assessment year 1991-92 and Rs. 30,955/- for the assessment year 1993-94 made by the A.O. and confirmed by the CIT(A) on account of alleged unexplained investment. 10. Ground Nos. 5 and 6 common to both the appeals are dismissed in view of our findings given in para 8 (supra) in I.T.A. No. 515(ASR)/2000 in respect of grounds Nos. 5 and 6. 11. In the result, all the appeals are allowed partly.

Karamjit Electrical Mfg. Co. (P) ... vs The Asstt. Commissioner Of ... on 29 November, 2001

Income Tax Appellate Tribunal - Amritsar

Gujarat High Court Case Information System Print CR.A/1157/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1157 of 2010 ========================================================= STATE OF GUJARAT - Appellant(s) Versus JAYANTIBHAI LAXMANBHAI DABHI & 1 - Opponent(s) ========================================================= Appearance : MR AJ DESAI, APP for Appellant(s) : 1, MR AMIT CHAUDHARY for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Date : 26/11/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Heard learned APP Mr.Desai and learned advocate Mr.Amit Chaudhary for respondents. Appeal admitted. (A.L.Dave, J.) Sreeram. (V.M.Sahai, J.)     Top

Author: A.L.Dave,&Nbsp;

State vs Appearance on 26 November, 2010

Gujarat High Court

Gujarat High Court Case Information System Print CA/3233/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR CONDONATION OF DELAY No. 3233 of 2010 In LETTERS PATENT APPEAL (STAMP NUMBER) No. 547 of 2010 In SPECIAL CIVIL APPLICATION No. 11044 of 2009 ====================================== KAMLESHKUMAR VIRCHANDBHAI CHAUHAN - Petitioner(s) Versus M P RAVAL CHARITABLE TRUST & 4 - Respondent(s) ====================================== Appearance : MR KB PUJARA for Petitioner(s) : 1, MS MOXA THAKKER, AGP FOR respondent Nos.3-5 RULE SERVED BY DS for Respondent(s) : 1 - 2. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE MD SHAH Date : 06/05/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) The application is allowed and rule is made absolute in terms of para 2(a) in view of the uncontroverted averments made in the application and the satisfactory explanation provided by the applicant. (D.H.WAGHELA,J.) (M.D.SHAH,J.) radhan     Top

Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice Shah,&Nbsp;

Kamleshkumar vs M on 6 May, 2010

Gujarat High Court

W. P. No. 14159/2006 12.5.2010 Petitioner present in person. Shri Kumaresh Pathak, learned Dy. Advocate General for respondents No.1 to 7. (S.R.Alam) (Alok Aradhe) Chief Justice Judge A.Praj. Shri Anshuman Singh, learned counsel for the respondent No.8. Heard on I.A.No.4047/2010. This application is moved on behalf of respondents No.1 to 7 for modification of this Court's order dated 12.3.2007. The writ petition is filed as a Public Interest Litigation highlighting the inaction on the part of the respondents in not removing the encroachment and illegal constructions over the land belonging to Neta Subhash Chandra Bose Government Medical College & Hospital, Jabalpur (hereinafter referred to as NSCB Medical College & Hospital, Jabalpur for short). It has been inter alia alleged that several Government employees including private persons have encroached upon the land belonging to the Medical College and made constructions over the same without any permission and sanction of the plan from concerned authorities which is causing inconvenience to the doctors, students, medical staff and the patients of the Medical College. It has also been alleged that the encroachments have been made by several government employees and private persons and, therefore, direction is sought to conduct a survey in the area of the NSCB Medical College & Hospital, Jabalpur, and a further direction has been sought to authorities to remove the encroachments and to ensure that no further encroachment takes place in future. This Court vide order dated 12.3.2007 after hearing learned counsel for parties, directed that since land belongs to NSCB Medical College & Hospital, Jabalpur, the same cannot be encroached by any person. It was further observed that all the encroachments will be removed forthwith in accordance with law. Accordingly, the Collector- respondent No.4 was directed to initiate action for removal of encroachments from the land belonging to NSCB Medical College and Hospital, Jabalpur, in accordance with law. Shri Pathak, learned Dy. Advocate General submitted that pursuant to the orders passed by this Court, respondent No.4 had initiated an action for removal of the encroachment but looking to the large number of encroachers i.e. about approximately one thousand in number, it has become difficult to remove the encroachment as they are creating law and order problem in the area. It was further submitted by the learned Dy. Advocate General that 96.40 hectares of land belong to NSCB Medical College & Hospital, Jabalpur, out of which 17.71 hectares of land is under encroachment. District Administration has decided to get five hectares of land released from Medical College for the purposes of construction of house under JNNURM Scheme. It has been further submitted that if five hectares of land is released, it would not adversely affect the expansion plan of Medical College, Jabalpur. Accordingly, prayer has been made by learned Dy. Advocate General that order dated 12.3.2007 be suitably modified. Having heard the petitioner who is present in person as well as learned Dy. Advocate General, we are not inclined to modify the order dated 12.3.2007. Admittedly, the land belongs to NSCB Medical College & Hospital, Jabalpur. The aforesaid land cannot be allowed to be used by private persons for their residential purposes. From perusal of application for modification, filed on behalf of respondents, we find that a bald statement has been made that if encroachments are removed, it will create law and order problem in the area. No particulars have been furnished as to when attempts were made to remove the encroachment and how it resulted in law and order problem. No material has been brought on record to show that State Govt. which has allotted the land to Medical College has taken any decision to get back the land from Medical College. In the application it is averred that district administration has prepared a proposal. Thus, it is apparent that competent authority i.e. the State Government has not taken any decision in this regard. If five acres of land is released and is settled in favour of encroachers under JNNURM Scheme, the same would tantamount to putting premium on the conduct of persons who are trespassers and have illegally occupied the land of the NSCB Medical College & Hospital, Jabalpur, and which would make a bad precedence. The encroachers have no authority in law to remain in occupation of the government land and, therefore, if any leniency or discretion is exercised in favour of the encroachers, that would be against the established principle of equity, justice and fair play. The direction to remove the encroachment by this Court was given and, therefore, it is amazing rather shocking that though more than three years have passed, but no effective steps have been taken so far to remove the encroachments. This reflects the lackadaisical and cavalier approach of the respondents. We do not appreciate this lackadaisical and cavalier approach of the respondents. Therefore, all the encroachments are required to be removed forthwith as has been directed by this Court vide order dated 12.3.2007. For the aforementioned reasons, application for modification of the order dated 12.3.2007 is rejected. Shri Pathak, learned Dy. Advocate General fairly submitted that steps were initiated by the Collector for compliance of the order of the Court. However, on account of unavoidable circumstances, the order passed by the Court could not be implemented. However, learned Dy.Advocate General assures this Court that Collector shall initiate action for removal of encroachment on the land belonging to NSCB Medical College & Hospital, Jabalpur, and the same would be completed expeditiously, preferably, within a period of six months. Learned Dy. Advocate General further stated that Collector shall file a compliance report with regard to the action taken by him for removal of the encroachments. In view of the statement made by learned Dy. Advocate General, let the matter be listed after six months. Certified copy as per rules.

Satish Kumar Verma vs The State Of Madhya Pradesh on 12 May, 2010

Madhya Pradesh High Court

JUDGMENT N.K Sud, J. In pursuance of the direction of this court in Income-tax Case No. 48 of 1987 in CIT v. M/s. Variety Hosiery Mills, the Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh has referred the following question of law arising out of its order dated 27-6-1985, relating to assessment year 1978-79, for the opinion of this court: "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in confirming the order of the CIT(A) allowing inclusion of anticipated profits for assessment on release orders and import licences in the absence of actual sale of goods or any other recognised system of accounting ? 2. For the assessment year 1976-77, the assessee had shown profit of Rs. 75,000 in greasy wool account. There was no sale of greasy wool in that year but the profit had been shown on estimate basis. The Income Tax Officer held that in the absence of any sales of wool, no income on the basis of anticipated profits could be assessed. He, therefore, excluded the said amount from the total income of the assessee for the assessment year 1976-77. There was no sale in this account even for the assessment year 1977-78. However, for the assessment year 1978-79, which is under consideration, there was sale of wool amounting to Rs. 4,88,348 on which a sum of Rs. 88,516 was shown as profit. Since the assessee had shown profit of Rs. 75,000 in assessment year 1976-77 on estimate basis, it returned the balance amount of Rs. 13,516 only in its return filed for the assessment year 1978-79. 2. For the assessment year 1976-77, the assessee had shown profit of Rs. 75,000 in greasy wool account. There was no sale of greasy wool in that year but the profit had been shown on estimate basis. The Income Tax Officer held that in the absence of any sales of wool, no income on the basis of anticipated profits could be assessed. He, therefore, excluded the said amount from the total income of the assessee for the assessment year 1976-77. There was no sale in this account even for the assessment year 1977-78. However, for the assessment year 1978-79, which is under consideration, there was sale of wool amounting to Rs. 4,88,348 on which a sum of Rs. 88,516 was shown as profit. Since the assessee had shown profit of Rs. 75,000 in assessment year 1976-77 on estimate basis, it returned the balance amount of Rs. 13,516 only in its return filed for the assessment year 1978-79. 3. For the assessment year 1976-77, the matter was carried in appeal before the Appellate Assistant Commissioner who reversed the order of the Income Tax Officer and directed the inclusion of profits of Rs. 75,000 in the greasy wool account in the income of the assessee for that year. On further appeal by the revenue, the Tribunal up-held the finding of the Appellate Assistant Commissioner holding that the assessee was following the method of showing estimated profits regularly right from the assessment year 1971-72 onwards. Against the order of the Tribunal, the revenue sought a reference under section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) on this issue which was not granted and the reference application was dismissed by the Tribunal vide order dated 29-11-1985. According to the assessee the order of the Tribunal rejecting the reference application has been accepted by the revenue as no further petition under section 256(2) of the Act was filed. This assertion has been supported by an affidavit of Mr. Madan Gopal Gupta-partner of the assessee firm. In view of the above position, it is clear that out of the total profit of Rs. 88,516 sale of greasy wool in assessment year under consideration, a sum of Rs. 75,000 already stands assessed in assessment year 1976-77 and the said assessment has since become final. In the back-drop of this factual position, no fault can be found with the finding of the Tribunal that it is only the balance amount of Rs. 13,516 which could be assessed during the assessment year 1978-79. Otherwise, it would result in taxing the same income twice, which is not permissible under law. 3. For the assessment year 1976-77, the matter was carried in appeal before the Appellate Assistant Commissioner who reversed the order of the Income Tax Officer and directed the inclusion of profits of Rs. 75,000 in the greasy wool account in the income of the assessee for that year. On further appeal by the revenue, the Tribunal up-held the finding of the Appellate Assistant Commissioner holding that the assessee was following the method of showing estimated profits regularly right from the assessment year 1971-72 onwards. Against the order of the Tribunal, the revenue sought a reference under section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) on this issue which was not granted and the reference application was dismissed by the Tribunal vide order dated 29-11-1985. According to the assessee the order of the Tribunal rejecting the reference application has been accepted by the revenue as no further petition under section 256(2) of the Act was filed. This assertion has been supported by an affidavit of Mr. Madan Gopal Gupta-partner of the assessee firm. In view of the above position, it is clear that out of the total profit of Rs. 88,516 sale of greasy wool in assessment year under consideration, a sum of Rs. 75,000 already stands assessed in assessment year 1976-77 and the said assessment has since become final. In the back-drop of this factual position, no fault can be found with the finding of the Tribunal that it is only the balance amount of Rs. 13,516 which could be assessed during the assessment year 1978-79. Otherwise, it would result in taxing the same income twice, which is not permissible under law. 4. In this view of the matter, the question is answered in the affirmative i.e. in favour of the assessee and against the revenue. 4. In this view of the matter, the question is answered in the affirmative i.e. in favour of the assessee and against the revenue.

Author: N Sud

Cit vs Variety Hosiery Mills on 14 September, 2004

Punjab-Haryana High Court

IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P No. 172 OF 2009 With I.A No. 2190 OF 2010 Bhola Prasad Sah Vs. The State of Jharkhand & Ors. ------- CORAM HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE NARENDRA NATH TIWARI For the Appellant/Petitioner Mr.Ashok Kumar For the Respondent Mr.A.K.Jha --------- 6/21.12.2010 I.A No. 2190 OF 2010 Heard counsel for the parties. For the reasons stated in this application, the delay in filing this appeal is condoned. I.A No. 2190/2010 is disposed of. (Bhagwati Prasad,C.J.) (Narendra Nath Tiwari,J.) dey

Bhola Prasad Sah vs State Of Jharkhand & Ors on 21 December, 2010

Jharkhand High Court

JUDGMENT B. Subhashan Reddy, C.J. 1. These writ appeals raise a common point regarding the exigibility of sales tax under the Kerala General Sales Tax Act. The facts need not separately be stated as all the matters relate to levy of sales tax under the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the State Act"). The appellants filed the writ appeals aggrieved by the judgments rendered by the learned single Judge repelling their contention that they are not liable to pay the sales tax under the State Act, but are liable to pay tax only under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act"). All the appellants are said to be traders in sandalwood and having sale outlets in other States than Kerala, be it in Uttar Pradesh, Delhi or Haryana and had participated in the sandalwood auction conducted by the Kerala Forest Department in which they were the highest bidders. They were not permitted to take their bid properties unless the sales tax under State Act is remitted. Their contention is that they participated in the auction not to sell the sandalwood timber within the State of Kerala and their sole intention was to transport sandalwood to the respective destinations outside the State of Kerala and the said transactions attract only the provisions of the Central Act and not the State Act. Concisely speaking, their contention is that the transactions have to be treated as inter-State trade and not an intra-State within Kerala. 2. The learned single Judge went into the matter very comprehensively and did not agree with the contentions raised by the appellants that the transactions are inter-State. Learned counsel appearing for the appellants heavily relied upon the judgments rendered by the Supreme Court in Consolidated Coffee Ltd. v. Coffee Board, Bangalore , Co-operative Sugars (Chittur) Ltd. v. State of Tamil Nadu and State of A.P. v. National Thermal Power Corporation Ltd. . Mr. Raju Joseph, learned Special Government Pleader (Taxes), counters the arguments of the learned counsel for the appellants stating that the situs of the sale is within the State of Kerala and the sale was complete the moment bids of the appellants were accepted and the appellants' intention to carry the auction properties beyond the State of Kerala is immaterial and as the sale was completed within the State of Kerala, the State Act is applicable and that merely because the appellants wanted to carry the timber to their business places outside the State of Kerala cannot be a factor for treating the sale as inter-State. 3. Mr. Raju Joseph, the learned Government Pleader, has cited a Constitutional Bench decision of the Supreme Court in Kil Kotagiri Tea and Coffee Estates Co. Ltd. v. State of Kerala, [1965] 16 STC 467, which held that sale of goods in auctions is complete by the fall of the hammer under the Sale of Goods Act. In the said case, the question was whether the sale was completed within the area of Fort Cochin, which was hitherto in the State of Madras or Willington Island which was in the State of Travancore. Dealing with the question very comprehensively, it was ruled by the Supreme Court authoritatively that since the sale took place within the territorial jurisdiction of Fort Cochin, tax which is leviable by the State of Madras was payable. Learned counsel for the appellants seek to distinguish the ratio laid in the said judgment by relying upon the judgments cited in Consolidated Coffee's case , Co-operative Sugar's case and National Thermal Power Corporation's case . 4(a). In Consolidated Coffee's case , the transaction was sale of coffee. It was in the nature of auction conducted in consonance with auction conditions framed by the Coffee Board as empowered under Coffee Act, 1942. Coffee Board is the body created under the said statute and it exercises powers and discharges functions assigned to it under the Coffee Act and the Coffee Rules framed thereunder. The Act mandates registration of all owners of coffee estates and licensing of dealers and it also imposes control on the sale, export and re-export of coffee into India. There is also price control, and the same has to be fixed by the Coffee Board. The Coffee Board has framed permit conditions for the registered exporters and also the terms and conditions for sale of coffee in the course of export and for participation of the registered exporters in the auction. The registered exporters, who had participated in the auction and after coming out successful in the auction, has to export coffee and compliance thereof has to be reported to the Coffee Board. 4(b). In Co-operative Sugar's case , it was the sugarcane sale. Co-operative Sugar (Chittur) Ltd., is a sugar factory in Kerala. Because of the paucity of supply of sugar cane from the areas within Kerala, the above sugar factory pleaded with the Kerala Government seeking permission to purchase from adjoining areas in Tamil Nadu. The Kerala Government responded and addressed to Tamil Nadu Government to which the latter had responded and, consequently, issued a Governmental order permitting such sale. In the Government Order issued, there is a clause that, sales tax as levied under the Tamil Nadu General Sales Tax Act, should be paid by the above factory. But, later on, the above sugar factory resiled from the promise of paying sales tax after the sale transaction was completed which led to a dispute. The Madras High Court ruled in favour of Tamil Nadu Government and, ultimately, the matter landed in Supreme Court. The Supreme Court has elaborately considered the matter in the perspective of inter-State trade and held that, in spite of the condition in the Government order obligating the sugar factory to pay sales tax under the Tamil Nadu General Sales Tax Act, such obligation was contrary to the constitutional provisions and, thus, inoperative, even though the sale was within the territory of Tamil Nadu. It was held by the Supreme Court that the purchases made by the sugar factory were inter-State purchase and the sugar factory was permitted to purchase sugarcane from the areas in Tamil Nadu only with a view to and exclusively for the purpose of transporting it to its factory in Kerala and that the movement of the sugarcane from Tamil Nadu to Kerala was an incident and was inextricably connected with the purchase of sugarcane by the factory and that the purchase and transport of sugarcane by the factory were parts of same transaction and that could not be disassociated. 4(c). In National Thermal Power Corporation's case , the Andhra Pradesh Government sought to levy sales tax under the Andhra Pradesh General Sales Tax Act for sale of electricity generated at thermal power station in Ramagundam of Andhra Pradesh to the Electricity Boards of Karnataka, Kerala, Tamil Nadu and Goa. On a challenge made against the said levy in the High Court of Andhra Pradesh, the High Court had set aside the levy. State of Andhra Pradesh had filed appeals before the Supreme Court, but, the Supreme Court upheld the judgment of the High Court on the ground that sale of electricity was inter-State and fell outside the purview of the Andhra Pradesh General Sales Tax Act. It was held by the Supreme Court that no State legislation, nor any stipulation in any contract, can fix the situs of sale within the State or artificially define the completion of sale in such a way as to convert an inter-State sale into an intra-State sale or create a territorial nexus to tax an inter-State sale unless permitted by an appropriate Central legislation. 5. The above three decisions relied upon by the learned counsel for the appellants lay down a legal principle that there should have been a pre-existing and binding obligation on the part of the purchaser of goods in any State to claim exemption from the State sales tax on the ground of inter-State movement. It is not enough if there is a wish or intention on the part of the purchaser to carry the purchased goods to his place of destination from the State where he had purchased such goods. But, it should be an imposition that should have been in existence even at the time of bidding in any auction or purchasing otherwise, so as to claim the sale as inter-State. It may not be necessary that such an imposition should be in express terms and it is suffice if it is implicit. 6. We have perused the auction conditions in the instant cases. The auction conditions are simple and plain and that of an ordinary offer of sale like public auction on the terms set therein and the acceptance of the same by the bidders. There is no obligation or otherwise for the Forest Department to sell the timber and the appellants to purchase. The appellants were not bound by any statute or contract while bidding in the auction and they were like any other. The appellants knew the tender conditions fully while participating in the auction. They submitted tenders along with security deposit as per Clause 2 of the auction conditions contained in the notification issued in that regard. The said amount is refundable to the unsuccessful bidders after the auction proceedings, but, for successful bidders, it is not refundable and, in fact, it would be forfeited to the Government, in case of default by the successful bidders to comply the conditions of auction. After the auction, the successful bidder shall affix his signature in the auction register so that he shall not go back from the auction terms and that indicates that the sale is complete in so far as the auction purchaser is concerned. Confirmation is the discretion of the officer, subject to the terms of the auction and upon confirmation of sale of the lots, the successful bidder has to remit the full amount and sales tax in the office of the Forest Department and then transit permits will be issued to whatever destination the auction purchaser seeks for. Thus, it is clear that auction conditions do not involve any statutory or other obligations for movement of the sandalwood timber after purchase by the appellants, and the legal principles enunciated by the Supreme Court in the judgments referred to Consolidated Coffee Ltd. v. Coffee Board, Bangalore , Co-operative Sugars (Chittur) Ltd. v. State of Tamil Nadu and State of A.P. v. National Thermal Power Corporation Ltd. , are not at all applicable and it cannot be said that the sandalwood purchased by the appellants is an inter-State sale. We, accordingly, affirm the judgment of the learned single Judge and dismiss the writ appeals. No costs.

Author: B S Reddy

Ashish Kapur vs Forest Officer And Ors. on 24 February, 2005

Kerala High Court

Court No. - 11 Case :- SECOND APPEAL No. - 337 of 2008 Petitioner :- Smt. Chandrawati Respondent :- Smt. Bindeshwari Devi ( Deceased )Petitioner Counsel :- Anurag Shukla Respondent Counsel :- B.R.Verma Hon'ble Anil Kumar J. List in the next cause list. Interim order, granted earlier, shall continue till the next date of listing. Order Date :- 13.8.2010 krishna/*

Smt. Chandrawati vs Smt. Bindeshwari Devi ( Deceased ) on 13 August, 2010

Allahabad High Court

JUDGMENT R.L. Khurana, J. 1. This appeal has been directed against the award dated 18.12.1990 of the Motor Accidents Claims Tribunal, Chamba, whereby compensation of Rs. 1,07,000/- was awarded in favour of the respondent, hereinafter referred to as 'the petitioner'. 2. The petitioner on the relevant date was travelling from Banikhet to Bathri by Himachal Road Trans. Corpn. bus bearing registration No. HIC 306. One Bir Singh was the driver of the bus at the relevant time. When the bus reached near Patna curve at about 6.15 p.m., it met with an accident due to rash and negligent driving on the part of the driver, as a result of which the petitioner sustained injuries to his right arm. The petitioner was given first aid at Bathri Hospital and thereafter referred to District Hospital, Chamba, for further management. At the District Hospital, the right arm of the petitioner had to be amputated above the elbow joint. The petitioner, accordingly, approached the Motor Accidents Claims Tribunal, Chamba, seeking compensation of Rs. 3,00,000/-for the bodily injuries sustained by him. The petitioner at the relevant time was about 27 years of age and working as a mason. The permanent disability sustained by the petitioner due to amputation of his right arm above the elbow joint has been assessed at 75 per cent. 3. The petition was resisted by the Himachal Road Transport Corporation and the driver, hereinafter referred to as 'the respondents'. The accident and the resultant injury suffered by the petitioner was admitted. Rash and negligent driving on the part of the driver was denied. While the driver in his separate reply has not given any explanation with regard to the cause of accident, the respondent H.R.T.C. has come up with the explanation that 33 KV transmission line, which was being installed, had suddenly fallen on the road and in order to avoid any major disaster, the driver had turned the bus towards the hillside. It was further pleaded that the bus never struck against the hill and that the petitioner sustained injuries since he was keeping his arm out of the window, the same had struck against the hill, whereby he sustained the injuries. 4. The learned Tribunal upon consideration of the material placed before it came to the conclusion that the accident, in which the petitioner had sustained the injuries, was as a result of rash and negligent driving on the part of the driver of the bus. The petitioner had not contributed to the negligence. The learned Tribunal, accordingly, awarded compensation of Rs. 1,07,000/- to the petitioner for the injuries sustained by him. 5. Feeling aggrieved by and being dissatisfied with the amount awarded by the learned Tribunal, the respondent H.R.T.C. has come up in appeal before this Court, challenging the findings of the learned Tribunal on the question of negligence as well as the quantum of compensation assessed. 6. We have heard the learned Counsel for the parties and have gone through the record of the case. 7. As stated above, the accident has not been denied by the respondent. While the case of the petitioner is that the accident was as a result of the rash and negligent driving on the part of the bus driver, the respondent H.R.T.C, the owner of the ill-fated bus, has come up with the explanation that at the place of accident 33 KV transmission line was being installed by the State Electricity Board, when all of a sudden, the transmission wire had fallen on the road. The driver of the bus in order to avoid any serious disaster due to the falling of the live transmission wire, had turned the bus towards the hill. It has further been averred that the bus never struck against the hill. The right arm of the petitioner which he was keeping outside the window had struck against the hill, thereby causing injuries to the petitioner. Respondent driver of the bus has only denied the rash and negligent driving on his part and has not offered any explanation as to the cause of accident. 8. It is well settled that the driver of the vehicle involved in the accident is the best person to explain the circumstances under which an accident has taken place. In the present case, as stated above, no explanation has been offered by the respondent driver as to the cause of the accident. He has, for the first time, while appearing as RW 1, offered the explanation with regard to the cause of accident that on seeing a live transmission wire falling on the road, he had turned the bus towards the hillside and that the arm of the petitioner happened to strike against the hill. 9. Admittedly, the petitioner was sitting on a seat on the right side of the bus. It is also not denied that at the place of the occurrence, the hill is located towards the right side of the road, while one proceeds from Banikhet to Bathri. Therefore, it is evident that the driver had taken the bus from the left side of the road to the right side of the road, whereby the accident had taken place. Even if it be assumed that the driver had seen a live transmission wire falling on the road, the best course for him was to have immediately stopped his bus It is in the statement of the driver as RW 1 that he had seen the transmission line falling from a distance of five to six feet. It is not the case of the driver respondent that he had no opportunity of stopping the bus immediately on seeing a live transmission line falling on the road. Another inference which can be drawn from the facts and circumstances of the case is that the bus was being driven by the driver respondent at a very high speed and due to such high speed he was unable to stop the bus and, therefore, was forced to take the bus towards the wrong side of the road when it happened to strike against the hill, thereby causing injuries to the petitioner. The negligence on the part of the driver respondent is, therefore, writ large. 10. It was vehemently argued by Mr. Sharma, learned Counsel for the respon dent appellant, that the petitioner himself is guilty of contributing negligence, inasmuch as he was keeping his arm out of the window while travelling in the bus. There is no merit in the contention of the learned Counsel. 11. In Chaturji Amarji v. Ahmad Rahimbux 1980 ACJ 368 (Gujarat), where the claimant was travelling by a State Transport bus being plied on a 12 feet wide road, while resting his right arm on the window railing, had sustained injuries due to the grazing of the two vehicles, while crossing each other, the High Court of Gujarat came to the conclusion that the accident was as a result of the rash and negligent driving on the part of the drivers of the two vehicles and that the claimant was not guilty of any contributory negligence. While coming to the said conclusion it was observed that the correct criterion in such cases is first to find out as to whether it is a case in which arm or any part of the body of a passenger travelling by the bus was protruding unreasonably and whether such an act on the part of the passenger was fraught with danger; and lastly, whether a conclusion was inevitable that he received the injury as a result of his own lack of care and positive negligence on his part. It was further observed that a question may also be asked as to whether the accident resulting in the injuries to the passenger was the result of contemporaneous negligence on the part of the passenger as well as the driver of the vehicle concerned. 12. In State of Haryana v. Ram Pal 1989 ACJ 726 (P&H), it has been held as under: ...It is now well settled that no contributory negligence can be attributed to a passenger travelling in a bus or car, if he happens to have his arm on the window. There is no rule or law which bars passengers from putting their arms on the window and indeed the common experience is that this is often seen to be done. There is a duty of care that the driver of a motor vehicle owes to persons travelling in it and this duty extends to ensuring that such persons are not put in jeopardy because their arms are resting on the window... 13. To the similar effect it has been held in the Delhi Transport Undertaking v. Krishnawanti 1972 ACJ 423 (Delhi) and Andhra Pradesh State Road Trans. Corporation v. Dodda Somayajulu Sitaramamurty 1982 ACJ 44 (AP). 14. Therefore, considering the entire facts and circumstances of the case, we hold that the learned Tribunal has arrived at the correct conclusion that the accident in which the petitioner had sustained the injuries was as a result of the rash and negligent driving on the part of the driver of the bus and that the petitioner was not guilty of any contributory negligence. 15. Coming to the question of quantum of compensation assessed by the learned Tribunal, it is significant to note that the petitioner at the relevant time was of about 27 years of age. He was working as a mason. The petitioner as PW 4 has stated that he was earning daily wages of Rs. 60. According to the respondent, the wages of a mason, as per the Government rates at that time, was Rs. 28/- per day. The learned Tribunal has arrived at the conclusion that the petitioner was earning Rs. 800/- per month. Taking the permanent disability at 75 per cent, the loss in earning capacity of the petitioner has been arrived at Rs. 500/- per month, that is, Rs. 6,000/- per annum. 16. Taking into consideration the age of the petitioner at the relevant time, the learned Tribunal applied the multiplier of 15 and assessed compensation under the head loss of future income at Rs. 90,000. The Tribunal has further awarded compensation of Rs. 2,000/- towards medical expenses and Rs. 15,000/- as general damages for pain, shock, suffering and loss of amenities of life. Total compensation, thus awarded, comes to Rs. 1,07,000/-. 17. We do not find that the method adopted by the Tribunal in arriving at the quantum of compensation is, in any way, wrong. The learned Tribunal has correctly arrived at the monthly income of the petitioner and on the basis of the permanent disability sustained by the petitioner, has rightly held the loss of future income at Rs. 500/- per month. The compensation, therefore, awarded by the Tribunal cannot be in any manner said to be on a higher side. The compensation awarded, in our opinion, is just and reasonable. 18. No other point was urged before us. 19. As a result, the present appeal fails and the same is accordingly dismissed with costs which are quantified at Rs. 2,200/-.

Author: R Khurana

Himachal Road Trans. Corpn. vs Amar Singh on 23 May, 1996

Himachal Pradesh High Court

Gujarat High Court Case Information System Print CA/1057/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR INTERIM RELIEF No. 1057 of 2008 In LETTERS PATENT APPEAL No. 96 of 2008 In SPECIAL CIVIL APPLICATION No. 8011 of 2000 ====================================== GUJARAT WATER SUPPLY & SEWERAGE BOARD Versus JASUBHAI KABHAI HARIJAN ====================================== Appearance : MR HS MUNSHAW for Petitioner. RULE UNSERVED for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 10/09/2008 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) Issue fresh Notice of Rule making it returnable on 17th October 2008. (Bhagwati Prasad, J.) (D.H.Waghela, J.) *malek     Top

Author: Bhagwati Prasad,&Nbsp;Honourable D.H.Waghela,&Nbsp;

Jasubhai vs Rule Unserved For on 23 March, 2011

Gujarat High Court